Phyllis Denise HOWARD, Richard Lee Herring, Joshua Jay Howard, by his Guardian Ad Litem, Chester C. Davis, Johnnie Jay Howard, and Nancy Howard
v.
James Andrew PARKER, Kelvin Denard Long, Marshall T. Wills and Jean Wills.
No. 8821SC1317.
Court of Appeals of North Carolina.
September 5, 1989.*809 Peebles & Schramm by John J. Schramm, Jr., Winston-Salem, for plaintiffs-appellants.
Petree Stockton & Robinson by Robert J. Lawing and Jane C. Jackson, Winston-Salem, for defendants-appellees.
EAGLES, Judge.
Plaintiff contends the trial court erred in granting summary judgment for the defendants. We disagree and affirm the court below.
I
Initially, we recognize this is an interlocutory appeal under both G.S. 1-277 and G.S. 7A-27. "Both G.S. 1-277 and G.S. 7A-27(d) provide for immediate appeal of a judicial order or determination that affects a substantial right." Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). "Since the order of the trial court dismissing plaintiff's claim for punitive damages did affect a `substantial right' of the plaintiff ..." this appeal is properly before us. Newton v. Standard Fire Ins. Co., 291 N.C. 105, 109, 229 S.E.2d 297, 300 (1976).
II
Summary judgment is proper when there is no genuine issue as to any material fact and a party is entitled to judgment as a *810 matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). Summary judgment is "designed to allow a `preview' or `forecast' of the proof of the parties in order to determine whether a jury trial is necessary." Loy v. Lorm Corp., 52 N.C.App. 428, 437, 278 S.E.2d 897, 903-04 (1981). "The determination of what constitutes a `genuine issue as to any material fact' is often difficult." Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). A genuine issue is one which can be maintained by substantial evidence. Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). A party may show that there is no genuine issue as to any material fact by showing that the party with the burden of proof in the action cannot produce substantial evidence which would allow that issue to be resolved in his favor. Best v. Perry, 41 N.C.App. 107, 109, 254 S.E.2d 281, 284 (1979).
The critical issue, then, is whether there is substantial evidence to support the plaintiff's punitive damage claim.
Punitive damages, as the descriptive name clearly implies, are awarded as a punishment. They are never awarded as compensation.... `They are given to the plaintiff in a proper case, not because they are due, but because of the opportunity the case affords the court to inflict punishment for conduct intentionally wrongful.' [Citation omitted.] Punitive damages are never awarded merely because of a personal injury inflicted nor are they measured by the extent of the injury; they are awarded because of the outrageous nature of the wrongdoer's conduct.
Cavin's, Inc. v. Atlantic Mut. Ins. Co., 27 N.C.App. 698, 701-02, 220 S.E.2d 403, 406 (1975).
In personal injury cases sounding in negligence punitive damages cannot be awarded where the defendant's wrong amounted to no more than ordinary negligence; they can only be awarded where there is a higher level of misconduct, such as wilfulness, wantonness or recklessness that indicates at least an indifference to or a disregard for the rights and safety of others.
Hunt v. Hunt, 86 N.C.App. 323, 327, 357 S.E.2d 444, 447, aff'd, 321 N.C. 294, 362 S.E.2d 161 (1987).
Applying the foregoing principles of law to the instant case we believe the trial court correctly removed the punitive damages issue from the jury. Here the plaintiff relies on the defendant's alleged intoxication as the basis of her punitive damages claim. While we find that intoxication is a factor to be considered in determining whether a punitive damages claim should reach the jury, "we are not disposed to expand [the bases for the recovery of punitive damages] beyond the limits established by authoritative decisions of [our appellate courts]." Craven v. Chambers, 56 N.C. App. 151, 159, 287 S.E.2d 905, 910 (1982), quoting Hinson v. Dawson, 244 N.C. 23, 27, 92 S.E.2d 393, 396 (1956). That task lies solely within the province of the General Assembly. Consequently, in the absence of additional legislation, we conclude that allegations of intoxication alone are not a sufficient basis to permit a punitive damages claim to be submitted to a jury.
Likewise we are not persuaded that the defendant's intent to turn into the lane of traffic was itself a wanton act. "[T]hough the vast majority of motor vehicular collisions result from intentional turns or acts of one kind or another, only a small percentage of such acts exceed the level of ordinary negligence." Nance v. Robertson, 91 N.C.App. 121, 124, 370 S.E.2d 283, 285, rev. denied, 323 N.C. 477, 373 S.E.2d 865 (1988).
Plaintiff's reliance on Huff v. Chrismon, 68 N.C.App. 525, 315 S.E.2d 711, rev. denied, 311 N.C. 756, 321 S.E.2d 134 (1984), is misplaced. In Huff, the plaintiff sought compensatory and punitive damages for injuries resulting from an automobile collision where the defendant was intoxicated. *811 There the trial court allowed the defendant's Rule 12(b)(6) motion to dismiss. This court reversed, holding that earlier case law was "not inconsistent with the application of the doctrine of punitive damages against impaired drivers in certain situations without regard to the driver's motives or intent." Id. 68 N.C.App. at 531, 315 S.E.2d at 714. However, the court went on to point out that the plaintiff there was never afforded the opportunity "to introduce any evidence regarding the conduct of the defendant including his intoxicated condition." Id. at 532, 315 S.E.2d at 715. In the instant case, the plaintiff has had an opportunity to present evidence to show a basis for her punitive damages claim. However, the evidence presented "at best discloses a breach of defendant's duty to exercise ordinary care." Jarvis v. Sanders, 34 N.C.App. 283, 286, 237 S.E.2d 865, 867 (1977).
King v. Allred, 76 N.C.App. 427, 333 S.E.2d 758, rev. denied, 315 N.C. 184, 337 S.E.2d 857 (1985) is also distinguishable. In King, the court found substantial evidence to warrant submission of a punitive damages issue to the jury. The defendant readily admitted her intoxication on cross-examination and clearly displayed a wanton disposition. She testified:
I could feel the effects of the beer on me as I started driving my automobile out onto the road and down the service road. As I proceeded down the roadway, I was intoxicated to the extent I was unable to operate my car in a careful and proper manner.
* * * * * *
I knew I was drunk before I got into the car. I didn't think about whether I could operate the car safely or not when I got in. I knew I was drunk. Knowing I was drunk, I got behind the wheel of the car.
Id. 76 N.C.App. at 431, 333 S.E.2d at 760.
We note that Ivey v. Rose, 94 N.C.App. 773, 381 S.E.2d 476 (1989), contains language which states that:
Defendant's intentional act of driving while impaired in violation of G.S. 20-138.1 is sufficiently wanton within the meaning of Hinson, supra, and Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971) (quoting Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929)) which states "[a]n act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others...." The act of driving while impaired is a wanton act. The driver's motive or intent in relation to the damages he causes as a result is wholly irrelevant.
In Ivey we note that there was a rear end collision in which defendant's vehicle, traveling at about 45 miles per hour, rammed into plaintiff's standing vehicle, the defendant had a breathalyzer reading of .18 and had failed four sobriety performance tests, and the evidence from the investigating officer that defendant's face was flushed, her eyes were glassy and that she was not steady on her feet. In the officer's opinion defendant Rose was impaired.
Here the evidence does not support a finding of wantonness: there is no breathalyzer reading, though defendant pleaded guilty to driving while impaired and admitted having consumed three beers earlier in the day. The complaint alleging impairment is not verified; there are no affidavits or depositions of witnesses to the defendant's impairment. Though the accident report is part of the record, it is not clear what the officer's notations on the report indicate regarding drinking by defendant and impairment.
Accordingly, we believe that Ivey, supra, like King and Huff, is distinguishable on its facts and that summary judgment on the punitive damages claim was proper based on the record before us.
III
Finally, because of our disposition of the summary judgment issue, we need not *812 reach the constitutional issue raised by the defendants.
For the reasons stated, the judgment of the trial court is
Affirmed.
PARKER and ORR, JJ., concur.