United States District Court for the Middle District of Alabama, Northern Division

August 23, 2022, Decided; August 23, 2022, Filed

CASE NO. 2:20-CV-320-WKW

Reporter

2022 U.S. Dist. LEXIS 150952 *; 2022 WL 3640301

WILLIE F. MASON, Plaintiff, v. LARRY A. MCGUFFEY and MERDZIC TRANSPORTATION SERVICES, INC., Defendants.

Prior History: Mason v. McGuffey, 2020 U.S. Dist. LEXIS 199597 (M.D. Ala., Oct. 27, 2020)

Core Terms

incompetence, driver, summary judgment, material fact, genuine dispute, supervision, driving, training, wanton, truck, entrustment, negligent entrustment, violations, retention, negligent hiring, speeding ticket, tractor trailer, Defendants’, counts, hiring

Counsel:  [*1] For Willie F. Mason, Plaintiff: Brandon Todd Bishop, LEAD ATTORNEY, Alexander Shunnarah Injury Lawyers PC, Birmingham, AL; Candace Bartley Towns, LEAD ATTORNEY, Alexander Shunnarah Personal Injury Attys PC, Birmingham, AL.

For Larry A. McGuffey, Merdzic Transportation Services, Inc., Defendants: William Steele Holman, II, LEAD ATTORNEY, Speegle Hoffman Holman & Holifield LLC, Mobile, AL.

Judges: W. Keith Watkins, UNITED STATES DISTRICT JUDGE.

Opinion by: W. Keith Watkins

Opinion

MEMORANDUM OPINION AND ORDER

On August 18, 2018, Plaintiff Willie F. Mason’s (“Mason”) car collided with a tractor trailer truck operated by Defendant Larry A. McGuffey (“McGuffey”). After the accident, Mason sued McGuffey and his employer, Merdzic Transportation Services, Inc. (“Merdzic”), on five counts: (I) negligence/wantoness; (II) respondeat superior; (III) negligent/wanton hiring, training, supervision, and/or retention; (IV) negligent/wanton supervision of the maintenance, operation, service, and/or repair of the tractor trailer; and (V) negligent/wanton entrustment. (Doc. # 1-1.)

Before the court is Defendants’ motion for partial summary judgment. (Doc. # 33.) The motion has been fully briefed. (Docs. # 34, 37-38.) For the reasons discussed [*2]  below, the motion is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332.¹ Personal jurisdiction and venue are uncontested.

II. BACKGROUND

August 18, 2018, began uneventfully for Mason and McGuffey. The night before, McGuffey had parked his tractor trailer truck on the shoulder of the southbound entrance ramp to Interstate 65 to rest. (Doc. # 34 at 57, 59-60.) That morning, Mason had just finished his night work shift and went to the Flying J on the Tyson Road exit off Interstate 65 in Lowndes County, Alabama, to buy a breakfast pizza. After buying his pizza, Mason drove down the southbound ramp to merge onto Interstate 65.

At that point, the narratives diverge. The only fact that is clear and undisputed is that there was an accident. The parties offer different stories of how that happened. Mason testifies that as he was driving down the ramp McGuffey moved his truck off the shoulder and ran into Mason’s car. (Doc. # 34 at 33-34.) As a result of this impact, Mason suffered physical injury and damage to the front right corner of his vehicle. (Doc. # 34 at 32, 39-41.) In contrast, McGuffey testifies that he had just woken up, had moved out of his [*3]  sleeper berth, was sitting in the driver’s seat of the truck, and was checking his cellphone for messages. (Doc. # 34 at 55, 62-63.) At that point, Mason ran into the driver’s side of the truck, and McGuffey felt the impact. (Doc. # 34 at 55.) As a result of the collision, one of the steps on the driver’s side of McGuffey’s truck cab was gone; there was damage to the front axle; and there was damage to the steering. (Doc. # 34 at 55, 68, 76.)

McGuffey had been an employee of Merdzic for four months when this accident occurred. (See Doc. # 34 at 81.) Before hiring McGuffey, Merdzic examined his motor vehicle record, his pre-employment screening program record, and his prior employment history. (Doc. # 34 at 81-82.) Merdzic does not provide training for its truck drivers on how to operate tractor trailers, but only hires those with extensive experience in the field. (Doc. # 34 at 89-90.) At the time of the accident, McGuffey had been a truck driver for approximately thirty years. (Doc. # 34 at 45.)

III. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to [*4]  judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Alternatively, a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. . . . [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to establish—with evidence beyond the pleadings—that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact exists when [*5]  the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

IV. DISCUSSION

Defendants seek partial summary judgment on the following of Mason’s claims: (1) the wantonness claim in Counts I and II; (2) negligent/wanton hiring, training, supervision, and/or retention claims in Count III; (3) negligent/wanton supervision of the maintenance, operation, service and/or repair of the tractor trailer claims in Count IV; and (4) negligent/wanton entrustment claims in Count V. (Doc. # 33 at 1.)

In his opposition to Defendants’ motion for partial summary judgment, Mason “concedes that the wantonness claim is due to be dismissed[,] as well as any claims of negligent/wanton maintenance, service[,] and/or repair.” (Doc. # 37 at 1.) And he correctly states that Defendants did not seek “summary judgment on the issue of negligence.” (Doc. # 37 at 1.)² As a result, two of Mason’s counts are presently at issue: Count III (negligent hiring, training, supervision, and/or retention) and Count V (negligent entrustment). (See Doc. # 38 at 3.)³ On these two counts, Mason argues that there are genuine disputes of material fact that preclude summary judgment. (Doc. [*6]  # 37 at 1-2.)

A. Negligent Entrustment (Count V)

Mason asserts that Merdzic negligently entrusted its vehicle to McGuffey and that a genuine dispute of material fact exists as to this claim: whether McGuffey was “incompetent.” (Doc. # 37 at 2.) Under Alabama law, negligent entrustment is defined as the following:

“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 277 So. 2d 893, 895-96 (Ala. 1973) (quoting Restatement (Second) of Torts § 390 (1965)). “One who negligently entrusts a motor vehicle to an incompetent driver who is likely to cause injury to others because of the driver’s incompetence may be liable for damages that proximately result from that entrustment.” Day v. Williams, 670 So. 2d 914, 916 (Ala. 1995) (citing Keller v. Kiedinger, 389 So. 2d 129 (Ala. 1980)).

To establish a claim of negligent entrustment, a party must show the following elements: “(1) an entrustment; (2) to an incompetent; (3) with knowledge that he is incompetent; (4) proximate cause; [*7]  and (5) damages.” Askew v. R & L Transfer, Inc., 676 F. Supp. 2d 1298, 1303 (M.D. Ala. 2009) (quoting Pryor v. Brown & Root USA, Inc., 674 So. 2d 45, 51 (Ala. 1995) (alteration omitted)) (emphasis added). “[T]he incompetence of a driver is measured by the driver’s demonstrated ability (or inability) to properly drive a vehicle.” Id. (quoting Halford v. Alamo Rent-A-Car, LLC, 921 So. 2d 409, 413-14 (Ala. 2005)). And “competence or incompetence of one to whom an automobile is entrusted” is determined by “the presentation of evidence relevant to that person’s mental and physical abilities and his or her prior driving experience and record.” Halford, 921 So. 2d at 417. For example, such evidence can include “previous acts of negligent or reckless driving, . . . previous accidents, or previous acts of driving while intoxicated.” Edwards v. Valentine, 926 So. 2d 315, 322 (Ala. 2005) (alteration omitted) (quoting Restatement (Second) of Torts § 390 (1965)).

Under Alabama law, it is difficult to establish incompetence. For example, in Pryor, the Alabama Supreme Court reviewed the trial court’s finding that there was no negative entrustment. 674 So. 2d at 51. In that case, the driver of the vehicle received a DUI charge and two speeding tickets during the ten years prior to the accident at issue. Id. The court found that this driving record was not “substantial evidence that” the driver “was incompetent.” Id. at 52.

Similarly, in Wright v. McKenzie, this court found that two speeding tickets were insufficient to demonstrate the driver’s [*8]  incompetence, granting the defendants’ motion for summary judgment on the negligent entrustment claim. 647 F. Supp. 2d 1293, 1299-1300 (M.D. Ala. 2009) (noting that “Alabama courts have generally held [two speeding tickets] to be insufficient to show a driver’s incompetence”); see also Day, 670 So. 2d at 916 (noting that a speeding ticket received approximately two years before the accident at issue combined with “several tickets for driving without a license” did not demonstrate the driver’s incompetence). In another case, this court found that a driver having “two moving violations” and “four minor accidents [one of them being a sideswipe incident and another hitting a parked vehicle]” during the “nine-plus years” he worked for his employer did “not amount, under the law, to incompetence.” Askew, 676 F. Supp. at 1303. Therefore, the court granted summary judgment in favor of Defendant on Plaintiff’s negligent entrustment claim. Id.

In contrast, the Alabama Supreme Court found that competency was a question for the jury where the driver was convicted of “eleven moving violations” (which included eight speeding violations) “within approximately three years prior to the accident” at issue. Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853, 857 (Ala. 1970); see also Halford, 921 So. 2d at 413 (utilizing Thompson in its analysis of whether there was a genuine issue of material fact [*9]  regarding the incompetence of the driver at issue).

Here Mason asserts that McGuffey “was not competent to operate a tractor-trailer.” (Doc. # 1-1 ¶ 20.) And Mason argues that there is a genuine dispute as to this material fact. (Doc. # 37 at 2.) But Mason is mistaken.

Mason points to evidence that McGuffey had received citations for traffic violations before his employment with Merdzic. These citations were for “minor violations” that “weren’t relevant [to his job with Merdzic],” such as for “an inoperative headlamp” and “inoperative, slash, defective brakes.” (Doc. # 37-1 at 7.) He also received a citation more than ten years before he started working for Merdzic for “violating the Federal Safety Regulation 11-hour rule [driving for more than 11 hours without a break].” (Doc. # 37-1 at 7.)⁴

At the time of the accident, McGuffey had been employed as a truck driver for thirty years and had maintained his Commercial Driver’s License for approximately twenty years. (Doc. # 34 at 45-46.) During that time, Mason points to no speeding tickets, or other moving violations, equivalent to types of activities Alabama law has found do not support a finding of driver incompetence. In other words, [*10]  it appears that McGuffey’s driving record falls far below what the law deems to be incompetent. Accordingly, there is no material dispute as to McGuffey’s competence, and summary judgment is due to be granted on Mason’s negligent entrustment count.

B. Negligent Hiring, Training, Supervision, and/or Retention (Count III)

Mason also argues that a genuine dispute of material fact exists as to whether Merdzic “negligently hired, trained, and/or supervis[ed]” McGuffey. (Doc. # 37 at 2.)⁵ “[T]o prove a claim under Alabama law for either . . . negligent hiring, negligent supervision [, negligent training,] or negligent retention, a plaintiff must demonstrate that the employer knew, or in the exercise of ordinary care should have known, that its employee was incompetent.” Britt v. USA Truck, Inc., No. 2:06-CV-868-ID, 2007 U.S. Dist. LEXIS 94164, 2007 WL 4554027, at *4 (M.D. Ala. Dec. 20, 2007); Wright, 647 F. Supp. 2d at 1297; see also Southland Bank v. A & A Drywall Supply Co., 21 So. 3d 1196, 1214-15 (Ala. 2008) (negligent training and negligent supervision); Brown, 277 So. 2d at 895 (negligent hiring and negligent retention); Sanders v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ. App. 2000) (negligent hiring and negligent supervision).⁶

Mason argues that the evidence shows Merdzic failed to adequately train and supervise McGuffey and failed to adequately inquire into his past employment and driving histories. (See Doc. # 37-1 at 6-7, 17-18.) Those portions of the record would be relevant if there was sufficient [*11]  evidence that McGuffey was incompetent. Indeed, this evidence could help establish that Merdzic knew or should have known about McGuffey’s incompetence. Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 683 (Ala. 2001) (“A plaintiff must establish ‘by affirmative proof’ that the employer actually knew of the incompetence, or that the employer reasonably should have known of it.” (quoting Lane v. Central Bank, 425 So. 2d 1098, 1100 (Ala. 1983)).

But, as discussed above, Mason has not adduced evidence to create a genuine dispute of material fact regarding the competence of McGuffey. Under Alabama law, McGuffey was not an incompetent driver. There can be no knowledge, actual or otherwise, of something that does not exist. So, there is no genuine dispute of material fact on these claims. Defendants’ motion is due to be granted for this count as well.

V. CONCLUSION

For the reasons provided above, it is ORDERED that Defendants’ motion for partial summary judgment (Doc. # 33) is GRANTED. The negligence claims in Counts I and II, which Defendants did not challenge, proceed to trial.

DONE this 23rd day of August, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ Mason is a citizen of Alabama, and Defendants are both citizens of Kentucky. (Doc. # 1-1 ¶¶ 1-3.) The amount in controversy exceeds $75,000. (Doc. #1 ¶¶ 4, 17-18.)

² Although Mason does not explicitly say so, this failure to seek summary judgment on “the issue of negligence” is best understood in context as referring to McGuffey’s negligence generally and negligence as applied to Merdzic under respondeat superior (e.g., the negligence claim in Count I and Count II). Conceding the wantonness claim appears to be wantonness as originally included in Counts I and II. Because Defendants’ motion for summary judgment did not address the negligence claim in Counts I and II, it remains live for future proceedings.

³ In his opposition, Mason does not concede the negligent operation claim in Count IV, although he does concede the other claims in Count IV (negligent/wanton supervision of the maintenance, service, and/or repair of the truck). He also does not allege any disputes of material fact regarding the negligent operation claim. Defendants argue that negligent supervision includes the element of incompetence (which it does), that McGuffey is not incompetent under Alabama case law (see discussion below), and that there is no evidence that any other persons doing the maintenance, service, or repair of the truck were incompetent. (Doc. # 34 at 27.) Therefore, summary judgment ought to be granted on this claim. (Doc. # 34 at 27.) Under these circumstances, this argument is sufficient to support a finding that summary judgment ought to be granted on the negligent operation claim.

⁴ In the record, there is a reference to a “failure to obey [a] traffic control device in Indiana,” but Mason provides no explanation of what type of violation this was or if it is relevant to establish a genuine dispute of material fact regarding McGuffey’s competence. (Doc. # 37-1 at 7.)

⁵ Although Mason does not explicitly say that there is a dispute of material fact on the negligent retention claim in this count, the court analyzes it nonetheless. (Doc. # 37 at 2.)

⁶ At least for negligent hiring, training, and supervision claims, there is an additional requirement that the incompetence “of the offending employee . . . must be based on an injury resulting from a tort which is recognized under Alabama common law.” Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273, 1288 (N.D. Ala. 2013) (quoting Sears v. PHP of Ala., Inc., No. 2:05-CV-304-ID, 2006 U.S. Dist. LEXIS 18460, 2006 WL 932044, at *20 (M.D. Ala. 2006)). “[N]ot just any ‘incompetency’ suffices to give rise to a cause of action for so-called negligent hiring, training, and supervision liability. Rather, Plaintiffs must prove that an allegedly incompetent employee committed a state law tort.” Id. at 1288-89 (citing Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999)). However, this additional requirement does not change this court’s analysis because Mason has failed to allege, argue, or establish that McGuffey committed any state law tort.

Supreme Court of Arizona

August 23, 2022, Filed

No. CV-20-0119-PR

Reporter

2022 Ariz. LEXIS 243 *; 515 P.3d 685; 2022 WL 3591972

SWIFT TRANSPORTATION CO. OF ARIZONA L.L.C., Petitioner, v. THE HONORABLE KRISTA M. CARMAN, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF YAVAPAI, Respondent Judge, THOMAS MOUNTZ, THE HUSBAND OF JULIE MOUNTZ, ON BEHALF OF HIMSELF AND ALL OTHER STATUTORY BENEFICIARIES FOR THE WRONGFUL DEATH OF JULIE MOUNTZ, INCLUDING MAGGIE KEGLEY, DAUGHTER OF JULIE MOUNTZ, LUKE DANIEL MOUNTZ, SON OF JULIE MOUNTZ; HEIDI KNIELING, AS CONSERVATOR AND FULL GUARDIAN OF JODY SUE ENGEL, A LEGALLY INCAPACITATED INDIVIDUAL, Real Parties in Interest.

Prior History:  [*1] Appeal from the Superior Court in Yavapai County. The Honorable Krista M. Carman, Judge. No. P1300CV201800589, V1300CV201880093, V1300CV201880095. Order of the Court of Appeals, Division One. No. 1 CA-SA 20-0060. Filed Apr. 9, 2020.

Swift Transp. Co. v. Carman, 2020 Ariz. LEXIS 247 (Ariz., Aug. 25, 2020)

Disposition: Appeal from the Superior Court in Yavapai County. REVERSED. Order of the Court of Appeals, Division One. VACATED.

Core Terms

punitive damages, evil, outrageous, cases, gross negligence, award of punitive damages, defendant’s conduct, outrageous conduct, substantial risk, claim for punitive damages, consciously, collision, reckless, minutes, spite, disregarded, highway, motives, deter, facie, speed, truck, insurance bad faith, wrongful conduct, negligence case, aggravated, regulation, traveling, downhill, traffic

Case Summary

Overview

HOLDINGS: [1]-Plaintiffs did not make a prima facie showing that the question of punitive damages would likely be submitted to the jury because while the truck driver might have been negligent in failing to reduce his speed to avoid hydroplaning and losing control of his vehicle, his conduct did not amount to the “something more” that precedents required to demonstrate an evil mind; his failure to direct or warn oncoming traffic within five minutes after he ran off the road was not enough for a jury to infer that he consciously disregarded a substantial risk of harm to others sufficient to justify punitive damages.

Outcome

Order from court of appeals vacated; trial court’s order reversed.

LexisNexis® Headnotes

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > Remedies > Damages > Proof

HN1  Damages, Punitive Damages

To establish a prima facie case for punitive damages necessary to justify the discovery of a defendant’s financial information in a negligence case, a plaintiff must establish that there is a reasonable likelihood that the punitive damages claim will be submitted to the jury. A punitive damages claim will be submitted to the jury only where there is proof that the defendant’s conduct was either intended to cause harm, motivated by spite or ill will, or outrageous, in which the defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.

Civil Procedure > Remedies > Damages > Punitive Damages

HN2  Damages, Punitive Damages

Punitive damages exist for the limited purpose of punishing outrageous conduct to deter others from engaging in such conduct. A plaintiff must present the trier-of-fact with sufficient evidence to calculate a reasonable punitive damage award sufficient to punish. Accordingly, the wealth of a defendant is relevant and discoverable in a proper case. However, such financial information is confidential, and the possibilities of harassment and misuse of civil process are obvious. Thus, to obtain discovery of a defendant’s financial information, the plaintiff must make a prima facie showing that he or she will be entitled to present the issue of punitive damages to the jury. A plaintiff makes such a showing by establishing that it is reasonably likely that the issue of punitive damages will ultimately be submitted to the jury for resolution.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

HN3  Standards of Review, Abuse of Discretion

An appellate court defers to a trial court’s discovery-related ruling absent an abuse of discretion. An appellate court will affirm the court’s factual findings if they are supported by reasonable evidence. But a trial court abuses its discretion if it commits an error of law in reaching its conclusions.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Punitive Damages > Measurement of Damages > Determinative Factors

HN4  Damages, Punitive Damages

Punitive damages may be awarded only when a plaintiff can prove that a defendant’s evil hand was guided by an evil mind. In describing the evil hand, Rawlings states that the intent required is an evil hand, the intent to do the act. An “evil hand” is sufficient to establish the tort of bad faith, but both an “evil hand” and an “evil mind” are necessary to warrant punitive damages. That is because something more than the mere commission of a tort is always required for punitive damages in order to restrict its availability to those cases in which the defendant’s wrongful conduct was guided by evil motives. Thus, the “evil hand” is the wrongful conduct giving rise to the underlying tort and an “evil mind” is the intention to engage in the wrongful conduct required for punitive damages. An evil mind may be found where a defendant intended to injure the plaintiff or where, although not intending to cause injury, the defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Types of Damages > Punitive Damages > Aggravating Circumstances

HN5  Damages, Punitive Damages

Rawlings holds that punitive damages are recoverable in bad faith tort actions when, and only when, the facts establish that the defendant’s conduct was aggravated, outrageous, malicious or fraudulent. Indeed, mere negligence is not enough, even though it is so extreme and egregious to be characterized as gross, to justify punitive damages. Rather, action justifying the award of punitive damages is conduct involving some element of outrage similar to that usually found in crime.

Civil Procedure > Remedies > Damages > Punitive Damages

Evidence > Burdens of Proof > Clear & Convincing Proof

Torts > Remedies > Damages > Proof

HN6  Damages, Punitive Damages

Before a jury may award punitive damages there must be evidence of an evil mind and aggravated and outrageous conduct. In whatever way the requisite mental state is expressed, the conduct must also be aggravated and outrageous. Punitive damages should be awardable only upon clear and convincing evidence of the defendant’s evil mind.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Types of Damages > Punitive Damages > Aggravating Circumstances

Torts > Remedies > Damages > Proof

HN7  Damages, Punitive Damages

For an award of punitive damages, absent evidence of evil actions or spiteful motives, the evil mind motivating a defendant’s conduct must be shown by outrageous, oppressive or intolerable conduct that creates substantial risk of tremendous harm to others.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Punitive Damages > Measurement of Damages > Determinative Factors

HN8  Damages, Punitive Damages

Punitive damages serve two functions: punishment and deterrence. But courts do not aim to punish and deter all negligent conduct by way of punitive damages, only that which involves some element of outrage similar to that usually found in crime. For that reason, cases state that courts may not award punitive damages based on mere negligence, gross negligence, or recklessness.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Punitive Damages > Measurement of Damages > Determinative Factors

HN9  Damages, Punitive Damages

A defendant may not be subject to civil punishment through punitive damages unless he or she acts with a knowing, culpable state of mind. Compensatory damages are sufficient to deter unintentional and even grossly negligent conduct; only a knowing culpability warrants punitive damages to curb future reprehensible behavior. Requiring that a defendant evince an evil mind is intended to limit punitive damage awards only to cases in which they further the objectives of punishment and deterrence.

Civil Procedure > Remedies > Damages > Punitive Damages

Evidence > Burdens of Proof > Clear & Convincing Proof

HN10  Damages, Punitive Damages

To be entitled to punitive damages, once a plaintiff establishes that a defendant engaged in tortious conduct of any kind, intentional or negligent, that is, acted with an evil hand, the plaintiff must prove the defendant engaged in such conduct with an evil mind. To establish an evil mind requires clear and convincing evidence that the defendant’s actions either (1) intended to cause harm, (2) were motivated by spite, or (3) were outrageous, creating a substantial risk of tremendous harm to others.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Punitive Damages > Measurement of Damages > Determinative Factors

HN11  Damages, Punitive Damages

In a claim arising out of negligence, by definition there is no intent to injure the plaintiff. Similarly, a negligent defendant is unlikely to be motivated by spite or ill will. Thus, the only means by which a plaintiff is likely to meet the punitive damage standard in a negligence action is by demonstrating that the outrageousness of the defendant’s conduct is such that the defendant had an evil mind when engaging in such conduct.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Types of Damages > Punitive Damages > Aggravating Circumstances

HN12  Damages, Punitive Damages

To be entitled to punitive damages in a negligence action, a plaintiff generally must show that the defendant’s conduct was outrageous, oppressive, or intolerable, and created a substantial risk of tremendous harm, thereby evidencing a conscious and deliberate disregard of the interests and rights of others. A substantial risk of harm is the product of outrageous conduct, which society typically deters by imposing criminal liability.

Civil Procedure > Remedies > Damages > Punitive Damages

HN13  Damages, Punitive Damages

To be entitled to punitive damages in a negligence action, a plaintiff is not required to establish criminal conduct to show that a defendant’s conduct created a substantial risk of significant injury. Nor must a plaintiff identify an applicable criminal statute to qualify for punitive damages, although such evidence is a strong indication that the defendant’s conduct is worthy of punishment and should be deterred by measures extending beyond having to compensate the plaintiff for his or her losses. Rather, a plaintiff must establish that the defendant knew, or intentionally disregarded, facts that created an unreasonable risk of physical harm, a risk substantially greater than that necessary to make his or her conduct negligent or even grossly negligent, and consciously disregarded that risk. Although it is enough that the defendant had reason to know of the facts creating a substantial risk, it is not enough that a defendant had reason to appreciate the severity of the risk; the defendant must have actually appreciated the severity of the risk before consciously disregarding it. Absent proof of the intent to cause harm or that the defendant acted out of spite or ill will, outrageous conduct will always be required to sustain a claim for punitive damages in negligence cases.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > Negligence > Gross Negligence

HN14  Damages, Punitive Damages

The distinction between ordinary or even gross negligence and the conduct that permits punitive damages is critical. It will be only the rare negligence case that meets the standard.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > … > Types of Damages > Punitive Damages > Aggravating Circumstances

Torts > Negligence > Gross Negligence

HN15  Damages, Punitive Damages

Negligence, even gross negligence, is not enough for punitive damages.

Transportation Law > Bridges & Roads > US Federal Highway Administration

HN16  Bridges & Roads, US Federal Highway Administration

The Code of Federal Regulations provides that a driver shall place traffic warning devices on the road as soon as possible, but in any event within 10 minutes of being stopped on the highway. 49 C.F.R. § 392.22(b)(1).

Counsel: Phillip H. Stanfield, Eileen Dennis GilBride (argued), Clarice A. Spicker, Alejandro D. Barrientos, Jones, Skelton & Hochuli P.L.C., Phoenix, Attorneys for Swift Transportation Co. of Arizona, L.L.C.

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Thomas Mountz and Paul Champion.

Jonathan V. O’Steen, O’Steen & Harrison PLC, Phoenix; Lincoln Combs, Gallagher & Kennedy P.A., Phoenix; and Geoffrey M. Trachtenberg, Levenbaum Trachtenberg PLC, Phoenix, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association.

Todd A. Rigby, Lewis Brisbois Bisgaard & Smith, LLP, Phoenix, Attorneys for Amicus Curiae Trucking Industry Defense Association.

Judges: CHIEF JUSTICE BRUTINEL authored the Opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, BEENE, and MONTGOMERY joined.^*

Opinion by: BRUTINEL [*2] 

Opinion

CHIEF JUSTICE BRUTINEL, Opinion of the Court:

P1 This case requires us to clarify the standard of proof applicable HN1 to establishing a prima facie case for punitive damages necessary to justify the discovery of a defendant’s financial information. We hold that to make such a showing in a negligence case, a plaintiff must establish that there is a reasonable likelihood that the punitive damages claim will be submitted to the jury. We also hold that a punitive damages claim will be submitted to the jury only where there is proof that the defendant’s conduct was either intended to cause harm, motivated by spite or ill will, or outrageous, in which the defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.

I. BACKGROUND

P2 One night in January 2018, Swift Transportation Co.’s (“Swift”) driver, Brian Vanderhoff, was driving an empty tractor trailer to Phoenix in the rain. Vanderhoff had the truck’s “Jake Brake”¹ engaged and the cruise control set to sixty-two miles per hour in a seventy-five-mile-per-hour zone. While he was passing a vehicle in the right-hand lane on a downhill-sloping curve, the truck hydroplaned and jackknifed, [*3]  partially blocking traffic in the left lane. Shortly thereafter, another tractor trailer drove by and, trying to avoid Vanderhoff’s trailer, collided with two other vehicles. The resulting collision killed or injured several travelers, including family members of Thomas Mountz and Paul Champion (collectively, “Plaintiffs”).

P3 Plaintiffs sued Swift alleging negligence under a theory of respondeat superior. Plaintiffs also filed a “Motion on Prima Facie Case for Punitive Damages” to allow them to obtain Swift’s financial records.

P4 The superior court granted the motion. In its ruling, the court made the following findings of fact: (1) Vanderhoff had been trained it was dangerous to drive in the rain with the Jake Brake engaged and should have disengaged it when it started raining; (2) he knew it was dangerous to operate his vehicle with cruise control in the rain and while pulling an empty trailer; (3) he knew driving with an empty trailer makes the truck less stable and more likely to hydroplane; (4) he was traveling at sixty-two miles per hour in heavy rain; (5) his visibility was impaired by the rain and he was trained to be careful with his speed when traveling downhill [*4]  and around curves especially in low visibility environments; (6) he did not slow down as he went downhill and around a curve in the rain immediately prior to the collision; (7) he passed a vehicle on the right while he was entering the downhill left curve; (8) he did not leave his vehicle following the initial collision and did not try to warn other vehicles of the hazard; (9) he was on the phone with his daughter using a hands-free Bluetooth device and had been talking with her for at least thirty minutes before the collision and was still talking with her when the crash occurred; and (10) he told investigating officers at the crash site that he was traveling only forty-five miles per hour at the time of the crash. Based upon these facts, the court found that “Vanderhoff’s actions consciously disregarded the unjustifiable substantial risk of significant harm to others,” and therefore Plaintiffs were entitled to discover Swift’s financial records for the purpose of pursuing their punitive damage claim.

P5 Swift petitioned for special action, asserting that the superior court erred in granting the Plaintiffs’ motion without establishing that the defendant’s conduct, if proven, was “aggravated” [*5]  or “outrageous.” The court of appeals granted jurisdiction but denied relief, finding that “the superior court’s assessment [was] supported by the record.”

P6 We accepted review to clarify the standard for and the evidence necessary to support a prima facie claim for punitive damages to allow discovery of a defendant’s financial information, an issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

II. DISCUSSION

P7 HN2 Punitive damages exist for the limited purpose of punishing outrageous conduct to deter others from engaging in such conduct. Volz v. Coleman Co., 155 Ariz. 567, 570, 748 P.2d 1191 (1987). A plaintiff must present the trier-of-fact with sufficient evidence to calculate a reasonable punitive damage award sufficient to punish. Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073 (1987). Accordingly, the wealth of a defendant is relevant and discoverable in a proper case. Id. However, such financial information is confidential, and “the possibilities of harassment and misuse of civil process are obvious.” Larriva v. Montiel, 143 Ariz. 23, 26, 691 P.2d 735 (App. 1984). Thus, to obtain discovery of a defendant’s financial information, the plaintiff must make a prima facie showing that he or she will be entitled to present the issue of punitive damages to the jury. Id. A plaintiff makes such a showing by establishing that it is reasonably likely that the [*6]  issue of punitive damages will ultimately be submitted to the jury for resolution. See id. at 25.

A. Standard of Review

P8HN3  We defer to a trial court’s discovery-related ruling absent an abuse of discretion. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253, 63 P.3d 282 ¶ 10 (2003). We will affirm that court’s factual findings if they are supported by reasonable evidence. Id. at 254 ¶ 10. But a court abuses its discretion if it commits an error of law in reaching its conclusions. Id.

B. Evolution of Punitive Damages

P9 Before 1986, reckless indifference to the rights or safety of others was sufficient to support a claim for punitive damages. See, e.g., Nielson v. Flashberg, 101 Ariz. 335, 341, 419 P.2d 514 (1966) (“[Punitive] damages are applicable where there is a ‘reckless indifference to the interests of others.'” (quoting McNelis v. Bruce, 90 Ariz. 261, 269, 367 P.2d 625 (1961))). Gross negligence, too, was sufficient for a punitive damage claim, as was the cumulative impact of several acts of ordinary negligence. See, e.g., S. Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 570, 535 P.2d 599 (1975) (affirming a jury’s punitive damage award because defendant caused plaintiff’s injury “either deliberately or through wanton or gross negligence”); Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 475, 480, 652 P.2d 548 (App. 1981) (stating that cumulative acts of ordinary negligence can amount to wanton negligence and justify punitive damages), vacated on other grounds, 133 Ariz. 434, 652 P.2d 507 (1982). The standard of proof for such a claim was a preponderance of the evidence. See Andrew Brown Co. v. Painters Warehouse, Inc., 111 Ariz. 404, 408, 531 P.2d 527 (1975) [*7] .

P10 Then in 1986, this Court “significantly altered the availability of punitive damages in civil lawsuits.” Ted A. Schmidt, Punitive Damages in Arizona: The Reports of Their Death Are Greatly Exaggerated, 29 Ariz. L. Rev. 599, 599 (1987).

P11 Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565 (1986), an insurance bad faith case, held that HN4 punitive damages may be awarded only when a plaintiff can prove that the “defendant’s evil hand was guided by an evil mind.” In describing the evil hand, Rawlings stated that “[t]he ‘intent’ required . . . is an ‘evil hand’—the intent to do the act.” Id. at 160. An “evil hand” was sufficient to establish the tort of bad faith, id., but both an “evil hand” and an “evil mind” were necessary to warrant punitive damages, id. at 162. This is because “[s]omething more than the mere commission of a tort is always required for punitive damages,” id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed. 1984)), in order to “restrict its availability to those cases in which the defendant’s wrongful conduct was guided by evil motives,” id. (emphasis added). Thus, the “evil hand” is the wrongful conduct giving rise to the underlying tort and an “evil mind” is the intention to engage in the wrongful conduct required for punitive damages.  [*8] See id. An evil mind “may be found where [the] defendant intended to injure the plaintiff . . . [or] where, although not intending to cause injury, [the] defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.” Id.

P12 HN5 Rawlings also held that punitive damages “are recoverable in bad faith tort actions when, and only when, the facts establish that defendant’s conduct was aggravated, outrageous, malicious or fraudulent.” Id. Indeed, “mere negligence is not enough, even though it is so extreme and egregious to be characterized as ‘gross,’ . . . to justify punitive damages.” Id. (quoting Keeton et al., supra, § 2, at 10). Rather, “action justifying the award of punitive damages is ‘conduct involving some element of outrage similar to that usually found in crime.'” Id. (quoting Restatement (Second) of Torts § 908 cmt. b (Am. L. Inst. 1979)).

P13 Linthicum v. Nationwide Life Insurance Co., 150 Ariz. 326, 723 P.2d 675 (1986), published one day later and similarly involving an insurance bad faith claim, echoed Rawlings. This Court held that HN6 “before a jury may award punitive damages there must be evidence of an ‘evil mind’ and aggravated and outrageous conduct.” Id. at 331 (emphasis added). Linthicum reiterated that, “[i]n whatever way the requisite mental state is expressed, the [*9]  conduct must also be aggravated and outrageous.” Id. (emphasis added). Further raising the threshold for obtaining punitive damages, Linthicum “impose[d] a more stringent standard of proof” for such awards in stating that “punitive damages should be awardable only upon clear and convincing evidence of the defendant’s evil mind.” Id. at 332.

P14 In short, both Rawlings and Linthicum sought to cabin punitive damage awards to only those cases where punishment was appropriate. Rawlings, 151 Ariz. at 162 (“We do not believe that the concept of punitive damages should be stretched. We restrict its availability to those cases in which the defendant’s wrongful conduct was guided by evil motives.”); Linthicum, 150 Ariz. at 331 (concluding punitive damage awards should be limited to “consciously malicious or outrageous acts of misconduct where punishment and deterrence is both paramount and likely to be achieved”). The cases intended to limit punitive damage claims to only the most egregious cases. See Linthicum, 150 Ariz. at 331. Neither gross negligence nor reckless indifference was sufficient any longer for a punitive damage claim. Rawlings, 151 Ariz. at 162; Linthicum, 150 Ariz. at 331 (“A standard that allows exemplary awards based upon gross negligence or mere reckless disregard of the circumstances overextends the availability of punitive damages, and [*10]  dulls the potentially keen edge of the doctrine as an effective deterrent of truly reprehensible conduct.” (quoting Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985))).

P15 Subsequent insurance bad faith cases affirmed these restrictions. See, e.g., Hawkins, 152 Ariz. at 497, 503 (applying Rawlings/Linthicum punitive damage standard); Gurule v. Ill. Mut. Life & Cas. Co., 152 Ariz. 600, 601, 734 P.2d 85 (1987) (same); Filasky v. Preferred Risk Mut. Ins. Co., 152 Ariz. 591, 598-99, 734 P.2d 76 (1987) (same). Rawlings and Linthicum were quickly extended to cases other than insurance bad faith claims. See, e.g., Bradshaw v. State Farm Mut. Auto Ins. Co., 157 Ariz. 411, 422, 758 P.2d 1313 (1988) (malicious prosecution); Thompson v. Better-Bilt Aluminum Prods. Co., 171 Ariz. 550, 555-56, 832 P.2d 203 (1992) (wrongful discharge).

P16 The following year, however, Gurule, also an insurance bad faith case, muddied the waters. Gurule stated that “[e]ven if the defendant’s conduct was not outrageous, a jury may infer evil mind if [the] defendant deliberately continued his actions despite the inevitable or highly probable harm that would follow,” and that the “quality of [the] defendant’s conduct is relevant and important only because it provides one form of evidence from which [the] defendant’s motives may be inferred.” 152 Ariz. at 602. These statements seemingly conflict with Linthicum, which required an evil mind and outrageous conduct to support a punitive damage award. See 150 Ariz. at 331. Our cases following Gurule failed to clarify this point. See, e.g., Thompson, 171 Ariz. at 556-57 (quoting language from Linthicum requiring outrageous conduct but then quoting Gurule stating that conduct need not be outrageous). [*11]  But Gurule was not a negligence case.

P17 Notably, most of this Court’s punitive damages jurisprudence addresses the outrageous conduct issue only in the context of intentional tort claims. But one post-Rawlings/Linthicum case—involving a claim for punitive damages arising from negligence—is instructive.

P18 In Volz, a defectively designed liquid fuel lantern sprayed burning fuel and severely burned a five-year-old child. 155 Ariz. at 568. The manufacturer was aware of the defect and had repaired it in new lanterns but chose not to recall the lanterns or notify owners of the defect for the lanterns already sold. Id. at 569. In setting aside the jury award of punitive damages, this Court cited with approval Thomas v. American Cystoscope Makers, Inc., 414 F. Supp. 255 (E.D. Pa. 1976), noting that the “plaintiff’s evidence . . . was insufficient as a matter of law to demonstrate that type of ‘outrageous conduct’ on which an award of punitive damages must depend.” Id. at 570 (emphasis added) (quoting Thomas, 414 F. Supp. at 267). Citing Rawlings and Linthicum, Volz affirmed that “[t]he punitive damages standard in Arizona requires ‘something more’ than gross negligence,” and that “[t]he ‘something more’ is the evil mind,” which “may be shown by either 1) evil actions; 2) spiteful motives; or 3) outrageous, oppressive or intolerable conduct that [*12]  creates a substantial risk of tremendous harm to others.” Id. (emphasis added); accord Gurule, 152 Ariz. at 602 (stating that the punitive damage standard “is satisfied by evidence that [the] defendant’s wrongful conduct was motivated by spite, actual malice, or intent to defraud,” or by the defendant’s “conscious and deliberate disregard of the interests and rights of others”). Volz thus required that, HN7 absent evidence of evil actions or spiteful motives, the evil mind motivating a defendant’s conduct must be shown by “outrageous, oppressive or intolerable conduct that creates substantial risk of tremendous harm to others.” 155 Ariz. at 570. Subsequent cases have affirmed this standard. See, e.g., Bradshaw, 157 Ariz. at 422 (“[A]n ‘evil mind’ can be inferred from the evidence, including proof that defendant’s conduct was outrageous in nature.”).

C. Punitive Damages Standard

P19 Having explored the relevant caselaw, we now clarify the punitive damages standard applicable in negligence cases.

P20 We begin with the premise that HN8 punitive damages serve two functions: punishment and deterrence. Linthicum, 150 Ariz. at 330-31; Hawkins, 152 Ariz. at 497; Gurule, 152 Ariz. at 601; Volz, 155 Ariz. at 570; Bradshaw, 157 Ariz. at 424. But courts do not aim to punish and deter all negligent conduct by way of punitive damages, only that which involves “some element of outrage similar to that [*13]  usually found in crime.” Gurule, 152 Ariz. at 601 (quoting Rawlings, 151 Ariz. at 162); Restatement § 908 cmt. b. For this reason, our cases have repeatedly stated that courts may not award punitive damages based on mere negligence, gross negligence, or recklessness. See Rawlings, 151 Ariz. at 162; Linthicum, 150 Ariz. at 331; Volz, 155 Ariz. at 570; see also Filasky, 152 Ariz. at 599 n.3 (“[A] trial judge would commit error by including such phrases as ‘gross negligence’ or ‘reckless disregard’ in his jury instructions on punitive damages in a bad faith insurance case.”).

P21 This accords with our cases holding that HN9 a defendant may not be subject to civil punishment through punitive damages unless he or she acts “with a knowing, culpable state of mind.” Gurule, 152 Ariz. at 601; see also Rawlings, 151 Ariz. at 162. Compensatory damages are sufficient to deter unintentional and even grossly negligent conduct; only a knowing culpability warrants punitive damages to curb future reprehensible behavior. Gurule, 152 Ariz. at 601 (“[U]nless the evidence establishes that . . . [the] defendant acted with an evil mind, punitive damages are unnecessary because compensatory damages adequately deter.”). Requiring that the defendant evince an evil mind, as mandated by our previous decisions, “was intended to limit punitive damage awards” only to cases in which they further the objectives of punishment and deterrence. Id.; Linthicum, 150 Ariz. at 331; see also State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 417-18, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) (explaining [*14]  that procedural and substantive constitutional limitations on punitive damage awards prevent arbitrary deprivation of property).

P22 Accordingly, we affirm the standard announced in Volz. HN10 To be entitled to punitive damages, once a plaintiff establishes that the defendant engaged in tortious conduct of any kind, intentional or negligent—that is, acted with an “evil hand,” see supra ¶ 11—the plaintiff must prove the defendant engaged in such conduct with an “evil mind.” Volz, 155 Ariz. at 570; accord Rawlings, 151 Ariz. at 162; Linthicum, 150 Ariz. at 331; Gurule, 152 Ariz. at 602. To establish an evil mind requires clear and convincing evidence that the defendant’s actions either (1) intended to cause harm, (2) were motivated by spite, or (3) were outrageous, creating a “substantial risk of tremendous harm to others.” Volz, 155 Ariz. at 570-71; accord Bradshaw, 157 Ariz. at 422.

HN11 P23 In a claim arising out of negligence, by definition there is no intent to injure the plaintiff. Similarly, a negligent defendant is unlikely to be motivated by spite or ill will. Thus, the only means by which a plaintiff is likely to meet the punitive damage standard in a negligence action is by demonstrating that the outrageousness of the defendant’s conduct is such that the defendant had an “evil mind” when engaging in such conduct.² See Volz, 155 Ariz. at 570 (stating in the context [*15]  of a negligence action that “[t]he focus is on the wrongdoer’s attitude and conduct” (emphasis added)); see also Gurule, 152 Ariz. at 602.

P24 We therefore hold that HN12 to be entitled to punitive damages in a negligence action, a plaintiff generally must show that the defendant’s conduct was “outrageous, oppressive or intolerable,” and “create[d] [a] substantial risk of tremendous harm,” thereby evidencing a “conscious and deliberate disregard of the interest[s] and rights of others.” Volz, 155 Ariz. at 570 (emphasis added) (quoting Gurule, 152 Ariz. at 602). A “substantial risk of harm” is the product of outrageous conduct, which society typically deters by imposing criminal liability. See Rawlings, 151 Ariz. at 162 (citing to Arizona’s statutory definition of criminal recklessness as one appropriate baseline for punitive damages); see also A.R.S. § 13-105(10) (defining a criminally culpable mental state as acting “intentionally, knowingly, recklessly or with criminal negligence”); cf. Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 8 ¶ 36, 31 P.3d 114 (2001) (McGregor, J., concurring in part and dissenting in part) (describing punitive damages as “quasi-criminal” fines).

P25 To be clear, this holding does not require HN13 a plaintiff to establish criminal conduct to show that a defendant’s conduct created a substantial risk of significant injury. Nor must a plaintiff [*16]  identify an applicable criminal statute to qualify for punitive damages, although such evidence is a strong indication that the defendant’s conduct is worthy of punishment and should be deterred by measures extending beyond having to compensate the plaintiff for his or her losses. Rather, a plaintiff must establish that the defendant knew, or intentionally disregarded, facts that created an unreasonable risk of physical harm—a risk substantially greater than that necessary to make his or her conduct negligent or even grossly negligent—and consciously disregarded that risk. See Restatement § 500 cmt. a; see also Linthicum, 150 Ariz. at 330-31; Gurule, 152 Ariz. at 602. Although it is enough that the defendant had reason to know of the facts creating a substantial risk, it is not enough that a defendant had reason to appreciate the severity of the risk; the defendant must have actually appreciated the severity of the risk before consciously disregarding it. See Hutchinson ex rel. Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766, 771-72 (Pa. 2005) (rejecting the “reasonable man standard” for punitive damages and requiring that a defendant have “a subjective appreciation of the risk of harm to which the plaintiff was exposed”); see also Restatement § 500 cmt. a (distinguishing an objective definition of reckless disregard from a subjective one). Absent proof of the intent [*17]  to cause harm or that the defendant acted out of spite or ill will, outrageous conduct will always be required to sustain a claim for punitive damages in negligence cases.

P26 HN14 The distinction between ordinary or even gross negligence and the conduct that permits punitive damages is critical. Indeed, it will be only the rare negligence case that meets this standard. We decline to stretch the bounds of punitive damage awards beyond those limits established by our precedent. See Rawlings, 151 Ariz. at 162.

D. Application

P27 Turning to the facts of this case, we conclude that Vanderhoff’s conduct as set forth in the trial court’s ruling does not establish a prima facie case for punitive damages.

P28 A close look at the facts reveals that Vanderhoff was negligent during two intermittent intervals, before he ran off the highway and after. We examine these individual allegations of negligence in turn.

1. Vanderhoff’s conduct before running off the highway

P29 The facts alleged, if proven at trial, would likely establish Vanderhoff’s negligence in running off the highway. Vanderhoff testified that he (1) should have reduced his speed as he traveled downhill on a wet surface, (2) knew his Jake Brake and cruise control should [*18]  not have been engaged while in the rain, and (3) was distracted by the cell phone call with his daughter. HN15 But negligence, even gross negligence, is not enough for punitive damages. Supra ¶ 20.

P30 It is undisputed that Vanderhoff did not intend to injure anyone and was not motivated by spite or ill will. Plaintiffs instead cite to Vanderhoff’s various admissions of negligence as proof that he consciously disregarded substantial risks, thereby justifying punitive damages. But Vanderhoff’s after-the-fact admissions, without more, are insufficient to establish that he “consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.” Gurule, 152 Ariz. at 602 (emphasis added) (quoting Rawlings, 151 Ariz. at 162). We therefore look to the severity of Vanderhoff’s conduct to determine whether it is the “something more” than gross negligence that evinces an evil mind. See Volz, 155 Ariz. at 570.

P31 Although Vanderhoff’s actions were admittedly negligent, and perhaps even grossly negligent, they did not amount to the sort of outrageous conduct required to establish an “evil mind.” Vanderhoff’s speed, though greater than may have been prudent given the weather and the size of his vehicle, was still at least ten miles [*19]  per hour below the seventy-five-mile-per-hour speed limit. No doubt, a reasonable person with Vanderhoff’s training and experience should have known to slow down even further on account of the rain and the downhill grade, but Vanderhoff’s actions are not so far outside the realm of reasonable conduct such that this may be considered one of the “most egregious of cases” warranting punitive damages. Linthicum, 150 Ariz. at 332; cf. Ranburger v. S. Pac. Transp. Co., 157 Ariz. 551, 554, 760 P.2d 551 (1988) (noting that even under pre-Linthicum standards, exceeding speed limit is insufficient to support a punitive damage award); Quintero v. Rodgers, 221 Ariz. 536, 542 ¶ 22, 212 P.3d 874 (2009) (citing Ranburger, 157 Ariz. at 554) (to same effect). Neither is Vanderhoff’s failure to disengage the Jake Brake and cruise control, which reflects, at most, a breach of truck driving safety protocol—that is, negligence.

P32 Likewise, Vanderhoff’s legal, hands-free, cell phone use can hardly be considered aggravated or outrageous conduct. Furthermore, no evidence suggests that his talking on the phone was a proximate cause of him losing control of the vehicle, let alone a but-for cause of the subsequent collision that ultimately resulted in the deaths of others. Awarding punitive damages on this basis would therefore be improper. See Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179, 184, 24 P.3d 1274 ¶ 19 (App. 2001) (“[T]he [underlying tortious] conduct giving rise to punitive [*20]  damages must be a proximate cause of the harm inflicted.”).

P33 Vanderhoff may have been negligent in failing to reduce his speed to avoid hydroplaning and losing control of his vehicle, but his conduct did not amount to the “something more” that our precedents require to demonstrate an evil mind. See Volz, 155 Ariz. at 570.

2. Vanderhoff’s conduct after running off the highway

P34 Vanderhoff’s conduct after the crash is arguably even less outrageous. The fatal collision occurred about five minutes after Vanderhoff lost control of his truck and ran off the road. Plaintiffs argue Vanderhoff’s failure to place traffic safety triangles on the road or direct oncoming traffic during those five minutes justifies punitive damages because, according to highway safety regulations, he should have done this immediately. But remaining in the vehicle for five minutes following an accident hardly rises to the level of outrageous conduct.

P35 Likewise, it is doubtful Vanderhoff violated any law or regulation by remaining in his vehicle for five minutes after he lost control of his vehicle. HN16 The Code of Federal Regulations provides that a driver shall place traffic warning devices on the road “as soon as possible, but in any [*21]  event within 10 minutes” of being stopped on the highway. 49 C.F.R. § 392.22(b)(1) (emphasis added). By its terms, Vanderhoff substantially complied with the regulation by placing warning devices down immediately after the collision and within ten minutes of running off the road. Moreover, even if his conduct violated such a regulation, without more, such failure is a far cry from the outrageous or quasi-criminal conduct sufficient to establish an evil mind. See Gurule, 152 Ariz. at 601; Rawlings, 151 Ariz. at 162.

P36 Although Vanderhoff should have exited his truck as quickly as possible to prevent another collision, his failure to do so is not unthinkable, much less outrageous or akin to criminal conduct. See Gurule, 152 Ariz. at 601; Rawlings, 151 Ariz. at 162. Simply put, his failure to direct or warn oncoming traffic within five minutes after he ran off the road is not enough for a jury to infer that Vanderhoff consciously disregarded a substantial risk of harm to others sufficient to justify punitive damages. See Volz, 155 Ariz. at 570.

P37 We therefore conclude that, under the facts found by the trial court, Plaintiffs did not make a prima facie showing that the question of punitive damages would likely be submitted to the jury.

III. CONCLUSION

P38 We vacate the court of appeals’ order and reverse the trial court’s order. [*22]  Our opinion does not preclude the court from reconsidering the issue should additional facts come to light that justify submitting the question of punitive damages to the jury.

End of Document

---

^* Although Justice Andrew W. Gould (Ret.) participated in the oral argument in this case, he retired before issuance of the opinion and did not take part in its drafting.

¹ A “Jake Brake” is “[a]n engine brake for truck diesel engines that cuts off fuel flow and interrupts the transfer of mechanical energy to the drive mechanism,” slowing the truck using the resistance from the compression of the engine cylinders. Jake Brake, Lexico, https://www.lexico.com/en/definition/jake_brake (last visited Aug. 18, 2022).

² For example, a jury can infer an evil mind “when a defendant continues a course of conduct with knowledge of the past harm caused by that conduct.” Gurule, 152 Ariz. at 602. “[O]ther circumstances, alone or in combination, may [also] justify the inference of an evil mind.” Id.; see also Hawkins, 152 Ariz. at 499 (asserting that pattern of dishonest or fraudulent conduct makes it “more probable” that the conduct is intentional); Restatement § 908 cmt. c (stating punitive damages are appropriate “when a tort . . . is committed for an outrageous purpose” even though no significant harm results).