Komornik v. Sparks , 331 Md. 720 ( 1993 )

RODOWSKY, Judge.

The issue here is whether punitive damages are available in this motor vehicle negligence action in which the defendant was intoxicated at the time of the accident. Applying Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), the Circuit Court for Baltimore County ruled that the evidence was insufficient to support a finding of “actual malice.” We agree.

The appellant, Donna Komornik (Komornik), was injured at dusk on December 22, 1989, in a four-vehicle accident caused by the appellee, Gregory Lester Sparks (Sparks), then age thirty. Komornik had been stopped for approximately thirty seconds at a red light for southbound traffic on Merritt Boulevard at its intersection with Holabird Avenue when her automobile was struck in the rear by the car behind her, causing her to strike the car in front of her. The car behind Komornik had been propelled forward when it was struck in the rear by a pick-up truck driven by Sparks and owned by his sister. Sparks had been travelling southbound on Merritt Boulevard at a speed of approximately twenty m.p.h. when he saw the brake lights of the cars stopping or stopped at the traffic signal. He applied the clutch rather than the brake.¹ Damage to the Pontiac Firebird driven by Komornik was approximately $1,000, while damage to the pick-up truck was approximately $1,700.

At the time of the accident, Sparks was intoxicated. Prior to the commencement of the trial in this civil action, Sparks admitted liability for the accident. Based on that admission and on Zenobia, Sparks moved in limine to preclude, as irrelevant to any issue in the case, any evidence of his intoxication and of his driving record. After a chambers conference, the parties went on the record. The court announced that, relying on Zenobia, punitive damages could not be awarded and, therefore, the motion in limine was granted. Komornik then placed on the record a proffer of proof, set forth below, that forms the basis for this appellate review.

The action proceeded to trial before a jury. No instruction on punitive damages was given. The jury’s verdict in favor of Komornik awarded compensatory damages. No issue is raised on this appeal concerning that aspect of the case.²

Komornik appealed to the Court of Special Appeals, contending that “[t]he trial court erred in concluding that the decision of the Court of Appeals in Zenobia requires proof of intent to injure, evil motive, or ill "will in order to recover punitive damages in a tort action against an intoxicated driver.” This Court, on its own motion, issued the writ of certiorari prior to consideration of the matter by the Court of Special Appeals.

The proffer made by Komornik adds the facts set out below.

On the day of the accident, Sparks had left work at noon, went to a local lounge, ate lunch, and drank beer in an amount he professed he could not recall. He then proceeded, with a friend driving, to another bar where he drank sour mash whiskey and Coca-Cola in an amount he cannot recall. Sparks’s friend then dropped Sparks off at home, where he lived with his parents and sister. Sparks did not own an automobile at the time, but he wanted to go Christmas shopping. Seeing his sister’s keys in their customary location on top of a desk, he took the keys and drove his sister’s pick-up truck. Sparks apparently became lost, and, after driving around for about one hour, found himself on Merritt Boulevard. As Sparks approached a line of cars stopped at a red light, he attempted to stop, but he depressed the clutch rather than the brake pedal, causing the four-car collision.

The Baltimore County police officer who investigated the accident noted that Sparks had been drinking. Sparks did not pass various field sobriety tests “to the officer’s satisfaction.” Sparks consented to the administration of a breathalyzer test, which indicated a blood alcohol content of .19, almost twice the level of prima facie intoxication.³ Sparks was ultimately convicted of driving on this occasion while intoxicated, in violation of Md.Code (1977, 1992 Repl.Vol.), § 21-902(a) of the Transportation Article (TR).⁴

Komornik also proffered records of the Motor Vehicle Administration reflecting Sparks’s driving record. In his oral summary of that record Komornik’s counsel noted a May 1982 probation before judgment for driving under the influence, and a December 1984 conviction for driving while intoxicated. The latter resulted in an assessment of twelve points against his driving record and a restricted license for three years. In November 1989 Sparks refused a blood alcohol test so that his motor vehicle operator’s license was suspended. After the subject accident, Sparks was convicted of driving under the influence based on the November 1989 arrest. The suspension for the November 1989 test refusal was in effect when the December 22, 1989, accident occurred, although Sparks, on deposition, indicated that he was unaware of that suspension. Sparks was not charged with driving at the time of the subject accident on a suspended license.

Zenobia held:

“Therefore, we overrule Smith v. Gray Concrete Pipe Co.[, 267 Md. 149, 297 A.2d 721 (1972)] and its progeny, including Nast v. Lockett, 312 Md. 343, 539 A.2d 1113 (1988). In a non-intentional tort action, the trier of facts may not award punitive damages unless the plaintiff has established that the defendant’s conduct was characterized by evil motive, intent to injure, ill will, or fraud, ie., ‘actual malice.’ See Davis v. Gordon, ... 183 Md. [129,] 133, 36 A.2d [699,] 701 [(1944)].”

325 Md. at 460, 601 A.2d at 652-53 (footnotes omitted).

Having used the term “ ‘actual malice,’ ” we immediately recognized in a footnote following that term that it

“has meant different things in the law, that its popular connotation may not always be the same as its legal meaning, and that its use has been criticized. Nevertheless, we simply use the term in this opinion as a shorthand method of referring to conduct characterized by evil motive, intent to injure, ill will, or fraud.”

325 Md. at 460 n. 20, 601 A.2d at 652 n. 20 (citations omitted).

So that there could be no misunderstanding of the scope of Zenobia’s holding, we inserted the following footnote at the end of the holding, quoted above:

“The scope of this opinion primarily encompasses the standard of conduct which will support an award of punitive damages in so called non-intentional tort cases, ie. negligence and strict liability cases. In addition, our overruling of the [H & R Block v.] Testerman [275 Md. 36, 338 A.2d 48 (1975) ], -Wedeman [v. City Chevrolet, 278 Md. 524, 366 A.2d 7 (1976) ] ‘arising out of contract’ principle is applicable to all tort actions. We shall not at this time, however, reconsider or modify the legal principles concerning the type of conduct which will support an award of punitive damages in so-called intentional tort actions, i.e., tort actions other than negligence and strict liability. To some extent, the applicable legal principles are reviewed in Schaefer v. Miller, 322 Md. 297, 319-320, 587 A.2d 491, 502-503 (1991).”

325 Md. at 460 n. 21, 601 A.2d at 653 n. 21.⁵

In June of this year we filed the opinion in Adams v. Coates, 331 Md. 1, 626 A.2d 36 (1993), where we addressed a claim for punitive damages in an action between former partners. The underlying cause of action was either a purported tort of breach of fiduciary duty or an action for accounting. We said that in either event the claim for punitive damages “would be controlled” by the policy stated in Zenobia, namely:

“ ‘[P]unitive damages are awarded in an attempt to punish a defendant whose conduct is characterized by evil motive, intent to injure, or fraud, and to warn others contemplating similar conduct of the serious risk of monetary liability.’ ”

331 Md. at 13, 626 A.2d at 42 (quoting Zenobia, 325 Md. at 454, 601 A.2d at 649 (citations omitted)).

In the case before us there is insufficient evidence of “actual malice,” as defined in Zenobia to express the punitive damage standard for non-intentional (negligence and products liability) tort cases. Komornik’s proffer presents no facts from which a jury would be permitted, under Zenobia, to infer that Sparks’s conduct was characterized by evil motive, intent to injure, ill will, or fraud. Indeed, the proffer reflects that, at the time of the accident, Sparks’s state of mind was to the contrary of that required by Zenobia. His intent was to avoid injury to those stopped ahead of him. He had not been traveling at an excessive speed, and he was attempting to stop the truck.

Komornik, however, rests her primary argument on another holding in Zenobia that supplemented the general principle set forth above. After stating the general principle our opinion in Zenobia next considered how that principle should be applied in actions involving products liability, whether predicated on a theory of negligence or of strict liability. We recognized that “it is not likely that a manufacturer or supplier of a defective product would specifically intend to harm a particular consumer.” Id. at 461, 601 A.2d at 653. On that aspect of the case Zenobia concluded:

“We believe that in products liability cases the equivalent of the ‘evil motive,’ ‘intent to defraud,’ or ‘intent to injure,’ which generally characterizes ‘actual malice,’ is actual knowledge of the defect and deliberate disregard of the consequences. Therefore, in order for actual malice to be found in a products liability case, regardless of whether the cause of action for compensatory damages is based on negligence or strict liability, the plaintiff must prove (1) actual knowledge of the defect on the part of the defendant, and (2) the defendant’s conscious or deliberate disregard of the foreseeable harm resulting from the defect.”

Id. at 462, 601 A.2d at 653. We made plain that, by “actual knowledge,” we did not mean constructive knowledge, id., and that, by “conscious or deliberate disregard,” we did not mean “negligence alone, no matter how gross, wanton, or outrageous.” Id. at 463, 601 A.2d at 654.

Komornik submits that the facts of her case also show conduct that is the equivalent of “actual malice.” She compares Sparks to a defective product. Three prior instances of driving while intoxicated or under the influence, coupled with an afternoon of drinking on the day of the accident, are pointed to by the plaintiff to demonstrate actual knowledge of the defective condition of the “product,” namely, reduced sensory perceptions, impaired judgment, and delayed reactions. Under Komornik’s analogy, other users of the highway are compared to those members of the public who come in contact with a defective product. They are placed “at high risk.” Brief of Appellant at 11. The submission is that “[j]ust as the corporate defendant does not chose a specific victim to be injured by the consciously marketed defective product ..., the voluntarily intoxicated operator of a motor vehicle takes his victims from the highway at random.” Id. Komornik concludes that Sparks’s “repeated decision to become severely intoxicated and operate a motor vehicle on the highways, putting all who [lawfully] are on those roadways ... at severe risk ... is the equivalent or worse than [the conduct] recognized ... in Zenobia as being sufficiently egregious to warrant a punitive award.” Id. at 12.

The Maryland Trial Lawyers’ Association joins in the foregoing submission in an amicus curiae brief.

The analogy is flawed. When the supplier of a defective product puts the product into the stream of commerce the supplier surrenders control over the product to a large extent (excluding warnings, recalls, and the like). If the supplier relinquishes control with actual knowledge of the defect and “a conscious or deliberate disregard of the foreseeable harm,” Zenobia, 325 Md. at 462, 601 A.2d at 653, the supplier acts with “actual malice.” Here, Sparks had not relinquished control of the truck; he was trying to control it. While the evidence was sufficient to show that Sparks had actual knowledge that he was intoxicated, the evidence also shows that he was not consciously disregarding the consequences of his drunkenness. He was trying to stop the truck which would have been stopped under similar circumstances by a sober driver. Sparks, admittedly, was negligent and liable to compensate the victims of his negligence. For purposes of punitive damages under Zenobia, however, characterizing the degree of the negligence is immaterial. The relevant inquiry for punitive damages is whether the proof shows conduct characterized by evil motive, intent to injure, ill will, or fraud.

Essentially Komornik argues that a jury could find that Sparks’s conduct manifests a “conscious or deliberate disregard of the foreseeable harm.” Id. at 462, 601 A.2d at 653. But Komornik’s effort to dilute the standard of actual malice, as defined in Zenobia, and to return to some form of imputed malice, fails to appreciate the effect of Zenobia’s overriding of Smith and of Nast, and the effect of its return to the standard of Davis v. Gordon. Both effects were integral to the principle governing punitive damages.

The relevant Maryland legal history may be reviewed quickly. In Davis v. Gordon, 183 Md. 129, 36 A.2d 699 (1944), a pedestrian, walking along the shoulder of a road at night, was struck and instantly killed by a motorist. The, plaintiff-administrator was granted an instruction under which the jury could, and did, award punitive damages if it found that the motorist was “grossly and wantonly negligent in the operation of his automobile.” Davis v. Gordon, Record Extract at 36. This Court reversed, saying that “[i]n this State that [instruction] is not the test.” Davis, 183 Md. at 133, 36 A.2d at 701. “On the contrary, ... there must be an element of fraud, or malice, or evil intent.... ” Id. The issue was revisited in dicta in Conklin v. Schillinger, 255 Md. 50, 257 A.2d 187 (1969), where the Court said:

“The difficulty in the Maryland cases arises in regard to factual situations in.which there is no evidence of actual intent to injure or of actual malice toward the injured person, but in which the defendant’s conduct is of such an extraordinary character as possibly to be the legal equivalent of such actual intent or actual malice, sometimes described as “wanton,’ ‘reckless disregard of the rights of others,’ and the like.”

Id. at 71, 257 A.2d at 198.

Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972), partially relying on the above-quoted passage from Conklin, accepted the argument advanced by the plaintiff in a motor vehicle tort case that negligence sufficient to convict for the crime of manslaughter should be the precedent for punitive damages, at least in motor vehicle tort cases. Id. at 167-68, 297 A.2d at 731-32. Smith regarded “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.” Id. at 168, 297 A.2d at 731. The Smith Court thought it was adopting “a standard which, although stopping just short of wilful or intentional injury, contemplates conduct which is of an extraordinary or outrageous character.” Id.

The Smith test was applied in Nast v. Lockett, 312 Md. 343, 539 A.2d 1113 (1988). There, a motorist’s blood alcohol content was .12% when the statutory prima facie proof of intoxication was .13%. Id. at 354-56, 539 A.2d at 1118-19. The accident occurred when that motorist, after failing fully to execute a U-turn, and while attempting to complete the maneuver, backed the vehicle into the path of oncoming traffic. Id. at 347-48, 539 A.2d at 1115. After reviewing the Maryland automobile manslaughter cases, we concluded that the evidence was insufficient to show that the motorist had a wanton or reckless disregard for human life. Id. at 366-67, 539 A.2d at 1124-25. The result would be different, however, if the motorist were intoxicated. Id. at 366-67, 539 A.2d at 1125.

In Part IV.B. of the opinion in Zenobia, we reevaluated the Smith test and concluded:

“The implied malice test adopted in Smith v. Gray Concrete Pipe Co. has been overbroad in its application and has resulted in inconsistent jury verdicts involving similar facts. It provides little guidance for individuals and companies to enable them to predict behavior that will either trigger or avoid punitive damages liability, and it undermines the deterrent effect of these awards.”

325 Md. at 459, 601 A.2d at 652. Zenobia returned to the Davis v. Gordon test of “conduct ... characterized by evil motive, intent to injure, ill will, or fraud, i.e., ‘actual malice.’ ” 325 Md. at 460, 601 A.2d at 652. That is the test that we apply here.

The Maryland Trial Lawyers’ Association, citing numerous cases from many American jurisdictions, urges that, as a matter of public policy, punitive damages should be allowed where a motor vehicle tort is committed by a driver who has drunk alcoholic beverages to excess. A rule allowing punitive damages based on driving while intoxicated, or driving under the influence, per se, is inconsistent "with Zenobia’s touchstone of “actual malice.” That is why Zenobia overruled Nast v. Lockett under which driving under the influence was insufficient, in itself, for awarding punitive damages, but driving while intoxicated would ordinarily be sufficient. Further, Zenobia reaffirmed a passage in Davis v. Gordon that had rejected the implied malice standard there advocated because it would not further either the punishment or deterrence objectives of punitive damages. Zenobia, 325 Md. at 456, 601 A.2d at 650. Davis v. Gordon had said:

“We have many rules of the road, all designed and intended to promote the public safety. They have severe penalties for their violation whether there is an accident or not. If all drivers and all pedestrians observed these rules there would not be any accidents. The rules of the road are far more effective than any inflammatory verdicts in making our streets and highways safe for travel. The fear of arrest is more of a deterrent than a verdict in a civil case for damages.”

183 Md. at 133, 36 A.2d at 701. In the half century since Davis v. Gordon was decided, there have been added to the criminally enforced rules of the road the administrative sanctions imposed by the Motor Vehicle Administration for the suspension or revocation of the motor vehicle operators’ licenses of drinking drivers. See TR §§ 16-205 through 16-205.2.⁶

For all the foregoing reasons, the circuit court correctly applied Zenobia in ruling that Komornik had not proffered a case for punitive damages.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.

Concurring Opinion by McAULIFFE, J.

1 . This version of the immediate cause of the accident is the one which Komornik in her brief considers to be most favorable to her. It is derived from the deposition testimony of Sparks. Komornik, however, testified that, while stopped at the traffic signal, she heard brakes, looked in her rear view mirror, and then her car was struck from the rear and propelled into the vehicle standing in front of her.

2 . The verdict for Komornik was "equal to her medical bills alone." Appellant’s Brief at 4.

3 . See Md.Code (1974, 1992 Cum.Supp.), § 10-307(e) of the Courts and Judicial Proceedings Article, stating that an alcohol concentration of "0.10 or more ... shall be prima facie evidence that the defendant was driving while intoxicated.”

4 . Although not part of the proffer, we are advised that Sparks was sentenced to fifteen days in jail and a S200 fine. Appellant’s Brief at 2 n. 1.

5 . Judge McAuliffe concurred and Judge Bell dissented. All other members of the Court joined in the opinion in Zenobia.

6 . We recognize that, across the entire band of torts of all kinds which the Zenobia principle governs concerning the award of punitive damages, application of the principle to tortious injury caused by driving while intoxicated is fairly debatable as a matter of social policy. We also note that House Bill 322 of the 1993 session of the Maryland General Assembly would have returned to a standard of "wanton or reckless disregard for human life” in such cases, but that the bill failed on third reading in the House for want of a constitutional .majority under Md. Const, art. Ill, § 28.