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Bar Journal - Winter 2008

Enhanced Compensatory Damages in Drunk Driving Cases –
It’s Time to Overturn Gelinas v. Mackey


Attorney Jason Major

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 hosts of party, alleging they failed in their duty to monitor his alcohol consumption and prevent him from driving away from the party in an intoxicated state.17 The issue before the Court was whether to recognize "social host" liability as a tort.18

In deciding to recognize an entirely new tort based on reckless behavior in the serving of alcohol, the Court finally recognized the "contemporary tragedy of drunk driving."19 It also agreed "with the legislature that the problem of drunk drivers on our highways is ‘deplorable,’" and quoted the following passage:

The general court declares that driving while intoxicated is a deplorable act which shows wanton disregard for the rights of others to safely use our highways.20

That legislative finding of fact had not been cited in Johnson or Gelinas. The Court’s use of the word "wanton" in the more recent Hickingbotham decision is thus highly relevant to a reconsideration of the issue today.

The Supreme Court’s modern recognition of the "tragedy" of drunk driving, and its creation of an entirely new cause of action related to alcohol service and consumption, shows that the Johnson and Gelinas cases are outdated remnants of the past, no longer in keeping with contemporary understandings of the "recklessness incarnate" that DUI usually constitutes. Therefore, it is reasonable to conclude that if the issue were to come before the Supreme Court today, the Gelinas holding would likely be overturned.

      A. The Overwhelming Weight of Authority Supports Enhanced Damages Awards in DUI Cases
• In New Hampshire
While the Supreme Court has not been presented with the opportunity to address the issue squarely since Gelinas, a few Superior Court judges have. As noted above Judge Fitzgerald concluded in Hanscom v. O’Connell21 that New Hampshire was "out of step" with the majority of courts in denying enhanced damages in DUI cases.22 He analyzed the laws of other states, and found that:

As a general rule, punitive damages are recoverable in all actions for personal injuries based on tortious acts that involve some additional element of asocial behavior going beyond the facts necessary to create the underlying tort. In particular, it is well established that if, while the defendant was operating a motor vehicle, the defendant’s misconduct proximately causing the injury complained of was sufficiently offensive, an award of exemplary or punitive damages may be sustained.

* * *

Justice Douglas’s special concurrence in [Johnson v. Fernald] indicated that at least fourteen jurisdictions had permitted evidence of intoxication to be admitted to enhance damages. Since that decision, the number of courts permitting such evidence has increased, which demonstrates that the general consensus is that driving while intoxicated is an evil that should be restrained by the used of enhanced or punitive damages.23

Judge Fitzgerald also notes that in the annotation to the A.L.R. article cited above, there was a collection of cases holding that punitive damages were not available under common law: "Aside from a single South Dakota case, New Hampshire is the only jurisdiction represented."24 Even the South Dakota case upheld the decision of a trial court judge who did not dismiss a claim for punitive damages in a DUI case.25 In Hanscom, Judge Fitzgerald allowed the plaintiff to introduce evidence of the defendant’s drunk driving, and would permit the issue of enhanced damages to be decided by the jury:

As New Hampshire is in the extreme minority in its denial of enhanced damages, it is appropriate to leave open the issue of enhanced damages at this time. Although the Court does not make any judgment on the merits of the case, the Court will permit the issue of the possible enhanced damages for reckless or wanton conduct to be determined by the trier of fact. Therefore, since plaintiffs have pled reckless and wanton conduct and have thus satisfied the requirements of Munson, they shall be allowed to introduce evidence of reckless or wanton conduct for the purpose of enhancing damages.26

The most recent Superior Court decision dealing with this issue was less clear, but also seemed to leave the door open to the possibility of allowing a jury to decide whether enhanced compensatory damages were appropriate in a drunk-driving case. The plaintiff in Drapeau v. Lennon,27 specifically requested a jury instruction on enhanced compensatory damages well in advance of trial, after learning that the defendant, whose BAC was .15 at the time of the accident, intended to admit liability and seek exclusion of all evidence pertaining to his intoxication. The trial court ruled without opinion that a determination on an enhanced damages instruction would have to wait for close of evidence.28 At least the court did not automatically foreclose the possibility of such an instruction, as the per se rule of Gelinas would indicate.

Prior New Hampshire case law concerning the general standards for allowing a jury the option of enhancing damages makes it clear that they should be available in intoxicated driver cases. Some of these cases were discussed in Justice Douglas’ concurrence in Johnson. For instance, in McBride v. Huckins,29 the Supreme Court allowed enhanced damages in a case where the defendant, a physician with little or no surgical experience, incorrectly diagnosed that the plaintiff required an arm amputation. The Court stated that "their attempt to do what they knew they were not qualified to do would furnish ground for the application of [enhanced damages]."30

Fifty years later, in Chagnon v. Union Leader Corp.,31 the Supreme Court allowed enhanced damages against the defendant newspaper because it "maliciously" printed articles defaming the plaintiff. The Court defined "maliciously," within the context of the enhancement of damages question, as meaning "not only ill will, evil motive or intention to injure but also a wanton disregard of the rights of others and the consequences likely to follow."32 As Justice Douglas stated in Johnson, when these two cases are read together, they stand for the proposition that:

[I]f a defendant is not competent or qualified to do an act, and if he does it in wanton disregard of the rights of those who might be thereby be injured, enhanced or liberal damages may be assessed against him.33

That is exactly the set of facts that describes drunk driving. Being drunk makes one incompetent to safely operate a motor vehicle, and knowingly operating a motor vehicle after consuming enough alcohol to become drunk shows a "wanton and deplorable disregard for the rights of others to drive our highways in relative safety."34

More recent cases have reaffirmed these basic rules for the imposition of enhanced damages. Examples included Schneider v. Plymouth State College,35 (enhanced compensatory damages appropriate where university merely failed to promptly investigate claims of harassment by student); Aubert v. Aubert,36 (admission of gun and bullet into evidence in shooting case to support argument for enhanced compensatory damages held appropriate for that purpose); Crowley v. Global Realty, Inc.37 It is difficult to fathom what legal or public policy arguments could justify departing from these well-settled general rules on behalf of willfully intoxicated drivers who injure others.

      • Other Jurisdictions
     Courts in other jurisdictions around the country recognized the appropriateness of permitting enhancing damages awards in DUI cases long ago. For instance, in the case of Taylor v. Superior Ct. of Los Angeles Cty.,38 cited by Justice Douglas in his Johnson concurrence, the California Supreme Court stated:

One who willfully 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.39

A nearly identical holding was enunciated by the Arkansas Supreme Court in the case of Miller v. Blanton:40

When Miller imbibed alcoholic liquor he knew that he was taking into his stomach a substance that would stupefy his senses, retard his muscular and nervous reaction, and impair, if not destroy, the perfect coordination of eye, brain and muscles that is essential to safe driving. After Miller voluntarily rendered himself unfit to operate a car properly, he undertook to drive his automobile, a potentially lethal machine, down a well-traveled highway. His conduct in doing this was distinctly antisocial, and the jury was amply authorized in saying by their verdict that he was exhibiting a "wanton disregard of the rights and safety of others."41

In Sebastian v. Wood,42 an Iowa case, the heavily intoxicated defendant crossed over the center line, striking the plaintiff’s vehicle head-on, causing serious injuries to an entire family. The trial court allowed the jury to award exemplary damages, and the defendant challenged that ruling on appeal. The Supreme Court of Iowa held that the allowance of exemplary damages was appropriate, owing to the defendant’s reckless disregard for other motorists’ rights:

This definition or description of reckless, wanton, misconduct, and heedless disregard of obvious consequences and the rights of others is applicable in every respect to the conduct of the defendant at bar. But his conduct was still more reprehensible and culpable because of his intoxication. As the Honorable Tom Boynton said in overruling the defendant’s motion to strike [the plaintiff’s claim for exemplary damages], That for a drunken man to attempt to operate a motor vehicle on a public highway in violation of a statute intended to protect others, is itself the equivalent of gross and culpable negligence.43

In the case of Hawkinson v. Geyer,44 the plaintiffs were seriously injured when the intoxicated defendant drove his car through their home as they watched TV. The plaintiffs appealed the denial of punitive damages. The Minnesota Court of Appeals noted that "[a] majority of states that have addressed this issue support the view that driving while intoxicated is in itself sufficiently reckless or wanton to warrant punitive damages."45 The court held that drunken driving was inherently reckless, such that it supported awarding punitive damages:

From a moral standpoint there is not too much difference between the driver who heads his car into a plaintiff and the driver who takes the wheel knowing himself to be so drunk that he probably will hit someone and not caring whether he does or not; and it is as important to deter the latter type of conduct as the former.46

The Court of Appeals also noted that Minnesota’s legislature had recently enacted tougher penalties for DUI, which it understood as a "commitment to deter such conduct by all possible means."47 Notably, since the Gelinas case was decided, New Hampshire has also undertaken to implement tougher DUI laws. For instance, the legal limit for blood alcohol content was lowered from .10 to .08 in 1993.48

Growing legislative and societal recognition of the recklessness inherent in drunk driving was also a factor in the case of Huff v. Chrismon.49 The North Carolina Court of Appeals noted that the state legislature had recently enacted a "Safe Roads Act" with tougher penalties for impaired drivers. The Court of Appeals also took note of its own recent recognition of common law dram shop liability in holding that:

…driving while under the influence of intoxicating liquor with its very great potential for harm and serious injury may under certain circumstances be deemed ‘outrageous conduct’ and ‘a reckless indifference to the interests of others’ sufficient to allow the imposition of punitive damages.50

In Seymour v. Carcia,51 the Connecticut Court of Appeals upheld a $176,000 jury verdict in favor of a plaintiff who suffered a back injury as a result of being struck by the impaired defendant’s vehicle. The court held that:

A reckless disregard for the safety of others or for the consequences of one’s acts may be inferred from the combined acts of voluntary intoxication and operating a motor vehicle.52

The Court held that the jury’s award of punitive damages against the defendant was justified based on the degree of impairment the defendant was operating the vehicle under (a BAC of .189).53

These cases constitute just a handful of examples demonstrating a general nationwide consensus that enhancement of damages is appropriate in cases involving a drunk-driving defendant. At least 28 states recognize a right to recover enhanced, exemplary, or punitive damages in cases where a plaintiff is injured by a drunk driver.54

Thus, there is clear agreement by the majority of courts in this country that plaintiffs injured by drunk-driving defendants are entitled to enhancement of their damages awards owing to the defendant’s reckless disregard for their rights. New Hampshire’s absence from this overwhelming consensus in the 21st century is surprising and embarrassing. It is time for New Hampshire to recognize what so many other states have already – drunk driving is virtually synonymous with the definition of "reckless" or "wanton" conduct, and therefore justifies allowance of enhanced damages.

       • Cases Upholding Johnson and Gelinas

Despite the widespread consensus described above, the per se rule against enhanced damages in drunk-driver cases has been upheld, if reluctantly, in a few recent trial court decisions in New Hampshire.

The U.S. District Court for the District of New Hampshire analyzed the issue squarely, and at length, in the case of McKinnon v. Harris.55 While the Federal District Court denied the plaintiff’s request for enhanced compensatory damages, it made it clear that if had been within its power to decide the case differently, it would have. The District Court noted that, owing to its status as a federal court applying state law, it was bound to apply New Hampshire’s per se rule in favor of drunk drivers, even if a federal court’s independent judgment on the question might have been different.56

Notably, the District Court highlighted with approval the concurrence by Justice Douglas in both Johnson and Gelinas which noted that, with or without a statute, common law should provide for enhanced damages for injuries resulting from impaired drivers.57 The District Court stated that:

Applying a classic definition of wanton, implicitly approved in New Hampshire, it would be difficult not to conclude for Rule 12(c) purposes that the operation of a motor vehicle after ingesting "grossly excessive amounts of alcohol" could constitute wanton conduct. After all, the Special Declaration describes potentially criminal conduct.58

The Court also noted that "[n]umerous jurisdictions have had no difficulty concluding that the excessive intake of alcohol followed by the operation of a motor vehicle can constitute wanton conduct…."59

Finally, while the District Court concluded that, as a federal court applying New Hampshire law, it was essentially handcuffed to the Gelinas decision by the rule of Erie R.R. Co. v. Tompkins,60 it stated that "what the New Hampshire Supreme Court would do if it revisited the issue … is not reasonably clear," owing to the changed circumstances since the Gelinas case was decided.61 However, because it viewed Gelinas as an "unequivocal" expression of the law from the state’s highest court, "it [was] not this Court’s place to change it," even if the federal court disagreed with the result.62

Aside from Judge Fitzgerald’s decision in the Hanscom case, the New Hampshire Superior Court has had occasion to consider whether enhanced damages should be allowed in tort cases involving drunk-driving defendants in at least three cases in the last ten years. Relying heavily on Johnson v. Fernald, Judge Perkins did not allow evidence of drunk driving for the purpose of enhancing damages in the case of Knight v. Gleason.63 However, like the Supreme Court in the Johnson case, Judge Perkins only seemed to ask whether drunk driving was "malicious" enough to justify enhanced damages, rather than asking the more appropriate question of whether drunk driving shows a "wanton" disregard for the rights of other motorists in the position of the plaintiff.

Judge Perkins’ decision turned on the fact that the plaintiff made "no showing of ill-will, hatred, hostility, or evil motive on the part of the defendant."64 Of course, a showing of "wantonness" does not require proof of any of the aforementioned mental states – it merely requires evidence that the defendant acted with reckless disregard for the safety of others.65 The opinion in the Knight case is therefore subject to the same criticism as the Johnson case. The court in that case applied the wrong test ("malice" as opposed to "wantonness"), inevitably leading to the wrong result.

The other two Superior Court cases relying upon Johnson and Gelinas were both decided on the same day by Judge Houran. In fact, his opinions in both cases read word-for-word exactly the same. The cases are Patterson v. Sanville,66 and Boutin v. Godding.67 In both cases, Judge Houran relied upon the doctrine of stare decisis, holding that it was not up to him to change the controlling law set forth in the Johnson and Gelinas cases.68 While New Hampshire recognizes that the doctrine of stare decisis "demands respect in a society governed by the rule of law,"69 it also holds to the rule that "in our judgment it is better to undergo the hardships that may result from correcting [these outdated rulings]…. than to suffer the errors to persist."70

The N.H. Supreme Court considers the following four factors to inform their judgment as to whether to depart from precedent:

1. The rule has proven to be intolerable simply by defying practical workability;

2. The rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling;

3. Related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and

4. Facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.71

Factor four counsels against continued application of stare decisis to Gelinas. New Hampshire’s tolerance of drunken driving has so changed since the time of Gelinas that blanket denial of enhanced compensatory damages is simply no longer conscionable (if it ever was). Our modern unwillingness to give drunk-drivers a "pass" for their reckless conduct is evidenced by the legislature imposing tougher criminal laws, government-sponsored mass media campaigns and law enforcement crackdowns.

This is exactly the point Judge Fitzgerald made when he correctly noted that New Hampshire is by now "out of step with the majority of states" regarding the allowance of enhanced compensatory damages for victims of injuries caused by impaired drivers.72 While other states have evolved, New Hampshire’s law regarding damages in DUI cases has sadly remained out of touch with reality in this area. As noted above, 28 other states have taken a stand on deterring drunken driving and appropriately compensating plaintiffs injured by such reckless conduct, by permitting enhanced compensatory damages for injures resulting from DUI. It is well past time that New Hampshire did the same. The doctrine of stare decisis should not be used justify the perpetuation of an unjust rule that is out of step with the majority of other courts, and with New Hampshire’s own general rules concerning enhanced compensatory damages.

B. Public Policy Supports Enhanced Damages Awards in DUI Cases
The weight of authority set forth above simply speaks to the obvious public policy and common sense reasons justifying the enhancement of damages in DUI cases. Justice Douglas set forth the public policy reasons, that were clear even then (and much more so now), over 25 years ago in his concurring opinion in Johnson v. Fernald. In his view, it was the courts’ "public responsibility" to weigh:

… the deterrent function of enhanced damages and to allow juries to recognize the severe threat to public safety posed by intoxicated drivers as we formulate our damage assessment rules.

* * *

Statistics, criminal law, and public policy all agree that driving while intoxicated should be discouraged. If in the future we refuse to permit enhanced damages in cases like the one at bar, we will act contrary to the case law in this jurisdiction and, in my opinion, against public policy.73

In reaching his conclusion, Justice Douglas noted that the statistics of the day showed that "drunken drivers have had a lethal impact on our society," with approximately half of the motor vehicle fatalities caused that year by intoxicated drivers. Drunk drivers killed as many as 25,000 drivers annually around the country at that time, and injured many times that number.74

The situation has not changed all that much, despite the incredible advances in passive vehicle safety and massive public information campaigns against drunk driving that have taken root since the early 1980’s. Despite hundreds of millions of dollars spent on public education, drunk drivers killed nearly 17,000 people on our nation’s highways in 2005. See U.S. DOT State-by-State Data on Alcohol-Related Traffic Fatalities.75 Certainly it would be against public policy to send the message that drunk drivers are to be treated as if their reckless conduct is not relevant to the question of damages when they kill about 50 people a day, and injures hundreds more.

There is one public policy-related factor that seems curiously absent from many discussions regarding the appropriateness of enhancing damages in drunken-driving cases. That factor, which counsels strongly in favor of allowing enhanced damages, is the fact that DUI is (and has long been) a crime. Drunk driving is universally treated as a criminal offense, regardless of whether anyone gets hurt as a result. In those cases where it does result in injury to another person, the potential criminal penalties are enhanced.76 In Hickingbotham, the Supreme Court stated that "judicial power to create a tort ‘is to be exercised in light of relevant policy determinations made by the [legislative branch]."77

Certainly the same logic should apply in determining assessment of damages. New Hampshire’s legislature (like every other legislature in the country, and probably around the world) has decided, as a matter of sound public policy, that driving while intoxicated is so reckless – i.e., so wanton – that it is deserving of criminal penalties, even when no one is injured. In those cases where someone is injured, the penalties are more severe.78 When, through the Legislature, our society considers an act reckless enough to deserve criminal punishment, it should go without saying that such an act should also be considered reckless enough to at least open the door to the possibility of enhanced compensatory damages, should a jury decide they are warranted on the facts of a given case.

As Justice Douglas stated over two decades ago, it would be contrary to public policy to bar enhanced compensatory damages in cases where a defendant’s willful intoxication causes a plaintiff’s injuries. Victims injured at the hands of reckless drunk-driving defendants deserve enhancement of their damages to insure they are fully compensated against the effects of the defendant’s wanton behavior. In addition, allowing for enhanced damages in DUI cases can serve a useful deterrent function, providing a secondary level of societal protection to innocent users of our highways, in addition to the criminal sanctions available (which are often reduced in severity due to the sheer number of DUI cases that prosecutors and prisons must contend with). In short, it is well past time that New Hampshire clearly allowed juries the option of enhancing damages in personal injury cases caused by a drunk’s reckless operation of a motor vehicle.


1 123 N.H. 690, 693 (1983) (citing Johnson v. Fernald, 120 N.H. 440, 441-42 (1980)

2 Id at 440

3 Id. at 441

4 Id.

5 Id. at 441

6 See Id

7 Id. At 442 (emphasis added)

8 Id. At 444, 446

9 N.H. Super. Ct. Merrimack Cty., Nov. 7, 2003

10 Id., Slip Op. at 2

11 See Johnson, 120 N.H. at 444-46

12 123 N.H. 690 (1983)

13 Id. at 692

14 Id. at 693

15 See Johnson 120 N.H. at 441

16 140 N.H. 28 (1995)

17 Id. at 29

18 Id. at 31-32

19 Id. at 33

20 Id. at 33 (citing Laws 1981, 543:5) (emphasis added)

21 (Merr Cty. Super. Ct. Nov. 7, 2003)

22 Id., Slip Op. at 3-4

23 Id., Slip Op. at 3 (citations omitted and emphasis added) (citing Russell Ward, Punitive Damages in Motor Vehicle Litigation – Intoxicated Driver, 18 Am. Jur. Proof of Facts 3d 1; Danny R. Veilleux, Annotation, Intoxication of Automobile Driver as Basis for Awarding Punitive Damages, 33 A.L.R. 5th 303 (1995 and 2002 Supp.)).

24 Id., Slip Op. at 4

25 See Id. at n. 1; Berry v. Risdall, 576 N.W.2d 1 (1998).

26 Id. (emphasis added)

27 323 (N.H. Super. Ct., Hillsborough N. Dist.

28 See Order in No. 06-C-323(Hills. County, Northern Dist.) dated April 13, 2007 (clerk’s notice)

29 76 N.H. 206 (1911)

30 Id. at 215 (emphasis added).

31 103 N.H. 426 (1961)

32 Id. at 438 (emphasis added)

33 120 N.H. at 444

34 Id.

35 144 N.H. 458 (1999)

36 129 N.H. 422 (1987)

37 124 N.H. 814 (1984) (allowing claim for enhanced compensatory damages in a misrepresentation case)

38 598 P.2d 854 (Cal. 1979)

39 Id. at 857 (emphasis added)

40 210 S.W.2d 293 (Ark. 1948)

41 Id. at 294-95 (emphasis added)

42 66 N.W.2d 841 (Iowa 1954)

43 Id. at 848

44 352 N.W.2d 784 (Minn. App. 1984)

45 Id. at 788 (emphasis added)

46 378 F.2d 832, 838 (2d Cir. 1967

47 Id.

48 See RSA 265:82-a, II

49 315 S.E.2d 711 (N.C. App. 1984)

50 268 A.2d 157, 161 (Pa. Super. 1970)

51 589 A.2d 7 (Conn.App. 1991)

52 Id. at 11

53 Id.

54 See Ross v. Clark, 274 P. 639 (Ariz. 1929); Miller v. Blanton, 210 S.W.2d 293 (Ark. 1948); Mince v. Butters, 616 P.2d 127 (Colo. 1980); Infeld v. Sullivan, 199 A.2d 693 (Conn. 1964); Ingram v. Pettit, 340 So.2d 922 (Fla. 1976); Cheevers v. Clark, 449 S.E.2d 528 (Ga. App. 1994); Hennessy v. Foley, 507 N.E.2d 1258 (Ill.App. 5th Dist. 1987); Nichols v. Hocke, 297 N.W.2d 205 (Iowa 1980); Cooper v. Barth, 464 S.W.2d 233 (Ky. 1971); Angeron v. Martin, 649 So.2d 40 (La. App. 1st Cir. 1994); Morris v. Littler, 399 N.W.2d 673 (Minn. App. 1987); Southland Broadcasting Co. v. Tracy, 50 So.2d 572 (Miss. 1951); Smith v. Sayles, 637 S.W.2d 714 (Mo. App. 1982); Allers v. Willis, 643 P.2d 592 (Mont. 1982); McMahon v. Chryssikos, 528 A.2d 104 (N.J. Super. 1986); DeMatteo v. Simon, 812 P.2d 361 (N.M. App. 1991); Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 469 (1992); Berrier v. Thrift, 420 S.E.2d 206 (N.C. App. 1992); Canton v. Hauge, 696 P.2d 1126 (Or. App. 1985); Focht v. Rabada, 268 A.2d 157 (Pa. Super. 1970); Flockhart v. Wyant, 467 N.W.2d 473 (S.D. 1991); Pratt v. Duck, 191 S.W.2d 562 (Tenn. App. 1945); Castro v. Sebesta, 808 S.W.2d 189 (Tex. 1991); Miskin v. Carter, 761 P.2d 1378 (Utah 1988); Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993); Lievrouw v. Roth, 459 N.W.2d 850 (Wis. App. 1990).

55 2005 WL 2335350 (D.N.H. Sept. 21, 2005)

56 McKinnon, Slip Op. at 8. (citing Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996)

57 2005 WL 2335350 at 8

58 Id., Slip Op. at 5

59 Id. (citing Miller v. Blanton, 210 S.W.2d 293, 294-95 (Ark. 1948); Danny R. Veilleux, Annotation, Intoxication of Automobile Driver as Basis for Awarding Punitive Damages, 33 A.L.R. 5th 303 at II(A)(3) (2005) "and cases cited therein")

60 304 U.S. 64 (1938)

61 Id., Slip Op. at 8

62 Id.

63 No. 98-C-0293 (N.H. Super.Ct., Belknap Cty. Nov. 8, 1999)

64 Id., Slip. Op. at 3

65 See Johnson, 120 N.H. at 444 (Douglas, J., concurring); McKinnon, supra, Slip. Op. at 4-5.

66 No. 04-C-036 (N.H. Super.Ct., Grafton Cty. April 19, 2005)

67 No. 04-C-157 (N. H. Super.Ct., Grafton Cty. April 19, 2005)

68 See Patterson, supra, Slip. Op. at 3; Boutin, supra, Slip. Op. at 3.

69 Branningan v. Usitalo, 134 N.H. 50, 53 (1991)

70 Community Resources for Justice, Inc. v. City of Manchester, 2007 WL 162727 (N.H. 2007), Slip Op. at 8. (citing Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 641 (2006))

71 (citing Jacobs v. Director ,N.H. Div. of Motor Vehicles, 149 N.H. 502, 505 (2003); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-55 (1992))

72 Hanscom, 2003 WL 23305265 at 4

73 Johnson, 120 N.H. at 445-46 (emphasis added)

74 See Id. at 445

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