Taylor v. Superior Court

Opinion RICHARDSON, J. — We consider whether punitive damages (Civ. Code, § 3294) are recoverable in a personal injury action brought against an intoxicated driver. As will appear, we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences. Accordingly, we will issue a writ of mandate directing the trial court to reinstate that portion of the complaint which sought recovery of punitive damages. Petitioner Taylor is the plaintiff in a civil action against defendant and real party Stille (and others) for damages arising from an automobile accident.

Because the matter is presented to us following the sustaining of defendant’s demurrer as to the prayer for punitive damages, the issues are framed by the allegations of the complaint which we now examine. In pertinent part, the complaint alleged that the car driven by Stille collided with plaintiff’s car, causing plaintiff serious injuries; that Stille is, and for a substantial period of time had been, an alcoholic “well aware of the serious nature of his alcoholism” and of his “tendency, habit, history, practice, proclivity, or inclination to drive a motor vehicle while under the influence of alcohol”; and that Stille was also aware of the dangerousness of his driving while intoxicated. The complaint further alleged that Stille had previously caused a serious automobile accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident herein, Stille had recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge. In addition, the complaint averred that notwithstanding his alcoholism, Stille accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car.

Finally, it is alleged that at the time the accident occurred, Stille was transporting alcoholic beverages, “was simultaneously driving . . . while consuming an alcoholic beverage,” and was “under the influence of intoxicants.” Based upon the foregoing allegations, plaintiff asserted in his complaint that Stille “acted with a conscious disregard of Plaintiff[’s] safety. . . In addition to compensatory damages, plaintiff sought $100,000 in punitive damages. Stille demurred to the complaint, contending that punitive damages could not be assessed against a negligent, intoxicated driver, at least in the absence of allegations to the effect that the driver actually intended to cause an accident or injury. The trial court sustained the demurrer to the complaint insofar as it sought recovery of punitive damages, and plaintiff thereupon filed the present mandate proceeding.

Although we rarely grant extraordinary relief at the pleading stage of a lawsuit, mandamus will lie when it appears that the trial court has deprived a party of an opportunity to plead his cause of action or defense, and when extraordinary relief may prevent a needless and expensive trial and reversal. (Coulter v. Superior Court (1978) 21 Cal.3d 144, 148 [145 Cal.Rptr. 534, 577 P.2d 669]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal.Rptr. 179, 479 P.2d 379].) Such a combination of circumstances is herein presented and, accordingly, we examine the propriety of the trial court’s ruling in the light of applicable statutory and decisional law.

Section 3294 of the Civil Code authorizes the recovery of punitive damages in noncontract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied. . . .” As we recently explained, “This has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. [Citations.] The malice in fact, referred to ... as animus malus, may be proved under section 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). [Citation.]” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].) Other authorities have amplified the foregoing principle.

Thus it has been held that the “malice” required by section 3294 “implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.” (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [99 Cal.Rptr. 706]; see Gombos v. Ashe (1958) 158 Cal.App.2d 517, 527 [322 P.2d 933]; Stein, Damages and Recovery (1972) Nominal and Punitive Damages, § 186, at p. 369; Prosser, Law of Torts (4th ed. 1971) § 2, at pp. 9-10.) In Dean Prosser’s words: “Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the juiy to award in the tort action ‘punitive’ or ‘exemplary’ damages. . . . [] Something more than the mere commission of a tort is always required for punitive damages.

There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.” (ibid., fns. omitted, italics added.) Defendant’s successful demurrer to the complaint herein was based upon plaintiff’s failure to allege any actual intent of defendant to harm plaintiff or others. Is this an essential element of a claim for punitive damages? As indicated by Dean Prosser, courts have not limited the availability of punitive damages to cases in which such an intent has been shown. As we ourselves have recently observed, in order to justify the imposition of punitive damages the defendant “ ‘. . . must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights. [Citations.]’ ” (Italics added; Neal v.

Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922 [148 Cal.Rptr. 389, 582 P.2d 980], quoting from Silberg v. California Life Ins. Co. (1977) 11 Cal.3d 452, 462 [113 Cal.Rptr. 711, 521 P.2d 1103]; accord, Seimon v.

Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 607 [136 Cal.Rptr. 787]; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App Jd 22 [122 Cal.Rptr. 218].)

The Searle court, speaking through Justice Friedman, after reviewing many of the earlier decisions, concluded that “The phrase conscious disregard is sometimes used to describe the highly culpable state of mind which justifies an exemplary award. ... [If] We suggest conscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged.” (Italics in original, p. 32.) The Searle court likewise rejected suggestions in earlier cases that mere reckless disregard or misconduct would be sufficient to sustain an award of punitive damages, because “The central spirit of the exemplary damage statute, the demand for evil motive, is violated by an award founded upon recklessness alone.” (Ibid., fn. omitted; on the subject of recklessness as a basis for an award of punitive damages, compare Liodas v. Sahadi (1977) 19 Cal.3d 278, 284-285 [137 Cal.Rptr. 635, 562 P.2d 316]; with Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922 [114 Cal.Rptr. 622, 523 P.2d 662].)

We concur with the Searle observation that a conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences. (See Searle, supra, p. 32; Stein, supra, § 187, pp. 373-374.) Relying on Gombos v. Ashe, supra, 158 Cal.App.2d 517, defendant asserts that historically the act of driving while intoxicated has never been considered “malice” under section 3294.

In Gombos, plaintiff had alleged that defendant drove his car in a “highly reckless manner with absolute disregard and callous indifference to the rights and safety” of others, in that he became “knowingly and wilfully intoxicated” despite his knowledge that his intoxication “rendered him physically unfit” to drive safely. Despite' these allegations, the court held that “. . . it is quite apparent that such facts fall short of alleging malice in fact, express or implied. One who becomes intoxicated, knowing that he intends to drive his automobile on the highway, is of course negligent, and perhaps grossly negligent. It is a reckless and wrongful and illegal thing to do.

But it is not a malicious act.” (P. 527.) Plaintiff seeks to distinguish Gombos by stressing the additional allegations in the present complaint which include defendant’s history of alcoholism, his prior arrests and convictions for drunk driving, his prior accident attributable to his intoxication, and his acceptance of employment involving the transportation of alcoholic beverages. Certainly, the foregoing allegations may reasonably be said to confirm defendant’s awareness of his inability to operate a motor vehicle safely while intoxicated. Yet the essence of the Gombos and present complaints remains the same: Defendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby.

This is the essential gravamen of the complaint, and while a history of prior arrests, convictions and mishaps may heighten the probability and foreseeability of an accident, we do not deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk driving cases. We note that when Gombos was decided it was unclear whether, as a general principle, an award of punitive damages could be based upon a finding of defendant’s conscious disregard of the safety of others. In the evolution of this area of tort law during the ensuing 20 years it has now become generally accepted that such a finding is sufficient. Examining the pleadings before us, we have no difficulty concluding that they contain sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others.

There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. (See Coulter v. Superior Court, supra, 21 Cal.3d 144, 152-154.) One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.

The allowance of punitive damages in such cases may well be appropriate because of another reason, namely, to deter similar future conduct, the “incalculable cost” of which is well documented. (E.g., Coulter, supra, p. 154.) Section 3294 expressly provides that punitive damages may be recovered “for the sake of example.” The applicable principle was well expressed in a recent Oregon case upholding an award of punitive damages against a drunken .driver, “the fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.” (Harrell v. Ames (1973) 265 Ore. 183 [508 P.2d 211, 214-215, 65 A.L.R.3d 649, italics added.) According to a recent annotation, the Harrell case represents the view of a substantial majority of those courts of other states which have considered the matter. (See Annot. (1975) 65 A.L.R.3d 656, §§ 3-4, at pp. 661-666.)

We think it also represents the better reasoned view. We are not unmindful of the speedy legislative response to our Coulter holding as evidenced by the very recent enactment of Business and Professions Code section 25602, subdivisions (a) and (c), which absolve the server of alcoholic beverages, commercial or social, from any civil liability to third persons no matter how dangerous or obvious the condition of the consumer of the alcohol. In this connection, we emphasize that, in the matter before us, the issue involves imposition of potential punitive damages on the intoxicated driver, rather than on the third party supplier, thus distinguishing both Vesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151], and Coulter, supra.

We discern no valid reason whatever, for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint. Indeed, under another recent amendment enacted following our Coulter decision, the Legislature has expressly acknowledged that “the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” (Civ. Code, § 1714, subd. (b).) Since the filing of Coulter we have had the enactment of section 25602.

There also has appeared a graphic illustration of the magnitude of the danger in question. In June 1978, the Secretary of Health, Education, and Welfare filed the Third Special Report to the U.S. Congress on Alcohol and Health. We take judicial notice of, and extract the following from, this extensive and very recent official study: “Traffic accidents are the greatest cause of violent death in the United States, and approximately one-third of the ensuing injuries and one-half of the fatalities are alcohol related.

In 1975, as many as 22,926 traffic deaths involved alcohol. Experimental studies have demonstrated that alcohol causes degeneration of driving skills and impairment of judgment. However, the full extent to which alcohol use results in traffic accidents due to these impairments is unknown. ^[1] General research trends seem to support the following facts concerning the relationships of alcohol and traffic crashes: (1) As many as 25 percent of drivers in nonfatal crashes and 59 percent of drivers in fatal crashes had blood alcohol concentrations (BAC’s) of 0.10percent or higher. (2) Up to 29 percent of passengers in fatal accidents showed BAG levels in the legally impaired range. (3) Alcohol could be involved in up to 83 percent of pedestrian fatalities. (4) As many as 72 percent of drivers in single-vehicle fatalities and 51 percent of drivers in multivehicle fatalities had BAC’s of 0.10 percent or higher. (5) Of the drivers in multivehicle fatal crashes with BAC’s in the high range, 44 percent were judged by researchers to be responsible for the crashes, compared to 12 percent judged not responsible. [If] Data on alcohol involvement in crashes based on police reports indicate that the proportion of drivers who were drinking at the time of a crash increases in relation to the severity of the crash .... [If] In general, the relative probabilities of crash involvement and causation increase dramatically as the driver’s BA C increases.” (P. 85, italics added.)

An even more recent official confirmation of the severity of the problem has appeared, under date of February 21, 1979. The Comptroller General of the United States in his Report to the Congress, entitled “The Drinking-Driver Problem — What Can Be Done About It?” further documents the continuing tragic cost of drinking and driving. The report begins, “Government at all levels, private organizations, and concerned citizen groups are spending millions of dollars on various drinking-driver programs, yet statistics continue to indicate that, overall, one-half of highway fatalities in the United States are related to alcohol.” (P. i.) The Government Accounting Office found that among major obstacles to successful anti-drinking-driver efforts were: “Social acceptability and use of alcohol. . . .

Need for increased judicial support. . . . Need for effective methods to identify and penalize those who serve intoxicated individuals.” (P. iv.) The report continues, “According to the National Safety Council. The Department of Transportation, and other sources, alcohol-related accidents now account for as much as one-half of all highway deaths — or about 25,000 persons annually — and represent an estimated annual economic cost of over $5 billion.

The Department of Health, Education, and Welfare reports that the total annual economic cost from alcohol abuse is about $42 billion.” (Pp. 1-2.) It is crystal clear to us that courts in the formulation of rules on damage assessment and in weighing the deterrent function must recognize the severe threat to the public safety which is posed by the intoxicated driver. The lesson is self-evident and widely understood. Drunken drivers are extremely dangerous people.

It is argued that an alcoholic such as Stille lacks sufficient volition to control his behavior and, accordingly, that he should be excused and not penalized for his involuntary conduct. However, the question of volitional control or wilfulness is a question of fact to be determined at trial. Plaintiff’s allegation that Stille is an “alcoholic,” without further definition, is not conclusive on the volitional issue, for the term may well have been intended by plaintiff merely to describe one who knowingly drinks to excess. Defendant’s final contention is that many instances of simple negligent conduct not involving consumption of alcoholic beverages could also be alleged to involve a conscious disregard of the safety of others.

For example, one who wilfully disobeys traffic signals or speed limit laws arguably possesses such a state of mind and culpability. That case is not before us and we express no opinion on it, holding only that one who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, “such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.” {Prosser, supra, § 2, at pp. 9-10.) Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages. In any event, we do not now consider whether other factual variations upon the theme herein presented would also be sufficient to withstand a demurrer.

We conclude that the complaint in the present case stated a cause of action for punitive damages. To the extent that Gombos v. Ashe, supra, 158 Cal.App,2d 517, is inconsistent with the views herein expressed, it is disapproved. Let a peremptory writ of mandate issue directing the trial court to overrule defendant Stille’s demurrer.

Tobriner, J., Mosk, J., and Manuel, J., concurred.