In motor vehicle personal injury or wrongful death cases where the responsible driver was allegedly intoxicated, the injured plaintiff may want to consider seeking an award of punitive (or exemplary) damages against that driver. While the defendant’s insurer bears no obligation to pay such damages, sometimes the presence of such a claim can create a significant tactical advantage in favor of the plaintiff’s position, since that driver’s personal assets are now at stake.

The underlying statutory entitlement of a plaintiff to seek punitive damages is set forth in Civ. Code, § 3294, which gives the plaintiff the right to seek such damages where: “the defendant has been guilty of oppression, fraud, or malice.” This statutory language, and preexisting common law, opened the door to recovery of punitive damages in situations besides those where injuries arise from a defendant’s intentional misconduct: that is, situations where the defendant’s wrongful conduct is neither intentional nor negligent, but somewhere in between.

“A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result.” Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869. A cause of action for “conscious disregard of the rights or safety of others” exists, and it supports a punitive damages remedy. See, Peterson v. Superior Court (1982) 31 Cal.3d 147, 158-159, noting: “Nonintentional torts may also form the basis for punitive damages.… Such is the situation in this case, where an act performed without intent to harm has nevertheless resulted in injury and possible exposure to punitive damages because it was done with conscious disregard of the rights or safety of others.”

The test for the adequacy of an allegation of malice in a vehicular accident case involving driving while intoxicated, so as to support a claim for punitive damages based on assertions of conscious disregard, is set out in the seminal case of Taylor v. Superior Court (1979) 24 Cal.3d 890, 892: “…the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under [Civil Code] section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.”

Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88 also illustrates the applicable standard. As in this case, the issue in Dawes was the adequacy of the Complaint’s pleading for punitive damages against an intoxicated driver after a vehicle collision. The Dawes plaintiff alleged that: “…with knowledge that probable serious injury would result to persons in the area, Mardian ran a stop sign, and was zigzagging in and out of traffic at a speed in excess of 65 miles per hour in a 35 mile per hour zone….” The court held that these allegations were sufficient, under Taylor, to set forth a claim for punitive damages. The opinion specifically held that plaintiff: “…pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred.” (Id., at 90.)

In accord, see Peterson v. Superior Court (1982) 31 Cal.3d 147, 162, finding allegations of punitive damages in the complaint against an intoxicated driver to be sufficient, where the pleaded allegations were that defendant drove at a speed well in excess of 75 mph, and then lost control of the vehicle and injured plaintiff, who was his passenger.

When defendant believes that plaintiff’s complaint inappropriately seeks a punitive damages remedy, he or she may file a motion to strike such contentions. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.

Defendants’ counsel will not take punitive damages allegations against their clients lightly. Where sought in a Complaint, plaintiff’s counsel must take care to plead the underlying facts that support a claim for punitive damages carefully, so as to show entitlement to such relief. Following the guidelines set forth in the cases cited above will provide a roadmap to proper pleading in these circumstances.