OPINION
Appellant-Defendant, Bryon R. Wohl-wend, appeals from the trial court's judgment in favor of Appellee-Plaintiffs, Donna J. Edwards and Michael Edwards, in their negligence claim against Wohlwend. Upon appeal, Wohlwend's two presented issues concern only the matter of punitive damages: (1) whether the trial court improperly admitted evidence of Wohlwend's behavior subsequent to the incident giving rise to the Edwardses' claim, and @) whether the trial court improperly instructed the jury that driving while intoxicated is per se willful and wanton misconduct.
With regard to punitive damages, we reverse and remand.
The record reveals that in the early morning hours of March 11, 2000, the vehicle which Wohlwend was driving crossed the center line of the road and collided head-on with a vehicle driven by Mrs. Edwards. Wohlwend had been drinking and was intoxicated. An open bottle of wine cooler was found in his vehicle. He had .also gotten very little sleep in the few days prior to the accident. Mrs. Edwards was injured in the collision. Her arm was injured as a result of bracing herself for the impact. She suffered from pain and discomfort, concentrated in her left arm, head, and chest. She had severe headaches for a week following the accident,
On May 1, 2000, the Edwardses filed suit against Wohlwend. On March 8, 2002, Wohlwend filed a motion in limine seeking to prohibit the Edwardses from presenting certain evidence, including Wohlwend's driving record. The trial court granted the motion. On October 15 and 16, 2002, a jury trial was held. Evidence was admitted at trial which indicated that, prior to the accident involving Mrs. Edwards, Wohlwend had been arrested for possession of marijuana and illegal consumption or possession of alcohol by a minor. The Edwardses also introduced evidence that, subsequent to the Edwards accident, Wohlwend had twice been arrested for operating a vehicle while intoxicated. Specifically, Wohlwend was arrested for operating while intoxicated on June 1, 2000 1 and again on January 12, 2002.
The trial court granted the Edwardses' motion for a directed verdict on the issue of liability, The jury then resolved the issue of compensatory and punitive damages, awarding Mrs. Edwards $50,000 in compensatory damages, awarding Mr. Edwards $500 in compensatory damages, and assessing punitive damages against Woh!-wend in the amount of $100,000. On October 16, 2002, the trial court entered judgment on the verdict and costs for the action.
I
Evidence of Subsequent Conduct
Wohlwend claims that the trial court erred in admitting evidence of his behavior which occurred after the incident involving Mrs. Edwards. Wohlwend argues that such evidence was irrelevant to the issue of punitive damages and unfairly prejudicial.
A. Waiver
The Edwardses claim that Wohl-wend has forfeited any claim of error with regard to the introduction of this evidence by failing to make a timely objection. It is true that a party may not rely upon a pretrial ruling on the admissibility of evidence to preserve error upon appeal. See Lenoir v. State,
Wohlwend first objected when plaintiffs' counsel asked if he had a "chemical dependency problem." Transeript at 237. Wohlwend argued that the plaintiffs were attempting to introduce improper character evidence. This objection was overruled. Wohlwend again objected when plaintiffs' counsel attempted to adduce testimony revealing that Wohlwend had a prior arrest for underage drinking, which the trial court also overruled. After this, Wohlwend testified that, prior to the accident with Mrs. Edwards, he had been arrested for possession of marijuana and underage possession and consumption of alcohol. Although Wohlwend does not challenge the admission of this evidence upon appeal, this line of questioning led to the admission of the evidence at issue. Wohlwend was then asked, "Did your arrest in this matter for the charge of Driv
After this extensive objection and discussion, we cannot fault Wohlwend's counsel for not repeating his already-stated and overruled objection when the testimony concerning the subsequent acts came into evidence immediately thereafter. The purpose of requiring a trial objection is so that any error might be corrected by the trial court at that time. Lenoir,
B. Evidence of Subsequent Conduct in Determining Punitive Damages
As stated, the essence of the issue before us is whether the trial court should have admitted evidence of Wohlwend's be-bavior after the event giving rise to the Edwardses' claim even if limited to the matter of punitive damages. This appears to be an issue of first impression in Indiana.
Punitive damages in civil cases are governed by Indiana Code 34-51-33. See Ind.Code § 34-51-3-1 (Burns Code Ed. Repl.1998). The standard used to determine whether punitive damages are properly awarded is whether, considering only the evidence and reasonable inferences supporting the judgment, a reasonable trier of fact could find by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence," or oppressiveness which was not the result of a mistake of fact or law, mere negligence,
2
or other human failing. INS Investigations Bureau, Inc. v. Lee,
Our General Assembly has limited the amount that may be recovered as punitive damages to no more than the greater of three times the amount of compensatory damages or fifty thousand dollars. Ind. Code §§ 34-51-38-4, 84-51-3-5 (Burns Code Ed. Repl.1998). Pursuant to Indiana Code § 34-51-38-6 (Burns Code Ed. Repl. 1998), when punitive damages are awarded in civil actions, the party against whom the judgment was entered shall pay the punitive damage award to the clerk of the court where the action is pending. Upon receiving the payment, the clerk must then pay the plaintiff twenty-five percent of the award and pay the remaining seventy-five percent to the Treasurer of State who is to deposit the funds into the violent crimes compensation fund. Id.
Here, Wohlwend claims that evidence of his acts subsequent to the accident involving Mrs. Edwards was irrelevant to the issue of punitive damages in connection with that accident. The Edwardses claim that this evidence is relevant to the purpose of punitive damages-to deter similar conduct. We are unwilling to say that, in a case involving punitive damages, post-incident acts could never be relevant to the issue of punitive damages in conjunction with the incident giving rise to the plaintiff's claim. We can envision a rare situation in which the acts of the defendant subsequent to the incident at issue might bear some relevance to the culpability of the defendant and the related question of whether or not to impose punitive damages or in what amount they should be imposed. 3 Be that as it may, this does not mean that such evidence, even if relevant, is necessarily admissible. Although evidence must be relevant to be admissible, see Ind. Evidence Rule 402, not all relevant evidence is admissible. Evidence Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of eu-mulative evidence. In the case at bar, we need not decide whether and to what extent the evidence of Wohlwend's subsequent acts of drunken driving are relevant to the issue of punitive damages, for to the extent that such evidence could possibly be relevant, its probative value is substantially outweighed by the danger of unfair prejudice.
When the jury heard evidence of Wohl!-wend's subsequent driving record, there was a danger that it would punish Wohl!-wend for his subsequent acts and not for his behavior vis-a-vis Mrs. Edwards. One might argue that, if punitive damages are to be fully effective in their purpose, the jury should be able to punish Wohlwend for his subsequent driving record in addition to the incident involving Mrs. Edwards. This follows from the proposition that a recidivist is worthy of greater punishment than a one-time offender. However, we conclude that such evidence would run afoul of the requirement that punitive damages be connected to and proportional to the actual, compensatory damages suffered by the plaintiff. The requirement of a connection between compensatory and
It has long been the law in our state that compensatory damages are a prerequisite to the recovery of punitive damages. See e.g., Sullivan v. Am. Cas. Co.,
We also cannot ignore the recent developments in the law in the area of punitive damages and constitutional due process protections. In State Farm Mut. Auto. Ins. Co. v. Campbell, - U.S. -,
In Campbell, the Supreme Court broadened the due process protections afforded to defendants seeking review of large punitive damages awards. Upon a claim that the amount of punitive damages awarded constitutes a deprivation of property without due process of law in violation of the Fourteenth Amendment, courts are to consider three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Id. at 1520 (citing BMW of N. Am., Inc. v. Gore,
The Campbell court stated that the Utah courts had erred by punishing State Farm for acts which occurred outside of Utah and which were lawful where they occurred.
"A defendant's dissimilar acts, independent from the acts upon which Hability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis.... Punishment on these bases creates the possibility of multiple punitive damage awards for the same conduct; for in the usual case non-parties are not bound by the judgment some other plaintiff obtains."
Id.
We recognize that the Court spoke of "dissimilar" acts, and it appears that in the case at bar, the acts were not wholly dissimilar. Immediately following this, however, the court stated in no unspecific terms that the defendant should be punished for the conduct which harmed the plaintiff, and warned against adjudicating hypothetical claims which others might bring. This is one of our chief concerns with allowing evidence of Wohlwend's subsequent conduct. If the jury were to punish Wohl-wend for his subsequent acts in addition to the conduct which harmed Mrs. Edwards, there would be a risk of multiple punishment. In future suits based upon this subsequent conduct, Wohlwend could conceivably be punished yet again for the acts which were taken into consideration in punishing him in the previous trial.
The Court also stated that, although a recidivist may be punished more severely than a first offender, in the context of civil actions, courts must ensure the conduct in question "replicates the prior transgressions." Id. at 1523 (emphasis supplied). This suggests the Court was considering that past instances of misconduct might be relevant to the reprehensibility of the defendant, but nowhere did it imply that future conduct was relevant.
We conclude that any relevance which Wohlwend's subsequent acts could have had upon the issue of punitive damages was substantially outweighed by the danger that the jury would use this evidence to punish Wohlwend for his subsequent acts instead of the conduct which gave rise to the Edwardses' actual damages. For the jury to punish Wohlwend for such subsequent conduct would detach the propriety and/or amount of punitive damages from the compensatory damages due the plaintiffs. This would be violative of the spirit of Indiana common and statutory law and the Due Process Clause of the Fourteenth Amendment.
Our conclusion is similar to that reached by the Ohio Supreme Court in Cappara v. Schibley,
A similar result was reached in Thomas v. Am. Cystoscope Makers, Inc.,
We do not find persuasive the holding of the Georgia Supreme Court in Moore v. Thompson,
Unlike the Moore court, we are not concerned merely with the prejudicial effect evidence of subsequent conduct might have upon the jury in determining liability. Such evidence is also unfairly prejudicial to the defendant in determining the propriety and amount of punitive damages visa-vis the current plaintiff. As stated previously, the position advocated by the Ed-wardses would increase the likelihood that the defendant would be punished for conduct unrelated to the plaintiffs actual damages, which would run counter to Indiana law and the Due Process Clause of the Fourteenth Amendment.
We therefore conclude that the trial court erred in permitting evidence of Wohlwend's post-accident conduct to come before the jury.
6
Cf. Duncan v. Duncan,
The Edwardses claim that, even if this evidence was erroneously admitted, such was harmless error which would not require reversal. We cannot agree. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. Ind. Evidence Rule 103(a);, Marchal v. Craig,
"I mean, at what point do we, do we turn that around and say wait a minute, you know, you [ie., the defendant] are responsible. You do have to be accountable for that. I'm not going to give you the benefit of the doubt, you messed up, you need to pay for it. You not only messed upbut you messed up a whole bunch. You know, don't we at some point have a little sense of anger about having to worry about driving down the road, that somebody who's not learned their lesson by the third time, or the fourth time, or the fifth time, is still out there driving a car?" Transcript at 348.
Because we are unable to say that the trial court's error was harmless, we reverse the trial court's judgment as to punitive damages. We note, however, that Woblwend does not challenge the trial court's directed verdict against him upon the issue of liability, nor does he challenge the award of compensatory damages. Upon remand, the only issue to be retried is that of punitive damages.
II
Jury Instruction
We have concluded that we must reverse the judgment of the trial court and remand for a new trial upon the issue of punitive damages, and the issue as to whether the trial court properly instructed the jury regarding punitive damages need not be resolved. However, we address this issue because it is likely to recur upon remand. Wohlwend claims that the trial court erred in giving the jury final instruction number sixteen. Before we reach the merits of this argument it is necessary to address the Edwardses' contention that Wohlwend has waived this issue for purposes of appellate review.
A. Waiver
According to the Edwardses, Wohlwend waived any argument regarding this instruction by failing to comply with that portion of Indiana Trial Rule 51(C) which states, "No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The Edwardses claim that Wohlwend made no objection to the challenged instruction until after the jury had been instructed and deliberations were completed. Wohlwend responds by claiming that, although he did not formally record his objection until after the jury had been charged, the instruction had been objected to earlier off the record, "in accordance with customary practice in courts across Indiana." Appellant's Reply Br. at 8.
This practice was given tacit approval in Piwowar v. Washington Lumber & Coal Co.,
The same argument was made in Manning v. Allgood,
Here, the record supports Woh!-wend's contention that the objection had been previously made but was not formally recorded until later. Speaking of the final instructions, the trial court asked, "if there are any objections|,] do you wish to make them now or a little bit later?" Transcript at 335. Wohlwend's counsel stated, "I would prefer later, if that's okay." Id. Notably, the Edwardses' counsel stated, "No objections to doing that." Id. Then, before reading the instructions to the jury, the trial court addressed the jury saying, "in the time while you've been gone then the Court has settled the final instructions with counsel. In other words, they both had the opportunity to tender to the Court, proposed instructions as to the law, and we have had discussion and debate and arrived at some final instructions that you will hear." Id. (emphasis supplied). From this, it is apparent that the parties had made their objections known to the trial court before the instructions were read to the jury. This conclusion is also supported by the manner in which the recorded objection was made. Wohl-wend's counsel stated, "Judge, just briefly, could I make my one objection to the Court's final instruction, so we have this on the record." Id. at 374,
B. Propriety of the Instruction
The jury instruction at issue in the present case reads:
"The law holds an intoxicated person to the same standard of care as a sober person. Intoxication is not an excuse for failure to act as a reasonably careful person would act. Operating a motor vehicle upon a public highway while intoxicated constitutes willful and wanton misconduct." Appellant's Appendix at 21 (emphasis supplied).
Punitive damages may be properly awarded upon a showing of willful and wanton misconduct. Lee, supra,
"Without question driving in a state of intoxication upon snow covered roads, when increased care is required, is negligence. But is it wanton or willful misconduct, as those terms have been heretofore defined by this Court? We think not, for the reason that the mental attitude of perverseness or conscious indifference are not reasonably inferable therefrom. Intoxication combined with evidence of other misconduct, such as speeding, driving on the wrong side of the road or violating other traffic regulations, heightens the inference of willfulness or wantonness that may be drawn from such cireumstances, but here there was no such evidence."271 Ind. at 631-32 ,394 N.E.2d at 934 .
Justices Hunter and Pivarnik concurred, but Chief Justice Givan and Justice De-Bruler dissented without opinion.
The Edwardses rely upon Williams v. Crist,
"To the extent that the above-cited cases may be interpreted as contrary to the holding herein, they are expressly overruled. Judge Ratliff, who dissented in the case at bar, also dissented in Roberts, supra.
took ok
As Judge Ratliff points out, the drunken driver is a major source of property damage and personal injury in the United States today. The drunken driver kills more citizens each year than any other group of criminals. As Judge Ratliff notes, in 1980, approximately 26,-300 persons were killed in the United States by drunken drivers. Roberts, supra at 1161 (Ratliff, J., dissenting). We heartily agree with the statement made by Judge Ratliff in his dissent in Roberts that '[dJriving a motor vehicle while intoxicated thereby endangering one's guest rider is wanton and willful misconduct per se and it is high time we said so.' Id.
Probably because the consumption of alcoholic beverages is so widespread and generally accepted as a recreational pastime, legislators, juries and judges, both trial and appellate, have too often treated the problem in a cavalier manner. As Judge Ratliff says, it is high time we publicly state that the intoxicated driver is guilty of willful and wanton misconduct when he deliberately assumes control of an automobile and places it upon a public highway."484 N.E.2d at 578 (emphasis supplied).
Although this would seem to be a death knell to the holding in Andert, then Justice Shepard, joined by Justice DeBruler, wrote a separate opinion concurring in result with the plurality's opinion. According to this concurring opinion, the evidence adduced at trial was adequate to meet the standard set forth in Andert, and there was therefore no need to announce a new standard or overrule prior precedent. Id. at 579 (Shepard, J., concurring in result).
Justice Prentice wrote a dissenting opinion in which he stated:
"Driving while under the influence of alcohol is, in my judgment wanton and willful but the undisputed evidence was that Williams' driving was unimpaired. I regard the verdict and the acceptance of transfer and affirmance by this Court as nothing less than a determination that the ingestion of aleohol and driving a motor vehicle shortly thereafter is conduct that society should not tolerate and that holding an offender liable in damages, without regard to a casual [sic] connection between the two, will serve as a deterrent. Neither do I have any quarrel with the establishing of such a policy. However, such is the exclusive prerogative of our legislature.
I vote to deny transfer upon the authority of Andert []." Id. (Prentice, J., dissenting).
Thus, despite the fact that the Williams plurality "expressly overruled" Andert, only two Justices voted to do so. The two Justices who concurred in result relied upon Andert and would not have overruled it. Justice Prentice, although apparently agreeing to some extent with the public policy concerns underlying the plurality's holding, dissented upon the bases of the holding in Andert. Notwithstanding the statement in Williams to the contrary, the lead opinion in Williams simply did not have the votes to overrule Andert. This has not stopped several subsequent cases from citing and relying upon the lead opinion in Williams.
In State v. Garcia,
The Williams case was more thoroughly discussed in Obremski v. Henderson,
Our Supreme Court granted transfer in Obremski, vacating the First District's opinion, but agreeing with the Court of Appeals that an intoxicated driver whose deficient driving causes a collision may be held Hable for treble damages. Obremski v. Henderson,
"A driver whose behavior on the road meets every standard of conduct, who observes the speed limit, stays in his lane, turns properly, and so on, is not liable for damages because nothing in his behavior has been the proximate cause of the collision. Intoxication by itself does not change his behavior to one which 'coused' the collision. Similarly, a driver whose acts suggest only negligence is not 'reckless' On the other hand, a drunk driver who crosses the center lane and strikes another car could well be found by a jury to have acted 'in plain, conscious, and unjustifiable disregard of the harm that might result" A majority of the Court has concluded that such behavior by a drunk driver would constitute 'wanton and willful misconduct. Williams v. Crist[.]' Id. at 910-11 (citations omitted) (emphasis supplied).
Although citing to Williams, the Obremski Court did not hold that drunken driving was per se reckless or willful and wanton misconduct. Instead, the Court held that conduct by a drunk driver such as crossing the center lane and striking another car would constitute willful and wanton misconduct-which was effectively the holding of Andert and the concurring opinion in Williams.
In Davis v. Stinson,
In Kolkman v. Falstaff Brewing Corp.,
The Fourth District again cited Williams in Nat'l Mut. Ins. Co. v. Eward,
In Szabo v. Cwidak,
In Booker, Inc. v. Morrill,
More recently, this court noted the problem of the Williams holding in Stroud v. Lints,
Our research has also revealed three federal court cases which cited Williams as holding that drunken driving is per se willful and wanton misconduct. See Brownell v. Figel,
We have discovered only one case in which our Supreme Court has referred to the Williams decision since the Obremski decision. In Albaugh v. State,
"This is not the usual case of a motorist who drives a motor vehicle while under the influence of alcohol. Here, a law enforcement officer played a direct role in influencing Albaugh to leave his home in the middle of the night to move his truck, only minutes later arresting him for driving while intoxicated. As the Court of Appeals said, 'the evidence suggests that Albaugh and his girlfriend had settled in for the evening and had decided not to move the truck until the following morning' Albaugh, Slip Op. at 6 n. 4; accord Williams v. Crist,484 N.E.2d 576 , 578 (Ind.1985) ('[TIhe intoxicated driver is guilty of willful and wanton misconduct when he deliberately assumes control of an automobile and places it upon a public highway."); Kolkman v. Falstaff Brewing Corp.,511 N.E.2d 478 , 479 (Ind.Ct.App.1987) (same); Roberts v. Chaney,465 N.E.2d 1154 , 1161 (Ind.Ct.App.1984) (Ratliff, J., dissenting in part and concurring in part) (Becoming intoxicated ordinarily is the result of the conscious and intentional act of the drinker.... Further, driving a motor vehicle is not an involuntary act. On the contrary, it is an act performed deliberately and intentionally by the driver)." Albaugh,721 N.E.2d at 1237 .
Although referring to the language in Williams and Kolkman, the Albaugh court did not hold that driving while intoxicated was per se willful and wanton misconduct.
From these cases, we conclude that the Williams case did not overrule the holding in Andert. In Obremski, our Supreme Court's reference to Williams did not undermine Andert, because the Court said that a drunk driver's actions of crossing the center lane and striking another car while intoxicated would constitute willful and wanton misconduct.
This court, however, has repeatedly referred to the lead opinion in Williams with approval, whether or not the various cases noted the uncertainty surrounding the
We therefore hold that the challenged portion of final jury instruction number sixteen was an incorrect statement of the law and, as such, should not be given to the jury upon remand. 13
Conclusion
The trial court erroneously admitted evidence of Wohlwend's post-accident con-duet, and this error was not harmless. Because Wohlwend does not challenge the trial court's directed verdict on the issue of liability or the award of compensatory damages, the only issue left to be resolved upon remand is that of punitive damages. Upon remand, the trial court should not instruct the jury that driving while intoxicated is per se willful and wanton misconduct.
The judgment of the trial court is affirmed with regard to compensatory damages, reversed with regard to punitive damages, and the cause is remanded for further proceedings consistent with this opinion.
Notes
. On August 30, 2000, Wohlwend was convicted as a result of the June 1, 2000 arrest and the charge stemming from the collision with Mrs. Edwards.
. Use of the term "gross negligence" is inappropriate in Indiana because our common law does not recognize degrees of negligence. Wilshire Servicing Corp. v. Timber Ridge P'ship,
. For example, such evidence might in some limited circumstances be relevant to the state of mind of the defendant at the time of the incident involving the plaintiff. Indeed, this is part of the Edwardses' argument.
. The trial court disallowed the evidence of subsequent conduct as to the claim of negligent entrustment brought against the defendant's employer. Id. at 119.
. In Webster v. Boyett,
. We also note that our situation is different than that present in Perry v. Leo P. Knoerzer Corp.,
. The Guest Statute at that time read in part: ''The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle." Andert,
. This was relevant because the plaintiff in Obremski claimed that the defendant's drunken driving at the time of the accident constituted criminal mischief which would permit the plaintiff to recover treble damages under Ind.Code § 34-4-30-1, now Ind.Code § 34-24-3-1. Obremski,
. Of course pursuant to Ind.Code § 34-51-2-6 (Burns Code Ed. Rep1.1998), if a plaintiff's fault is greater than the combined fault of all persons who proximately contributed to the injury, the plaintiff is completely barred from recovery. Thus, the Booker holding referring to "degree of negligence" is speaking to the degree of culpability, not the amount of plaintiff's fault in relationship to the fault of others.
. The fact that our Supreme Court denied transfer in several of these cases is of no legal effect. See Ind. Appellate Rule 58(B).
. See for example the 2001 amendments to Indiana Code § 9-30-5-1.
. Our conclusion should in no way be read as condoning driving while intoxicated, which we recognize is a grave problem. We nevertheless feel bound to follow the controlling precedent of Andert until instructed otherwise.
. We note that our difference with the cases following the lead opinion in Williams may not be as great in practice as it appears to be in theory. We can envision few situations in which a defendant who has been driving while intoxicated and who causes an accident will not also have committed some other misconduct as required by Andert to support a finding of willful or wanton misconduct.
In addition, we would observe that the instruction as given is mandatory in nature. The problem in this regard might be solved by the giving of an instruction to the effect that "operation of a motor vehicle while intoxicated, when coupled with other negligence or misconduct might be found to constitute willful and wanton misconduct."