ATTORNEYS FOR APPELLANT
: ATTORNEY FOR APPELLEES:
MATTHEW C. ROBINSON PAUL S. KRUSE
SETH M. LAHN Parr Richey Obremskey & Morton
Yarling & Robinson Lebanon, Indiana
COURT OF APPEALS OF INDIANA
BRYON R. WOHLWEND, )
vs. ) No. 54A01-0211-CV-460
DONNA J. EDWARDS and )
MICHAEL EDWARDS, )
APPEAL FROM THE MONTGOMERY SUPERIOR COURT
The Honorable David A. Ault, Judge
Cause No. 54D01-0005-CP-00150
October 2, 2003
OPINION FOR PUBLICATION
Appellant-Defendant, Bryon R. Wohlwend, appeals from the trial courts judgment in favor of
Appellee-Plaintiffs, Donna J. Edwards and Michael Edwards, in their negligence claim against Wohlwend.
Upon appeal, Wohlwends two presented issues concern only the matter of punitive
damages: (1) whether the trial court improperly admitted evidence of Wohlwends behavior subsequent
to the incident giving rise to the Edwardses claim, and (2) whether the
trial court improperly instructed the jury that driving while intoxicated is per se
willful and wanton misconduct.
With regard to punitive damages, we reverse and remand.
The record reveals that in the early morning hours of March 11, 2000,
the vehicle which Wohlwend was driving crossed the center line of the road
and collided head-on with a vehicle driven by Mrs. Edwards. Wohlwend had
been drinking and was intoxicated. An open bottle of wine cooler was
found in his vehicle. He had also gotten very little sleep in
the few days prior to the accident. Mrs. Edwards was injured in
the collision. Her arm was injured as a result of bracing herself
for the impact. She suffered from pain and discomfort, concentrated in her
left arm, head, and chest. She had severe headaches for a week
following the accident, and her chest was bruised for four months. Mrs.
Edwardss medical expenses totaled $11,760. As a result of this accident, Wohlwend
was arrested and convicted for operating a motor vehicle while intoxicated.
On May 1, 2000, the Edwardses filed suit against Wohlwend. On March
8, 2002, Wohlwend filed a motion in limine seeking to prohibit the Edwardses
from presenting certain evidence, including Wohlwends driving record. The trial court granted
the motion. On October 15 and 16, 2002, a jury trial was
held. Evidence was admitted at trial which indicated that, prior to the
accident involving Mrs. Edwards, Wohlwend had been arrested for possession of marijuana and
illegal consumption or possession of alcohol by a minor. The Edwardses also
introduced evidence that, subsequent to the Edwards accident, Wohlwend had twice been arrested
for operating a vehicle while intoxicated. Specifically, Wohlwend was arrested for operating
while intoxicated on June 1, 2000
See footnote and again on January 12, 2002.
The trial court granted the Edwardses motion for a directed verdict on the
issue of liability. The jury then resolved the issue of compensatory and
punitive damages, awarding Mrs. Edwards $50,000 in compensatory damages, awarding Mr. Edwards $500
in compensatory damages, and assessing punitive damages against Wohlwend in the amount of
$100,000. On October 16, 2002, the trial court entered judgment on the
verdict and costs for the action.
Evidence of Subsequent Conduct
Wohlwend claims that the trial court erred in admitting evidence of his behavior
which occurred after the incident involving Mrs. Edwards. Wohlwend argues that such
evidence was irrelevant to the issue of punitive damages and unfairly prejudicial.
The Edwardses claim that Wohlwend has forfeited any claim of error with regard
to the introduction of this evidence by failing to make a timely objection.
It is true that a party may not rely upon a pre-trial
ruling on the admissibility of evidence to preserve error upon appeal. See
Lenoir v. State, 515 N.E.2d 529 (Ind. 1987). Wohlwend, however, does not
rely upon the trial courts grant of his motion in limine to preserve
his error. Instead, Wohlwend objected at trial immediately prior to the admission
of the evidence in question, which was adduced during the direct examination of
Wohlwend by counsel for the plaintiffs.
Wohlwend first objected when plaintiffs counsel asked if he had a chemical dependency
problem. Transcript at 237. Wohlwend argued that the plaintiffs were attempting
to introduce improper character evidence. This objection was overruled. Wohlwend
again objected when plaintiffs counsel attempted to adduce testimony revealing that Wohlwend had
a prior arrest for underage drinking, which the trial court also overruled.
After this, Wohlwend testified that, prior to the accident with Mrs. Edwards, he
had been arrested for possession of marijuana and underage possession and consumption of
alcohol. Although Wohlwend does not challenge the admission of this evidence upon
appeal, this line of questioning led to the admission of the evidence at
issue. Wohlwend was then asked, Did your arrest in this matter for
the charge of Driving While Intoxicated, when you were in the collision with
Mrs. Edwards, serve as a lesson to you, or deter you from doing
this again? Id. at 242-43. Wohlwends counsel immediately objected and was
granted a request that the jury be removed from the courtroom. Wohlwends
counsel then stated that the court should not allow any evidence of Wohlwends
subsequent convictions for drunken driving, citing Evidence Rule 404 and claiming that such
would be extremely prejudicial and irrelevant. Transcript at 243-44. The Edwardses
counsel countered that, although Wohlwends subsequent conduct was irrelevant to the issue of
compensatory damages, it was relevant to the issue of punitive damages. After
further discussion, the trial court stated, Im going to rule that plaintiff may
pursue the line of questioning. I will instruct the jury, at this
point, that they may only consider the evidence as to the defendants acts,
subsequent to March 11, 2000, for the limited purpose of whether to award
punitive damages. Id. at 247. Wohlwends counsel then moved for a
mistrial upon grounds that the evidence was irrelevant, violated Evidence Rule 404(a), and
its probative value was outweighed by its prejudicial effect. This motion was
denied, and the jury was brought back into the courtroom and instructed to
only consider the acts subsequent to the accident involving Mrs. Edwards for the
limited purpose of whether to award punitive damages in this case. Id.
After this extensive objection and discussion, we cannot fault Wohlwends counsel for not
repeating his already-stated and overruled objection when the testimony concerning the subsequent acts
came into evidence immediately thereafter. The purpose of requiring a trial objection
is so that any error might be corrected by the trial court at
that time. Lenoir, 515 N.E.2d at 529. Here, that purpose was
fulfilled by Wohlwends timely objection and motion for mistrial.
B. Evidence of Subsequent Conduct in Determining Punitive Damages
As stated, the essence of the issue before us is whether the trial
court should have admitted evidence of Wohlwends behavior after the event giving rise
to the Edwardses claim even if limited to the matter of punitive damages.
This appears to be an issue of first impression in Indiana.
Punitive damages in civil cases are governed by Indiana Code 34-51-3. See
Ind. Code § 34-51-3-1 (Burns Code Ed. Repl. 1998). The standard used
to determine whether punitive damages are properly awarded is whether, considering only the
evidence and reasonable inferences supporting the judgment, a reasonable trier of fact could
find by clear and convincing evidence that the defendant acted with malice, fraud,
See footnote or oppressiveness which was not the result of a mistake of
fact or law, mere negligence, or other human failing.
INS Investigations Bureau,
Inc. v. Lee, 784 N.E.2d 566, 582 (Ind. Ct. App. 2003), trans. denied.
See also Ind. Code § 34-51-3-2 (Burns Code Ed. Repl. 1998).
The purpose of punitive damages is not to make the plaintiff whole or
to attempt to value the plaintiffs injuries; instead, the purpose is to deter
and punish wrongful activity. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind.
2003). See also Lee, 784 N.E.2d at 582 (punitive damages are designed
to punish the wrongdoer and discourage him and others from similar conduct in
the future). Moreover, civil plaintiffs have no right to receive punitive damages.
Cheatham, 789 N.E.2d at 471.
Our General Assembly has limited the amount that may be recovered as punitive
damages to no more than the greater of three times the amount of
compensatory damages or fifty thousand dollars. Ind. Code §§ 34-51-3-4, 34-51-3-5 (Burns
Code Ed. Repl. 1998). Pursuant to Indiana Code § 34-51-3-6 (Burns Code
Ed. Repl. 1998), when punitive damages are awarded in civil actions, the party
against whom the judgment was entered shall pay the punitive damage award to
the clerk of the court where the action is pending. Upon receiving
the payment, the clerk must then pay the plaintiff twenty-five percent of the
award and pay the remaining seventy-five percent to the Treasurer of State who
is to deposit the funds into the violent crimes compensation fund. Id.
Here, Wohlwend claims that evidence of his acts subsequent to the accident involving
Mrs. Edwards was irrelevant to the issue of punitive damages in connection with
that accident. The Edwardses claim that this evidence is relevant to the
purpose of punitive damagesto deter similar conduct. We are unwilling to say
that, in a case involving punitive damages, post-incident acts could never be relevant
to the issue of punitive damages in conjunction with the incident giving rise
to the plaintiffs claim. We can envision a rare situation in which
the acts of the defendant subsequent to the incident at issue might bear
some relevance to the culpability of the defendant and the related question of
whether or not to impose punitive damages or in what amount they should
See footnote Be that as it may, this does not mean that
such evidence, even if relevant, is necessarily admissible. Although evidence must be
relevant to be admissible,
see Ind. Evidence Rule 402, not all relevant evidence
is admissible. Evidence Rule 403 provides that relevant evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, considerations of undue delay, or needless
presentation of cumulative evidence. In the case at bar, we need not
decide whether and to what extent the evidence of Wohlwends subsequent acts of
drunken driving are relevant to the issue of punitive damages, for to the
extent that such evidence could possibly be relevant, its probative value is substantially
outweighed by the danger of unfair prejudice.
When the jury heard evidence of Wohlwends subsequent driving record, there was a
danger that it would punish Wohlwend for his subsequent acts and not for
his behavior vis-à-vis Mrs. Edwards. One might argue that, if punitive damages
are to be fully effective in their purpose, the jury should be able
to punish Wohlwend for his subsequent driving record in addition to the incident
involving Mrs. Edwards. This follows from the proposition that a recidivist is
worthy of greater punishment than a one-time offender. However, we conclude that
such evidence would run afoul of the requirement that punitive damages be connected
to and proportional to the actual, compensatory damages suffered by the plaintiff.
The requirement of a connection between compensatory and punitive damages manifests itself in
It has long been the law in our state that compensatory damages are
a prerequisite to the recovery of punitive damages. See e.g., Sullivan v.
Am. Cas. Co., 605 N.E.2d 134, 140 (Ind. 1992); Newton v. Yates, 170
Ind.App. 486, 495, 353 N.E.2d 485, 491 (1976), trans. denied. Thus, no
matter how worthy of punishment the behavior of the defendant and the need
to deter such, without actual damages suffered by the plaintiff, no punitive damages
will be permitted. Our General Assembly has further tied punitive damages to
the actual injuries suffered by the plaintiff by capping punitive damages at the
greater of fifty thousand dollars or three times the compensatory damages of the
plaintiff. See I.C. §§ 34-51-3-4, 34-51-3-5. If incidents unrelated to the
plaintiffs actual damages were before the jury, there is an increased chance that
the jury would base its award on something unrelated to compensatory damages, which
would run counter to the purpose of this statute of keeping punitive damages
connected to and proportional with compensatory damages.
We also cannot ignore the recent developments in the law in the area
of punitive damages and constitutional due process protections. In State Farm Mut.
Auto. Ins. Co. v. Campbell, ___ U.S. ___, 123 S.Ct. 1513 (2003), the
insureds brought suit in Utah against their insurer as a result of the
insurers failure to settle a claim within policy limits. The jury awarded
compensatory damages of $2.6 million and punitive damages of $145 million. The
trial court reduced the compensatory damages to $1 million and the punitive damages
to $25 million. The Utah Supreme Court reinstated the $145 million amount.
The United States Supreme Court granted certiorari and reversed the Utah Supreme
In Campbell, the Supreme Court broadened the due process protections afforded to defendants
seeking review of large punitive damages awards. Upon a claim that the
amount of punitive damages awarded constitutes a deprivation of property without due process
of law in violation of the Fourteenth Amendment, courts are to consider three
guideposts: (1) the degree of reprehensibility of the defendants misconduct; (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive
damages awarded; and (3) the difference between the punitive damages awarded by the
jury and the civil penalties authorized or imposed in comparable cases. Id.
at 1520 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
575 (1996)). Accord Stroud v. Lints, 790 N.E.2d 440, 442 (Ind. 2003).
Thus, some connection and proportionality between the amount of punitive damages and
the plaintiffs actual damages are required not only by Indiana law, but are
also mandated by the federal Constitution.
The Campbell court stated that the Utah courts had erred by punishing State
Farm for acts which occurred outside of Utah and which were lawful where
they occurred. 123 S.Ct. at 1522-23. More relevant to the issue
before us, the Court stated, a more fundamental reason that the Utah courts
had erred was that they had awarded punitive damages to punish and deter
conduct that bore no relation to the [plaintiffs] harm. Id. at 1523
(emphasis supplied). The Court recognized that a factor in punitive damages is
the reprehensibility of the defendants conduct, and that in determining reprehensibility it is
proper to consider whether the conduct involved repeated actions or was an isolated
incident. Id. Nevertheless, the Court was concerned about the bounds of
this reprehensibility analysis, stating:
A defendants dissimilar acts, independent from the acts upon which liability was premised,
may not serve as the basis for punitive damages. A defendant should
be punished for the conduct that harmed the plaintiff, not for being an
unsavory individual or business. Due process does not permit courts, in the
calculation of punitive damages, to adjudicate the merits of other parties hypothetical claims
against a defendant under the guise of the reprehensibility analysis . . .
. Punishment on these bases creates the possibility of multiple punitive damage
awards for the same conduct; for in the usual case nonparties are not
bound by the judgment some other plaintiff obtains. Id.
We recognize that the Court spoke of dissimilar acts, and it appears that
in the case at bar, the acts were not wholly dissimilar. Immediately
following this, however, the court stated in no unspecific terms that the defendant
should be punished for the conduct which harmed the plaintiff, and warned against
adjudicating hypothetical claims which others might bring. This is one of our
chief concerns with allowing evidence of Wohlwends subsequent conduct. If the jury
were to punish Wohlwend for his subsequent acts in addition to the conduct
which harmed Mrs. Edwards, there would be a risk of multiple punishment.
In future suits based upon this subsequent conduct, Wohlwend could conceivably be punished
yet again for the acts which were taken into consideration in punishing him
in the previous trial.
The Court also stated that, although a recidivist may be punished more severely
than a first offender, in the context of civil actions, courts must ensure
the conduct in question replicates the prior transgressions. Id. at 1523 (emphasis
supplied). This suggests the Court was considering that past instances of misconduct
might be relevant to the reprehensibility of the defendant, but nowhere did it
imply that future conduct was relevant.
We conclude that any relevance which Wohlwends subsequent acts could have had upon
the issue of punitive damages was substantially outweighed by the danger that the
jury would use this evidence to punish Wohlwend for his subsequent acts instead
of the conduct which gave rise to the Edwardses actual damages. For
the jury to punish Wohlwend for such subsequent conduct would detach the propriety
and/or amount of punitive damages from the compensatory damages due the plaintiffs.
This would be violative of the spirit of Indiana common and statutory law
and the Due Process Clause of the Fourteenth Amendment.
Our conclusion is similar to that reached by the Ohio Supreme Court in
Cappara v. Schibley, 709 N.E.2d 117 (Ohio 1999). In Cappara, the situation
was similar to that before us. The plaintiff Cappara was injured in
a hit-and-run accident involving the defendant Schibley. Part of the plaintiffs theory
was that Schibley was driving while intoxicated at the time of the accident.
Schibley filed a motion in limine seeking to exclude evidence of his
prior and subsequent convictions for driving under the influence of alcohol. The
trial court ruled that evidence of Schibleys subsequent acts of drunken driving would
be admissible as to the issue of punitive damages.
Id. at 119.
Upon appeal, the Ohio Court of Appeals reversed the trial court, holding
that it was impossible to show malice, i.e., a defendants state of mind
and/or conscious disregard, with occurrences which were subsequent in time to the event
from which the negligence arose. This issue merits no further discussion.
Id. The Ohio Supreme Court agreed and held that evidence of a
defendants subsequent driving record was inadmissible to prove the defendants state of mind
at the time of the earlier accident because such evidence was irrelevant and
highly prejudicial. Id. at 121 (citing Ohio Evidence Rules 401 and 403).
A similar result was reached in Thomas v. Am. Cystoscope Makers, Inc., 414
F.Supp. 255 (E.D. Pa. 1976), wherein a physician sought punitive damages against a
surgical equipment maker. The jury returned a verdict in favor of the
plaintiff, awarding $475,000 in compensatory and $200,000 in punitive damages. The defendants
moved for a judgment n.o.v., arguing in part that the punitive damages award
was in error. The District Court, applying Pennsylvania law, noted that punitive
damages must bear a reasonable relationship to the amount of actual damages suffered.
Id. at 264. The court further noted that this necessarily limited
the relevance of the plaintiffs proffered evidence, which included injuries to others which
had occurred after the plaintiffs injuries. The Thomas court stated that, for
such reasons, it had limited plaintiffs proof at trial to conduct vis-a-vis the
plaintiff or[,] in other words, to facts and circumstances up until the time
of plaintiffs injury. Id. The court rejected the plaintiffs notion that
evidence of subsequent conduct might be relevant to the defendants state of mind
at the time of the incident involving the plaintiff, stating, To allow evidence
of defendants subsequent conduct presents the distinct opportunity for the imposition of punitive
damages for conduct that may have no connection whatsoever with the injured plaintiff,
contrary to what we take to be the settled law. Id. at
265. Therefore, the court held that evidence of the defendants conduct after
the plaintiffs injuries was not relevant to the issue of punitive damages and
properly excluded at trial, and would not be considered in assessing the propriety
of punitive damages in the motion for judgment n.o.v. Id. See
also Hoffman v. Sterling Drug Inc., 374 F.Supp. 850 (M.D. Pa. 1974) (in
a pharmaceutical product liability case involving punitive damages, evidence was limited to that
involving the impact upon plaintiff, not society as a whole, because Pennsylvania law
required a reasonable relationship between compensatory and punitive damages); Morningstar v. Hoban, 55
Pa. D.&C.4th 225 (Pa. Comm. Pl. 2002) (explaining that the holding in Thomas
does not act as a bar to any evidence of post-accident conduct, but
instead requires the evidence be connected to the plaintiff).
We do not find persuasive the holding of the Georgia Supreme Court in
Moore v. Thompson, 336 S.E.2d 749 (Ga. 1985), cited by the Edwardses.
In Moore, the plaintiff Thompson was injured when he was struck by a
vehicle driven by defendant Moore. The issue before the court in Moore
was whether, in a suit arising out of the use of an automobile
in which the cause of injury is alleged to be driving while intoxicated,
evidence is admissible on the issue of punitive damages that the defendant had
pleaded guilty to driving while intoxicated twice before and twice after the accident
involved. The Moore court held that such subsequent conduct was relevant in
that injuring another in a subsequent incident is an aggravating circumstance which would
authorize the awarding of punitive damages. Id. at 751. The Moore
court was not unaware of the prejudicial effect this could have in determining
liability, and for this reason held that trial courts should bifurcate the trial
in such a case and determine liability and punitive damages separately.
Unlike the Moore court, we are not concerned merely with the prejudicial effect
evidence of subsequent conduct might have upon the jury in determining liability.
Such evidence is also unfairly prejudicial to the defendant in determining the propriety
and amount of punitive damages vis-à-vis the current plaintiff. As stated previously,
the position advocated by the Edwardses would increase the likelihood that the defendant
would be punished for conduct unrelated to the plaintiffs actual damages, which would
run counter to Indiana law and the Due Process Clause of the Fourteenth
We therefore conclude that the trial court erred in permitting evidence of Wohlwends
post-accident conduct to come before the jury.
Cf. Duncan v. Duncan, 764
N.E.2d 763 (Ind. Ct. App. 2002) (upon appeal from summary judgment, court would
not consider affidavit from mother of defendant containing unsworn and uncertified copies of
police records pertaining to motor vehicle violations by defendant both before and after
the accident involving plaintiff because, among other reasons, such evidence was inadmissible pursuant
to Evid. R. 404(b)), trans. denied; Wanke v. Lynns Transp. Co., 836 F.Supp.
587 (N.D. Ind. 1993) (in suit seeking punitive damages against drivers employer after
driver caused death of plaintiffs husband, evidence of drivers driving behavior occurring after
the collision with decedent proved nothing about employers knowledge or mental state before
The Edwardses claim that, even if this evidence was erroneously admitted, such was
harmless error which would not require reversal. We cannot agree. Error
may not be predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected. Ind. Evidence Rule 103(a);
Marchal v. Craig, 681 N.E.2d 1160, 1163 (Ind. Ct. App. 1997). In
determining whether evidentiary error requires reversal, we assess the probable impact upon the
trier of fact. Id. In the present case, not only was
there a possibility that the jury based its award of punitive damages upon
conduct other that than which damaged the plaintiff, it was a near certainty.
The jury was encouraged to do just that. In addressing the
jury during closing arguments, the Edwardses counsel stated:
I mean, at what point do we, do we turn that around and
say wait a minute, you know, you [i.e., the defendant] are responsible.
You do have to be accountable for that. Im not going to
give you the benefit of the doubt, you messed up, you need to
pay for it. You not only messed up but you messed up
a whole bunch. You know, dont we at some point have a
little sense of anger about having to worry about driving down the road,
that somebody whos not learned their lesson by the third time, or the
fourth time, or the fifth time, is still out there driving a car?
Transcript at 348.
Because we are unable to say that the trial courts error was harmless,
we reverse the trial courts judgment as to punitive damages. We note,
however, that Wohlwend does not challenge the trial courts directed verdict against him
upon the issue of liability, nor does he challenge the award of compensatory
damages. Upon remand, the only issue to be retried is that of
punitive damages. II
We have concluded that we must reverse the judgment of the trial court
and remand for a new trial upon the issue of punitive damages, and
the issue as to whether the trial court properly instructed the jury regarding
punitive damages need not be resolved. However, we address this issue because
it is likely to recur upon remand. Wohlwend claims that the trial
court erred in giving the jury final instruction number sixteen. Before we
reach the merits of this argument it is necessary to address the Edwardses
contention that Wohlwend has waived this issue for purposes of appellate review.
According to the Edwardses, Wohlwend waived any argument regarding this instruction by failing
to comply with that portion of Indiana Trial Rule 51(C) which states, No
party may claim as error the giving of an instruction unless he objects
thereto before the jury retires to consider its verdict, stating distinctly the matter
to which he objects and the grounds of his objection. The Edwardses
claim that Wohlwend made no objection to the challenged instruction until after the
jury had been instructed and deliberations were completed. Wohlwend responds by claiming
that, although he did not formally record his objection until after the jury
had been charged, the instruction had been objected to earlier off the record,
in accordance with customary practice in courts across Indiana. Appellants Reply Br.
This practice was given tacit approval in Piwowar v. Washington Lumber & Coal
Co., 405 N.E.2d 576 (Ind. Ct. App. 1980), in which the appellant contended
that the trial court erred by not giving counsel the opportunity to make
objections to jury instructions until after the case had been submitted to the
jury. The Piwowar court, citing T.R. 51(C), noted that the trial court
had properly permitted counsel to make objections to the instructions before they were
given, but because the court reporter was not available at the time, the
objections were not recorded until after the jury retired. Id. at 582.
The court observed, Although this is not the preferred procedure, it has
not created reversible error. Counsel was given the opportunity to make a
timely objection. Id.
The same argument was made in Manning v. Allgood, 412 N.E.2d 811 (Ind.
Ct. App. 1980). Upon appeal, the court noted that a conference had
been held to discuss jury instructions, at which time both parties were given
the opportunity to tender instructions, object to instructions, and argue the issues.
For the sake of convenience and expedience, the previously made objections were not
recorded until after the jury had begun deliberations. Citing T.R. 51(C) and
Piwowar, the court stated that, although not the preferred procedure, such did not
give rise to reversible error. Manning, 412 N.E.2d at 814. The
purpose of TR.[sic] 51 is to guarantee counsel the opportunity to make timely
objections and to advise both the trial court and the adverse party of
the basis for the objection so as to afford the opportunity to correct
any error at the trial court level. Id. (citing Murphy v. Ind.
Harbour Belt R.R. Co., 154 Ind.App. 103, 118, 289 N.E.2d 167, 177 (1972)).
The court held that, so long as this purpose is fulfilled, the
technical failure to formally record the objections until after the jury had retired
does not create reversible error. Id.
Here, the record supports Wohlwends contention that the objection had been previously made
but was not formally recorded until later. Speaking of the final instructions,
the trial court asked, if there are any objections[,] do you wish to
make them now or a little bit later? Transcript at 335.
Wohlwends counsel stated, I would prefer later, if thats okay. Id.
Notably, the Edwardses counsel stated, No objections to doing that. Id.
Then, before reading the instructions to the jury, the trial court addressed the
jury saying, in the time while youve been gone then the Court has
settled the final instructions with counsel. In other words, they both had
the opportunity to tender to the Court, proposed instructions as to the law,
and we have had discussion and debate and arrived at some final instructions
that you will hear. Id. (emphasis supplied). From this,
it is apparent that the parties had made their objections known to the
trial court before the instructions were read to the jury. This conclusion
is also supported by the manner in which the recorded objection was made.
Wohlwends counsel stated, Judge, just briefly, could I make my one objection
to the Courts final instruction, so we have this on the record.
Id. at 374 (emphasis supplied). In explaining the objection, Wohlwends counsel said,
The defendant had an objection to Courts Final Instruction No. 16. Id.
(emphasis supplied). Because this procedure is not reversible error pursuant to Piwowar
and Manning, neither should it result in waiver of the objection inasmuch as
the purpose behind T.R. 51 has been satisfied. See also Southport Little
League v. Vaughan, 734 N.E.2d 261, 274 n.9 (Ind. Ct. App. 2000) (in
addressing whether objection to jury instruction had been properly preserved, court observed in
footnote that the trial court and parties had agreed to place objections to
jury instructions on the record after the jury had retired), trans. denied.
B. Propriety of the Instruction
The jury instruction at issue in the present case reads:
The law holds an intoxicated person to the same standard of care as
a sober person. Intoxication is not an excuse for failure to act
as a reasonably careful person would act. Operating a motor vehicle upon
a public highway while intoxicated constitutes willful and wanton misconduct. Appellants Appendix
at 21 (emphasis supplied).
Punitive damages may be properly awarded upon a showing of willful and wanton
misconduct. Lee, supra, 784 N.E.2d at 582. Wohlwend claims that the
emphasized portion of this instruction is an incorrect statement of the law in
that it states that driving while intoxicated is per se willful and wanton
misconduct. When reviewing a claim that a jury instruction is an incorrect
statement of the law, our review is de novo. Wal-Mart Stores, Inc.
v. Wright, 774 N.E.2d 891, 893-94 (Ind. 2002), rehg denied.
Wohlwends claim relies upon Andert v. Fuchs, 271 Ind. 627, 394 N.E.2d 931
(1979). In Andert, the question before the court was whether the defendants
conduct constituted willful and wanton misconduct within the meaning of the Indiana Guest
Justice Prentice, writing for the court, stated that to hold a
defendant guilty of willful or wanton misconduct, it must be proved that the
defendant was conscious of his conduct and with knowledge of existing conditions that
injury would probably result, and with reckless indifference to consequences, he consciously and
intentionally did some wrongful act or omitted some duty which produced the injuries.
271 Ind. at 629, 394 N.E.2d at 933 (quoting
Bedwell v. DeBolt,
221 Ind. 600, 607, 50 N.E.2d 875, 878 (1943). The court further
held that it was incumbent upon the plaintiff to prove that the defendant
consciously and intentionally, with a perverse motive, or reckless indifference as to the
consequences, operated his vehicle improperly under known existing conditions. 271 Ind. at
630, 394 N.E.2d at 934. More importantly, the court wrote:
Without question driving in a state of intoxication upon snow covered roads, when
increased care is required, is negligence. But is it wanton or willful
misconduct, as those terms have been heretofore defined by this Court? We
think not, for the reason that the mental attitude of perverseness or conscious
indifference are not reasonably inferable therefrom. Intoxication combined with evidence of other
misconduct, such as speeding, driving on the wrong side of the road or
violating other traffic regulations, heightens the inference of willfulness or wantonness that may
be drawn from such circumstances, but here there was no such evidence.
271 Ind. at 631-32, 394 N.E.2d at 934.
Justices Hunter and Pivarnik concurred, but Chief Justice Givan and Justice DeBruler dissented
without opinion. * * *
The Edwardses rely upon Williams v. Crist, 484 N.E.2d 576 (Ind. 1985), in
which the holding of Andert was brought into question. In Williams, the
question before the court was again whether the defendants conduct of driving while
intoxicated by itself was sufficient to show willful or wanton misconduct per the
Guest Statute. The defendant cited Andert, Roberts v. Chaney, 465 N.E.2d 1154
(Ind. Ct. App. 1984), and Keck v. Kerbs, 182 Ind.App. 530, 395 N.E.2d
845 (1979), for the proposition that intoxication must be combined with some other
misconduct such as speeding or driving on the wrong side of the road
or the violation of other traffic regulations to bring it within the willful
or wanton conduct category. Chief Justice Givan, writing for himself and Justice
Pivarnik, disagreed with these holdings and noted at length the seriousness of the
societal problem of driving while intoxicated:
To the extent that the above-cited cases may be interpreted as contrary to
the holding herein, they are expressly overruled. Judge Ratliff, who dissented in
the case at bar, also dissented in Roberts, supra.
As Judge Ratliff points out, the drunken driver is a major source of
property damage and personal injury in the United States today. The drunken
driver kills more citizens each year than any other group of criminals.
As Judge Ratliff notes, in 1980, approximately 26,300 persons were killed in the
United States by drunken drivers. Roberts, supra at 1161 (Ratliff, J., dissenting).
We heartily agree with the statement made by Judge Ratliff in his
dissent in Roberts that [d]riving a motor vehicle while intoxicated thereby endangering ones
guest rider is wanton and willful misconduct per se and it is high
time we said so. Id.
Probably because the consumption of alcoholic beverages is so widespread and generally accepted
as a recreational pastime, legislators, juries and judges, both trial and appellate, have
too often treated the problem in a cavalier manner. As Judge Ratliff
says, it is high time we publicly state that the intoxicated driver is
guilty of willful and wanton misconduct when he deliberately assumes control of an
automobile and places it upon a public highway. 484 N.E.2d at 578
Although this would seem to be a death knell to the holding in
Andert, then Justice Shepard, joined by Justice DeBruler, wrote a separate opinion concurring
in result with the pluralitys opinion. According to this concurring opinion, the
evidence adduced at trial was adequate to meet the standard set forth in
Andert, and there was therefore no need to announce a new standard or
overrule prior precedent. Id. at 579 (Shepard, J., concurring in result).
Justice Prentice wrote a dissenting opinion in which he stated:
Driving while under the influence of alcohol is, in my judgment wanton and
willful but the undisputed evidence was that Williams driving was unimpaired. I
regard the verdict and the acceptance of transfer and affirmance by this Court
as nothing less than a determination that the ingestion of alcohol and driving
a motor vehicle shortly thereafter is conduct that society should not tolerate and
that holding an offender liable in damages, without regard to a casual [sic]
connection between the two, will serve as a deterrent. Neither do I
have any quarrel with the establishing of such a policy. However, such
is the exclusive prerogative of our legislature.
I vote to deny transfer upon the authority of Andert. Id. (Prentice,
Thus, despite the fact that the Williams plurality expressly overruled Andert, only two
Justices voted to do so. The two Justices who concurred in result
relied upon Andert and would not have overruled it. Justice Prentice, although
apparently agreeing to some extent with the public policy concerns underlying the pluralitys
holding, dissented upon the bases of the holding in Andert. Notwithstanding the
statement in Williams to the contrary, the lead opinion in Williams simply did
not have the votes to overrule Andert. This has not stopped several
subsequent cases from citing and relying upon the lead opinion in Williams.
In State v. Garcia, 489 N.E.2d 168 (Ind. Ct. App. 1986), trans. granted,
the First District of this court upheld the constitutionality of roadblocks. Although
admitting that the Williams case was not directly on point, the court quoted
that portion of the plurality opinion in Williams which noted the seriousness of
the problem of drunken driving and which held that such was per se
willful and wanton misconduct. Our Supreme Court granted transfer in Garcia, vacating
the opinion, but agreeing with the result reached by the First District.
State v. Garcia, 500 N.E.2d 158, 159 (Ind. 1986), cert. denied, 481 U.S.
1014 (1987). The opinion upon transfer, however, makes no mention of Williams.
The Williams case was more thoroughly discussed in Obremski v. Henderson, 487 N.E.2d
827 (Ind. Ct. App. 1986), trans. granted, wherein the First District of this
court was faced with the question of whether proof of a drivers intoxication
at the time of an automobile accident supported an inference that the driver
was acting recklessly within the meaning of Ind. Code § 35-41-2-2.
See footnote The
Obremski cited the lead opinion Williams for the proposition that driving
while intoxicated was per se willful and wanton misconduct. The court noted
the confusion surrounding Andert and Williams. Id. at 831. Nevertheless, the
court stated we agree with the statements expressed by the plurality opinion of
Justice Givan, and until there is a contrary manifestation we shall apply it.
Our Supreme Court granted transfer in Obremski, vacating the First Districts opinion, but
agreeing with the Court of Appeals that an intoxicated driver whose deficient driving
causes a collision may be held liable for treble damages. Obremski v.
Henderson, 497 N.E.2d 909, 910 (Ind. 1986). The Court stated:
A driver whose behavior on the road meets every standard of conduct, who
observes the speed limit, stays in his lane, turns properly, and so on,
is not liable for damages because nothing in his behavior has been the
proximate cause of the collision. Intoxication by itself does not change his
behavior to one which caused the collision. Similarly, a driver whose acts
suggest only negligence is not reckless. On the other hand, a drunk
driver who crosses the center lane and strikes another car could well be
found by a jury to have acted in plain, conscious, and unjustifiable disregard
of the harm that might result. A majority of the Court has
concluded that such behavior by a drunk driver would constitute wanton and willful
misconduct. Williams v. Crist[.] Id. at 910-11 (citations omitted) (emphasis supplied).
Although citing to Williams, the Obremski Court did not hold that drunken driving
was per se reckless or willful and wanton misconduct. Instead, the Court
held that conduct by a drunk driver such as crossing the center lane
and striking another car would constitute willful and wanton misconductwhich was effectively the
holding of Andert and the concurring opinion in Williams.
In Davis v. Stinson, 508 N.E.2d 65 (Ind. Ct. App. 1987), trans. denied,
the Fourth District of this court held that driving while intoxicated acted as
a complete defense to an action brought by an intoxicated driver against a
social host if the drivers operation of an automobile while intoxicated proximately contributed
to the drivers injuries or death. In support of this holding, the
Davis court cited Williams for the statement that driving while intoxicated constitutes willful
and wanton misconduct as a matter of law. Id. at 67.
Although the Davis court parenthetically noted the split in the Williams court, it
relied upon the lead opinion in Williams to support its conclusion.
In Kolkman v. Falstaff Brewing Corp., 511 N.E.2d 478 (Ind. Ct. App. 1987),
trans. denied, the Fourth District was faced with the question of whether driving
while intoxicated constituted willful and wanton misconduct sufficient to bar an intoxicated drivers
action to recover damages from the social host who furnished alcohol to him.
The Kolkman court cited to Williams for the proposition that driving while
intoxicated is per se willful and wanton misconduct, without noting the questionability of
the plurality holding therein. Id. at 479-80.
The Fourth District again cited Williams in Natl Mut. Ins. Co. v. Eward,
517 N.E.2d 95 (Ind. Ct. App. 1987), wherein the insurer claimed that, because
the insured was intoxicated at the time he struck another driver with his
vehicle, the collision was not an accident, i.e., unintentional or unexpected. Although
the court did state that Williams held that evidence that a driver was
intoxicated at the time of an accident is sufficient to show willful or
wanton misconduct within the meaning of the Guest Statute, the Eward court refused
to find that the liability standard for the purposes of the Guest Statute
should be the same as the contractual standard under which [the insurer] can
enforce an exclusion [to coverage]. Id. at 100. See also Integon
v. Singleton, No. 22A01-0301-CV-13, 2003 WL 22128712 (Ind. Ct. App. Sept. 16, 2003)
(following Eward and parenthetically citing Williams as holding that evidence that driver was
intoxicated is sufficient to show willful or wanton misconduct within the meaning of
the Guest Statute).
In Szabo v. Cwidak, 558 N.E.2d 855 (Ind. Ct. App. 1990), trans. denied,
the Third District cited Davis, supra, and Williams. The Szabo court stated
that the holding in Davis barred recovery from a party who negligently entrusted
a vehicle to a driver who was intoxicated, if the drivers operation of
the automobile while intoxicated proximately contributed to his injuries or death since the
intoxicated persons action in driving the automobile constitutes willful and wanton misconduct.
Id. at 857. The Szabo court cited Davis and Williams, but Davis
in turn relied upon the lead opinion in Williams.
In Booker, Inc. v. Morrill, 639 N.E.2d 358, 361 (Ind. Ct. App. 1994),
the Fifth District held that the Comparative Fault Act abrogated the rule in
Davis in that, under the act, no degree of negligence on the part
of a plaintiff, including willful and wanton misconduct, could act as a complete
bar to recovery.
See footnote In its discussion on the matter, the court wrote,
Booker correctly notes that operating a motor vehicle upon a public highway while
intoxicated constitutes willful and wanton misconduct, citing
Williams, Szabo, and Kolkman. Id.
More recently, this court noted the problem of the Williams holding in Stroud
v. Lints, 760 N.E.2d 1176 (Ind. Ct. App. 2002), trans. granted. The
court stated that the lead opinion in Williams purported to overrule Andert, and
noted that three out of the five justices voted to adhere to the
holding of Andert. Id. at 1181 n.3. However, our Supreme Court
granted transfer in Stroud, vacating the opinion. The Courts opinion upon transfer
in Stroud, however, makes no mention of Williams or Andert.
Our research has also revealed three federal court cases which cited Williams as
holding that drunken driving is per se willful and wanton misconduct. See
Brownell v. Figel, 950 F.2d 1285 (7th Cir. 1991); Miller v. Pardners, Inc.,
893 F.2d 932 (7th Cir. 1990); Estate of Kuba v. Ristow Trucking Co.,
Inc., 660 F.Supp 1069 (N.D. Ind. 1986), affd 822 F.2d 1090 (7th Cir.
We have discovered only one case in which our Supreme Court has referred
to the Williams decision since the Obremski decision. In Albaugh v. State,
721 N.E.2d 1233 (Ind. 1999), the Court addressed the sufficiency of the evidence
supporting the defendants defense of entrapment to a charge of operating a motor
vehicle while intoxicated. The Albaugh Court held that the State had not
met its burden of disproving that the police did not cause the defendant
to drive his vehicle while intoxicated. In so holding, the Court made
the following observations:
This is not the usual case of a motorist who drives a motor
vehicle while under the influence of alcohol. Here, a law enforcement officer
played a direct role in influencing Albaugh to leave his home in the
middle of the night to move his truck, only minutes later arresting him
for driving while intoxicated. As the Court of Appeals said, the evidence
suggests that Albaugh and his girlfriend had settled in for the evening and
had decided not to move the truck until the following morning. Albaugh,
Slip Op. at 6 n.4; accord Williams v. Crist, 484 N.E.2d 576, 578
(Ind.1985) ([T]he intoxicated driver is guilty of willful and wanton misconduct when he
deliberately assumes control of an automobile and places it upon a public highway.);
Kolkman v. Falstaff Brewing Corp., 511 N.E.2d 478, 479 (Ind. Ct. App. 1987)
(same); Roberts v. Chaney, 465 N.E.2d 1154, 1161 (Ind. Ct. App. 1984) (Ratliff,
J., dissenting in part and concurring in part) (Becoming intoxicated ordinarily is the
result of the conscious and intentional act of the drinker. . . .
Further, driving a motor vehicle is not an involuntary act. On
the contrary, it is an act performed deliberately and intentionally by the driver.).
Albaugh, 721 N.E.2d at 1237.
Although referring to the language in Williams and Kolkman, the Albaugh court did
not hold that driving while intoxicated was per se willful and wanton misconduct.
From these cases, we conclude that the Williams case did not overrule the
holding in Andert. In Obremski, our Supreme Courts reference to Williams did
not undermine Andert, because the Court said that a drunk drivers actions of
crossing the center lane and striking another car while intoxicated would constitute willful
and wanton misconduct. 497 N.E.2d at 910-11. The Obremski court did
not hold that driving while intoxicated was per se willful and wanton misconduct.
Neither did our Supreme Court so conclude in Albaugh, because that was
not the issue before the Court. Thus, since Williams, no case from
our Supreme Court has affirmed the conclusion reached in the lead opinion in
This court, however, has repeatedly referred to the lead opinion in Williams with
approval, whether or not the various cases noted the uncertainty surrounding the opinion.
Given the state of the case law, we can readily understand why
the trial court here concluded that the challenged instruction correctly states the law.
Be that as it may, we disagree with the cases from this
court which rely upon
Williams. We believe that Williams is not controlling.
It did not overrule Andert, and no decision of the Supreme Court
has since held that driving while intoxicated is per se willful and wanton
misconduct. If Williams had not been cited and relied upon since, we
would have no qualms in stating that Andert was controlling. But given
the subsequent cases agreeing with Williams, we are not entirely confident of the
precedential value of the Andert holding. Indeed, with the increased lack of
tolerance for drunken driving in recent years,
we may express some doubt over
whether, if presented with this question today, our Supreme Court would adhere to
the holding in
Andert or agree with the lead opinion in Williams.
Either way, it is not within our purview to contradict what we take
to be the controlling precedent of Andert, regardless of the subsequent approval of
the lead opinion in Williams by several cases from this court.
We therefore hold that the challenged portion of final jury instruction number sixteen
was an incorrect statement of the law and, as such, should not be
given to the jury upon remand.See footnote
The trial court erroneously admitted evidence of Wohlwends post-accident conduct, and this error
was not harmless. Because Wohlwend does not challenge the trial courts directed
verdict on the issue of liability or the award of compensatory damages, the
only issue left to be resolved upon remand is that of punitive damages.
Upon remand, the trial court should not instruct the jury that driving
while intoxicated is per se willful and wanton misconduct.
The judgment of the trial court is affirmed with regard to compensatory damages,
reversed with regard to punitive damages, and the cause is remanded for further
proceedings consistent with this opinion.
BAKER, J., and DARDEN, J., concur.
On August 30, 2000, Wohlwend was convicted as a result of
the June 1, 2000 arrest and the charge stemming from the collision with
Footnote: Use of the term gross negligence is inappropriate in Indiana
because our common law does not recognize degrees of negligence.
Corp. v. Timber Ridge Pship, 743 N.E.2d 1173 (Ind. Ct. App. 2001), trans
denied. In the context of punitive damages the more appropriate term would
seem to be willful and wanton misconduct. See Miner v. Southwest School
Corp., 755 N.E.2d 1110, 1113 (Ind. Ct. App. 2001). See also discussion
under Part II B., infra.
For example, such evidence might in some limited circumstances be relevant
to the state of mind of the defendant at the time of the
incident involving the plaintiff. Indeed, this is part of the Edwardses argument.
Footnote: The trial court disallowed the evidence of subsequent conduct as to
the claim of negligent entrustment brought against the defendants employer.
Webster v. Boyett, 496 S.E.2d 459 (Ga. 1998), the Georgia
Supreme Court recognized that the procedure endorsed in Moore had been altered by
the Georgia Tort Reform Act of 1987, which mandated a different bifurcation procedure
where the jury first decides whether to award punitive damages and then reconvenes
to decide the amount to award. See Webster, 496 S.E.2d at 461.
The Webster court held that, in the absence of the statutory change,
it would adhere to its previous decision in Moore. Id. at 462.
Faced with this statutory change, the Webster court concluded that trial courts
could, at their discretion, follow the bifurcation procedure set forth in the statute,
or require trifurcation, where the jury would determine liability and compensatory damages in
the first phase, liability for punitive damages in the second, and the amount
of punitive damages in the third. Id. at 461, 463-64.
We also note that our situation is different than that present
Perry v. Leo P. Knoerzer Corp., 472 N.E.2d 223 (Ind. Ct. App.
1984), trans. denied, where it was a series of related events involving the
plaintiff which was at issue.
The Guest Statute at that time read in part:
The owner, operator, or person responsible for the operation of a motor vehicle
shall not be liable for loss or damage arising from injuries to or
death of a guest, while being transported without payment therefor, in or upon
such motor vehicle, resulting from the operation thereof, unless such injuries or death
are caused by the
wanton or wilful misconduct of such operator, owner, or
person responsible for the operation of such motor vehicle. Andert, 271 Ind.
at 628, 394 N.E.2d at 932-33 (quoting Ind. Code § 9-3-3-1 (1971)) (emphasis
supplied). For the current Guest Statute, see Ind. Code § 34-30-11-1 (Burns
Code Ed. Repl. 1998).
This was relevant because the plaintiff in
Obremski claimed that the
defendants drunken driving at the time of the accident constituted criminal mischief which
would permit the plaintiff to recover treble damages under Ind. Code § 34-4-30-1,
now Ind. Code § 34-24-3-1. Obremski, 487 N.E.2d at 830.
Of course pursuant to Ind. Code § 34-51-2-6 (Burns Code
Ed. Repl. 1998), if a plaintiffs fault is greater than the combined fault
of all persons who proximately contributed to the injury, the plaintiff is completely
barred from recovery. Thus, the
Booker holding referring to degree of negligence
is speaking to the degree of culpability, not the amount of plaintiffs fault
in relationship to the fault of others.
The fact that our Supreme Court denied transfer in several of
these cases is of no legal effect.
See Ind. Appellate Rule 58(B).
See for example the 2001 amendments to Indiana Code § 9-30-5-1.
Footnote: Our conclusion should in no way be read as condoning driving
while intoxicated, which we recognize is a grave problem. We nevertheless feel
bound to follow the controlling precedent of
Andert until instructed otherwise.
We note that our difference with the cases following the lead
Williams may not be as great in practice as it appears
to be in theory. We can envision few situations in which a
defendant who has been driving while intoxicated and who causes an accident will
not also have committed some other misconduct as required by Andert to support
a finding of willful or wanton misconduct.
In addition, we would observe that the instruction as given is mandatory in
nature. The problem in this regard might be solved by the giving
of an instruction to the effect that operation of a motor vehicle while
intoxicated, when coupled with other negligence or misconduct might be found to constitute
willful and wanton misconduct.