*1 OBREMSKI, Russell G.
(Plaintiff Below), HENDERSON,
Charles D. Appellee
(Defendant Below).
No. 22S01-8609-CV-828.
Supreme Court of Indiana.
Sept. 19, 1986. Mattox,
S. Frank Albany, New Jonathan Builta, R. Sansberry, Dickmann, Freeman Builta, Anderson, appellant. George Streckfus, M. Wyatt, Tarrant, Orbison, Combs & Albany, New appel- lee.
William Harvey, F. Indianapolis, Robert Beasley, C. Beasley, Gilkison, Retherford, Clark, Muncie, Buckles & for the Indiana Trial Lawyers Association, amicus curiae. SHEPARD, Justice. complaint whether a civil alleges that the defendant drove his
910 types each of the further defines ade- The Code recklessly while vehicle including "recklessly," which damages culpability, of claim for treble states a quately person engages We hold "A is defined as follows: under engages in 'recklessly' if he the in conduct that it does. conscious, unjustifia- plain, in and conduct a com- filed Russell Obremski Plaintiff might and result disregard of harm that to an auto subsequent counts plaint two a substantial devia- the involves Hender- defendant Charles collision with acceptable standards of conduct." tion from the colli- alleged that count The first son. 35-41-2-2(c) (Burns 1985 Ind. Code § by the defendant's solely was caused sion Repl.). ve- negligent operation and careless for the estimated sought hicle and 12(B)(6) under Trial Rule That dismissal by incorpo- made clear the rarely appropriate was count repairs. is The second cost of claim that allegations, added a Study rated these of the Code Commis- comments Civil driving while had been the defendant sion, dismiss said: "the motion to which intoxicated, sought treble and it is usually only sustained when will be "criminal defendant's attorney fees for the plain- conditions can the clear that under no mischief." recover, in a as would occur case tiff limitations has run." the statute of mo- granted defendant's The trial (1969). Be- Practice 601 Harvey, certified the 1 Ind. two and to dismiss count tion pleading do not rules of notice 54(B), cause the under Rule law as final question of in detail complaint recite require that the The Procedure. Court of Trial Ind. Rules based, claim is reversed, upon which the holding the com- all the facts that Appeals to a appears unless it improper a claim. to state dismissal was sufficient plaint (1986), Ind.App., not be plaintiff would certainty that Obremski Henderson any that set of facts. 827. We conclude relief under 487 N.E.2d entitled to 228, and that 294 Appeals was correct 260 Ind. Court of v. Rankin State pending liti- question to importance 604; Vanderburgh Evansville N.E.2d - - grant we should suggests gation Ind. v. Roberts Corporation School hold. consideration Thus, to so transfer N.E.2d 1315. App., 464 by excellent has been aided appeal driver can an intoxicated briefly put is: by am#- and briefs driving causes a collision whose curiae. cus damages and attor- liable for treble be held yes. The answer ney fees? provi- special made legislature has by who have those for civil actions sion liability, plaintiff a To sustain crimes, Ind. Code of certain the victim been defendant's behav that the establish must (Burns Supp.), 1985 norm some established ior fell below reads: cause was that this behavior pecuniary loss person suffers a If a A driver occurred. damage which of the 35-48, may he of IC of a violation every road meets on the behavior whose bring action a civil conduct, who observes standard for: the loss who caused lane, proper limit, turns stays in his speed (8) three (1) not to exceed An amount on, liable for is not ly, and so damages; his actual times has been nothing in his behavior action; and (2) of the The costs Intox collision. proximate cause attorney's fee. (3) change A reasonable his behav by itself does ication collision. "caused" to one which ior this cate- that fall into Among the offenses suggest only acts Similarly, driver whose a a crime which gory is criminal DeVaney v. "reckless." negligence is not "recklessly, who committed 288 N.E.2d Ind. 259 damages prop- State intentionally knowingly, or hand, a drunk other On the his consent." erty of another and strikes center lane Repl.). 35-48-1-2(a)(1) (Burns crosses 1985 Code § car could well be by found a jury to have with instructions deny Henderson's mo- acted "in plain, conscious, unjustifiable tion to dismiss and reinstate count two of disregard of might harm that result." A Obremski's complaint. majority of the Court has concluded that behavior GIVAN, drunk C.J., driver would and PIVARNIK and DICK-
constitute
"wanton
and will full" miscon-
SON,
JJ.,
concur.
*3
duct.
Williams v.
Ind.,
Crist
DeBRULER, J., dissents with separate
N.E.2d
576. As the
point out,
opinion.
"wanton and willful" and "reckless" seem
° DeBRULER, Justice,
imply
dissenting.
same
for the safety
of others.
IND.CODE
permits
recovery
of treble damages
and attorney
reaching
conclusion,
fees for
jury
pecuniary loss occuring
would
be
upon
called
examine the whole
against
offenses
of the defendant's
contained in
behavior.
It would ex-
IND.CODE 35-43.
amine the
Included
acts of
therein
driving
which were al-
IND.CODE 35-43-1-2(a)(1),
leged to have
criminal
been the
mis-
cause of
chief, a class B misdemeanor,
the collision and
would
be entitled to con-
cre-
ates an
"(a)
sider his decision to
offense when
drive a car
public
on a
reckless-
ly, knowingly, or
highway
intentionally damages
while in an intoxicated state.
property of
This
decision
his con-
certainly "involves a substan-
sent
..."
To paraphrase
tial deviation
from
essential
acceptable standards of
question posed by this case as
conduct."
stated in the
majority opinion: is
prima
facie case of
A complaint which alleges that the
criminal mischief made out by proof that a
defendant drove his car while
intoxicated
collision and property damage was caused
a manner
reckless,
which was
knowing, or
driving
of an intoxicated
intentional adequately states a claim under
driver? Judge Leist
ques-
answered this
Ind. Code 84-4-30-1.
It
entirely
§
possi
tion in
negative,
and I have reached the
specific
ble that
facts offered
proof
same result after study of these several
allegations
these
would
judg
sustain a
related statutes.
ment;
thus, dismissal under Trial Rule
The conclusion which I
reached,
have
12(B)(6)was improper.
namely that the criminal mischief statute
Judge
As
Ratliff pointed out in his was not meant to secure life and concurring opinion, it is also true that a
from loss
occasioned
the deficient driv-
plaintiff need not establish
ing of intoxicated drivers is
product
not the.
recover treble damages by clear and con of any single
factor,
decisive
but instead is
vincing evidence. The appropriate stan
upon
based
the sum of a cluster of contrib-
preponderance
dard is
of the evidence. uting
Among
factors.
those factors are
James v.
Erb,
Brink
the following ones.
Inc.
App.,
Accordingly, judgment of the trial 3. penalty for simply driving is reversed. This cause is remanded provided for IND.CODE
"912 penalty greater than
9-11 statute. Brizzie, criminal Keith FLYNN Robert a/k/a (Defendant Below), element for mind The state 4. greater mischief is a criminal offense upon pros- burden difficult more Indiana, Appellee STATE required in order to one than the ecution Below). (Plaintiff offense driv- more serious convict No. 49S02-8609-CR-827. intoxicated. ing while damage and treble target of the 5. One of Indiana. Supreme Court create and stim- is to statute attorney fee 19, 1986. Sept. through system a realistic ulate of offenses the victims losses Such their recover can they were recoverable
were *4 too or were insurance
not covered occa- Losses lawsuit. support a
small to are not
sioned is a target there
within successful by law for place mandated system in
recovery of such is a injury Mischievous for a been around has
minor crime which applied commonly long time and involving a breach
in situations are thrown rocks as where
peace windows, knocked mail boxes through overturned, and
over, are gravestones driving, a seri- Drunken
the like. warranting severe sanc- ous offense ordinarily partake
tion, does not
quality. clearly correct appear
The conclusions drives a person me here are that drives by alcohol and impaired
car while damage to causes manner
a deficient worse, several guilty of or not criminal
crimes, them is one of but the owner consequently recover tre- no has pursuant fees attorney view, if the my
the statute. result sanctioned have the
desires to in clear do so should opinion, it
majority manner. direct