Olson v. Walker, 1

• Decision Date: 27 June 1989
• Docket Number: No. 1,CA-CV,1
• Citation: 162 Ariz. 174,781 P.2d 1015
• Parties: , 12 A.L.R.5th 1020 Thomas Allen OLSON, an individual, Plaintiff-Appellee, v. Jerry H. WALKER and Rachelle Walker, husband and wife, Defendants-Appellants. 88-316.
• Court: Arizona Court of Appeals

Page 1015

781 P.2d 1015

162 Ariz. 174, 12 A.L.R.5th 1020

Thomas Allen OLSON, an individual, Plaintiff-Appellee, v. Jerry H. WALKER and Rachelle Walker, husband and wife, Defendants-Appellants.

No. 1 CA-CV 88-316.

Court of Appeals of Arizona Division 1, Department D.

June 27, 1989.

Review Denied Nov. 21, 1989. ^*

[162 Ariz. 176] Harrison, Harper, Christian & Dichter, P.C. by Douglas L. Christian and Gregg H. Temple, Phoenix, for defendants-appellants.

Berry & Martori by Frederick C. Berry, Jr., Phoenix, for plaintiff-appellee.

OPINION

GRANT, Chief Judge.

This appeal primarily concerns the award of punitive damages in a personal injury action. A secondary issue concerns the trial court's refusal to strike certain expert testimony. For the reasons explained below, we affirm.

FACTS

We view the facts most favorably to upholding the jury verdict. Venerias v. Johnson, 127 Ariz. 496, 622 P.2d 55 (App.1980). Thomas Allen Olson and Jerry H. Walker were involved in a motor vehicle accident at approximately 6:30 p.m. on October 30, 1985. Immediately prior to the accident, Walker spent approximately two hours at a bar with his accountant and one other acquaintance. During that time, the three men played pool and drank at least two pitchers of beer between approximately 4:30 p.m. and 5:30 p.m. When they left the bar, the accountant drove to a community college where he taught an accounting class. Walker drove east on Bell Road, which has a posted speed limit of 40 miles per hour. A witness testified that Walker was traveling at least 50-55 miles per hour, that he swerved in and out of traffic, that he cut the witness off, and that he lost control of his vehicle.

Meanwhile, Olson was driving his motorcycle to pick up a pizza. He was almost stopped in the left-hand turn lane on Bell Road, waiting for traffic to clear so he could turn left, when Walker's vehicle rear-ended him. Walker did not immediately stop, but when he did get out of his car, he staggered, smelled strongly of alcohol, and had trouble standing. He had bloodshot eyes and slurred his speech. A witness testified that Walker attempted to leave the scene, but was stopped by two bystanders. Walker was arrested for driving while intoxicated. See A.R.S. § 28-692. As a result, he ultimately paid a fine of $372.50 and had his driver's license temporarily suspended.

Based upon his blood-alcohol level approximately one hour after the accident, an expert toxicologist testified that Walker's blood-alcohol level at time of the accident was .155 percent. He also testified that Walker must have consumed ten or more twelve-ounce cans of beer during the one-hour period he was drinking. There was also disputed testimony that Walker took 20 mg. of Valium approximately one-half hour before the accident. The toxicologist testified that the Valium and alcohol would have intensified the effect of each other.

A jury trial resulted in an award of $133,000 compensatory damages and $100,000 punitive damages to Olson. After the trial court denied his motion for a new trial or, in the alternative, remittitur, Walker brought this appeal.

ISSUES

Walker raises the following issues:

(1) Whether the evidence at trial was insufficient to warrant punitive damages;

(2) Whether the $100,000 punitive damages award is excessive and the result of passion and prejudice;

(3) Whether the punitive damages award is unconstitutional because it violates Walker's due process rights, is an excessive fine, or constitutes double jeopardy; and

(4) Whether the trial court erred by refusing to instruct the jury to disregard certain testimony regarding arthritic changes in Olson's lower back.

Additional facts will be added as necessary for the discussion of each issue.

I. PUNITIVE DAMAGES AWARD

Walker argues that the evidence at trial was insufficient to warrant a punitive damages instruction. Specifically, he argues that there was no evidence that Walker intended to injure Olson or that he knowingly and consciously disregarded a substantial risk of harm to Olson or others.

Although an award of punitive damages should be upheld if there is any reasonable evidence to support it, an award may be reversed when the punitive damages issue has been submitted to the jury on slight and inconclusive evidence. Filasky v. Preferred Risk Mutual Ins. Co., 152 Ariz. 591, 599, 734 P.2d 76, 84 (1987). To properly analyze Walker's argument, we must examine the punitive damages standard that has evolved in recent years and then determine whether there was more than slight or inconclusive evidence to warrant an award.

A. Punitive Damages Standard

Punitive damages are awarded primarily to punish the wrongdoer and deter others from similar conduct. Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330, 723 P.2d 675, 679 (1986). The award of punitive damages is limited to situations where these objectives can be furthered. Gurule v. Illinois Mutual Life and Casualty Co., 152 Ariz. 600, 601, 734 P.2d 85, 86 (1987). Punitive damages are therefore awarded only where the defendant's wrongful conduct is the result of an "evil mind," something more than the mere commission of a tort. Linthicum, 150 Ariz. at 330, 723 P.2d at 679. Accordingly, the primary inquiry is based on the wrongdoer's state of mind or attitude. Id. An evil mind is found where the defendant intended to injure the plaintiff, or where the defendant, not intending to cause injury, "consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others." Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986). An evil mind can be inferred when the defendant's conduct is so outrageous or egregious that it can be assumed he intended to injure or that he consciously disregarded the substantial risk of harm created by his conduct. Gurule, 152 Ariz. at 602, 734 P.2d at 87; Rawlings, 151 Ariz. at 162-63, 726 P.2d at 578-79.

The Arizona Supreme Court first announced the standard described above in insurance bad-faith cases. See Rawlings; Linthicum. The court correspondingly imposed a more stringent standard of proof, thereby allowing the recovery of punitive damages only upon clear and convincing evidence of the defendant's evil mind. Linthicum, 150 Ariz. at 332, 723 P.2d at 681; see also Gurule. These standards have since been applied to other types of cases, including products liability, see Volz v. Coleman Co., 155 Ariz. 567, 748 P.2d 1191 (1987), and personal injury actions. See Ranburger v. Southern Pacific Transportation Co., 157 Ariz. 551, 760 P.2d 551 (1988).

Previously, the question of punitive damages against intoxicated drivers was allowed to go to the jury upon a showing of gross or wanton negligence. E.g., Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); Rustin v. Cook, 143 Ariz. 486, 694 P.2d 316 (App.1984). The current standard for awarding punitive damages developed by recent case law applies to these types of cases and must be utilized in determining whether punitive damages are recoverable in this case.

B. Sufficiency of the Evidence

We must next determine whether the evidence was clear and convincing that Walker acted with an "evil mind," in that he consciously pursued a course of conduct knowing it created a substantial risk of significant harm to others.

In support of the punitive damages award, Olson points to Walker's testimony that he knew that it was dangerous to drive while intoxicated, and that intoxicated drivers create a substantial risk of harm to others. Olson also refers us to the following evidence:

(1) Walker's intoxilyzer test results were .14 and .15 percent one hour after the accident. An expert toxicologist testified that Walker consumed at least ten beers during the hour he admits he was drinking and that his blood alcohol level would have been at least .155 percent at the time of the accident;

(2) There was testimony that Walker took 20 mg. of Valium 25 minutes before the accident. The Valium and alcohol would have enhanced the effects of each other;

(3) Walker drove recklessly before the accident and caused another driver to take evasive action;

(4) Walker was speeding at the time of the accident;

(5) Walker did not brake or take other evasive action until after he collided with Olson's motorcycle;

(6) Walker attempted to flee the scene and was physically restrained by two bystanders; and

(7) Walker was agitated after he was arrested and stated that he needed more Valium.

Although Olson suggests that a determination of voluntary intoxication is sufficient to warrant a punitive damages instruction, he claims there is abundant additional evidence showing Walker's "evil mind" and the punitive damages award should therefore be affirmed.

Walker, on the other hand, contends that a plaintiff must show more than defendant's voluntary intoxication; he must show that when the defendant got into his car to drive, he either knew he was too intoxicated to drive safely, or that he deliberately became intoxicated knowing he would later drive. Walker points to his own testimony that he did not feel that his driving ability was impaired when he left the bar and that he did not know he might be creating a substantial risk of significant harm to others by driving. There is no evidence, he claims, that he became intoxicated knowing he would later create a substantial risk of harm to others by driving. He points to undisputed testimony that he met with his two companions to discuss business and to relax after work, as opposed to becoming intoxicated, and that one of his companions taught an accounting class after consuming the same amount of alcohol as Walker.

We do not agree with Walker's ultimate conclusion that there was no evidence to support a punitive damages jury instruction. Walker ignores the fact that an evil mind can be inferred by egregious or outrageous conduct. We believe there was sufficient evidence that Walker's conduct was so outrageous that an...