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Komornik v. Sparks8/26/1993
nt" of actual malice. We should do likewise in motor-tort cases, adopting as the test the criminal analogue of conduct sufficient to support a finding of murder in the second degree if death had resulted. I find it baffling that boardroom conduct can be punished by punitive damages but barroom conduct cannot.
To repeat what I said in Zenobia, 325 Md. at 477-78, I would apply the following test in non-intentional tort cases:
A person who is actually aware that his action involves a clear and serious danger of substantial harm to the plaintiff or anyone in the plaintiff's class, and who unreasonably takes such action with flagrant indifference as to whether anyone will be harmed or not, should be liable for punitive damages if his conduct causes the foreseeable harm. This type of outrageous conduct, being just short of intentional harm, warrants such a sanction. Although the requisite conduct and state of mind will often include gross negligence, the test would not be met by a showing of gross negligence alone.
Because the conduct described in the case before us does not meet this test, I agree that the judgment below should be affirmed.
Concurring Opinion by Chasanow, J.
I concur in the holding of the Court that punitive damages are not warranted in the instant case. My reason for writing separately is to respond to the Court's discussion about when punitive damages may be awarded in unintentional tort suits. The majority says that "the test we apply here" is whether the conduct is "'characterized by evil motive, intent to injure, ill will, or fraud, i.e., "actual malice."'" Md. , , A.2d , , (1993) (Majority Op. at 11) (quoting Owens-Illinois v. Zenobia, 325 Md. 420, 460, 601 A.2d 633, 652-53 (1992)). For reasons I will elaborate on below, I think this test is inadequate as the yardstick for determining whether punitive damages are assessable.
Recently in Zenobia, this Court substantially modified punitive damages law in the context of a products liability case. Up until the instant case, we have not, except perhaps in dicta, expressly modified prior punitive damages law in areas other than products liability. The Court today expressly overrules several prior cases, and suggests we are merely returning to the law as it was set forth in Davis v. Gordon, 183 Md. 129, 36 A.2d 699 (1944). It seems to me the Court is not merely reverting back to previously superseded punitive damages law. Instead, the Court is modifying punitive damages law in tort cases "'in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.'" Julian v. Christopher, 320 Md. 1, 9, 575 A.2d 735, 739 (1990) (quoting Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 459, 456 A.2d 894, 903 (1983)). The "test" which the majority purports to resurrect from Davis is inadequate in the instant case for the same reasons it was held to be inadequate in Zenobia. Instead of looking backward for an archaic test for "actual malice," the Court should look forward as we did in Zenobia and formulate an improved "equivalent" test for actual malice.
To put punitive damages in perspective, punitive damages are imposed as punishment and, although they have been held constitutional, they are a windfall to plaintiffs and are imposed without the fundamental protections we require of any other form of punishment imposed by law. There are no real standards for determining the proper amount of punitive da
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