Nast v. Lockett

CHARLES E. ORTH, Jr., Judge, Specially Assigned. This appeal revolves around the propriety of submitting to the trier of fact in an automobile accident case the allowance of punitive damages against a drinking driver. I Three cars were involved in the accident. One was driven by Lois Ann Lockett, the second by Charles Carroll Houck, and the third by Edward P. Nast.

About 8:30 p.m. on 17 February 1984, Lockett was heading south in the southbound lane of York Road near its intersection with Lambourne Road in Baltimore County, Maryland. Nast was about 10 car lengths behind her. Houck was heading north in the right curb northbound lane of York Road, south of the Lockett car. Lockett tried to make a U-turn from the southbound lane of York Road, across the two northbound lanes, so as to be able to proceed north on York Road.

She was unable to complete the turn and came to a stop facing the northbound curb. She began to back up so she could complete the turn. Houck continued north without braking or deviating from his course and collided with the right side of Lockett’s car. Nast testified that when Lockett started to make her U-turn, Houck’s car was about 300 feet away, but another witness, an off duty Baltimore City police officer, who was following Houck, estimated the distance between the Houck and Lockett cars to be 15 or 20 feet when he first observed them before the collision.

He said: ³⁴⁸ “It had just started to drizzle,” and suggested that Houck was unable to stop “due to the wet conditions on the roadway.” Houck did not recall the details of the accident. He testified: [A]ll of a sudden instantly there was an automobile in front of me. I had no alternative. There was nothing I could do.

It happened within a second to two seconds. I couldn’t get out of the way of that car. I couldn’t avoid it. He did not know where the car he struck came from, in which direction it had been traveling (“the car was coming towards me,”) or what part of the car he hit.

He vaguely recalled hitting a second car. Houck’s car careened off of Lockett’s car into the southbound lane of York Road and struck Nast’s car. Fortunately there were no fatalities, but there were personal injuries and property damage. Nast’s fiancee, now his wife, was a passenger in his car.

They entered suit in the Circuit Court for Baltimore City seeking compensatory and punitive damages from Lockett and Houck. The trial judge did not permit the matter of punitive damages to go to the jury. The jury awarded compensatory damages to the Nasts against Lockett and Houck. The Nasts appealed to the Court of Special Appeals.

We certified the case to us on our own motion before decision by that court. The primary question is whether the trial court erred in keeping the matter of punitive damages from the consideration of the jury. II “Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury.” Black’s Law Dictionary 352 (5th ed. 1979). In other words, they are “damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him.” Id.

See McAlister v. Carl, 233 Md. 446, 451-457 , 197 A.2d 140 (1964). ³⁴⁹ Punitive or exemplary damages are damages on an increased scale, awarded not as the measure of actual loss suffered but “as punishment for outrageous conduct and to deter future transgressions.” Black at 352. 1 See First Nat’l Bank v. Fid. & Dep. Co., 283 Md. 228, 232 , 389 A.2d 359 (1978); General Motors Corp. v. Piskor, 281 Md. 627, 638 , 381 A.2d 16 (1977). We held in Shell Oil Co. v. Parker, 265 Md. 631, 644 , 291 A.2d 64 (1972), that there must be at least a showing of compensable injury, that is, an award of compensatory damages, before a recovery of punitive damages is allowed. 2 In other words, to support the allowance of punitive damages, the negligence of the defendant must be established and damages awarded the plaintiff to compensate him for the actual damages incurred by the negligent conduct of the defendant. What we say herein about punitive damages is within that frame of reference.

We start with the generally accepted rule that “punitive damages are not recovered as a matter of right, even though the facts of the case may be such as to make their allowance proper, but rather, that their allowance rests in the sound discretion of the [trier of fact, be it court or jury].” Annot., Intoxication of Automobile Driver as Basis for Awarding Punitive Damages, 65 A.L.R.3d 656 , 660-661 (1975). Whether the trier of fact is to be permitted to exercise that discretion is a matter of law for the trial court. In other words, the sufficiency of the evidence to submit the question of punitive damages to the trier of fact is a question of law. If a court’s ruling on any question of law is not right, it is wrong.

When a ruling involves the exercise of discretion, the range within which a ruling may be right is equal to ³⁵⁰ the permitted range of discretion. But the law gives no judge or court discretion to make a wrong ruling. Boyd v. State, 22 Md.App. 539 , 323 A.2d 684 , Powers, J., dissenting at 554, 323 A.2d at 693 , cert. denied, 272 Md. 738 (1974). So the question before us is whether the trial court here was right or wrong in keeping from the jury the matter of the allowance of punitive damages as to Lockett and as to Houck.

The basic rule for the entitlement of punitive or exemplary damages is that there be actual malice. That is, there must be an element of fraud, or malice, or evil intent, or oppression entering into and forming part of the wrongful act. Philadelphia, W. & B. R.R. Co. v. Hoeflich, 62 Md. 300, 307 , 50 Amer.Rpt. 223 (1884), quoted in Davis v. Gordon, 183 Md. 129, 133 , 36 A.2d 699 (1944). The rule held fast in this State until our decision in Smith v. Gray Concrete Pipe Co., 267 Md. 149 , 297 A.2d 721 (1972).

Until that time we had never approved an award of punitive damages in a motor vehicle case. Id. at 162 , 297 A.2d 721 . In Smith , however, we fashioned a standard for the allowance of punitive damages in such cases. We looked to the crime of manslaughter by automobile.

The statute creating the crime, now codified in Maryland Code (1957, 1987 Repl.Vol.) Art. 27, § 388, provides in pertinent part: Every person causing the death of another as the result of the driving ... of an automobile ... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as “manslaughter by automobile — ” We observed that our decisions have interpreted this statute “as requiring proof of gross negligence, which has been defined in this context as ‘a wanton or reckless disregard for human life.’ ” 267 Md. at 167 , 297 A.2d 721 . We said: We regard a “wanton or reckless disregard for human life” in the operation of a motor vehicle, with the known dangers and risks attendant to such conduct, as the legal equivalent of malice. ³⁵¹ Id. at 168 , 297 A.2d 721 . We considered it to be “a standard which, although stopping just short of wilful or intentional injury, contemplates conduct which is of an extraordinary or outrageous character.” Id. But we found that it was “both a functional and definitive test which ... enjoys the virtue of having been frequently applied in this State [in automobile manslaughter cases].” Id.

We asserted: And if, as a test, it has been regarded as adequately stringent to serve as a basis for possible imprisonment, then, surely, there appears to be no valid reason for deeming it too liberal for imposing civil sanctions. Id. We held “that it is the standard by which claims for exemplary damages arising out of motor vehicle operation are to be tested.” Id. We iterated the test in H & R Block, Inc. v. Testerman, 275 Md. 36, 47 , 338 A.2d 48 (1975). 3 Thus, the test in a civil automobile accident action for the submission of the award of punitive damages to the trier of fact is the same as the test in a criminal prosecution of manslaughter by automobile for the submission of the question of the guilt of the accused to the trier of fact.

In each case, as a matter of law, the evidence must be sufficient (in the former by a preponderance thereof, in the latter beyond a reasonable doubt) to establish that the defendant was grossly negligent, that is, that he had a wanton or reckless disregard for human life in the operation of an automobile. The legal threshold that must be crossed before the trier of fact is given discretion to award punitive damages is a stringent one. It deals with the state of mind of the defendant driver. If the driver intended death or injury, there is actual malice, and punitive damages may be awarded.

If it cannot be shown that the ³⁵² driver intended death or injury, but it can be shown that he or she had a reckless lack of concern for whether others might be killed or seriously injured, i.e. had a wanton or reckless disregard for human life, the law considers that to be the equivalent of intending the harm, and punitive damages may be awarded. Only conduct that is of an extraordinary or outrageous character will be sufficient to imply this state of mind, and thus suffice as the legal equivalent of actual malice. Simple negligence will not be sufficient— even reckless driving may not be enough. It is not reckless driving that allows punitive damages; it is the reckless disregard for human life.

Reckless driving may be a strong indicator, but unless it is of an extraordinary or outrageous character, it will ordinarily not be sufficient. We did not have occasion in Smith to apply the test we enunciated therein. In that case the question of punitive damages in motor vehicle cases was certified to us by the United States District Court for the Eastern District of Virginia pursuant to Maryland’s Uniform Certification of Questions of Law Act and did not call for the application of the test to particular facts. Until the case we now decide, we have not had the opportunity to apply it.

Now, we must determine whether Lockett and Houck were not merely negligent in the operation of their respective automobiles, as they have been found to be, but also grossly negligent, so as to embrace a wanton or reckless disregard for human life, thereby supplying the legal equivalent of actual malice. j-This determination must be made in the light of evidence adduced at the trial tending to show that Lockett and Houck had consumed alcoholic beverages shortly before their fortuitous meeting on York Road, and evidence regarding their condition as a result of their drinking. Ill In Maryland it is a misdemeanor for a person to drive or attempt to drive any vehicle while 1) intoxicated; 2) under the influence of alcohol; ³⁵³ 3) so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that he cannot drive a vehicle safely; 4) under the influence of any controlled dangerous substance, as statutorily defined, if the person is not entitled to use the controlled dangerous substance under the laws of this State. Maryland Code (1977, 1987 Repl. Yol.) § 21-902 of the Transportation Article (TR).

It is also a misdemeanor known as “homicide by motor vehicle while intoxicated” when a person causes “the death of another as the result of the person’s negligent driving ... of a motor vehicle while intoxicated____” Md.Code, Art. 27, § 388A(b). The legislature has provided guidance to aid the prosecution of all of these misdemeanors which involve drinking drivers. A chemical test of a driver’s blood or breath may be administered under certain conditions for the purpose of determining the alcohol content of his blood. Maryland Code (1974, 1984 Repl.Vol.) § 10-302 of the Courts and Judicial Proceedings Article (CJ).

Except when the death of another person results from a motor vehicle accident, a person may not be compelled to submit to a chemical analysis, and no inference or presumption concerning either guilt or innocence arises because of the refusal to submit. CJ § 10-309(a). 4 Prior to the middle of 1986, the fact of refusal to submit to chemical analysis was not admissible in evidence at the trial of a drinking driver. By Acts 1986, ch. 652, effective 1 July 1986, such evidence was made admissible. CJ § 10-309(a). “The evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether the defendant was intoxicated or whether the ³⁵⁴ defendant was driving while under the influence of alcohol.” CJ § 10-308.

In a proceeding in which a person is charged with homicide by motor vehicle while intoxicated (Code, Art. 27, § 388A(b)) or with the misdemeanors created by TE § 21-902, the amount of alcohol in a person’s breath or blood as shown by chemical analysis is admissible in evidence. Art. 27, § 388A(a); CJ § 10-307(a). The legislature has prescribed that the amount of alcohol in a person’s breath or blood has the following effects. If, at the time of testing, there was in the person’s blood by weight of alcohol a) 0.13% or more, it shall be prima facie evidence that the person was intoxicated, subsection (e); b) 0.08% or more, it shall be prima facie evidence that the person was driving while under the influence of alcohol, subsection (d); c) 0.01% or more, it shall be prima facie evidence that the person was driving with alcohol in his blood, subsection (f); d) 0.05% or less it shall be presumed that the person was not intoxicated and was not driving while under the influence of alcohol, subsection (b); e) more than 0.05% but less than 0.08%, this fact may not give rise to any presumption that the person was or was not intoxicated or was or was not driving while under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person, subsection (c).

The declarations as to prima facie evidence and the presumptions set out in CJ § 10-307(b) through (f) apply only to criminal prosecutions. State v. Loscomb, 291 Md. 424, 431 , 435 A.2d 764 (1981). The trier of fact in a civil case may not apply the statutory presumptions. Fouche v. Masters, 47 Md.App. 11, 21 , 420 A.2d 1279 (1980), but may consider expert testimony concerning the effects produced by various levels of alcohol in the blood. ³⁵⁵ Thus it is that Maryland recognizes degrees of the effects of the consumption of alcohol by a drinking driver, and ties them to the percentage of volume by weight of alcohol in the blood.

The amount of alcohol in the blood of a drinking driver is admissible in a civil action as well as in a criminal cause as evidence of the degree of the impairment of the driver’s normal coordination, faculties, and abilities as a result of the consumption of alcohol. The legislature obviously deems that the impairment increases as the percentage of alcohol in the blood increases. In civil actions, however, unlike in criminal causes, the percentage of alcohol in the blood does not serve as prima facie evidence of the degree of impairment, nor does it give rise in any presumptions with regard to it. In other words, in civil actions the burden of persuasion remains on the plaintiff to show by a preponderance of the evidence the degree of the defendant’s impairment.

We emphasize that in both civil actions and criminal causes, competent evidence other than the result of chemical analysis of the person’s blood may be adduced to show the person’s degree of impairment. CJ § 10-308. See Major v. State, 31 Md.App. 590, 595 , 358 A.2d 609 (1976). We believe that in Maryland the concept of “intoxicated” is the same in the civil and the criminal context and that the concept of “under the influence of alcohol” is the same in the civil and the criminal context. 5 IV (a) Lockett had been drinking at a bar in Towson between approximately 6:45 p.m. and 8:15 p.m. the day of the acci ³⁵⁶ dent.

At the hospital to which she was removed after the accident, a specimen of her blood was taken as was normally done in the treatment of persons with certain injuries. The specimen was not obtained pursuant to CJ § 10-302 with a view toward prosecution for drunken driving. Therefore, although the analysis of her blood was positive for the presence of ethyl alcohol, the toxicology report did not state the amount in terms of percentage by weight but by milligrams per deciliter. There were 96 milligrams per deciliter in Lockett’s blood at the time the specimen was taken and the court found that this was the equivalent of 0.08 percent by weight.

The opinion of an expert witness, made with a reasonable degree of scientific probability, in answer to a hypothetical question, was that at the time of the accident the amount of alcohol in Lockett’s blood was “approximately in the range of .11 to .12 percent [by weight].” 6 No evidence was adduced from anyone in contact with Lockett after the accident—police officers, paramedics, doctors, nurses, the Nasts or others who may have observed her—with regard to her appearance, conduct, actions or other indicia of drunkenness. The evidence as to the alcohol content of Lockett’s blood was legally sufficient to sustain a finding by the jury that she was “under the influence of alcohol” in the contemplation of the law of Maryland. It was not sufficient for a finding that she was “intoxicated.” (b) At the time of the accident Houck and his brother were also coming from a bar in Towson. Houck denied that he was the driver of the car that struck the Lockett and Nast cars, and it was not until the following day that he admitted that he was in fact the driver.

Houck refused to submit to a breathalyzer test and declined to let a blood specimen be ³⁵⁷ taken at the hospital as was normally done as an aid in the treatment of his injuries. He denied that he had been drinking before the accident and claimed that he had not had a drink since the previous day. Although there was no chemical analysis of his breath or blood, there was ample credible evidence tending to belie these assertions, and tending to show that he had been consuming alcohol. Testimony by the investigating police officer who saw Houck at the scene and later at the hospital, a paramedic who attempted to treat him at the scene and transported him to the hospital, the medical doctor who treated him at the hospital, and the nurse who cared for him in the emergency room indicated that Houck was intoxicated.

The investigating police officer observed Houck standing beside his car at the scene of the accident. “I noticed a slight sway and stagger ... and speaking with him, I noticed an odor of alcoholic beverage on his breath.” His clothing was “disarranged.” He was “mush mouthed.” His speech was “slightly slurred.” The officer saw Houck again in the hospital emergency room. At that point he was excited. He was fighting with hospital personnel, cocky, excited, combative. His speech was still slurred and mush mouthed.

While standing around in the hospital a couple of times, he stood up, he swayed, wobbled, and he needed the support gurney and an odor of alcoholic beverage was noticed on his breath again. A paramedic testified that he observed Houck in the driver’s seat of the car at the scene of the accident. Another paramedic had placed a cervical collar on Houck. Houck was trying to remove the collar and was “uncooperative.” He appeared to be intoxicated—he smelled of alcohol, had bloodshot eyes, all he could do was moan, “he could not converse.” Houck refused to let the paramedics treat him.

He repeatedly removed the collar. He was so “combative” the paramedics could not place him on a “long back board” to support him in order to remove him to the ambulance. ³⁵⁸ The medical doctor who treated Houck at the hospital said that Houck was combative and uncooperative. He refused to have his lacerations sewed or be otherwise treated. The physician was of the opinion from his observations that Houck “was intoxicated and recovering from being intoxicated,” that is slowly approaching sobriety, inasmuch as he was becoming more, alert and able to communicate more clearly as time went by.

Evidence was adduced by way of a deposition of a registered nurse certified in emergency nursing. She had extensive experience in observing intoxicated persons. 7 She treated Houck at the hospital emergency room the night of the accident. She had noted on the emergency room chart “strong smell of alcohol, eyes bloodshot, speech slurred.” He was just uncooperative. “[H]e simply refused to let us take care of him.” She observed: Very few patients [with a laceration on the head] refuse to have care when they know that you are doing it in their best interest. Very few patients from the scene of an ambulance will refuse to have their head immobilized, very few refuse to have their blood drawn or have xrays____” He was “hostile” and “belligerent.” His hygiene was not good and he was unkempt.

According to the emergency room personnel there was no indication whatsoever that Houck's behavior was caused by trauma—head injury or brain damage. There was no “neurological deficit as in a ³⁵⁹ brain injury.” In short, it is apparent that the considered opinion of all who had contact with Houck in the course of their duties after the accident was that he had consumed alcohol to the extent that his normal coordination, faculties, and physical and mental abilities were substantially and materially impaired—more than merely reduced or weakened. Those who observed Houck were of the impression that he was intoxicated. We believe that the extensive evidence as to Houck’s demeanor, comportment, behavior, mien, actions, conduct, and appearance, and the odor of alcohol surrounding him, was legally sufficient to sustain a finding by the jury that he was “intoxicated” in the contemplation of the law of Maryland.

Y The trial judge considered the evidence pertaining to the drinking of Lockett and Houck and found that it was sufficient to submit the case to the jury on the question of “proximate cause of this accident among other things,” as to “the compensatory damage aspects.” But he had “a serious problem sending it on punitive damages.” He decided as a matter of law that the conduct of Lockett and Houck, even considering their drinking, did not amount to such a wanton or reckless disregard for human life as would permit him to submit the matter of punitive damages to the jury. The judge, therefore, granted the defendants’ motions to dismiss the counts seeking punitive damages. The judge was right as to Lockett and wrong as to Houck. In submitting the case to the jury, the judge instructed it with respect to negligence and proximate cause.

To assist the jury in its “determination as to whether or not both defendants or either of them were negligent,” the judge informed it that it “may consider” certain traffic laws. The judge referred to: 1) TR § 21-301(c)(l)(i) proscribing a vehicle from crossing the centerline of a roadway divided into four or more ³⁶⁰ marked lanes for vehicular traffic and that provides for two-way movement of traffic. 2) TR § 21-604(b) prohibiting a person from turning a vehicle from a direct course or move it right or left on a roadway unless the movement can be made with reasonable safety. 3) TR § 21-402(b) declaring that if the driver of a vehicle intends to turn to go in the opposite direction, the driver shall yield the right-of-way to any approaching vehicle that is so near as to be an immediate danger. 4) TR § 21-1102(a) prescribing that the driver of a vehicle may not back it unless the movement can be made safely and without interfering with other traffic. It is apparent that the traffic laws to which the judge referred applied to Lockett’s operation of her automobile. But the judge cautioned: Now, you are further instructed in this regard that if you should find that one of these rules of the road has been shown to have been violated that does not establish negligence in and of itself, but it may be considered by you as evidence of negligence along with all of the other evidence in the case.

The judge then turned to the evidence as to drinking by the defendants. In addition, ladies and gentlemen, evidence of the consumption of alcohol to the extent that the faculties, coordination, and reactions of the persons in question are impaired may likewise be considered by you as evidence of negligence. It is your function to decide from the facts presented to you whether or not