Flockhart v. Wyant

• Decision Date: 13 March 1991
• Docket Number: No. 16971,16971
• Citation: 467 N.W.2d 473
• Parties: Ian FLOCKHART and Sandra Flockhart, Plaintiffs and Appellees, v. Sharon WYANT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 473

467 N.W.2d 473

Ian FLOCKHART and Sandra Flockhart, Plaintiffs and Appellees, v. Sharon WYANT, Defendant and Appellant.

No. 16971.

Supreme Court of South Dakota.

Argued Nov. 26, 1990.

Decided March 13, 1991.

Gregory A. Eiesland and Leah J. Fjerstad of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for plaintiffs and appellees.

Benjamin J. Eicher of Wallahan & Eicher, Rapid City, for defendant and appellant.

MILLER, Chief Justice.

This is an appeal by defendant from a punitive damage award entered in a bifurcated jury trial. In the compensatory damage phase, the jury returned a verdict in favor of plaintiff Ian Flockhart in the amount of $15,156.70. A separate punitive damage trial was held to the same jury which awarded Flockhart punitive damages in the amount of $30,000.00. Also appealed is an order denying defendant's motion for judgment n.o.v. and/or motion for a new trial, and defendant's motion for remittitur. We affirm.

FACTS

On January 8, 1988, at approximately 2:00 p.m., an accident occurred between Sharon Wyant and Flockhart. It took place just east of Rapid City, South Dakota, on Interstate 90. Flockhart was travelling eastbound, Wyant westbound. Wyant lost control of her vehicle and went through the median striking Flockhart's pickup truck.

Wyant began drinking at about 8:00 p.m. January 7. (She admitted to drinking a six-pack of beer.) The next morning (the day of the accident) Wyant, although she knew she would be traveling to Rapid City, had "two or three" beers at a bar in her hometown of Wall (approximately fifty miles east of Rapid City) between 10:00 a.m. and 11:00 a.m. She then began her trip towards Rapid City, during which she consumed more beer. Next, she stopped and drank at a bar in New Underwood (approximately thirty-five miles west of Wall and fifteen miles east of Rapid City). She then proceeded toward Rapid City where the accident occurred. She had beer in her car at the time of the accident.

Wyant, who was convicted of driving under the influence of alcohol as a result of this accident, ¹ testified that she had only consumed about six beers that day. However, her blood alcohol level was 0.30%.

Wyant, who apparently had five previous alcohol-related offenses, dating back to 1972, had been through various alcohol treatment programs. She testified that she has seen movies, attended classes, and had been to lectures about drinking and driving. Wyant had been fined for each of her prior DUI convictions but testified that the fines had not kept her from drinking, nor had they kept her from driving while she had been drinking. Wyant testified that she no longer drives nor does she want a driver's license (she states that she would not drive without a driver's license).

ISSUE I

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN INSTRUCTING THE JURY THAT THEY COULD AWARD PUNITIVE DAMAGES

BASED ON A PREPONDERANCE OF THE EVIDENCE RATHER THAN BY A CLEAR AND CONVINCING STANDARD.

As stated previously, this was a bifurcated trial. During the punitive damages portion of the trial, the court instructed the jury that plaintiff (Flockhart) had the burden of proving the elements for punitive damages by a preponderance of the evidence.

Wyant objected to the giving of a jury instruction setting forth a "preponderance" of the evidence standard and instead proposed an instruction setting forth a "clear and convincing" evidence standard, which the trial court rejected. Wyant argues on appeal that the "clear and convincing" evidence standard must be applied in punitive damages cases, asserting that this requirement stems from any or all of the following grounds: the legislative language expressed or implied by the provisions of SDCL 21-1-4.1; federal and/or state constitutional due process protection; and public policy. These contentions will be addressed seriatim.

A. SDCL 21-1-4.1.

In 1986 the South Dakota Legislature enacted SDCL 21-1-4.1, which provides:

In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against. (Emphasis supplied.)

Wyant argues that, by implication, the provisions of SDCL 21-1-4.1 require that the jury use a clear and convincing evidence standard for its determination of punitive damages. Flockhart asserts that the statute makes no such requirement directly or impliedly. Flockhart argues that if the legislature had intended a different burden of proof for punitive damages, it would have said so. Wyant responds to that argument, asserting that since the legislature has chosen to treat the evidentiary standard by requiring a prima facie case for punitive damages different than that for other torts, the same rationale should govern the standard of proof which must be applied by the jury in reaching its verdict. They allege that it would make no sense for a trial court to apply the clear and convincing evidence standard in deciding whether the jury should even be permitted to determine punitive damages, and then turn around and allow the jury to apply a lesser standard in making such determination. We disagree.

SDCL 21-1-4.1 requires the trial court to apply a clear and convincing evidence standard to determine, before any such claim may be submitted to discovery or to the jury, whether there is a reasonable basis to believe there has been a willful, wanton or malicious conduct on the part of the party claimed against. That does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis. The clear and convincing language merely modifies the "reasonable basis" language to make a prima facie showing that punitive damages may be in order.

B. Federal or state constitutional due process protection.

Wyant next argues that the due process clause contained in the state constitution ² or the United States Constitution, amend. XIV, Sec. 1, applies to punitive damage claims by virtue of their "penal nature." Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Wyant then asserts that in order to bring punitive damage procedures in compliance with due process protection, the proof of each element of a punitive damages claim must be made by clear and convincing evidence rather than by a mere preponderance of the evidence. Wyant cites Wheeler, The Constitutional Case for Reforming Punitive Damages Procedures, 69 Va.L.Rev. 269 (1983), for this proposition.

Wyant observes that Justices O'Connor and Scalia of the United States Supreme Court have noted that the jury's unbridled discretion in determining punitive damage liability "may violate the Due Process Clause." Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 87, 108 S.Ct. 1645, 1655, 100 L.Ed.2d 62, 78 (1988) (O'Connor, J., concurring). Those Justices asserted that Mississippi's standardless grant of discretion to the jury may be inconsistent with due process. 486 U.S. at 88, 108 S.Ct. at 1656, 100 L.Ed.2d at 78. However, as noted in the discussion in Issue III, South Dakota does have standards in determining the amount of damages a jury can award. ³

Due process does not require the same procedural safeguards for all types of proceedings or for all deprivations of property. Instead, the required procedures can vary according to the specific factual context. See generally Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U.S. 358, 370 [90 S.Ct. 1068, 1075, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.

The intermediate standard, which usually employs some combination of the words 'clear,' 'cogent,' 'unequivocal' and 'convincing,' is less commonly used, but nonetheless 'is no stranger to the civil law.' Woodby v. INS, 385 U.S. 276, 285 [87 S.Ct. 483, 487, 17 L.Ed.2d 362] (1966). See also C. McCormick, Evidence Sec. 320 (1954); 9 J. Wigmore, Evidence Sec. 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of...