Proof of Punitive Damages in Louisiana

proof of punitive damages in Louisiana

Punitive Damages Recap. A Drunk Driving Case Example

In our last two posts, Suing a Bar for Over Serving and  Punitive Damages in Louisiana Drunk Driving Cases we looked at some of the unique elements of claims arising out of drunk driving automobile accidents.  In addition to special considerations related to liability, damages and insurance coverage, these cases that go to trial also present unique evidentiary challenges and opportunities when it comes to proof of punitive damages.

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Proof of Punitive Damages in Louisiana

Our last post explained that Louisiana law allows the recovery of punitive damages when an auto accident claimant can prove that his or her injuries were caused “by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” Let’s look at these proof requirements:

“Wanton or reckless disregard”: This term means more than just negligence. “Conscious indifference” to the consequences is the general standard, which requires evidence of the defendant’s state of mind. The decision to drink too much and then get behind the wheel of a car is often enough by itself. But it always helps to have other evidence of recklessness such as friends or family members cautioning the defendant not to drive; a history of drinking and driving; speeding or swerving, etc. Some defendants may argue that they didn’t realize how much alcohol they were actually served, or that they thought the alcohol was out of their system, or similar kinds of arguments designed to show that they weren’t “consciously” disregarding the safety of others.

“Intoxication”: The law does not define how much impairment or how many drinks equal “intoxication.” Do not assume that publicized blood alcohol concentration (BAC) thresholds mean that anyone over that level is “intoxicated” for purposes of civil liability, or conversely that anyone UNDER that level is not. The law allows for evidence to be submitted that a defendant was intoxicated even if a blood alcohol test shows a level beneath the criminal law threshold (currently .008 in Louisiana). Intoxication can be found at lower levels if the defendant had a sufficient quantity of intoxicants in his system to “lose normal mental and physical control of his faculties.” Conversely, a high BAC above the “legal limit” for criminal liability does not automatically result in a finding of intoxication in a civil trial.

Other evidence of intoxication is always advisable, whether or not there was a blood alcohol test administered. This can include testimony from police officers or any other witnesses who can talk about how the defendant was acting and speaking, whether he smelled of alcohol or was slurring his words or couldn’t walk normally, whether his eyes were bloodshot, etc. Another important form of evidence is expert testimony from a qualified toxicologist or other scientifically qualified professional who can explain the typical impairment of a driver who has consumed a certain quantity of alcohol. Because blood alcohol content declines over time as the body metabolizes it, this type of witness can also take a blood alcohol test that was administered hours after an accident, and calculate what the higher impairment level would have been at the time of the accident.

One other point: we are talking about alcohol here, but narcotics and other drugs can also be considered “intoxicants” that can subject a defendant to punitive damages liability, whether mixed with alcohol or not. Your attorney should investigate any history or evidence of drug use by the defendant driver that may have led to impairment.

“Cause in fact”: The law requires that the intoxication be a cause in fact, even if not the sole cause, of the injuries. This is often not debatable when a drunk driver runs a red light and crashes into an innocent driver. But this element of the punitive damages case must be proven. For example, suppose a drunk driver’s brakes failed and that caused the accident. In that scenario the intoxication would likely not be the cause in fact of the accident.

Other considerations: Sadly, not all drinking and driving occurs in a person’s free time. Some drunk driving accidents involve employees who were drinking and then driving on the job. Generally, an employer is vicariously responsible for any damage caused by an employee driving in the course and scope of employment. Does this apply to punitive damages though—can an employer be responsible, on top of compensatory damages, to pay punitive damages awarded against an intoxicated employee? Louisiana courts are split on this question. Some have said “no,” some have said “yes,” and some have said “maybe.” The “maybe” courts tend to look at whether or not the employer contributed in some way to the intoxication, either by providing the alcohol or by being aware of the risk in some way and not doing enough to stop it. The Louisiana Supreme Court will probably take one of these cases in the future to clarify and resolve this legal conflict. In the meantime, your attorney must investigate the employment status and duties of the defendant driver at the time of the accident.

Often, a drunk driving accident case is proceeding parallel with a state drunk driving criminal case against the defendant driver for the same incident. As a practical matter, these two proceedings are often linked. It can be difficult to get testimony from the defendant in your civil case if the criminal case is still open, since the Fifth Amendment right to remain silent and not self-incriminate could be in play. But if the defendant is found guilty or pleads guilty, that finding or admission of guilt can be used to establish liability in the civil case. Often too, the defendant’s criminal lawyer will get involved in the civil case in an effort to get the plaintiff’s cooperation with a plea deal, sometimes by offering additional consideration to the plaintiff that may not be available under an insurance policy. The prospect of going to jail tends to be a powerful incentive for the defendant to cooperate in getting any civil claims resolved in these cases.

One thing has been consistently clear in our experience. Juries and judges do not like drunk driving and tend to have little sympathy for those who do it, especially those who have a chronic or repeat history of doing it. The public education campaigns on the dangers and consequences of drunk driving, along with the active watchdog monitoring of the criminal justice system by groups such as Mothers against Drunk Driving, have created a judicial culture that is increasingly tough and unforgiving in this area. A criminal defense attorney recently told us that getting a judge to dismiss an illegal narcotics distribution charge was far easier than getting a DWI charge dismissed. Juries tend to be just as tough or tougher. It’s easy for them to see all drunk drivers as a dangerous threat not only to the injured victim in the case but to themselves, their children and their families.

Injured by a Drunk Driver? Do You Have a Case?

The particular facts of your case or your issue are always the most important variable. Scandurro & Layrisson has successfully taken cases to trial against drunk drivers and has also represented bar owners and operators. We are experienced in the legal, insurance and technical issues these cases present. Feel free to contact us if you have any questions about Louisiana punitive damages law, drunk driving accidents or insurance coverage issues relating to either.