Smith v. Chapman

• Decision Date: 10 May 1977
• Docket Number: No. 13056--PR,13056--PR
• Citation: 115 Ariz. 211,564 P.2d 900
• Parties: Patricia SMITH and Homer Smith, wife and husband, and Bob Smith, Appellants, v. Ronald Ray CHAPMAN and Roberta Chapman, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 900

564 P.2d 900

115 Ariz. 211

Patricia SMITH and Homer Smith, wife and husband, and Bob Smith, Appellants, v. Ronald Ray CHAPMAN and Roberta Chapman, husband and wife, Appellees.

No. 13056--PR.

Supreme Court of Arizona, In Banc.

May 10, 1977.

Rabinovitz, Minker & Dix by Bernard I. Rabinovitz, Tucson, for appellants

Fish, Briney, Duffield & Miller by Arthur H. Miller, Tucson, for appellees.

HAYS, Justice.

This tort action arose from an automobile accident which occurred on October 27, 1972. After a seven-day trial in September, 1975, a jury returned a verdict against Homer and Patricia Smith, plaintiffs below and appellants herein. Upon appeal, the Arizona Court of Appeals reversed and remanded for a new trial. We accepted a petition for review and vacate the opinion of the Court of Appeals. However, we also reverse and remand for a new trial.

The facts of the ase are that a two-car collision occurred on or near a six-lane highway in Tucson, Arizona. Appellant Patricia Smith was pulling out of a motel driveway on a dark, cold, rainy October night, to cross the highway and go south. At the same time, the appellee, Ronald Chapman, was traveling in a northerly direction in the easternmost lane of the highway. Chapman claimed Smith was contributorily negligent in that she pulled out in front of him without warning, but he did not counterclaim for damages. Smith alleged in her complaint that Chapman was not only negligent in his driving, but by virtue of being intoxicated was so grossly negligent as to entitle her to punitive, as well as compensatory damages. She allegedly suffered a permanent disability of her right hand which resulted in her being unable to further pursue her career as a registered nurse.

One eyewitness, Mrs. Ranger, a night clerk at the motel from whose driveway Smith was existing, testified that Chapman had his right directional signal on and began turning right into the motel driveway. At the same time, Smith began to pull out. Mrs. Ranger testified Chapman suddenly changed directions and swerved left into Smith's car. It was also Mrs. Ranger's testimony that the accident occurred in the driveway of the motel. However, the Smith car ended up on the median in the middle of the highway, and the investigating highway patrolman was unable to determine the actual point of impact. Mrs. Smith testified she remembered only the impact, not where it occurred.

Both Mrs. Ranger, who saw Chapman after the accident, and the same investigating officer testified that Chapman appeared to them to be intoxicated. He failed several agility tests given him by the officer at the scene, and the results of a breach examination revealed Chapman was, indeed, presumptively intoxicated.

Appellees' evidence showed that Smith had a prior existing injury to the same hand allegedly damaged in the accident. It was als Chapman's testimony that he'd had only one twelve-ounce beer a couple of hours before the accident, that he never intended to, nor never did turn into the driveway of the motel, and that Smith negligently pulled out in front of him and he could not avoid hitting her.

At the close of the appellants' case, the appellees, husband and wife, moved for a directed verdict on the issue of punitive damages. The motion was granted as to both of them. The issues of appellee Chapman's negligence and compensatory damages were submitted to the jury, with an instruction on appellant's possible contributory negligence. The jury returned a verdict for the appellees.

Three issues were raised before the Court of Appeals:

(1) Did the trial court commit reversible error in directing a verdict for the appellees on punitive damages?

(2) Did the trial court err in refusing to instruct the jury that if they found appellee had been grossly or wantonly negligent, then appellant's contributory negligence was no defense?

(3) Did the trial court err in refusing to grant appellants' motion to voir dire Reversing on the first two issues, the Court of Appeals opinion did not go into the third at all.

a juror during the trial, or in the alternative, for a mistrial?

The Court of Appeals held that 'voluntary intoxication on the part of the operator of a motor vehicle involved in an accident proximately caused by his negligent operation of the vehicle constitutes a reckless disregard for the safety of others (wanton misconduct) and the court erred in denying the requested instruction. . . .' While we agree that the trial court erred in failing to give the requested instruction and by granting appellees a directed verdict on the issue of punitive damages, we do not agree that the Court of Appeals has properly stated the law in this area.

DIRECTED VERDICT

We conclude, as the Court of Appeals, did, that it was erroneous for the trial court to direct a verdict against appellants and for appellees on the issue of punitive damages. We disagree, however, with that courts' legal opinion that 'intoxication plus negligent driving equals reckless disregard for the safety and rights of others,' under all circumstances. The law of torts does not permit such a sweeping inference; it eliminates the necessity of showing proximate cause and makes a driver, who has had some alcoholic beverage previous to driving, an insurer in strict liability for punitive damages, whether or not the consumption of the alcohol has anything whatever to do with a subsequent accident.

Driving while intoxicated is a violation of A.R.S. § 28--692 and, as such, amounts to negligence per se in Arizona. Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786 (1952). Negligence per se does not, however, amount to actionable negligence.

'It is only when an act negligent per se is shown by the greater weight of evidence to be the proximate cause of an injury that it becomes actionable negligence and liability arises therefrom.' Anderson v. Morgan, 73 Ariz. at 346, 241 P.2d at 787.

Proximate cause in Arizona has been defined as

'* * * that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.' McDowell v. Davis, 104 Ariz. 69, 71, 448 P.2d 869, 871 (1969).

There may also be more than one 'proximate cause' without which the resulting injuries would not have occurred. McDowell v. Davis, supra.

It is well-settled in Arizona that whether negligence is the proximate cause of the injury or damage is, generally, a question for the jury. Stearman v. Miranda, 97 Ariz. 55, 396 P.2d 622 (1964). It is equally true that a trial court should not remove the issue of wanton negligence from the consideration of the jury unless the evidence thereof is 'slight and inconclusive bordering on the realm of conjecture.' Nichols v. Baker, 101 Ariz. 151, 153, 416 P.2d 584, 586 (1966).

It is further the rule in Arizona that punitive damages may be recovered in tort actions. McNelis v. Bruce, 90 Ariz. 261, 367 P.2d 625 (1961). They are awarded for

'. . . outrageous conduct, that is, for acts done with bad motive Or with a reckless indifference to the interest of others. . . .' (Emphasis added). Restatement of Torts, Punitive Damages, § 908, comment b.

Punitive damages are not permitted in Arizona for mere negligence: there also must be shown a reckless or wanton disregard of the rights of others. Hall v. Motorists Ins. Corp., 109 Ariz. 334, 509 P.2d 604 (1973).

'Wilful misconduct means intentional, wrongful conduct, done either with knowledge that serious injury to another probably will result or with a wanton and reckless disregard of the possible results And is essentially a question of fact. (cite omitted).' (emphasis added). Southern Pacific Transportation Co. v. Lueck, 111 Ariz. 560, 563, 535 P.2d 599, 602 (1975), Cert. denied, 425 U.S. 913, 96 S.Ct. 1510, 47 L.Ed.2d 763 (1976).

Under certain circumstances, driving while intoxicated can amount to gross, wanton and actionable negligence, and recovery may then be had for punitive damages. Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929). In Ross, the defendant was a licensed taxicab driver, taking passengers to and from the state fairgrounds in Phoenix. Vehicle and pedestrian traffic around the area was heavy. While obviously intoxicated, the defendant sped recklessly through the crowds and was driving on the wrong side of the street when he struck another vehicle headon. It was easy for the jury to determine from those facts, that the driver's voluntary intoxication was an inherent part of the negligent acts which proximately caused the accident and resulting injuries, and that the defendant had acted in 'reckless indifference to the interest of others.'

It is also true in Arizona that driving while intoxicated does not Always amount to actionable negligence, allowing the recovery of damages. Anderson v. Morgan, supra. In that case, while the evidence clearly supported a determination that the defendant driver was intoxicated, it did not support a finding that any of the acts of defendant, so intoxicated, proximately caused the accident in which he was involved. It was held, in Anderson, that a verdict should have been directed for the defendant at the close of the plaintiff's case.

We consider the hypothetical situation set forth by appellees in their motion for rehearing...