McMahon v. Chryssikos

• Decision Date: 03 October 1986
• Citation: 528 A.2d 104,218 N.J.Super. 571
• Parties: Brian P. McMAHON, Plaintiff, v. Peter P. CHRYSSIKOS, Defendant.
• Court: New Jersey Superior Court

Page 571

218 N.J.Super. 571

528 A.2d 104

Brian P. McMAHON, Plaintiff, v. Peter P. CHRYSSIKOS, Defendant.

Superior Court of New Jersey, Law Division Middlesex County.

Decided Oct. 3, 1986.

George H. Conover, Jr., Edison, for plaintiff (Levinson, Conover, Axelrod, Wheaton & Grayzel, attorneys).

Salvatore P. DiFazio, Somerville, for defendant (Golden, Lintner, Rothschild, Spagnola & DiFazio, attorneys).

CONLEY, J.S.C.

This personal injury litigation arises from an automobile accident. The complaint seeks both compensatory and punitive damages. Defendant has moved for summary judgment on the punitive damage claim. The motion raises an issue upon which there are no reported opinions in this State, i.e., whether punitive damages are available in an automobile accident personal injury case where defendant driver was intoxicated.

It is undisputed that plaintiff's automobile was struck in the rear by an automobile operated by defendant. Plaintiff contends that the force of the impact was such as to propel plaintiff's vehicle onto nearby railroad tracks and that seconds after plaintiff was assisted out of his vehicle, it was destroyed by an oncoming train. Plaintiff further alleges that a blood sample taken of the defendant after the accident revealed a blood alcohol level of .22. One of two summonses issued to defendant was for drunk driving. For the purpose of this motion, it is assumed that defendant was intoxicated, that such intoxication was a causative factor in the accident and that defendant was negligent.

To warrant a punitive damage award, there must be an intentional wrongdoing in the sense of an "evil-minded act". Alternatively, punitive damages may be warranted where the defendant's conduct arises from an act accompanied by a willful and wanton disregard of the rights of others. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49, 477 A.2d 1224 (1984); DiGiovanni v. Pessel, 55 N.J. 188, 190, 260 A.2d 510 (1970); Berg v. Reaction Motors Div., 37 N.J. 396, 414, 181 A.2d 487 (1962). But this alternative basis for punitive damages must be something more than mere commission of a tort. There must be such a conscious and deliberate disregard for the safety of others that the defendant's conduct may be called willful or wanton. Nappe, 97 N.J. at 50, 477 A.2d 1224; DiGiovanni, 55 N.J. at 190, 260 A.2d 510. Punitive damages have been characterized as "intentionally inflicting harm or acting in such a gross, wanton way, such a terrible way, so recklessly in disregard of what might happen to someone." Fischer v. Johns-Manville, 103 N.J. 643, 671, 512 A.2d 466 (1986). See also Enright v. Lubow, 202 N.J.Super. 58, 76, 493 A.2d 1228 (App.Div.1985).

The purpose of punitive damages, of course, is to serve as an expression of society's disapproval of outrageous or intolerable conduct. Such damages are "a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine". Fischer, 103 N.J. at 657, 512 A.2d 466, quoting from Cabakov v. Thatcher, 37 N.J.Super. 249, 259, 117 A.2d 298 (App.Div.1955). While punitive damages are intended to punish the wrongdoer, they are also intended to deter both the wrongdoer and others from similar outrageous conduct in the future.

There can be little doubt that drunk driving is intolerable conduct. The enormity of the problem and the substantiality of harm inflicted by intoxicated drivers was graphically detailed in State v. Dively, 92 N.J. 573, 588-589, 458 A.2d 502 (1983). See also In re Kallen, 92 N.J. 14, 28-29, 455 A.2d 460 (1983); State v. Kirk, 202 N.J.Super. 28, 56-57, 493 A.2d 1271 (App.Div.1985). Concern for this social problem has manifested itself in judicial decisions, Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), as well as legislative actions, L.1983, c.444 and L.1983, c.129, (amending the penalty provisions of N.J.S.A. 39:4-50); L.1985, c.97, L.1984, c.212, L.1983, c.39 (amending N.J.S.A. 2C:11-5 and increasing the potential criminal sentencing sanctions for death by auto offenses). It is an understatement to say that drunk driving conduct needs to be deterred.

It is this overriding concern for the problem and the need to deter that has prompted many state courts to allow punitive damages where a driver becomes intoxicated and thereafter is involved in an automobile accident. In Taylor v. Superior Court of Los Angeles County, 24 Cal.3d 890, 598 P.2d 854, 157 Cal.Rptr. 693 (Sup.Ct.1979), for example, the intoxicated defendant driver had a prior history of alcoholism and DWI convictions coupled with a prior motor vehicle accident causally related to the defendant's intoxication. In addition, the defendant, in direct violation of a condition of probation, had obtained employment involving transportation of alcoholic beverages. Notwithstanding that punitive damages might well have been justified upon these particular circumstances since they substantially heightened the probability and foreseeability of further drunk driving and involvement in a motor vehicle accident, the Supreme Court of California held that such aggravating factors were not prerequisites to an award of punitive damages in drunk driving cases. It said:

There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated ... (citation omitted). One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents. [598 P.2d at 857, 157 Cal.Rptr. at 697.]

The justification for this conclusion was society's need to deter similar future conduct. 598 P.2d at 857-859, 157 Cal.Rptr. at 697-699. Thus, after detailing the statistical data correlating drunk driving with auto fatalities, the court said:

It is crystal clear to us that courts in the formulation of rules on damage assessment and in weighing the deterrent function must recognize the severe threat to the public safety which is imposed by the intoxicated driver. The lesson is self-evident and widely understood. Drunken drivers are extremely dangerous people. [598 P.2d at 859, 157 Cal.Rptr. at 698.]

See also Peterson v. Superior Court, 31 Cal.3d 147, 642 P.2d 1305, 181 Cal.Rptr. 784 (Sup.Ct.1982).

The majority of states that have considered whether punitive damages are warranted where an intoxicated defendant driver is involved in an accident have reached an affirmative conclusion. Some, like California, have done so based upon a finding that conduct consisting of voluntary intoxication and thereafter operation of an automobile on public roads per se warrants punitive damages. Arkansas--Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (Sup.Ct.1961); Volger v. O'Neal, 226 Ark. 1007, 295 S.W.2d 629 (Sup.Ct.1956); Hall v. Young, 218 Ark. 348, 236 S.W.2d 431 (Sup.Ct.1951); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (Sup.Ct.1948); Ingersoll v. Mason, 254 F.2d 899 (8th Cir.1958); Dearing v. Ferrell, 165 F.Supp. 508 (D.Ct.1958); Colorado--Butters v. Mince, 43 Colo.App. 89, 605 P.2d 922 (Ct.App.1980); Florida--Ingram v. Pettit, 340 So.2d 922 (Sup.Ct.Fla.1976); Alexander v. Alterman Transport Lines, 387 So.2d 422 (1st D.C.A.Fla.1980); Georgia--Calloway v. Rossman, 150 Ga.App. 381, 257 S.E.2d 913 (Ct.App.1979); Iowa--Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (Sup.Ct.1954); Minnesota--Anderson v. Amundson, 354 N.W.2d 895 (Ct.App.Minn.1984); Hawkinson v. Geyer, 352 N.W.2d 784 (Ct.App.Minn.1984); Montana--Allers v. Willis, 197 Mont. 499, 643 P.2d 592 (Sup.Ct.1982); New York--Colligan v. Fera, 76 Misc.2d 22, 349 N.Y.S.2d 306 (Civ.Ct.1973); Oregon--Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (Sup.Ct.1973); Dorn v. Wilmarth, 254 Or. 236, 458 P.2d 942 (Sup.Ct.1969). In determining whether punitive damages are warranted, other states have evaluated the conduct of voluntary intoxication and driving coupled with other aggravating circumstances. Arizona--Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (Sup.Ct.1977); Connecticut--Infeld v. Sullivan, 151 Conn. 506, 199 A.2d 693 (Sup.Ct.1964); Illinois--Madison v. Wigal, 18 Ill.App.2d 564, 153 N.E.2d 90 (App.Ct.1958); Mississippi--Collins v. Black, 380 So.2d 241 (Sup.Ct.Miss.1980); New Mexico--Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (Ct.App.1971); Ohio--Detling v. Chockley, 70 Ohio St.2d 134, 436 N.E.2d 208 (Sup.Ct.1982); Richards v. Office Products Co., 55 Ohio App.2d 143, 380 N.E.2d 725 (1977); Pennsylvania--Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (Sup.Ct.1970); Tennessee--Pratt v. Duck, 28 Tenn.App. 502, 191 S.W.2d 562 (Sup.Ct.1945); Texas--Higginbotham v. O'Keeffe, 340 S.W.2d 350 (Tex.Civ.App.1960); Virginia--Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299 (Sup.Ct.App.1962); Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (Sup.Ct.App.1960). Under both approaches, i.e. drunk driving per se or drunk driving coupled with other aggravating factors, punitive damages may be available in an automobile accident case. Only a few states have appeared to hold that punitive damages are not available in automobile accidents regardless of intoxication or any other circumstances. Giddings v. Zellan, 160 F.2d 585 (D.C.Cir.1947) (applying Maryland law). The latter approach arises in those states which do not permit punitive damages for willful and wanton misconduct, but which require proof of malice, fraud or evil intent. In Giddings, the court also concluded that prosecution under drunk driving statutes would be more effective than "inflammatory verdicts." Id. at 587. See generally, Annot., "Damages--Intoxication of Driver as Basis for Awarding Punitive Damages", 65 A.L.R.3d 656 (1975); "Punitive Damages", 8 Pepperdine L.Rev. 117 (1980).

As previously indicated, New Jersey...