In Chiara v. Dernago, 2015 NY Slip Op 04444 (2nd Dept. May 27, 2015), the Appellate Division, Second Department affirmed the denial of defendant’s motion under CPLR 4404(a) to set aside a jury verdict in plaintiff’s favor.
The evidence at the trial on the issue of liability demonstrated that, several hours before the accident, Dernago drove a Shellfish company truck to a Hooters restaurant in Paramus, New Jersey, and spent approximately two hours there. During that time, he discussed Shellfish’s product with the restaurant manager and consumed multiple beers. Although Dernago could not remember the exact number of beers he drank at the restaurant, he stated that it was probably no more than 10. After he left the restaurant, he stopped at a nearby Red Lobster restaurant to make a delivery and then drove toward the Bronx to make another stop. Shortly after Dernago drove onto the George Washington Bridge, he veered from his lane more than once, rear-ended a pickup truck, and effectively “launched” the pickup truck into the plaintiffs’ vehicle. After the accident, Dernago approached the plaintiffs’ vehicle “talking basic nonsense.” Among other things, he asserted that he was not drunk and that he was “stopping for the toll.” Dernago could not recall if he saw the other vehicles involved in the collision prior to the impact, or any other relevant circumstances of the accident. Although he could not remember if he was given a field sobriety test at the scene of the accident, he was placed under arrest at the scene. The evidence at the liability trial further demonstrated that Dernago had a blood alcohol content of .172 of one percentum by weight after the accident, and that he ultimately pleaded guilty to driving while intoxicated as a misdemeanor. The jury found that Dernago was negligent, and that his negligence was a substantial factor in causing the accident. (Emphasis added.)
In addition to finding for plaintiff on liability, the jury awarded plaintiff $160,000 in compensatory damages against Dernago and Shellfish, and punitive damages of $70,000 against Dernago.
Initially, the court held that plaintiff presented sufficient evidence that the injuries she sustained to her cervical spine qualified as a “serious injury” under the “significant limitation of use” provision of Insurance Law § 5102(d).
Next, the court held that the award of punitive damages was proper. Here is the applicable law:
Evidence that a defendant was driving while intoxicated is insufficient, standing alone, to justify the imposition of punitive damages. However, driving while intoxicated may support an award for punitive damages where there is additional evidence that the defendant engaged in “wanton and reckless” conduct evincing heedlessness and an utter disregard for the safety of others. An evaluation of whether punitive damages are warranted must be made “on a case-by-case basis taking into account the nature of the actor’s conduct and the level of his intoxication”.
Applying the law to the facts, the court concluded:
Here, a determination that Dernago’s conduct was wanton and reckless is supported by evidence that he consumed numerous beers and attained a blood alcohol content of at least .172 of one percentum by weight, over twice the legal limit, before driving his company’s box truck onto the George Washington Bridge, and causing a multi-vehicle accident by rear-ending a pick-up truck. Dernago was essentially incoherent at the scene of the accident, and could not even recall undergoing a field sobriety test. Under all of the circumstances, the jury’s award of punitive damages was entirely appropriate to punish Dernago for his wanton and reckless conduct.
It goes without saying, of course, that any plaintiff’s lawyer would be delighted to hear the defendant admit that he had “probably no more than 10” beers before he rear-ended their client.