The Multi-Jurisdictional Practitioner Looks At Punitive Damages Regarding Drunk Drivers And Dram Shop Law

This article will explore whether Maryland, District of Columbia, and Virginia law (1) allows punitive damages against drunk drivers and, if so, under what circumstances, and (2) supports dram shop liability.

First, a hypothetical story: A regular customer comes into a bar and tells the bartender that he’s had a rough day at work and wants to throw back a few drinks before driving home. Assume this conversation is overheard by a couple sitting at the bar. The customer then has 6 drinks in 2 hours. By the 4 ^th drink he is slurring his speech. The bartender hears this. The customer gets up and walks a crooked line to the bathroom. The bartender sees this. After the 6^th drink, the customer leaves the bar stumbling. The bartender sees this and does nothing. The customer makes it to his SUV. He fires it up, and begins the 25-minute drive home. On the way, he loses control of the SUV, crosses over double-yellow lines into oncoming traffic, and smashes into a small car. In the car was a husband and father of two children in elementary school. The father does not survive the crash.

Maryland

Under Maryland law, are punitive damages available against the customer? No. Under Komornick v. Sparks, 331 Md. 720, 629 A.2d 721 (1993), the Court of Appeals held that in order to maintain an award of punitive damages against a drunk driver, the plaintiff must prove that the defendant had “actual malice,” meaning that he intended the harm that he caused.

Can the family maintain an action against the bartender or bar? No. Under Maryland law there is no “dram shop liability.” ^[1] A long line of Court of Appeals cases makes this clear. Recently, in Warr v. JMGM Grp., LLC, 433 Md. 170, 70 A.3d 347 (2013), the Court of Appeals maintained this refusal and reaffirmed that, were such a change in Maryland law to occur, it would have to come from the legislature. The Court also found that, under Maryland law, there is “no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists either between the actor and the third person or between the actor and the person injured or between the actor and the person injured.”^[2]

District of Columbia

Okay, so what if the same facts took place in the District of Columbia? First, could the mother and children get punitive damages against the customer of the bar? Answer: Probably not. Punitive damages have not generally been available in DC in cases involving mere drunken driving. Giddings v. Zellan, 82 U.S. App. D.C. 92, 160 F.2d 585, cert. denied, 332 U.S. 759 (1947). Twenty years later, the Court of Appeals wrote: “It is our view that Giddings, despite some general language in the opinion, holds only that Maryland law does not permit punitive damages for injuries inflicted by negligent operation of a motor vehicle.” Safeway Trails, Inc. v. Schmidt, 225 A.2d 317, 320 (D.C., 1967).

In District of Columbia v. Bamidele (D.C. 2014)^[3], the Court of Appeals set forth the requirements for proving punitive damages as follows:

To recover punitive damages, the plaintiff must prove more than mere tortious conduct; plaintiff must also prove by clear-and-convincing evidence that the defendant’s tortious acts were “accompanied by conduct and a state of mind evincing malice or its equivalent.” District of Columbia v. Jackson, 810 A.2d 388, 396 (D.C. 2002) (quoting Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938 (D.C. 1995)). To establish “malice or its equivalent,” the plaintiff must prove two things: (1) “the defendant acted with evil motive, actual malice, deliberate violence or oppression, or with intent to injure, or in willful disregard for the rights of the plaintiff”; and (2) “the defendant’s conduct itself was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.” District of Columbia v. Jackson, 810 A.2d at 396 (quoting Croley, 759 A.2d at 695). In determining whether the plaintiffs carried this burden at trial, we view the evidence in the light most favorable to their cause, asking only “whether there was evidence from which a jury reasonably could find the required malicious intent or willful disregard of another’s rights.” Tolson v. District of Columbia, 860 A.2d 336, 345 (D.C. 2004) (quoting King v. Kirlin Enters., 626 A.2d 882, 884 (D.C. 1993)).

This reads to this author a lot like Maryland law on this topic.

What about a cause of action against the bartender or bar? D.C. law, unlike Maryland law, does have dram shop liability. The District of Columbia Court of Appeals dealt with this issue in Rong Yao Zhou v. Jennifer Mall Restaurant, Inc.^[4] In Zhou, a restaurant’s employees had served alcohol to a customer after he either was, or appeared to be, intoxicated. Sometime later he then left the restaurant and drove into two people, seriously injuring them.

The Court of Appeals reviewed D.C. Code § 25-121(b) (1981) of the Alcohol Beverage Control Act, which prohibits holders of licenses under § 25-111 from “permit[ing] on the licensed premises . . . the consumption of any beverage by any intoxicated person, or any person of notoriously intemperate habits, or any person who appears to be intoxicated. . . .”^[5] Reasoning that, because this statute created a standard of care for the “tavern keeper,” when a plaintiff alleges a violation of that standard, “he alleges sufficient evidence of negligence that, when combined with an allegation of proximate causation, states a cause of action under District of Columbia law.”^[6] The key here is that unlike the Maryland Court of Appeals, the D.C. Court of Appeals has repeatedly recognized that violation of a statute designed to protect public safety supplies sufficient evidence on which to rest a claim for civil liability. [Note: The code section that was the basis for dram shop liability in Zhou is now codified at D.C. Code § 25-781 (2015).] The Court found this to be true even if “public safety may have been only a partial purpose of the legislation.”^[7]

The Court then sent the case back to the trial court, Superior Court, after outlining the way that the case should proceed upon its return. First, the jury had to consider whether the statute was violated. Second, the Defendant could “present evidence as to whether the violation was excusable under the circumstances or whether other acts of due care negate the negligence implied by the statutory violation.”^[8] Third, “plaintiffs must prove that the statutory violation was the proximate cause of their injuries.”^[9] The Court defined proximate cause in this context as proof of an injury and “its proximity in time, place and circumstances . . . to the alleged statutory violation.”^[10] Lastly, the Court noted that in considering proximate cause “the jury is not free to find that the customer’s consumption of the alcohol was an intervening cause of the harm to plaintiff, thereby negativing proximate cause as it relates to the tavern keeper’s furnishing of the drinks.”^[11] A variation of this issue arose in Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (D.C. 2000). In Jarrett, the Court of Appeals extended the application of dram shop liability to a bar for serving an underage, intoxicated patron. In so doing, it reiterated that Zhou remains good law and held that the underage patron’s own assumption of the risk or contributory negligence would not bar recovery. ^[12]

Virginia

Can the mother and surviving children successfully bring an action for punitive damages against the customer in Virginia? Yes. In 1994, the Virginia legislature enacted Va. Code Ann. § 8.01-44.5. This statute provides that exemplary (i.e., punitive) damages may be awarded in any action for personal injury or death arising from the operation of a motor vehicle if “the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.” A defendant’s conduct is deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others under the statute when plaintiff proves:

(1) the defendant had a blood alcohol content of .15 percent or above by weight by volume, or 0.15 grams or more per 210 liters of breath;

(2) the defendant knew when he began or during the time he was drinking that he was going to operate a motor vehicle; and

(3) the defendant’s intoxication was a proximate cause of the injury or death of the plaintiff.^[13]

What if the customer refused to submit to a blood alcohol test after being pulled over by the police? When the defendant “unreasonably” refuses to submit to a blood alcohol test as required by Va. Code Ann. § 18.2-268.2,^[14] his conduct is deemed sufficiently willful or wanton to show a conscious disregard for the rights of others when Plaintiff proves that:

(1) when the incident causing injury or death occurred, the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant;

(2) the defendant knew when he began or during the time he was drinking that he was going to operate a motor vehicle; and

(3) the defendant’s intoxication was a proximate cause of the injury or death of the plaintiff.

It may also be possible to establish a common law claim for punitive damages in Virginia if the above statutory requirements cannot be met. In Webb v. Rivers, 256 Va. 460, 507 S.E. 2d 360 (1998), the Virginia Supreme Court found that the evidence presented at trial was insufficient to prove the second element of the statutory test for an award of punitive damages (see (2) above). Nonetheless, the Court held that the plaintiff did establish sufficient facts from which the jury could infer the kind of recklessness or negligence that met the common law standard for an award of punitive damages. These facts included that the defendant drove at excessive speed, ran a red light, had a BAC of .21%, and was so drunk that he did not know where he was or what time of night it was.

Additionally, a verdict predicated on intoxication due to alcohol (or another substance) is not dischargeable in bankruptcy. 11 USCA §523(a)(9)(1984). Under this statute, a plaintiff will have 40 years to collect from the defendant any verdict not covered by insurance.

Lastly, does Virginia have dram shop liability? No. Virginia’s legislature has not enacted dram shop liability and its common law does not support it. ^[15]

Copyright © 2015, Eric N. Stravitz.

BIOGRAPHY FOR ARTICLE

Eric N. Stravitz is the owner of the Maryland-based Stravitz Law Firm, P.C., where he handles A variety of personal injury and medical malpractice claims, lawsuits and trials in federal and state-level courts across the region.

^[1] A “dram” is a measurement of liquid equal to one-eighth of a liquid once. A “dram shop” is an archaic term for a bar or tavern. “Dram shop liability” refers to “[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer.” Black’s Law Dictionary 568 (9th ed. 2009).

^[2] 70 A.3d at 356 (citing Ashburn v. Anne Arundel County, 306 Md. 617, 628, 510 A.2d 1078, 1083 (1986)).

^[3] No. 12-CV-28, No. 12-CV-33.

^[4] Rong Yao Zhou v. Jennifer Mall Restaurant, Inc , 534 A.2d 1268 (1987), appeal after remand and reversed and remanded on other grounds by, 699 A.2d 348 (1997), and Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (2000).

^[5] 534 A.2d at 1271.

^[6] Id . at 1272.

^[7] Id. at 1276 (emphasis in original).

^[8] Id. at 1277.

^[9] Id. at 1277 (citations omitted).

^[10] Id . at 1277.

^[11] Id. at 1277 (emphasis in original). The Court explained why: “To permit such a conclusion would be to give force to the very argument that the rule of negligence per se is designed to preempt. The essence of that rule is that ‘the conduct of the defendant or his agent was negligent precisely because it created a risk that a third person would act improperly. In such circumstances, the fact that a third person does act improperly is not an intelligible reason for excusing the defendant.'” Id. (citations omitted).

^[12] Id. at 985.

^[13] If the Plaintiff does not prove all three of these things, the statutory punitive damages claim will fail. Webb v. Rivers, 256 Va. 460, 507 S.E. 2d 360 (1998).

^[14] Under Va. Code Ann. § 8.01-44.5, a certified copy of a court’s determination of unreasonable refusal to submit to such a blood alcohol test is prima facie evidence that the defendant unreasonably refused to submit to the test. This means that unless the defendant offers evidence to rebut the unreasonable refusal to submit to the blood alcohol test, it will be deemed proven by the trial judge.

^[15] See Williamson v. Old Brogue, Inc. , 232 Va. 350, 350 S.E. 2d 621 (1986).