INGRAM v. PETTIT

SUNDBERG, Justice (dissenting).

I must respectfully dissent from the majority opinion in this case. Today the majority has discarded literally hundreds of years of jurisprudence developed in the law of torts. Not only are the painstakingly developed concepts of "simple negligence", "gross negligence", "culpable negligence", "willful and wanton misconduct" spurned, but the bedrock concept of liability predicated on fault which has evolved carefully in the law of torts is dismissed. In cases where an accident involving an intoxicated driver is concerned, the injured party need only prove the accident, provide evidence of intoxication and, thereupon, the driver will be subject to assessment of punitive damages. This is strict liability, not only for compensatory damages, but for exemplary damages. The intoxicated driver becomes an insurer, to the full extent of punitive damages, irrespective of any showing that his conduct in the operation of the automobile fell below that standard of care which is expected of a reasonable, prudent man under similar circumstances. To quote, ". . . we hold that juries may award punitive damages where voluntary intoxication is involved in an automotive accident in Florida without regard to external proof of carelessness or abnormal driving . . ." (emphasis supplied).

This extraordinary position is justified by the assertion that the Legislature has enacted progressively harsher criminal penalties for drunken driving. Such a trend by the Legislature, as pointed out in footnote 12 to the opinion, is obvious. It is the Legislature's prerogative, even duty, to respond on behalf of the public in Florida to known dangers inherent in operating an automobile while intoxicated, through the enactment of penal laws. Notwithstanding the concept that punitive damages in tort law are premised upon the idea of punishment as an example to others, the guiding principle in this area of law always has been that liability should be predicated upon fault. In an active and vibrant society accidents are bound to occur. The philosophical decision was long ago made, and I believe rightly, that to make one the insurer of any injury to another caused by him would inhibit the development and progress of that society. (A sure way to do nothing wrong is to do nothing at all.) Hence, there developed the principle that one should respond in damages for injury to another only in those instances where his or her conduct fails to measure up to the conduct expected of a reasonable, prudent person acting under similar circumstances. True, this concept has been tempered over the years with the advent of workmen's compensation and like programs for the benefit of employees who enjoy a disparate bargaining and economic position and most recently, to a limited extent, in the instance of no-fault insurance laws. But in each instance this has been accomplished through acts of the Legislature.

The majority opinion extends the strict liability concept to the recovery of punitive damages, but says that the traditional elements such as proximate causation and an underlying award of compensatory damages must still be proved. But what does this mean — that the accident caused injury or that the intoxication, without more, caused the accident to occur? If the latter, then the position is untenable in a situation such as we have at bar where there is no evidence at all that the intoxication caused any irregularities in the operation of the vehicle. If the former, then, notwithstanding the lip service paid to it, the concept of proximate causation has gone by the boards.

Classically, in the law of torts, it is substandard conduct in the performance or non-performance of an act which subjects the actor to liability for compensatory damages. If the conduct of an individual in operating an automobile is not otherwise substandard, evidence of intoxication on the part of that individual, in and of itself, logically cannot convert the conduct into a category which will permit recovery of punitive damages without totally emasculating the principle of proximate causation.

Without explicating it, the majority has today, at the very least, overruled the well-reasoned decision in Carraway v. Revell, 116 So.2d 16 (Fla. 1959), in which it was held "`that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages'". Carraway v. Revell, supra, at 20. In the earlier case of Miller v. State, 75 So.2d 312 (Fla. 1954), Mr. Justice Drew characterized the conduct necessary to sustain a conviction for manslaughter in the following terms:

"The culpable conduct necessary to sustain proof of manslaughter under Section 782.07, supra, `must be of " a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them."'" (pp. 313, 314)

The majority opines that Pettit may not rely upon cases decided under the culpable negligence manslaughter statute because of the higher burden of proof in a criminal action. It is submitted, however, that the only distinction between the two cases lies in the quantum of proof required for a conviction under the criminal statute. The character of conduct proscribed is the same in manslaughter actions as in tort actions seeking recovery of punitive damages. Cases under the manslaughter statute have consistently held that excessive speed alone, or some other single act of simple negligence, coupled with evidence of intoxication is not sufficient to constitute culpable negligence necessary for conviction. See Smith v. State, 65 So.2d 303 (Fla. 1953); Fowlkes v. State, 100 So.2d 826 (3d D.C.A.Fla. 1957); Jackson v. State, 100 So.2d 839 (1st D.C.A. Fla. 1958); Peel v. State, 291 So.2d 226 (1st D.C.A.Fla. 1974). In its opinion the majority has eliminated even the necessity for a single separate act of simple negligence where evidence of intoxication is present.

Another indication that the majority has gone astray appears in its statement:

". . . We affirmatively hold that the voluntary act of driving `while intoxicated' evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages." (Emphasis supplied)

I suggest that the law of torts as it has been carefully developed over the years permits an award of punitive damages in personal injury cases involving vehicles where reckless conduct is involved, not reckless attitude. See Carraway v. Revell, supra.

The public policy arguments of the majority are enticing. There can be no question that drunk drivers endanger the lives of citizens of our state. But the Legislature can and has dealt with this problem through enactment of criminal statutes. The Legislature is the appropriate body to assert the public policy of Florida in this regard. That body having done so, it is unnecessary and improvident to cast aside a body of law which has evolved carefully through generations of legal thought and decisions. The majority in furtherance of a commendable social policy has thrown out the proverbial baby with the proverbial bath water.

I would discharge the writ of certiorari.