It is hard to think of any public safety issue that has received more attention over the last few years than the use of smartphones (whether used for calling, texting, or data) while driving. The California legislature responded by forbidding a vehicle operator to “drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device,” with only limited exceptions applicable for voice-operated and hands-free operations, or summoning emergency assistance. Veh. Code, § 23123; and Veh. Code, § 23123.5. The hands-free exceptions are unavailable to a driver under the age of eighteen. Veh. Code, § 23124. Violation of these statutes is punishable by a small fine.
What remains unclear is whether trial and appellate courts in civil cases will deem incidents of such prohibited conduct sufficient to permit a jury to consider an award of punitive damages against the defendant, when he or she has been sued for causing personal injuries arising from a vehicle accident.
In California, a claim for punitive (or exemplary) damages is subject to the statutory requirements of Civil Code Section 3294, which states in relevant part:
(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
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(c) As used in this section, the following definitions shall apply:
(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
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To be liable for punitive damages, a defendant’s harm to the plaintiff need not be intentional. Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808 sets forth the applicable definition of “malice” under the statute:
[N]umerous California cases … have interpreted the term “malice” as used in section 3294 to include, not only a malicious intention to injure the specific person harmed, but conduct evincing “a conscious disregard of the probability that the actor’s conduct will result in injury to others.”
New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–90, stated: “Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” New made clear that willful misconduct may be inferred from the actor’s conduct: “If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it wilful misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts.” New, supra, 171 Cal.App.3d at p. 690. See also, J. R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430, 444 (“Malice and oppression may be inferred from the circumstances of a defendant’s conduct.”).
The statutory requirement that the defendant’s conduct must not only be willful, but also “despicable” in order to be actionable and support an award of punitive damages, was added to Section 3294 in 1987; but the term is undefined in the statute. Judicial Council Of California Civil Jury Instruction 3115 tells the jury: “‘Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”
While there is no requirement that conduct be criminal to be “despicable,” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050, quoting and citing to earlier cases, describes it as conduct having the character of outrage frequently associated with crime.’”
To date, there are no appellate authorities in California that might control whether prohibited smartphone usage while driving might be within the statutorily defined category of conduct sufficient to underlie an award of punitive damages in favor of an injured plaintiff. See, discussion in Gregory Selarz, Punitive Damages for Texting While Driving (2015) 45 Sw. L. Rev. 433.
The ultimate determination by the courts will depend on balancing their reluctance to find conduct to be despicable, so as to minimize creation of an expanded universe of potential punitive damages awards; as against their perception of the social abhorrence (“vileness”) of this behavior. Until the issue is resolved, plaintiffs’ attorneys will continue to seek such awards in appropriate cases, and defendants’ attorneys will respond with motions to strike and motions for summary judgment seeking to preclude such an award.
Ralph Jacobson, a Stanford Law alumnus, has focused on personal injury law for over 30 years. With numerous articles in the CEB Civil Litigation Reporter, one of which was cited by the California Supreme Court, his expertise is well-recognized. Ralph has consulted for Bancroft Whitney on its California Civil Practice Series and lectured extensively on personal injury law. He’s a co-author of California Government Tort Liability Practice and a member of both the Alameda and Contra Costa County Bar Associations, now serving as counsel to the firm.