dissenting. I would reverse this case for the simple reasons that 1) our supreme court has never allowed an award of punitive damages to stand in a vehicular case except where the accident involved drunk driving or racing, and 2) the facts of this case are not so compelling as to allow us to depart from the precedent handed down by our supreme court.
I will not belabor the facts of this case, which are exhaustively set out by the majority to the end of distinguishing this case from National By-Products, Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987), a case that involved speeding, an overweight truck, and possibly faulty brakes that had not been adjusted in over three months or inspected in nearly six months. The evidence in the case before us, in spite of all of the expert testimony, also involves only possibly faulty brakes and alleged lapses in inspection. Indeed, the truck in this case passed annual commercial inspection, was inspected weekly, and had recently passed DOT inspection.
The majority has gone to great lengths in the effort to distinguish this case from National By-Products, supra and its ilk. In a more recent case, National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 828 S.W.2d 584 (1992), the concurring justice expressed concern about our supreme court’s “cautious” approach toward the issue of punitive damages in vehicular accident cases, and extensively outhned the history of its precedent on this subject. It is significant that there has been no departure from this approach since 1992, although there has been at least one case in which punitive damages were again found proper where the driver at fault was intoxicated. See J.B. Hunt Transport, Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
The alleged reluctance of our supreme court to impose punitive damages in vehicular cases has been noted by one commentator, who also observed that the Eighth Circuit, “perhaps expressing its displeasure with or disapproval of the strictness of National By-Products,” in Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989), affirmed an award of punitive damages in an Arkansas vehicular- accident case involving a tractor truck with inoperable brakes on a “piggy-backed” trailer.1 The Eighth Circuit distinguished the facts in Potts v. Benjamin from the facts in National ByProducts when affirming the punitive-damage award, as the majority has done in the case before us.
I do agree with the majority’s assertion that “negligence alone, however gross, is not enough to sustain punitive damages,” and that the boundary between gross negligence and willful and wanton conduct can be “indistinct.” This may well be why our supreme court has been reluctant to expose the driving public to the additional onus of liability for punitive damages in vehicular negligence cases except where there is clear evidence of willful and wanton conduct, such as found in driving drunk and racing on the public roads. I cannot say that driving with possibly defective equipment constitutes or should constitute conduct that goes beyond gross negligence, and would reverse and remand this case in keeping with the standard set forth in National By-Products.
Stroud, C.J., and Hart, and Neal, JJ., join.
Howard W. Brill, Punitive Damages in Arkansas- Expanded? Restricted?, 1990 ARKX.NOTES 25.