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At oral argument, counsel for the appellants reminded this court that Westray and Bekins concede Westray’s negligence. Additionally, counsel voiced his clients’ belief that this accident was tragic and informed us that while they firmly believe that the trial court erred in committing the above-described actions, they also believe that the final amount awarded to the Wrights as compensatory damages—just over $1 million—was appropriate and just given the circumstances. As all of the above-described arguments ultimately go to the jury’s determination regarding negligence and compensatory damages awarded for negligence, therefore, the appellants agreed to concede these arguments and focus entirely on the punitive damages award. While we are troubled by a number of the trial court’s rulings, particularly the jury instruction regarding statutory violations with no causal connection to the accident and the testimony and instruction regarding Dolores’s future wage and benefit loss, we agree with the appellants that there is no need to examine those issues inasmuch as they relate only to the amount of compensatory damages, which is admittedly appropriate.

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The appellants contend that the trial court erred in denying their motions for judgment on the evidence and request for a new trial. In particular, they argue that the jury erred in awarding punitive damages to the Wrights because there was insufficient evidence to show that Westray had the required obdurate mental state.

The appellants seek judgment on the evidence or a new trial with respect to punitive damages. As we consider these arguments, we note that the purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence. The grant or denial of a motion for judgment on the evidence is within the broad discretion of the trial court, and we will reverse only for an abuse of that discretion. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 401 (Ind. Ct. App. 1999).

When reviewing a trial court’s ruling on a motion for judgment on the evidence, we examine the evidence and the reasonable inferences most favorable to the plaintiff from a quantitative as well as a qualitative perspective. Id. Quantitatively, evidence may fail only where there is none at all. Qualitatively, however, it fails when it cannot reasonably be said that the intended inference may logically be drawn therefrom. Id. The failure of an inference may occur as a matter of law when the intended inference can rest on no more than speculation or conjecture. A judgment on the evidence is proper only when there is a total absence of evidence in favor of the plaintiff or when the inference intended to be proven by the evidence cannot logically be drawn from the proffered evidence without undue speculation. Id. Additionally, a new trial is warranted only when a verdict is against the clear weight of the evidence, and we review the denial of a new trial for an abuse of discretion. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1055 (Ind. 2003).

Because punitive damages are imposed to deter and punish wrongful activity, they are quasi-criminal in nature and require a different showing than that required for an award of compensatory damages. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Indeed, a plaintiff must prove the facts supporting punitive damages by clear and convincing evidence, a burden that is “but minutely below the ‘reasonable doubt’ standard.” Orkin Exterminating Co. v. Traina, 486 N.E.2d 1019, 1022 (Ind. 1986), superseded in part on other grounds by Erie Ins. Co. v. Hickman, 605 N.E.2d 161, 162 (Ind. 1992).

According to our Supreme Court, “the perverseness that public policy will permit the courts to punish [by awarding punitive damages] is conscious and intentional misconduct which, under the existing conditions, the actor knows will probably result in injury.” Id. In other words, the defendant must have “subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” Id. The tortious conduct must be marked by malice, fraud, gross negligence, or oppressiveness not resulting from “a mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other noniniquitous human failing.” Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988).

The Wrights emphasize that gross negligence is a proper basis for an award of punitive damages. Our Supreme Court has defined “gross negligence” as “‘[a] conscious, voluntary act or omission in reckless disregard of... the consequences to another party.’” N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003) (quoting Black’s Law Dictionary 1057 (7th ed. 1999)) (omission in original).

The appellants concede that Westray acted negligently but deny that he acted with gross negligence sufficient to sustain an award of punitive damages. They point to a number of federal truck accident cases in which mere negligence on the driver’s part was insufficient to support punitive damages. See, e.g., Purnick v. C.R. England, Inc., 269 F.3d 851 (7th Cir.

2001) (holding that evidence that driver had falsified his logs to hide the amount he had driven over the week prior to the accident, was “mesmerized” by the road, failed to brake before impact, and could not recall when he first saw plaintiff’s vehicle was insufficient to prove his mental state to sustain punitive damages because there was no proof that he knew his actions would probably cause harm); Wanke v. Lynn’s Transp. Co., 836 F. Supp. 587 (N.D. Ind. 1993) (holding that evidence of excessive speed, standing alone, was insufficient to show that driver knew that his speed constituted an obvious danger yet chose to ignore that danger so as to support punitive damages); Austin v. Disney Tire Co., 815 F. Supp. 285 (S.D.

Ind. 1993) (holding that evidence demonstrating a lack of skill as a driver does not lead to a reasonable inference that driver acted with conscious disregard for the impending danger he was creating so as to support punitive damages); Samuel v. Home Run, Inc., 784 F. Supp.

548 (S.D. Ind. 1992) (holding that merely creating a dangerous situation as a driver does not support a further inference that the conduct was wanton or morally blameworthy so as to support punitive damages), superseded in part on other grounds by Erie Ins. Co., 605 N.E.2d at 162.

The Wrights, in turn, point to a litany of cases in which they contend the court concluded that gross negligence occurs when a driver’s inattention is more than momentary.

See, e.g., Clouse v. Peden, 243 Ind. 390, 394, 186 N.E.2d 1, 2 (Ind. 1962) (driving on a loose gravel country road at 75-80 miles per hour, “seeing how fast the car would run,” in spite of three warnings to slow down); Buroker v. Brown, 241 Ind. 421, 422, 172 N.E.2d 849, 850 (Ind. 1961) (driving 85-90 miles per hour on “very winding,” wavy blacktop around curves, over bridges, and by shady spots patched with ice); Berg v. Rasmuss, 125 N.W.2d 905, 907 (Neb. 1964) (intoxicated driver kissing sleeping passenger); Gustason v. Vernon, 87 N.W.2d 395, 398-99 (Neg. 1958) (driver turning to the rear to play joke notwithstanding defective steering gear needing constant attention); Haggerty v. Sullivan, 301 Mass. 302, 303, 17 N.E.2d 154, 154-55 (Mass. 1938) (driver turning to rear seat passenger while traveling at 55miles per hour on slick road).

After reviewing the record, it is apparent to us that this case is more analogous to the cases in which punitive damages were not appropriate than to those in which the driver’s behavior surpassed mere negligence. Westray was not speeding. He was alone and was not listening to the radio or a CD. He had been driving for just over four hours prior to the accident, and there was no evidence that he was drowsy, intoxicated, or otherwise affected by any foreign substance. Just before he looked away from the road, the traffic light was green and there were no vehicles in the lane in front of him. Tr. p. 216. The only evidence in the record that offers a concrete amount of time during which Westray looked away from the road suggests that his inattention lasted from five to ten seconds. Tr. p. 318-19.

The Wrights counter that the evidence showed that Westray consciously chose to divert his attention from the road while approaching a traffic light on an interstate highway after passing rumble strips and warning signs. According to the Wrights, Westray should have known that his 65,000-pound vehicle would cause injury should it collide with another vehicle. He knew that other vehicles were ahead of him nearer to the stoplight.

In the aggregate, the record reveals a truck driver who was clearly negligent in the operation of his vehicle. Tragically, his negligence resulted in fatalities and forever changed the lives of the survivors. But there is simply not clear and convincing evidence that his behavior exceeded mere negligence. Nothing in the record indicates that he acted purposefully, with malice, or with gross negligence. Charging him with constructive knowledge of the dangerousness of his vehicle is insufficient to reach the mental state that is required to sustain a punitive damages award. Accordingly, we conclude that the jury’s award of punitive damages as to Westray was improper and that the trial court should have granted the appellants’ motion for judgment on the evidence.

In addition to claiming that Bekins is vicariously liable for Westray’s acts, the Wrights also claimed that Bekins was directly liable for wrongly hiring, retaining, and entrusting a truck to Westray. As support for the punitive damages award against Bekins on this claim, the Wrights point to Westray’s logbook and equipment violations, arguing that it shows that Bekins did not teach Westray to regard safety as paramount. The Wrights also point to Westray’s driving record with Bekins, which is replete with speeding tickets and other violations, noting that Bekins never reprimanded him during his more than ten years with the company.

There is simply no evidence to support an award of punitive damages against Bekins directly. The Wrights failed to offer clear and convincing proof that Bekins consciously disregarded knowledge that Westray was a substantial danger to motorists so as to support punitive damages. As to Westray’s hiring, there was no evidence that he lacked a valid driver’s license or was otherwise unqualified. Moreover, pursuant to Bekins’s regulations— more stringent than federal requirements—Westray was qualified and competent to drive.

There was no evidence in the record suggesting that the circumstances surrounding Westray’s previous accidents or speeding tickets involved substantially similar conduct or circumstances to this case. Ultimately, therefore, the punitive damages award was inappropriate insofar as it was designed to punish Bekins directly. 5

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The Wrights cross-appeal the trial court’s reduction in the punitive damages award from $15,000,000 to $3,435,000. In particular, they contend that the trial court erred in reducing the award because it should have taken into consideration the aggregate harm to all Inasmuch as we conclude that the punitive damages award was inappropriate in total, we need not consider the appellants’ argument that the reduced award was excessive and unconstitutional.

of the victims—including non-parties—which totaled $15,000,000 and because they filed an attorney lien against the entire amount before the trial court reduced it.

Inasmuch as we have concluded that the punitive damages award was inappropriate, the arguments that the Wrights raise in their cross-appeal are no longer at issue. We note briefly, however, that to argue that the trial court should have been permitted to take into consideration the compensatory damages awarded to separate plaintiffs in a completely independent lawsuit when that information was not properly available to this jury is to approach the bounds of reason and logic.

–  –  –

In sum, we conclude as follows: (1) the jury’s finding of negligence with respect to appellants and its corresponding award of compensatory damages are appropriate; and (2) the jury’s award of punitive damages was inappropriate inasmuch as there was not clear and convincing evidence that Westray or Bekins acted with the mental state sufficient to sustain such an award.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

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