Drunk Driving Accident Victims: Pursuing Punitive Damages

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A person hurt by a drunk driver in Georgia can seek compensation for what the crash cost and, separately, punishment for the driver’s conduct. Punishment has rules of its own. OCGA 51-12-5.1 sends punitive damages to a separate phase of the trial, requires clear and convincing proof of the defendant’s state of mind, and lifts the $250,000 ceiling for a defendant who was under the influence to the degree that judgment was substantially impaired. The claim then depends on what has to be proved, what evidence reaches the jury, what the ceiling exception covers, and who is legally answerable for each layer of damages.

What a Claimant Must Prove Before Punitive Damages Are Reached

The claim begins as an ordinary negligence claim. OCGA 40-6-391(a) forbids driving or being in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive (paragraph (1)). Paragraph (5) separately covers a person whose alcohol concentration is 0.08 grams or more at any time within three hours after driving, from alcohol consumed before the driving or physical control ended.

A statutory violation is not the end of the liability question. In Williams v. Calhoun, 175 Ga. App. 332 (1985), a stop-sign case, the Court of Appeals treated the defendant’s statutory violation as negligence per se, a prima facie showing of negligence, and then reversed a summary judgment on liability because the defendant’s affidavit offered an explanation that could take the defendant’s actions out of the realm of negligence. On causation, the court relied on the Supreme Court’s rule in Buckhead Glass Co. v. Taylor, 226 Ga. 247 (1970): even with negligence per se, proximate cause is ordinarily a question for the jury.

The impairment is proved with numbers when a chemical test exists. In a civil action arising out of acts alleged to violate OCGA 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance, shown by chemical analysis, is admissible, and to be considered valid under the statute the analysis must meet the requirements of OCGA 40-6-392(a)(1). An alcohol concentration of 0.08 grams or more, at the time or within three hours after driving from alcohol consumed before the driving ended, puts the person in violation of paragraph (5) (OCGA 40-6-392(c)(1)). In Cheevers v. Clark, 214 Ga. App. 866 (1994), the test was given about an hour after the collision, and the Court of Appeals held the jury was authorized to infer a concentration of .08 grams percent or greater at the time of the collision even without testimony about the rate at which alcohol leaves the blood.

Why Impaired Driving Can Support a Punitive Award

Punitive damages require clear and convincing proof of aggravated conduct, including wantonness or an entire want of care raising a presumption of conscious indifference to consequences, and they punish or deter rather than compensate (OCGA 51-12-5.1(b), (c)).

The Supreme Court of Georgia connected that standard to drunk driving in Moore v. Thompson, 255 Ga. 236 (1985). It held that evidence that the defendant’s driving under the influence of alcohol caused the plaintiff’s injuries “is evidence of wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences,” so that such driving “is an aggravating circumstance in the act which would authorize the jury to give punitive damages.” The word is “authorize.” The decision makes punitive damages available to the jury; it does not decide that any jury must award them. Moore was decided under OCGA 51-12-5, the provision the opinion quotes, and the Court of Appeals applied its reasoning under OCGA 51-12-5.1 in Holt v. Grinnell, 212 Ga. App. 520 (1994).

Two Phases: Whether to Award, Then How Much

Punitive damages must be requested in the complaint, the trier of fact decides first whether to award them, and only then does the trial resume to take evidence on the amount (OCGA 51-12-5.1(d)(1), (2)).

Moore added a step on the liability side. Because evidence of a driver’s guilty pleas to other DUI offenses may prejudice the driver on liability, the court held that the trial judge “should exercise his discretion under OCGA § 9-11-42 (b) to try the issue of punitive damages separately in a bifurcated procedure or in a separate trial.” In Cheevers, the jury returned a compensatory verdict first and then a punitive verdict of $60,000. Cheevers was decided in 1994, and the current text of OCGA 51-12-5.1 applies only to causes of action arising on or after April 14, 1997 (subsection (h)), so the figure reflects one record under earlier law.

Evidence About the Driver’s Other Drinking and Driving

Moore explained why the punitive phase reaches beyond the crash itself: the extent of the defendant’s wilful misconduct, wantonness, and entire want of care in driving under the influence “cannot be gauged solely by focusing on the incident in issue.”

Evidence Rule stated Source
Chemical analysis of blood, urine, or breath Admissible in a civil action arising from a violation of OCGA 40-6-391, if the analysis meets the validity requirements of the statute OCGA 40-6-392(a)
Guilty pleas to DUI offenses before or after the incident Admissible on the question of punitive damages <em>Moore v. Thompson</em>
Earlier pleas of nolo contendere to DUI Barred: OCGA 17-7-95(c) provides that the plea "shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose"; other evidence that the earlier offenses were committed can still be admitted if it makes no reference to the pleas or their disposition OCGA 17-7-95(c); <em>Holt v. Grinnell</em>
A later DUI arrest whose criminal case is unresolved Held properly admitted, where the defendant was also allowed to prove the statutory penalties for a second DUI conviction in mitigation <em>Cheevers v. Clark</em>
A guilty plea to a traffic charge from the same collision One circumstance for the jury to weigh with the other evidence <em>Williams v. Calhoun</em>

Holt stated the balance by quoting the Court of Appeals’ earlier opinion in the Moore litigation: the evidence’s relevance outweighs its prejudice “where the jury is fully cautioned that the evidence goes only to the question of wilful and wanton behavior and conscious disregard of consequences, and not to the question of negligence in the particular incident on trial” (Thompson v. Moore, 174 Ga. App. 331, 333 (1985)).

When the $250,000 Ceiling Does Not Apply

Subsection (g) limits punitive damages to a maximum of $250,000 in any tort action not provided for by subsection (e), which covers product liability, or subsection (f). Subsection (f) reads:

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.

Three features of that text stand out. The test is “to that degree that his or her judgment is substantially impaired,” and subsection (f) states no alcohol concentration, while OCGA 40-6-391(a)(5) uses 0.08 as the line for the offense. A lawfully prescribed drug taken in accordance with the prescription falls outside the wording. And the exception applies “if it is found” that the defendant meets its terms; the text does not make it depend on a criminal charge or conviction.

Who Pays the Uncapped Award

The last clause of subsection (f) directs an uncapped award at the active tort-feasor: the damages “shall not be the liability of any defendant other than an active tort-feasor.”

The compensatory award, by contrast, can run against every defendant found at fault, each for its own share of the fault (OCGA 51-12-33).

The Provider That Served the Driver

Georgia treats drinking, not serving, as the proximate cause of injury by an intoxicated person, with two exceptions: a provider that knowingly serves a person in a state of noticeable intoxication, knowing the person will soon be driving, and a provider that willfully, knowingly, and unlawfully serves a person under the lawful drinking age with the same knowledge, may be liable when the service proximately causes the injury (OCGA 51-1-40(a), (b)).

Because subsection (f) of OCGA 51-12-5.1 makes an uncapped award the liability of an active tort-feasor alone, and its text does not define that term, the position of a provider that served the driver is not settled by the statute’s words.

Frequently Asked Questions

Does an acquittal in the criminal case end the civil claim?
No. The civil claim is decided on a preponderance of the evidence, with clear and convincing evidence required for punitive damages, while a guilty verdict requires a greater strength of mental conviction (OCGA 24-14-3), and Cheevers noted, quoting earlier decisions, that an acquittal does not necessarily show innocence.

Can the driver’s insurance pay a punitive award?
Public policy does not forbid it. In Greenwood Cemetery, Inc. v. Travelers Indemnity Co., 238 Ga. 313 (1977), a cemetery case, the Supreme Court of Georgia rejected the argument that insuring against punitive damages is against public policy, noted in a footnote that “[p]unitive damages is a legal liability and accordingly insurance against such damages is expressly authorized,” and held the ambiguous policy there covered the award, so coverage turns on the policy’s language.

What if the drunk driver was under 21?
A provider that served the underage driver can be liable only if it acted willfully, knowingly, and unlawfully, knowing the person would soon be driving, and proof that the provider relied on identification showing the person to be 21 or older is rebuttable evidence that it did not (OCGA 51-1-40(b), (c)).

Is a drug-impaired driver treated the same as a drunk driver for the punitive cap?
The uncapped rule covers impairment by alcohol, by drugs other than lawfully prescribed drugs taken as prescribed, or by intentionally consumed glue, aerosol, or other toxic vapor, to the degree that judgment is substantially impaired (OCGA 51-12-5.1(f)).

  • OCGA 40-6-391(a); OCGA 40-6-392(a), (c)(1)
  • OCGA 51-12-5.1(b), (c), (d), (e), (f), (g), (h)
  • Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749 (1985) (quoting OCGA 51-12-5 and citing OCGA 9-11-42(b)); Thompson v. Moore, 174 Ga. App. 331 (1985), as quoted in Holt
  • Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994); Cheevers v. Clark, 214 Ga. App. 866, 449 S.E.2d 528 (1994); Williams v. Calhoun, 175 Ga. App. 332, 333 S.E.2d 408 (1985); Buckhead Glass Co. v. Taylor, 226 Ga. 247 (1970) (as quoted in Williams)
  • OCGA 17-7-95(c); OCGA 24-14-3
  • Greenwood Cemetery, Inc. v. Travelers Indemnity Co., 238 Ga. 313, 232 S.E.2d 910 (1977)
  • OCGA 51-1-40(a), (b), (c) (identification defined in OCGA 3-3-23(d), as referenced in subsection (c))
  • OCGA 51-12-33

Disclaimer

This article provides general information about punitive damages in drunk-driving cases under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether impairment can be proved, whether a jury finds the standard met, and whether insurance responds depend on the specific facts and on current authority. A person injured in an impaired-driving crash should consult a licensed Georgia attorney about the particular situation.

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