Punitive Damages Against Drunk Drivers in Ohio: Making the Reckless Pay More

Published July 5, 2022 · Injury Law Basics

Every year, some of the families who call our office in the days after a holiday weekend were hit by a driver who had been drinking. They usually ask the same question: is the drunk driver going to pay only for my medical bills, or will there be some consequence for choosing to drive drunk?

In Ohio, the civil case can do more than compensate you. When a driver's conduct crosses the line from carelessness into conscious disregard for other people's safety, a jury may award punitive damages, money meant to punish the wrongdoer and deter others. Here is how that works, where the limits are, and why the details matter for collecting the money.

Compensatory damages come first

Every injury case begins with compensatory damages: your medical bills, lost wages, future care, and the pain and disruption the crash caused. Our guide chapter on what your case is worth explains how those damages are built and capped.

Punitive damages sit on top of that. Under R.C. 2315.21(C), they are available only if the jury has first awarded compensatory damages against the defendant and the defendant's conduct demonstrates "malice or aggravated or egregious fraud." In a drunk-driving case, the question is malice.

Drunk driving and "actual malice": the Cabe v. Lunich rule

Malice in Ohio does not require proof that the driver hated you or meant to hurt you. The Supreme Court of Ohio has long defined actual malice to include a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.

The leading drunk-driving case is Cabe v. Lunich, 70 Ohio St.3d 598, 1994-Ohio-4. A Ravenna woman was rear-ended at night by a driver who smelled of alcohol, admitted to four or five drinks, never swerved or tried to avoid the collision, and refused a chemical test. The trial court took punitive damages away from the jury, reasoning that intoxication alone was not enough.

The Supreme Court disagreed and changed the law. It held that:

• Evidence that a negligent driver drank before the crash is relevant and admissible to decide whether the driver acted with actual malice.
• The court recognized that drinking and driving "may well, under the circumstances of each individual case," be the kind of reckless, outrageous behavior that justifies punitive damages.
• When a chemical test shows the driver was at or over the legal limit, a trial court abuses its discretion if it refuses the plaintiff's request to instruct the jury that it may award punitive damages.
• The same is true when the driver refused the test and there is evidence the driver had been drinking.

The Court also adopted a sliding scale: the more impaired the driver, the less additional aggravating evidence is needed. Today Ohio's per se limit under R.C. 4511.19(A)(1)(b) is a concentration of eight-hundredths of one percent, the familiar .08.

You do not need a criminal conviction

The civil case and the criminal case are separate. A conviction for OVI (Ohio's term for operating a vehicle while impaired) is powerful evidence, but punitive damages do not depend on it. What matters is the proof: the breath or blood test, the officer's observations, body-camera and dash-camera video, bar receipts, witnesses who saw the driver drinking, and the driver's own conduct before the crash.

One wrinkle worth knowing: Cabe noted that a no-contest plea to a criminal charge cannot be used as an admission in the later civil trial. That is one reason we gather the underlying evidence ourselves rather than relying on how the criminal case ends.

The rules that shape a punitive-damages claim

R.C. 2315.21 sets the ground rules, and each one affects strategy:

• Clear and convincing evidence. Under R.C. 2315.21(D)(4), the plaintiff must prove entitlement to punitive damages by clear and convincing evidence, a higher standard than in the rest of the case.
• Bifurcated trial. On any party's motion, R.C. 2315.21(B)(1) requires the trial to be split. The jury decides compensatory damages first and hears punitive-damages evidence only if it awards compensatory damages.
• The cap. R.C. 2315.21(D)(2)(a) limits punitive damages to two times the compensatory damages awarded against that defendant. For an individual or small employer, (D)(2)(b) limits them to the lesser of two times compensatory damages or ten percent of the defendant's net worth when the tort was committed, up to $350,000. The jury is not told about these limits.
• No prejudgment interest on the punitive portion, under R.C. 2315.21(D)(3).
• Attorney fees are separate. When a jury finds malice, it may also award attorney fees, and under (D)(2)(c) those fees do not count against the punitive cap.

Collectability: why insurance matters so much

Here is the part that surprises people. Ohio law forbids auto and liability insurance from paying punitive damages. R.C. 3937.182(B) says no auto policy, including uninsured and underinsured motorist coverage, may cover judgments for punitive or exemplary damages. A punitive award is collectible only from the drunk driver's own assets.

Attorney fees are different. In Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 2010-Ohio-1829, an intoxicated driver fleeing an earlier collision struck the plaintiff; the jury awarded compensatory damages, punitive damages and attorney fees. The Supreme Court held that attorney fees are distinct from punitive damages and that public policy does not prevent an insurer from covering them. I wrote about that decision when it came down in our 2010 post on drunk-driver attorney-fee awards.

The practical lesson: the insured layers of the case (compensatory damages and a fee award) are where most of the money is usually collected, so we build those to their full value and look for every other source of recovery.

Other people who may be responsible

A drunk driver rarely acts alone.

• Bars and restaurants. Under R.C. 4399.18, a liquor permit holder can be liable for injuries caused off its premises when it knowingly sold alcohol to a noticeably intoxicated person, or to an underage person in violation of R.C. 4301.69, and the intoxication caused the harm. We explain those claims in our post on dram-shop liability. Receipts, tabs and bar video have to be preserved quickly.
• Employers. If the driver was working, the employer is generally responsible for compensatory damages. Punitive damages can reach the employer only if it knowingly authorized, participated in, or ratified the conduct, under R.C. 2315.21(C)(1).
• Your own coverage. If the drunk driver carried minimum limits, your uninsured and underinsured motorist coverage may make up the difference in compensatory damages.

When a drunk driver takes a life, the family's wrongful death claim can include a punitive-damages claim on the same principles.

What this means for you

If you were hit by a driver who had been drinking:

1. Get the crash report and note whether the driver was arrested, tested or refused a test.
2. Write down anything the driver said or did at the scene, including the smell of alcohol or containers in the car.
3. Do not give a recorded statement to the driver's insurer.
4. Talk to a lawyer quickly so bar records, receipts and video are requested before they disappear.

As a former Dayton police sergeant, I know how quickly the evidence of impairment disappears, and the civil case is strongest when someone is collecting it from the start. You can learn more on our Dayton car accident lawyer page.