Can the Threat of Punitive Damages Deter Serial Texting Indiana Drivers? (Part 2 of 2)

Last week we looked at Indiana’s anti-texting statute, the unlikelihood of criminal enforcement, and asked whether punitive damages could provide an additional deterrent.  We noted the first obstacle to punitive damages is Indiana’s incentive-reducing statute that takes 75% of any uninsured, punitive judgment and requires this to be paid to the State of Indiana.

The second obstacle to punitive damages is that federal law prohibits “grossly excessive” punishment of wrongdoers as unconstitutional for violating an individual’s substantive due process rights.  Recognizing that there are many different degrees of wrongful conduct, the U.S. Supreme Court placed no arbitrary limit on punitive damages in the case of BMW of North America, Inc. v. Gore, but reversed an award of 1000x compensatory damages.  Later, in State Farm v. Campbell, the Court noted that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  Luckily for State Farm, this meant the reversal of an award of $145 million in punitive damages where compensatory damages had been $1 million.

Indiana law provides wrongdoers in Indiana with even more protection than that provided by the U.S. Supreme Court.   Indiana places an arbitrary cap on any punitive damages award of the greater of $50,000 or three times the compensatory damages awarded.  Thus, even though Indiana victims of wrongful conduct would be helping victims of violent crime and sexual assault by maintaining a claim for punitive damages, Indiana believes three is the magic number when compensatory damages exceed $50,000.

The third obstacle on punitive damages is that Indiana courts have declared that presenting evidence showing only that a wrongdoer had a “heedless disregard of the consequences” of his actions is legally insufficient to support an award of punitive damages.  Punitive damages are only proper upon a showing of “willful and wanton conduct” meaning “an intentional act done with reckless disregard of the natural and probable consequences of injury.”   Even then, this proof must be established by “clear and convincing evidence” not the usual “preponderance of the evidence” standard applicable to a compensatory damages award.

There is no Indiana case answering the question presented of whether a habitually texting driver who crashes into and injures an innocent victim can be properly hit with a punitive damages award.  The best way to answer the question is to look for a close cousin of a case.  Davidson v. Bailey provides some guidance.  In Davidson, the Indiana Court of Appeals upheld an award of punitive damages against a car’s owner when she allowed her intoxicated boyfriend to drive it, causing a crash and injuries.  The Court found persuasive that the girlfriend had spent several hours with her boyfriend who was found to have a .248% BAC and had displayed obvious signs of intoxication, including slurred speech, an odor of alcohol, and bloodshot eyes.  Additionally, the girlfriend had been trained by a previous job to spot signs of intoxication.

Very few of us can innocently claim we are not aware of the dangers of texting and driving.  Every day area drivers glide over center lines into our lanes, glance down repeatedly and run up on our bumpers, and remain stopped in front of us at green lights until we honk.  Drivers addicted and unable to break these habits do so at their own risk of paying a punitive damages award out of their paycheck when they inevitably strike an innocent victim.

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