Enhanced Compensatory Damages in Drunk Driving Cases - It's Time to Overturn Gelinas v. Mackey
| Jurisdiction | New Hampshire,United States |
| Citation | Vol. 48 No. 4 Pg. 0024 |
| Pages | 0024 |
| Publication year | 2008 |
2008 Winter, Pg. 24. Enhanced Compensatory Damages in Drunk Driving Cases - It's Time to Overturn Gelinas v. Mackey
Winter 2008, Volume 48, No. 4
New practitioners in this state might be surprised to learn that almost 25 years ago, in 1983, the New Hampshire Supreme Court decided that "the act of driving while intoxicated did not constitute `wanton or malicious' conduct as defined at common law for purposes of enhancing damages." Gelinas v. Mackey.1 Those new practitioners would likely be even more surprised to learn that the Gelinas decision, and the Johnson case it borrowed from, are still ostensibly the law of the land today.
Because of the rule set forth in these cases, imagine how defense counsel could shape the outcome of a typical case involving a DUI defendant: The defendant leaves the bar after having had 10 mixed drinks, with a blood alcohol content (BAC) of .20 - which is well beyond the legal limit in New Hampshire (.08). On the way home, he crosses the center line due to his inebriation, and crashes his pick-up head-on with a small SUV driven by a young father. The young father suffers crippling back injuries as a result of the accident, severely hindering his ability to support his family.
Under current law, the defendant's counsel can probably prevent a jury from ever learning the fact that the plaintiff's injuries were caused by his client's drunk-driving. The defendant can accomplish that result by admitting liability, and restricting evidence in the case only to damages. Rather than a story about how one person's recklessness caused another's suffering, it becomes a dry and boring examination of medical records and expert medical testimony.
Contrast that result with what can happen in a case with only slightly different facts: Rather than willfully becoming intoxicated, imagine the defendant pushed his speed to 50 mph over the posted limit, and as a result, slid into the plaintiff's lane, causing a similar accident and similar injuries. In this case, even if the defendant admits liability, a jury could be allowed to hear evidence of the defendant's conduct and award enhanced damages if it found that conduct to be reckless, because there is no per se rule against admission of evidence pertaining to reckless levels of speed for that purpose.
There is clearly something awry with this picture. In both cases the plaintiff's injuries resulted from conduct that could arguably be deemed reckless. In the case caused by drunk driving, the defendant gets an automatic free pass for his reckless conduct. He's treated no differently than a defendant who simply fails to see another car coming, or otherwise honestly misjudges a traffic situation.
In the case involving excessive speed, the defendant's recklessness may appropriately be considered by the jury as an aggravating factor, entitling a plaintiff to receive an enhancement when a damages award is calculated. It's up to the jury to decide if the defendant's conduct was sufficiently "wanton" to justify enhancement of damages. That's the rule in virtually every other type of tort case involving "reckless" or "wanton" behavior by a defendant.
Gelinas and Fernald depart from the usual rules regarding enhancement of damages in tort cases, setting up a discordant per se rule that effectively immunizes defendants from the consequences of their reckless behavior if they admit liability for driving under the influence. These two cases were wrongly decided in the first instance, and are now seriously overdue for reconsideration and re-analysis, in light of the undisputed societal and judicial recognitions that driving under the influence does constitute wanton, reckless disregard for the life and safety of others. Given the carnage wrought by those who recklessly drive while inebriated, a jury should have the option of enhancing damages in a case involving a drunk-driving defendant if it finds the facts of the case warrant it.
Any discussion about changing the law necessarily requires an examination of the law as it currently stands. First, an overview of the decisions in the Johnson and Gelinas:
(1) Johnson v. Fernald
In Johnson, the plaintiff was a passenger in a car that was struck by the drunken defendant's truck.2 The defendant admitted liability, but the plaintiff also sought to admit evidence of the fact that the defendant's DUI contributed to the accident and requested enhanced damages. The trial court ruled that the evidence of the defendant's DUI was not admissible.3 The Supreme Court affirmed on the specific basis that the plaintiff had not alleged that the defendant's drunk driving constituted wanton or malicious conduct.4 The Supreme Court also stated that it did "not equate the act of driving while under the influence with the term `malice.'"5 Notably, the Court did not speak to whether the act of drunk driving could be equated with the term "wanton." The holding seemed to be limited to the proposition that driving under the influence of alcohol, by itself, did not qualify as a "malicious" act for the purpose of enhancing damages.6
However, the Supreme Court's decision on this point was not unanimous. In a concurring opinion, Justice Douglas squarely addressed the question of whether DUI constituted "wanton" behavior sufficient to justify and award of enhanced damages. While he agreed that the plaintiff in Johnson was barred from seeking enhanced damages solely as a result of his failure to allege that defendant's conduct was "wanton," he stated that,
. . . this court should have made it clear that had the plaintiff's pleading conformed to the [pleading rules] in [Munson v. Raudonis, 118 N.H. 474 (1978)], evidence relating to the defendant's drunken state at the time of the accident would have been admissible on the issue of enhanced damages, regardless of whether the defendant admitted liability.7
Justice Douglas concluded by stating that "it cannot seriously be denied that when a person becomes intoxicated with the intention of driving in that condition, he acts in wanton disregard of the rights of others and the consequences that follow," and that precluding enhanced damages in such cases was "against public policy." 8
In a more recent Superior Court decision, Judge Fitzgerald noted in the case of Hanscom v. O'Connell,9 that the Johnson decision's focus on the term "malice" and Justice Douglas' opinion demonstrate that even when that case was decided, the issue of enhanced compensatory damages in DUI cases was not a "closed issue."10 There was therefore a contemporary recognition by at least one member of the Supreme Court that, while DUI may not constitute "malicious" conduct, it certainly could constitute "wanton" or "reckless" conduct of the sort that usually justified an enhanced damages award under New Hampshire law. 11
(2) Gelinas v. Mackey
The Johnson case was followed three years later by Gelinas v. Mackey.12 This case arose from another motor vehicle collision caused by a drunk-driving defendant. As in Johnson, the defendant admitted liability, but the trial court did allow evidence of the defendant's intoxicated state at the time of the accident.13 However, the jury made a special finding that the defendant had not acted wantonly under the circumstances of that case. It awarded compensatory damages of $200,000, which the defendant appealed, claiming that the evidence of his intoxication should have been ruled inadmissible.
The Supreme Court's opinion in the case centered on RSA 265:89-a, a statute which had been enacted to allow double damages in DUI cases, but which had been repealed by the time of the Johnson case. The Court held that because the statute had been repealed (and would not have been applicable on the facts in any case), enhanced damages were not allowed, and the evidence of the defendant's drunkenness should not have been admitted.14 The Court misquoted its earlier decision in Johnson where it stated "the act of driving while intoxicated did not constitute `wanton or malicious' conduct as defined at common law." Id. The earlier decision, as described above, had merely stated that DUI did not constitute "malicious" conduct, but was silent on whether it constituted "wanton" or "reckless" conduct.15
In Gelinas, Justice Douglas again concurred in the result, based on the jury's special finding that the defendant had not acted wantonly. However, he reiterated that, regardless of whether the legislature enacted a statute allowing double damages in DUI cases, "drunks causing carnage on the highways engage in common-law `wanton or malicious conduct.'"
(3) Subsequent Supreme Court Statements Regarding Drunk Driving
Johnson and Gelinas are, surprisingly, still technically the law of the land in this state. However, there are signs that suggest the continuing validity of these two decisions is in doubt. While Justice Douglas clearly recognized that the recklessness of engaging in DUI justified the possibility of an enhanced damages award at the time the Johnson and Gelinas cases were decided, it apparently took the full Supreme Court several years longer to begin catching up to what the vast majority of other state courts had been holding for decades. Nevertheless, there is at least one subsequent opinion by the New Hampshire Supreme Court demonstrating that the Court now recognizes that drunk driving is a sufficiently "wanton" and "reckless" act to justify not just enhanced damages, but entirely new torts.
That case is Hickingbotham v. Burke.16 The Hickingbotham case concerned "social host" liability. The plaintiff in that case was a party guest who became too drunk to drive, but did so nevertheless and was involved in a crash in which he was injured. He sued the...
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