concurring. I concur in the result reached by the majority opinion and write separately to set out two procedural issues involving punitive damages that I hope someday will be brought before us in an adversarial manner.
The appellant, plaintiff below, argues that he should have been awarded punitive damages because the appellee, the defendant trucking company, operated its tractor without a trailer, and a tractor without a trailer cannot be stopped within a safe distance. The appellant contends that the trucking company knew of this danger and yet, in order to profit, operated the tractor without a trailer and, as a direct result, the driver was unable to stop the tractor, and it struck and injured the appellant. The argument was not preserved for appeal and lends itself to this opinion since we do not decide it on the merits.
Our common law authorizes the assessment of punitive, or punishment, damages against a wrongdoer as a way of furthering our governmental interests of deterring willful and wanton tortious conduct. These damages for punishment are awarded directly to the private plaintiff, rather than to the government, as are fines when the criminal law is used to advance similar governmental interests.
This court traditionally has been very cautious, perhaps overly so, about affirming punitive damages in vehicle accident cases. We have held that there was the requisite substantial evidence of willful and wanton misconduct in only two classes of vehicle accident cases; (1) when the defendant driver was drinking, or drunk, or using drugs, see, e.g., Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988), and (2) when the defendant was racing, see, e.g., Turner v. Rosewarren, 250 Ark. 119, 464 S.W.2d 569 (1971). On the other hand, we have held that driving 65 to 70 miles per hour on loose gravel was not sufficient evidence of willful and wanton conduct. Edwards v. Jeffers, 204 Ark. 400, 162 S.W.2d 472 (1942). We have held that punitive damages may not be assessed against an individual who is involved in a hit and run accident. Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). We have said that evidence that a defendant was driving between 55 and 70 miles per hour in a 45 miles per hour zone on a wet street was not sufficient evidence of willful and wanton misconduct. Lawrence v. Meux, 282 Ark. 512, 669 S.W.2d 464 (1984). We affirmed a directed verdict for a defendant in a wrongful death case when a father allowed his fifteen-year-old daughter to drive his car, and the child drove only 559 feet from a parked position, but reached a speed of approximately 50 miles per hour, entered an intersection, and killed the plaintiff. Steward v. Thomas, 222 Ark. 849, 262 S.W.2d 901 (19 5 3). More recently, we declined to award punitive damages in a case that involved an overloaded truck that was being driven at an excessive speed even though its brakes had not been properly maintained. National By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987). As a last example, we reversed an award of punitive damages in a case where a truck was parked on the highway right-of-way so that the passengers could relieve themselves. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987). We have said that the cases involving drinking or drugs or racing exemplify “willful and wanton” conduct, but all others demonstrate only “gross negligence.” In summary, we have drawn a clear line defining those types of automobile accident cases in which punitive damages will be affirmed. I assume that every trial judge and every trial lawyer in the State is familiar with this line.
The reader of this opinion might pause at this point and ask what the result would have been in this Case, even if the appellant had been able to prove that a tractor without a trailer could not be stopped within a safe distance, and that the defendant trucking company was aware of such fact, and that the defendant trucking company, in order to profit, directed one of its employees to drive the tractor without a trailer to some destination and enroute the accident occurred, and the plaintiff was injured solely because the tractor could not be stopped. The answer is obvious, and it raises the significant issue which I hope we will be asked to address: Does such a result adequately accommodate and advance the governmental interests involved? It is a difficult proposition and, before exploring it, and perhaps in defense of our opinions, the reader should keep in mind that the interests the parties have at stake in a punitive damages case are not equal. The purpose of punitive damages is to vindicate the public interests; not to award the plaintiff a windfall. The windfall to the plaintiff is only a secondary result. On the other side, a defendant is punished by punitive damages. The word “punitive” denotes punishment for wrongdoing. Our opinions have used the words “exemplary damages” which means to make an example of the wrongdoer. If punitive damages are improperly awarded, the defendant suffers far more than a plaintiff does if the jury incorrectly fails to give him a windfall.
Our cases have drawn a clear line that is meritorious for the goal of judicial consistency, but meretricious for advancing the governmental interests of preventing willful and deliberate tortious conduct. We have drawn it, in part, according to the nature of the tort and not solely on the nature of the tortious wrongdoer’s conduct. Punitive damages and the affirmance of those damages ought to be based solely on the nature of the tortfeasor’s conduct. See AMI 2217. We have said, “[T]he boundary between gross negligence and conduct that can be characterized as willful and wanton is indistinct. . . .” Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 585, 740 S.W.2d 127, 132 (1987), but, if today we were to change the nature of our review and begin to look solely at the wrongdoer’s conduct, there is the worrisome prospect that, without something more, many of the routine automobile accident cases might become subject to the uncontrolled award of punitive damages, and the worthwhile governmental purposes of punitive damages would be undermined.
Punitive damages in Arkansas serve the desirable and proper governmental interests of deterrence and retribution, Thomas Auto Co., Inc. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989), and if they are only occasionally awarded they are not effective. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982). In fact, we reversed an award of punitive damages in McClellan v. Brown, supra,, in part, because they were not regularly awarded in that type of case and, as a result, we did not think they would have a deterrent effect. Punitive damages are designed to make a person or corporation internalize the cost of willful and tortious conduct and act accordingly. However, if a fact finder were to make an award of punitive damages based upon sympathy or prejudice, without being subject to meaningful review, there would be a danger of excessive deterrence, a public conception of automobile accident cases as damage lotteries, and the governmental interests would be undermined. Without doubt, uncontrolled awards of punitive damages in automobile accident cases would not serve the governmental interests. Likewise, the governmental interests would not be well served if punitive damages were seldom awarded and, if awarded, almost never affirmed. In such a situation there would be too little deterrence, and I suspect that is our plight. In sum, the governmental interests are best served by allowing punitive awards that correctly balance the competing risks in order to adequately deter willful and wanton tortious conduct.
Since the case of National By-Products, Inc. v. Searcy House Moving Co., supra, I have thought about the need for a change in our clear line involving automobile accident cases. Other jurisdictions and legal writers have addressed the issue. The Supreme Court of Wisconsin has determined that the governmental interests can be best served by requiring a plaintiff to prove willful or wanton misconduct by the standard of clear and convincing evidence. Wangen v. Ford Motor Co., 294 N.W.2d 437 (1980). The University of Alabama School of Law and the Alabama Law Review sponsored a symposium on punitive damages and many of the leading writers presented articles on the subject. Symposium, Punitive Damages, 40 Ala. L. Rev. 687 (1989). An article that provides part of the basis of this opinion is M. E. Wheeler, The Constitutional Case for Reforming Punitive Damage Procedures, 69 Va. L. Rev. 269 (1983).
Given the opportunity, we should consider changing the evidentiary standard for punitive damages to the standard of clear and convincing evidence. There are a number of reasons for such a change. Jurors try to fill their obligation to decide cases according to the instructions given them, and a clear and convincing evidentiary standard would cause them to be more hesitant to impose punitive damages in inappropriate circumstances, and it might dampen any sympathy or prejudice. Punitive damages aré imposed as a form of punishment, and the higher evidentiary standard is more like the evidentiary standard used for punishment in criminal cases. After all, punitive damages are enough like criminal punishment for the Supreme Court to have considered whether punitive damages bar a subsequent criminal trial under the double jeopardy concept. Rex Trailer Co. v. United States, 350 U.S. 148 (1956). We have said that punitive damages are not a favorite of the law, Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974), and, since they are not a favorite, the higher standard would seem more appropriate. The clear and convincing standard would compensate for the imbalance between the risks of the parties, and, correspondingly, there is no sound reason to require a defendant to bear the greater risk of the preponderance of the evidence standard. The higher evidentiary standard would further governmental interests by avoiding excessive deterrence or erroneous punishment in the form of unjustified punitive damages.
With the clear and convincing standard, an appellate court could draw the clear line on the tortfeasor’s conduct alone, and not on the type of automobile accident. Judicial review would be accomplished with considerably more confidence. An appellate court would be more likely to hold that, if the plaintiff- established the requisite conduct on the part of the defendant, the decision whether to award punitive damages was entirely within the jury’s discretion and should be affirmed. In this way, the worthwhile purposes of punitive damages would be accommodated and advanced.
A second procedural change to be considered, and one that could easily be adapted from criminal procedure, would be the bifurcation of punitive damages trials. This procedural change would permit the trial of punitive damages issues only after the jury had rendered a verdict on liability and had awarded compensatory damages. The jury would not hear evidence on punitive damages issues, including the defendant’s wealth, until it had first found liability and awarded compensatory relief. Again, the governmental interests would be advanced. The procedure would reduce the risk that inflammatory punitive damages evidence would cause the jury to improperly resolve liability issues against the defendant and, if the higher evidentiary standard were adopted, it would eliminate the likelihood of confusion arising from applying one standard of evidence for the compensatory damages and another standard for the punitive damages. In addition, if an appellate court found error in the punitive damages phase of the trial, it could reverse only that phase for retrial. While this opinion discusses only automobile accident cases, the same procedures necessarily would be applicable to all punitive damages trials, including, for example, products liability cases against manufacturers, malpractice cases against lawyers or doctors, and defamation cases against newspapers or broadcasters.
In summary, our present clear line in automobile accident cases does not fully accommodate and adequately advance the governmental interests involved in punitive damages cases. I would hope that the possible changes discussed in this opinion might be brought before this court in an adversarial manner, with briefs on both sides, so that the court might consider balancing the risks in order to further the governmental interests. It is a matter which we have never addressed.