Montgomery Ward v. Wilson

RAKER, Judge, concurring: I join in the judgment of the Court and join in Parts I, II, and III of the opinion. The Court states in footnote 5 that “ ‘implied malice’ in the sense of gross negligence can no longer form the basis of any punitive damages award in Maryland, regardless of the nature of the underlying tort.” I write separately because, although I agree that gross negligence is insufficient to support a punitive damages award, gross negligence plus should be considered the legal equivalent of actual malice. I agree with the concurring opinion of Judge McAuliffe in Komornik v. Sparks, 331 Md. 720 , 629 A.2d 721 (1993), wherein he stated that “outrageous conduct sufficient to support a conviction for second degree murder under the ‘depraved heart’ theory should be treated as the legal equivalent of actual malice, and should be sufficient to permit consideration of an award of punitive damages.” Id. at 731 , 629 A.2d at 726 (McAuliffe, J., concurring). I would adopt the test formulated by Judge McAuliffe: “A person who is actually aware that his [or her] action involves a clear and serious danger of substantial harm to the plaintiff or anyone in the plaintiffs class, and who unreasonably takes such action with flagrant indifference as to whether anyone will be harmed or not, should be liable for punitive damages if his [or her] conduct causes the foreseeable harm.

This type of outrageous conduct, being just short of intentional harm, warrants such a sanction. ⁷³⁸ Although the requisite conduct and state of mind will often include gross negligence, the test would not be met by a showing of gross negligence alone.” Id. at 732 , 629 A.2d at 727 (McAuliffe, J., concurring) (quoting Owens-Illinois v. Zenobia, 325