ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
ROBERT T. SANDERS, III JOHN D. ULMER
Sanders, Pianowski, LLP BODIE J. STEGELMANN
Elkhart, Indiana Yoder, Ainlay, Ulmer & Buckingham, LLP
COURT OF APPEALS OF INDIANA
MATTHEW W. STROUD and MARGARET A. )
vs. ) No. 20A04-0010-CV-458
TREVOR A. LINTS, DANIEL M. LINTS, and )
VICKI LINTS, Individually and as Parents/Natural )
Guardians of Trevor A. Lints. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-9806-CT-38
January 16, 2002
OPINION - FOR PUBLICATION
Matthew Stroud appeals the trial courts award of $500,000 in punitive damages against
him in favor of Trevor Lints in Lints action seeking recovery for injuries
sustained in an automobile accident caused by Stroud. Lints cross-appeals the trial
courts finding that he was twenty-five percent at fault for his injuries and
that Strouds mother was not liable for the punitive damages award. We
affirm in all respects.
Stroud has listed six issues, but they may be restated as one basic
issue: whether the punitive damages award is clearly excessive. Lints two
cross-appeal issues are:
I. whether Strouds mother should have been held liable for the punitive damages award
because she signed Strouds drivers license application pursuant to Indiana Code Section 9-24-9-4(a);
II. whether Stroud presented sufficient evidence that Lints was twenty-five percent comparatively at fault
for his injuries.
The facts most favorable to the judgment reveal that on July 23, 1996,
high school classmates Stroud and Lints went to the Elkhart County Fair.
They brought with them mixed drinks of Gatorade and vodka, which they both
drank during the afternoon and evening. Despite the fact that he knew
Stroud had been drinking, Lints asked Stroud for a ride home. Stroud
began driving at a high speed on County Road 28. As he
approached an intersection, he passed a stopped line of traffic, disregarded a stop
sign, and collided with another vehicle while traveling an estimated ninety-four miles per
hour. The two occupants of the other vehicle were killed. Lints suffered
extensive injuries, including various skull fractures, fractures of both arms, lacerations, and a
severe closed-head injury. He was in a coma for almost one week
and remained hospitalized for approximately six weeks. A doctor later determined that
Lints had a twenty-three percent permanent physical impairment of his whole person as
a result of the accident. Lints also claims the head injury has
resulted in continuing cognitive inefficiencies, including memory, attention, and concentration problems. Record
pp. 411, 580.
Stroud was charged with six criminal counts related to the accident, including one
count of operating while intoxicated (OWI) and causing serious bodily injury to Lints
in violation of Indiana Code Section 9-30-5-4, a Class D felony. Stroud
pled guilty to all six counts and was initially sentenced on June 12,
1997, to eight years of incarceration; he received three years on the count
related to Lints, to be served concurrently with the eight-year sentences on the
two counts of OWI resulting in death. On June 10, 1999, Strouds
petition for modification of his sentence was granted, which allowed him to serve
the rest of his incarceration period on work release.
On June 10, 1998, Lints and his parents sued Stroud and his mother,
who had signed Strouds minor drivers license application. After a bench trial,
the trial court entered judgment, without special findings, on September 12, 2000.
It found Lints total compensatory damages to be $1,842,000; however, it also found
Lints was twenty-five percent at fault for his injuries and entered judgment against
Stroud and his mother for $1,381,500 in compensatory damages. It also found
Lints parents were entitled to $100,000 in compensatory damages, after taking Lints comparative
fault into account. Finally, it assessed $500,000 in punitive damages against Stroud
only. Stroud and Lints now both appeal.
I. Punitive Damages
The standard of review for determining whether punitive damages were properly awarded is
whether, considering only the probative evidence and the reasonable inferences supporting the judgment,
without weighing evidence or assessing witness credibility, a reasonable trier of fact could
find by clear and convincing evidence that the defendant acted with malice, fraud,
gross negligence or oppressiveness that was not the result of a mistake of
fact or law, honest error of judgment, overzealousness, mere negligence, or other human
failing. Executive Builders, Inc. v. Trisler, 741 N.E.2d 351, 360 (Ind. Ct.
App. 2000), trans. denied, cert. pending. Punitive damages may also be awarded
upon a showing of willful and wanton misconduct. Mitchell v. Stevenson, 677
N.E.2d 551, 564 (Ind. Ct. App. 1997), trans. denied. Stroud makes no
argument that punitive damages were entirely inappropriate. He concedes, therefore, that some
punitive damages were appropriate here; his argument is focused on the awards amount.
As to the standard of review as to the amount of punitive damages,
numerous Indiana cases have discussed various factors to consider when reviewing the amount
of punitive damages, but few have clearly articulated the level of deference given
to a trial courts or jurys assessment as to the appropriate amount of
such damages. Generally, Indiana courts will not reverse an award of punitive
damages as being excessive unless the damages appear so unreasonable as to indicate
that the fact finder was motivated by passion or prejudice. Archem, Inc.
v. Simo, 549 N.E.2d 1054, 1061 (Ind. Ct. App. 1990), trans. denied.
A judgment awarding punitive damages that is a product of fair procedures is
cloaked with a strong presumption of validity. Coachmen Industries, Inc. v. Dunn,
719 N.E.2d 1271, 1278 (Ind. Ct. App. 1999), trans. denied. Finally, we
have stated that [o]nce it has been determined that there is a legal
basis upon which to premise an award of punitive damages, the amount of
the award rests within the sound discretion of the [fact finder]. Arlington
State Bank v. Colvin, 545 N.E.2d 572, 580 (Ind. Ct. App. 1989) (emphasis
added). Stroud makes no argument that the trial court was motivated by
passion or prejudice, nor that unfair procedures were used in procuring the judgment.
That being the case, the amount of the award rested within the
trial courts sound discretion, and we will review the award for an abuse
of that discretion. An abuse of discretion has occurred if the trial courts
decision is against the logic and effect of the facts and circumstances or
the reasonable inferences therefrom, or if the trial courts decision is without reason
or based upon impermissible reasons or considerations. DeVittorio v. Werker Bros., Inc.,
634 N.E.2d 528, 530 (Ind. Ct. App. 1994).
At oral argument, counsel for Stroud directed us to the recent Supreme Court
case of Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
121 S. Ct. 1678, 1685-86 (2001), where it was held that appellate courts
should apply a de novo standard of review when reviewing whether a punitive
damages award is excessive under the Due Process Clause of the Fourteenth Amendment
and the parameters of BMW of North America, Inc. v. Gore, 517 U.S.
559, 116 S. Ct. 1589 (1996). Stroud has not argued, however, that
the punitive damages award in this case is constitutionally excessive. The Cooper
opinion states that [i]f no constitutional issue is raised, the role of the
appellate court, at least in the federal system, is merely to review the
trial courts determination under an abuse-of-discretion standard. 532 U.S. at --, 121
S. Ct. at 1684. This is consistent with the Indiana common law
standard for reviewing the amount of a punitive damages award and it is
the standard we apply today.
The purpose of punitive damages is to punish the wrongdoer and thereby deter
others from engaging in similar conduct.
Bright v. Kuehl, 650 N.E.2d 311,
316 (Ind. Ct. App. 1995). Three factors that we may consider when
addressing whether an award of punitive damages is excessive are: (1) the
degree of reprehensibility of the conduct at issue; (2) the disparity between the
harm or potential harm suffered by the complaining party and the punitive damages
the complaining party received; and (3) the difference between the punitive damages remedy
and the civil and criminal penalties authorized or imposed in comparable cases.
Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 561-62 (Ind. Ct. App. 1999),
(citing BMW, 517 U.S. at 574-75, 116 S. Ct. at 1598-99), trans. denied,
cert. denied, 529 U.S. 1021, 120 S. Ct. 1424 (2000). It has
also been said, under Indiana common law, that there are two primary factors
which should be properly considered in reviewing an award of punitive damages:
(1) the nature of the tort and the extent of the actual damages
sustained; and (2) the economic wealth of the defendant. Bright, 650 N.E.2d
at 316. We observe that part one of this test is actually
two parts, and that it corresponds closely with the first two parts of
the BMW test: the reprehensibility of the defendants conduct and the disparity
between compensatory and punitive damages; thus, under Indiana law, the defendants economic wealth
is the only non-BMW factor to be considered by the fact finder.
The BMW opinion states that [p]erhaps the most important indicium of the reasonableness
of a punitive damages award is the degree of reprehensibility of the defendants
conduct. 517 U.S. at 575, 116 S. Ct. at 1599. The
Court, in concluding that none of the aggravating factors associated with particularly reprehensible
conduct is present, noted inter alia that the harm BMW inflicted on the
plaintiff was purely economic in nature and that BMWs conduct evinced no indifference
to or reckless disregard for the health and safety of others. Id.
at 576, 116 S. Ct. at 1599. Although conceding Stroud did not
intend to harm anyone by his conduct, Lints cites Williams v. Crist, 484
N.E.2d 576, 578 (Ind. 1985), for the proposition that an intoxicated driver is
per se guilty of willful and wanton misconduct when he deliberately assumes control
of an automobile and places it upon a public highway.
See footnote We agree
that the evidence supports the conclusion that Strouds behavior went far beyond simple
or even gross negligence. He operated his vehicle in a highly reckless
manner in addition to being intoxicated while doing so. Approximately one month
before the accident Stroud had been ticketed for illegal consumption of alcohol while
operating a motor vehicle, which evidently had no deterrent effect. Strouds willful
and wanton misconduct did evince substantial disregard for the health and safety of
others and did in fact result in great physical injury to Lints, as
opposed to merely economic injury. Short of intentionally causing physical injury to
another, Strouds conduct could hardly have been more reprehensible.
The second and perhaps most commonly cited indicium of an unreasonable or excessive
punitive damages award is its ratio to the actual harm inflicted on the
BMW, 517 U.S. at 580, 116 S. Ct. at 1601.
In other words, there must be a reasonable relationship between punitive and compensatory
damages. Id. The Supreme Court was troubled by the 500 to
1 punitive to compensatory damages ratio in the BMW case. On the
other hand, this court has in the past affirmed punitive damages awards that
have been as much as 150 times greater than the compensatory damages.
See Emerson v. Markle, 539 N.E.2d 35, 40 (Ind. Ct. App. 1989), trans.
denied. Here, the punitive damages are actually nearly two-thirds less than the
compensatory damages, after accounting for Lints comparative fault. Clearly, the punitive damages
awarded in this case bear a reasonable relationship to the actual harm suffered
by Lints as represented by the amount of the compensatory damages award, which
Stroud does not challenge on appeal.
Comparing the punitive damages award and the civil or criminal penalties that could
be imposed for comparable misconduct provides a third indicium of excessiveness. Ford
Motor Co., 705 N.E.2d at 562. Operating a vehicle while intoxicated and
causing serious bodily injury is a Class D felony that would address Strouds
conduct as it affected Lints and carries a maximum $10,000 fine. Ind.
Code §§ 9-30-5-4 and 35-50-2-7(a). The punitive damages award here is thus
fifty times greater than the possible criminal monetary penalty. A person may
also be imprisoned for up to three years for a Class D felony,
however, which makes the difference in monetary penalties less relevant. See BMW,
517 U.S. at 583, 116 S. Ct. at 1603.
As for comparable civil penalties, we are unaware of any reported case in
Indiana with a similar fact pattern and an award of punitive damages with
which to compare this case. Lints directs us to the case of
Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992). There, the
defendant killed one motorcyclist and injured another while driving while intoxicated. The
Supreme Court of Arkansas affirmed two punitive damages awards of $500,000 against the
defendant for each victim. It acknowledged that the defendants financial wealth is
a proper element to be considered in the computation of punitive damages and
that the defendant in that case had no assets and little income, but
it nonetheless affirmed the awards, noting inter alia that punitive damages must be
sufficient to deter not only the specific wrongdoer, but others in the general
public as well. Id. at 552, 838 S.W.2d at 352-53. The
punitive damages award against Stroud is, therefore, consistent with available precedent.
Strouds arguments for reversal or remittitur focus primarily on his alleged inability to
pay the $500,000 in punitive damages, as well as on the fact that
he has already been subjected to criminal sanctions for his conduct. He
is correct that this court has often affirmed large punitive damages awards only
after considering the defendants wealth and ability to pay the award. See
Executive Builders, 741 N.E.2d at 361 (holding $1.64 million in punitive damages not
oppressive where award still left defendant with 90% of his wealth); Dow Chemical
Co. v. St. Vincent Hosp. & Health Care Center, Inc., 553 N.E.2d 144,
151 (Ind. Ct. App. 1990), (noting defendants phenomenal wealth (total assets of $14.356
billion) as indicating that the $5 million punitive damages award is not excessive
but would have the desired deterrent effect); Archem, Inc., 549 N.E.2d at 1061
(affirming $750,000 punitive damages award after noting defendants net worth of at least
Unlike these cases, however, there is no concrete evidence in the record regarding
Strouds net worth. Stroud argues that because Lints was seeking punitive damages
and because some opinions of this court have stated that the defendants economic
wealth is a factor that may or even should be considered when assessing
punitive damages, it was Lints burden to present evidence of Strouds economic wealth
and ability to pay. We disagree.
In Hibschman Pontiac v. Batchelor, our supreme court said there appears to be
no requirement that evidence of [a defendants] worth be submitted in cases of
punitive damages. 266 Ind. 310, 316-17, 362 N.E.2d 845, 849 (1977).
The court has not revisited this issue in the past twenty-four years, making
Hibschman the current law on the subject. Also, we have held after
Hibschman that although a defendants assets and income are relevant factors that may
be considered in determining whether an award of punitive damages is excessive, the
absence of evidence of economic wealth does not necessarily render the amount of
punitive damages so speculative as to be excessive where (as here) the fact
finder has other evidence to consider, such as the nature of the tort.
Arlington State Bank v. Colvin, 545 N.E.2d 572, 580 (Ind. Ct. App.
1989). We also observe that Judge Posner of the United States Seventh
Circuit has flatly rejected the proposition that a plaintiff must present evidence of
a defendants wealth when seeking punitive damages. Kemezy v. Peters, 79 F.3d
33, 36 (7th Cir. 1996). See also Mathie v. Fries, 121 F.3d
808, 816 (2nd. Cir. 1997) (holding it is well established in the Second
Circuit that it is the defendants burden to show that his financial circumstances
warrant limitation of a punitive damages award).
We recognize that Stroud was a seventeen-year-old high school student at the time
of the accident, and that at the time of the civil trial he
had served two years of incarceration and was on work release. It
may be that this evidence permitted a reasonable inference that Stroud is an
individual with little economic wealth and virtually no present ability to pay a
$500,000 punitive damages judgment. Still, this was one factor among several that
the trial court was entitled to consider when assessing punitive damages and one
that we do not believe was required to be given special weight, particularly
given the lack of definitive evidence on the issue. Alternatively, we conclude
the trial court reasonably could have decided, without committing an abuse of discretion,
that Strouds alleged lack of economic wealth was not at all proven and
was a factor entitled to no weight because of this lack of evidence.
Stroud also relies heavily on a case from the United States Northern District
of Indiana, Fall v. Indiana University Board of Trustees, 33 F. Supp.2d 729
(N.D. Ind. 1998). There, in a case involving federal gender discrimination and
state law sexual assault and battery, the district court ordered an optional remittitur
of the jurys punitive damages award from $800,000 to $50,000. Id. at
748. The court discussed the fact that the defendant earned only $90,000
per year and that he would be personally responsible for satisfying the judgment.
Id. at 747. The court held the punitive damages award was
far in excess of what is reasonably necessary to punish and deter.
However, the Fall court relied on several other factors in concluding the punitive
damages award was impermissibly excessive. We have already discussed these factors as
applied to this case and have indicated that they weigh against Stroud.
These included the reprehensibility of the defendants conduct (the sexual battery did not
result in physical injury), the ratio of punitive to compensatory damages (155 to
1), and sanctions for comparable misconduct (punitive damages ranging from $2,500 to $50,000).
Id. at 744-747. Thus, the Fall court did not rely exclusively
on the defendants personal liability for the punitive damages award in deciding that
it was excessive. In addition, there is no comparable evidence in the
record concerning Strouds ability to pay.
Stroud also claims that the fact that he pled guilty to six criminal
charges stemming from the automobile accident is another basis for reducing the amount
of the punitive damages award. He concedes the existence of Indiana Code
Section 34-24-3-3, which provides that is not a defense to a punitive damages
action that the defendant is subject to criminal prosecution for the act that
gave rise to the civil suit. He also acknowledges the holding of
Robbins v. McCarthy, 581 N.E.2d 929, 935 (Ind. Ct. App. 1991), trans. denied,
where this court specifically concluded that a defendants conviction and sentence in connection
with an accident caused by driving while intoxicated did not preclude recovery of
punitive damages by an injured passenger in a subsequent civil action. Additionally,
no Indiana case cites criminal punishment as a factor to be considered when
calculating the amount of punitive damages. Nevertheless, Stroud essentially claims that the
goal of punitive damages punishment of the wrongdoer and deterrence of the
wrongdoer and society at large are goals also served by criminal punishment.
As such, he asserts that the fact that a person has been
subjected to criminal punishment for his or her conduct, while not barring punitive
damages altogether, is still a factor that should be considered when assessing an
appropriate amount of punitive damages. Stroud makes a cogent argument on this
point, and we agree that a fact finder may, in its discretion, consider
any criminal punishment imposed on a defendant when assessing the appropriate amount of
punitive damages in a civil action arising from the same conduct. However,
it is only one factor out of many that may be considered and,
in light of Indiana Code Section 34-24-3-3, it need not be given any
Several factors here weigh in favor of a larger punitive damages award:
the reprehensibility of Strouds conduct; the ratio of compensatory to punitive damages; and
damages awarded in comparable cases. Other factors favor a smaller award:
Strouds arguable lack of wealth and the fact that he has already been
criminally punished for the same conduct. We also note that trial and
appellate courts no longer award and review punitive damages awards in a complete
vacuum, as once was the case. Our legislature has enacted a cap
on punitive damages, so that they cannot exceed three times the compensatory damages
or $50,000, whichever is greater. Ind. Code § 34-51-3-4. What that
means in the present case is that once it was established by clear
and convincing evidence that punitive damages against Stroud were appropriate, the range of
such damages was established by statute as being between $1 and approximately $4.1
million, or three times the compensatory damages of $1,381,500. Viewed in this
context, the award of $500,000 in punitive damages was at the lower end
of the range of possibility. In a sense, with the range of
punitive damages being established by statute, the amount of such an award by
a trial court is very much akin to the imposition of a criminal
sentence within the range of possible penalties for an offense as established by
the legislature, which is an observation that the Cooper opinion also made.
532 U.S. at --, 121 S. Ct. at 1683-84. In Indiana, when
a trial court imposes a criminal sentence within the statutory range of possible
penalties, the determination of the proper weight to be given aggravating and mitigating
circumstances and the appropriateness of the sentence as a whole is entitled to
great deference and will be set aside only upon a showing of a
manifest abuse of discretion. Dunlop v. State, 724 N.E.2d 592, 597 (Ind.
2000). Here, the trial court had a variety of factors to consider
and balance some of which might be called aggravating and others mitigating
and we cannot say the outcome of that balancing the $500,000
punitive damages award constitutes an abuse of discretion.
Our decision today should not be construed as a broad grant of authority
to impose large punitive damages awards against individuals. In another case with
a different set of facts, another trial court or jury may decide not
to impose such a large award. Nor should a punitive damages award
be made or affirmed solely on the basis that it does not exceed
the cap established by the legislature. As with a criminal sentence that
technically falls under the statutory maximum but is nonetheless manifestly unreasonable, so too
a punitive damages award that falls under the statutory cap may be impermissibly
excessive. In this particular case we cannot say the $500,000 punitive damages
award is so clearly against the logic and effect of the entirety of
the facts and circumstances before the trial court as to constitute an abuse
II. Cross-Appeal Issues
A. Mothers Liability for Punitive Damages
Lints claims that because Strouds mother signed his drivers license application, she should
be jointly liable not only for the compensatory damages in this case, but
also the punitive damages. Indiana Code Section 9-24-9-4(a) provides:
An individual who signs an application for a permit or license under this
chapter [concerning minor applicants] agrees to be responsible jointly and severally with the
minor applicant for any injury or damage that the minor applicant causes by
reason of the operation of a motor vehicle if the minor applicant is
liable in damages.
There is little case law interpreting this provision. Specifically, there is no
case stating whether any injury or damage necessarily imputes liability for punitive as
well as compensatory damages to the person signing a minors drivers license application.
No Indiana case discusses the general proposition of whether a parent or
other individual who is jointly or vicariously liable for damages caused by another
is also necessarily liable for any punitive damages assessed against the tortfeasor.
It does appear that in Indiana a corporation may be held vicariously liable
for punitive damages assessed against an employee. See Stevenson v. Hamilton Mut.
Ins. Co., 672 N.E.2d 467, 474-75 (Ind. Ct. App. 1996), trans. denied.
Such liability is based on respondeat superior, however, which requires that the tortious
conduct of the employee occurred in the scope of the employment. See
Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 148 (Ind. 1999).
We find the following discussion to be instructive:
Exemplary damages can be awarded only against one who has participated in the
wrongful act, and usually are not given against those liable, if at all,
merely by reason of their relation to the wrongdoer. Since punitive damages
are awarded primarily to punish the offender and discourage similar offenses, these justifications
for their imposition are sharply diminished if vicarious liability were recognized. However,
there are exceptions to the above rule dealing with the liability of employers
and principals for the acts of their agents . . . .
22 Am. Jur.2d 836, § 785 (1988) (footnotes omitted). Thus, outside of
the master-servant or principal-agent context, the common law appears to disfavor vicarious liability
for punitive damages. See also Franz v. Brennan, 150 Wis.2d 1, 8,
440 N.W.2d 562, 565 (1989) (Punitive damages, then, are generally not recoverable in
cases of vicarious liability.). This court has also previously observed that the
similarly-worded predecessor to Section 9-24-9-4(a) does not impute negligence (or other wrongdoing) to
the signer of the minors drivers license application; it only imputes liability.
Wenisch v. Hoffmeister, 168 Ind. App. 247, 250, 342 N.E.2d 665, 666 (1976).
Our legislature has decided not to impute conduct of a minor driver
to the signer of a minors drivers license application; thus, the conduct of
Stroud that led to the punitive damages award cannot be imputed to his
B. Comparative Fault of Lints
We also observe that the statute refers to injury or damages caused by
a minor for which a parent may be jointly liable. We believe
this refers to injuries or damages actually sustained by the tort victim, such
as pain and suffering, medical bills, lost wages and the like, and which
are remedied by the award of compensatory damages. Punitive damages, on the
other hand, do not compensate a victim for his or her injuries but
instead are designed to serve the States interests in deterrence and punishment.
See Carroll v. Statesman Ins. Co., 509 N.E.2d 825, 827 (Ind. 1987).
Our supreme court addressed a similar question of statutory interpretation in Indiana Civil
Rights Commn v. Alder, 714 N.E.2d 632 (Ind. 1999). It held that
the Indiana Civil Rights Commissions authority to restore the complainants losses incurred as
a result of discriminatory treatment under Indiana Code Section 22-9-1-6(k)(A) did not include
the authority to award punitive damages, noting that punitive damages would not compensate
the victim for his or her injury or loss. Id. at 638.
Furthermore, as a general matter, punitive damages require explicit statutory authorization if
they are to be recovered under a statutory cause of action. Id.
Finally, although the court expressed special concern that the punitive damages award
in that case was made by an administrative agency rather than a court,
it concluded we would not infer authority to award punitive damages in the
absence of clear legislative language to that effect. Id. Here, Lints
is attempting to hold Strouds mother liable for the punitive damages award through
a statutory cause of action against the signer of a minors drivers license
application. Indiana Code Section 9-24-9-4(a), however, contains no express or implied authorization
for the imposition of joint and several liability for punitive damages. For
all of these reasons, we conclude that Section 9-24-9-4(a) applies to the recovery
of compensatory damages only, and Strouds mother cannot be held liable for punitive
damages under this statute.
Having concluded that Strouds mother cannot be liable for the punitive damages award
via the minors drivers license application statute, we must decide whether Strouds mother
should be held personally liable for punitive damages. Lints is appealing from
a negative judgment on this point, because he bore the burden of proving,
by clear and convincing evidence, that Strouds mother acted with malice, fraud, gross
negligence or oppressiveness that was not the result of a mistake of fact
or law, honest error of judgment, overzealousness, mere negligence, or other human failing.
See Executive Builders, Inc. v. Trisler, 741 N.E.2d 351, 360 (Ind. Ct.
App. 2000), trans. denied, cert. pending. On appeal from a negative judgment,
we do not reverse the judgment of the trial court unless it is
contrary to law. Commissioner, Dept of Envtl. Mgmt. v. RLG, Inc., 755
N.E.2d 556, 559 (Ind. 2001). We consider the evidence in the light
most favorable to the appellee and will reverse the judgment only if the
evidence leads to but one conclusion and the trial court reached an opposite
Lints only factual assertion on this claim is that after Stroud was ticketed
for illegal consumption of alcohol one month before the accident, his mother should
have immediately moved to cancel his license pursuant to Indiana Code Section 9-24-9-4(b).
We cannot say that this fact by itself leads to but one
conclusion as a matter of law, namely, that Strouds mother acted with the
requisite culpability with respect to the accident that she should personally be held
liable for punitive damages. We decline to overturn the trial courts judgment
on this point.
Finally, Lints claims there was insufficient evidence to support the trial courts finding
that he was twenty-five percent at fault for his injuries. In the
absence of special findings, we review a trial court decision as a general
judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon
any theory consistent with the evidence.
Perdue Farms, Inc. v. Pryor, 683
N.E.2d 239, 240 (Ind. 1997). In reviewing a general judgment, we must
presume that the trial court correctly followed the law. Id.
Stroud argues that Lints knowingly incurred a risk when he solicited a ride
home from Stroud with knowledge that Stroud had been drinking. Incurred risk
requires a mental state of venturousness and a conscious, deliberate and intentional embarkation
upon the course of conduct with knowledge of the circumstances. This defense
contemplates acceptance of a specific risk of which the plaintiff has actual knowledge.
Id. at 242 (citations omitted). Incurred risk used to be a
complete defense in Indiana, but has been subsumed by the concept of fault
under the Comparative Fault Act. Heck v. Robey, 659 N.E.2d 498, 504
Lints argues that incurred risk should not have been found to exist in
this case because he testified that he had previously ridden with Stroud after
Stroud had been drinking and had not observed reckless driving similar to what
occurred on the night of the accident. Even so, we do not
accept that this absolved Lints of all responsibility for his solicitation of a
ride with a person whom he knew had been drinking for several hours.
It would contravene sound public policy for us to recognize, as a
matter of law, that there can be such a thing as a normally
good drunk driver. Every passenger should be charged with an awareness that
knowingly soliciting a ride from a drunk driver is always fraught with danger,
even if past rides with that driver while he or she was intoxicated
somehow concluded without incident. Lints solicitation of a ride from Stroud with
knowledge that he had been drinking is sufficient to support the trial courts
comparative fault finding under an incurred risk theory.
We have reviewed the trial courts decision to impose $500,000 in punitive damages
against Stroud for an abuse of discretion and have concluded that, given the
various facts and circumstances before the court, it did not abuse its discretion
in arriving at that figure. As for Lints cross-appeal, we hold that
Strouds mother cannot be jointly or vicariously liable for the punitive damages award
pursuant to the minor drivers license application statute, nor is there sufficient reason
for us to overturn the trial courts decision not to impose punitive damages
against her for her own behavior. Finally, we sustain the trial courts
finding that Lints was twenty-five percent comparatively at fault for his injuries.
We affirm the judgment in all respects.
MATTINGLY-MAY, J., concurs.
MATHIAS, J., concurs with separate opinion.
COURT OF APPEALS OF INDIANA
MATTHEW W. STROUD and MARGARET A. )
vs. ) No. 20A04-0010-CV-458
TREVOR A. LINTS, DANIEL M. LINTS, and )
VICKI LINTS, Individually and as Parents/Natural )
Guardians of Trevor A. Lints. )
MATHIAS, J., concurring.
I write only to emphasize in concurrence that the assignment of twenty-five percent
(25%) comparative fault to Lints by the trial court as fact-finder was, under
the facts and circumstances of this case, generous . . . to Lints.
When Lints chose to consume alcohol all day and further chose to
ride home with Stroud, who Lints knew had done likewise, he was nearly
as culpable as Stroud in the proximate causation of the tragic injuries he
We heard oral argument in the beautifully restored Kosciusko County Courthouse on
November 8, 2001. We thank counsel for their excellent presentations and appreciate
the hospitality and assistance of Kosciusko Circuit Court Judge Rex Reed, Scott Lennox,
Ronald Robinson, and the Kosciusko County Bar Association.
Footnote: We believe, however, that we may refer to the
BMW case and
the factors it identified for reviewing punitive damages awards as instructive when conducting
a common law excessiveness review.
Although this is an accurate citation to the holding, we note that
Chief Justice Givan wrote this statement, with Justice Pivarnik concurring, purporting to overrule
an earlier case that said that under the former version of the Indiana
Guest Statute, driving while intoxicated must be combined with some other misconduct or
reckless driving behavior to rise to the level of willful and wanton conduct.
Andert v. Fuchs, 271 Ind. 627, 631-32, 394 N.E.2d 931, 934-35 (1979).
Then-Justice Shepard and Justice DeBruler concurred in the result, but stated that
Andert should not have been overruled. Williams, 484 N.E.2d at 579.
Justice Prentice dissented from the grant of transfer, also citing Andert as controlling
authority. Id. Thus, three out of the five justices voted to
adhere to Andert. Regardless, we conclude that the manner in which Stroud
drove while intoxicated was sufficiently egregious even under the Andert standard to rise
to the level of willful and wanton misconduct.
Additionally, we note that Lints has not presented us with any argument
upon which to base personal liability against Strouds mother, outside of the argument
based upon the minors drivers license statute that we rejected. In the
absence of a theory upon which to base the personal liability of Strouds
mother, such as the breach of a duty owed to Lints or the
commission of an intentional tort, there can be no personal liability against her
for punitive damages.