How Do You Prove “Vindictive Damages” in a Car Crash?
A plaintiff appealed from the trial court’s decision in favor of the defendant in his action against in a case stemming from an automobile accident. Specifically, the plaintiff argued the trial court erred by granting summary judgment as to the issue of punitive damages.
Background
Early in the morning of November 13, 2019, both motorists were traveling in stop-and-go traffic on I-20 in DeKalb County. The plaintiff was driving his 2011 Chevrolet Silverado truck, and the defendant followed closely behind him in a 2007 Chevrolet Tahoe. As the two drove along I-20, traffic slowed ahead, and the plaintiff hit his brakes and stopped—but the defendant slammed into the plaintiff from behind. Just before impact, the plaintiff saw in his rearview mirror that the defendant would be unable to stop. Although he couldn’t see the defendant inside his vehicle (and couldn’t tell what he was doing right before the crash), he thought he was distracted because he was “coming pretty fast” when other cars had already stopped. Plus, there was evidence that in the 20 minutes the defendant spent driving that morning, he continuously made and received phone calls on his phone.
The plaintiff’s truck was damaged, and he sustained injuries to his back and knee, which required a hospital visit and subsequent medical care. The defendant was cited by police for following too closely and later pleaded guilty to that offense. The plaintiff sued the defendant for property damage to the truck and his personal injuries. This included claims for negligence, negligence per se, punitive damages, and a request for attorney fees and expenses of litigation under O.C.G.A § 13-6-11.
As litigation ensued, the trial court denied the defendant’s motion to strike evidence of his cellphone records, which showed that—contrary to his deposition testimony—he used his phone throughout his commute on the morning of the incident. But the court did grant the defendant’s motion to strike various documents that, according to the plaintiff, showed that the defendant’s vehicle was not equipped with hands-free cell phone technology. However, the plaintiff didn’t argue the trial court erred in this respect, so the Court of Appeals presumed this ruling was correct.
The defendant moved for partial summary judgment on the issues of negligence per se, punitive damages, as well as the O.C.G.A § 13-6-11 claim. And following a hearing on the matter, the trial court denied the motion as to negligence per se but granted it as to punitive damages and the O.C.G.A § 13-6-11. The appeal followed.
The History of Punitive Damages in Georgia
The plaintiff argued the trial court erred in granting the defendant’s motion as to his request for punitive damages.
The analysis of the Court of Appeals began with a brief history of punitive damages in Georgia and why some of its prior cases in this area of Georgia jurisprudence are persuasive rather than binding—which it previously failed to fully explain in its caselaw.
From Georgia’s Original Code of 1863 until 1987, punitive damages were referred to as “vindictive damages,” Presiding Judge Stephen Dillard explained:
In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed. The verdict of a jury in such a case should not be disturbed, unless the court should suspect bias or prejudice from its excess or its inadequacy.
Separately, until 1987, the Georgia Code permitted an award of damages for “aggravating circumstances,” providing that “[i]n every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.”
However, in 1987 everything changed. The Tort Reform Act of 1987 resulted in Georgia’s modern punitive-damages statute, under which “the term ‘punitive damages’ is synonymous with the terms ‘vindictive damages,’ ‘exemplary damages,’ and other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant,” as found in OCGA § 51-12-5.1(a). And importantly, Judge Dillard said that an award under “aggravating circumstances” alone is no longer permissible—that prior standard now only applying to cases in which the cause of action arose prior to enactment of the Tort Reform Act of 1987.
Relevant here, the “modern” statute—O.C.G.A § 51-12-5.1(b)—provides that “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” And while cases for punitive damages prior to 1987 did require a showing of “willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences” before permitting punitive (or “vindictive” or “exemplary”) damages, the 1987 codification added a higher burden of proof—clear and convincing evidence.
So, while it’s not necessarily improper to consider decisions applying the law as it existed prior to 1987, the Court must be mindful in doing so of the higher burden of proof now required by the statute. Indeed, when the Court of Appeals reviews these types of cases, the question is whether “the evidence in the record could support a reasonable jury finding either that the plaintiff has shown the required element by clear and convincing evidence or that the plaintiff has not.”
How Does the Statute Apply to Car Accident Cases?
In applying O.C.G.A § 51-12-5.1 to automobile-collision cases, the Court of Appeals has routinely held that punitive damages are authorized “when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road.” A “pattern or policy of dangerous driving” entails a history of violations or similar incidents leading up to the collision in question. For example, Judge Dillard said that a history of driving while intoxicated will support seeking an award of punitive damages for an accident caused by the same conduct. That’s because patterns of behavior can be probative of an “entire want of care and a conscious indifference to consequences.”
But the Court of Appeals has never held that showing a pattern or policy of dangerous driving is the only path to an award of punitive damages in automobile collision cases. Judge Dillard noted that even in cases that have not involved a pattern or policy of dangerous driving, the Court has concluded there was evidence by which a jury could consider the question of punitive damages. Even so, it’s still true that in car crash cases, punitive damages aren’t recoverable where the driver at fault simply violated a rule of the road. That’s why there must be clear and convincing evidence showing aggravating circumstances or conscious indifference to the consequences.
In this case, the Court of Appeals had to decide if following too closely in stop-and-go traffic on the Interstate while using a cellphone is clear and convincing evidence of aggravating circumstances or an entire want of care or indifference to consequences so as to permit an award of punitive damages. The Court held that is wasn’t.
There was no evidence that the defendant had a history of causing accidents while driving and using a cell phone, and so there was no showing of a pattern or policy of dangerous driving. And the trial court struck the plaintiff’s evidence that allegedly demonstrated that he wasn’t using hands-free technology in violation of Georgia law, the exclusion of which, again, wasn’t challenged on appeal. As such, viewed de novo in the light most favorable to the plaintiff (with all reasonable inferences and conclusions construed in his favor), the evidence showed that in stop-and-go traffic on I-20, the defendant forcefully hit the plaintiff from behind after following too closely and driving 25 to 35 miles per hour in a 65-mile-per-hour zone.
To be sure, Judge Dillard found that the defendant was making and receiving continuous cell phone calls while he was driving. But this driving behavior didn’t rise to the level by which a jury could conclude by clear and convincing evidence that the defendant had an “entire want of care or indifference to consequences” so as to authorize punitive damages. So, while the defendant’s conduct may indeed be negligent, it wasn’t enough to warrant the imposition of punitive damages, and the trial court didn’t err by granting summary judgment in his favor as to his request for an award under O.C.G.A § 13-6-11. The decision of the trial court on punitive damages was affirmed. McKnight v. Love, 2023 Ga. App. LEXIS 488 (Ga. App. October 19, 2023).
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