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Komornik v. Sparks8/26/1993
I would point out, however, that requiring the equivalent of actual malice uniformly for punitive damages in all tort actions would be consistent with Zenobia's holding, its dicta discussing express and implied malice in torts arising out of contract, 325 Md. at 453-55, 601 A.2d at 649-50, and its criticism of the implied malice standard.
"The implied malice test . . . has been overbroad in its application and has resulted in inconsistent jury verdicts involving similar facts. It provides little guidance for individuals and companies to enable them to predict behavior that will either trigger or avoid punitive damages liability, and it undermines the deterrent effect of these awards." (Footnote omitted).
Zenobia, 325 Md. at 459, 601 A.2d at 652. For these reasons, and because I believe there should be uniform rules for the imposition of punitive damages, in the balance of this opinion I will not differentiate between intentional and unintentional torts.
In Zenobia, we dealt with punitive damages in a products liability case. Although Zenobia contained a great deal of dicta, the standard for punitive damages formulated in Zenobia was quite narrow. In Zenobia we clearly did not apply a test of "evil motive, intent to injure, ill will, or fraud." We specifically held that definition "does not translate easily into products liability cases." Zenobia, 325 Md. at 460, 601 A.2d at 653. Instead we formulated and applied a totally new test for punitive damages which we held to be "the equivalent" of actual malice. Zenobia, 325 Md. at 462, 601 A.2d at 653. That test was (1) actual knowledge of the product's defect, including deliberately shutting one's eyes to the defect, and (2) conscious or deliberate disregard of, or a willful refusal to recognize, foreseeable harm. Id. at 462 & n.23, 601 A.2d at 653-54 & n.23.
For all torts, we should do the same as we did in Zenobia. We should formulate a clear test for "the equivalent" of actual malice -- a test which, as did the test in Zenobia, sets forth the punishable state of awareness. That test for actual malice should be the same as, or similar to, the test formulated and actually applied in Zenobia.
I suggest that the test for punitive damages for drunk driving accidents or other torts should not be broader or more inclusive than the test for punitive damages in products liability cases. There is perhaps a better reason for awarding punitive damages in products liability cases than in most other torts, including drunk driving tort cases. There is no effective criminal sanction universally used to punish manufacturers of dangerously defective products, therefore, punitive damages are the only effective way to punish and deter manufacturers who might otherwise be inclined to deliberately risk the welfare of the consuming public for the lure of profit. A manufacturer's only deterrent might be the risk of substantial punitive damages. Conversely, more deterrence exists for drunk drivers than punitive damages. It is inconceivable that any drunk driver would think "I am not deterred by the possibility of being sentenced to a year in jail or the possibility of losing my license, or the possibility of injuring myself; however, if I hurt someone else, in addition to being entitled to compensatory damages, that person might also be entitled to punitive damages -- that scares me." As we noted in Davis, 183 Md. at 133, 36 A.2d at 701, "The rules of the road are far more effective than any inflamm
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