DWI victims impeded in civil claims Ruling changes proof standard

August 03, 1992|By Glenn Small | Glenn Small,Staff Writer

A recent standard set by Maryland's highest court, aimed at making it tougher to get punitive damages in non-intentional personal injury cases, may be having an unintended effect on drunken driving cases, say lawyers familiar with the issue.

The standard, included as part of the decision in an asbestos case, is being interpreted by trial judges to mean that the simple act of driving drunk is not enough to prove "actual malice" or "evil motive" -- the new criteria for deciding responsibility in personal injury cases.

Under the new standard, trial judges are ruling that juries in civil suits cannot be told the driver was drunk.

"It's a very big issue," said Judge Thomas J. Bollinger, who ruled in a recent Baltimore County Circuit Court civil case that a jury could not be told that a man was drunk when he caused an accident that injured Donna Komornik.

Ms. Komornik, 30, a real estate agent, was rear-ended on Dec. 22, 1989, by a man with a blood alcohol level of .19. The man also was driving on a suspended license. Because of Judge Bollinger's ruling, the jury that awarded Ms. Komornik $3,500 in June never knew these facts.

"As far as they knew," said Dennis O'Brien, Ms. Komornik's attorney, "he was sober that day. The jury's not getting the whole story."

Ms. Komornik, who suffered an injury to her back -- a bulging disk -- that still bothers her and may require corrective surgery, said of the ruling: "It's ridiculous. . . . To me, the money's not the point. The public has no idea that drunk drivers are being protected this way."

The Court of Appeals ruling makes it tougher for people filing suit to get punitive damages for "non-intentional" injuries, such as car or other accidents. Under the old standard, plaintiffs had to prove gross negligence, or the "wanton or reckless disregard for human life" in order to recover punitive damages.

Now, lawyers must prove "actual malice" or an "evil motive." And they must prove that by "clear and convincing" evidence, rather than by a simple preponderance of the evidence. The court's decision also sought to clarify exactly what is required to obtain punitive damages.

"The gross negligence standard has led to inconsistent results and frustration of the purposes of punitive damages in non-intentional tort cases," the court wrote.

The new standard also puts Maryland more in line with decisions in other state courts, according to the court's decision.

What is happening in civil court cases involving drunken driving is that the person being sued admits causing the accident and asks the judge to withhold information about drunken driving from the jury. Trial judges are granting those requests, according to judges and lawyers familiar with the issue.

"Oh, it's a very significant case," Judge Alan M. Wilner, chief judge of the Court of Special Appeals, said of the ruling. "It did change some of the basic ground rules for plaintiffs getting punitive damages."

Judge Wilner said his court has seen several cases appealed on the basis that the new ruling makes it too hard to get punitive damages.

Under the new standard, "you have to show some animus, some intent to injure, malice, ill-will, some 'I'm going to get you,' " Judge Wilner explained.

In Ms. Komornik's case, the driver, Gregory Lester Sparks, 32, had been charged for drunken driving three times before the accident in which the Baltimore County woman was injured. He'd received one probation before judgment and one conviction. One drunken driving arrest occurred in November 1989, several weeks before the accident. At that time, Mr. Sparks refused to take a blood-alcohol test and consequently had his license suspended, according to court records.

The day of the accident, Mr. Sparks, who hangs dry-wall for TC living, left work around lunchtime, drank an unknown number of beers at the Kent Lounge in Towson, then went to another bar and drank whiskey and Coke, according to court records. After being dropped off at his parents' home, he borrowed his sister's truck -- without her knowledge -- and was driving on Merritt Boulevard in Dundalk when he hit the clutch instead of the brake, causing the accident.

At trial, Mr. Sparks' attorney called a medical expert who said Ms. Komornik's back injury could have been caused by a man who tried to assault her several weeks after the accident. On Jan. 4, 1990, she was dragged by the hair into some woods near her apartment complex and threatened at gunpoint, but not assaulted, said Mr. O'Brien.

"That was OK, to get into that," Mr. O'Brien said of the attack. "But we can't put on that the guy was drunk."

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