In Willett v. Village of St. Albans, 69 Vt. 330, 38 A. 72, 74 (1897), the court stated that punitive damages might be awarded where defendant's negligence "was so gross as to amount to wanton and willful disregard of the rights of the plaintiff." Accord, Walsh v. Segale, 70 F.2d 698 (2 Cir. 1934) (interpreting Vermont law). This language is common to most of the cases dealing with the question of the appropriateness of an award of punitive damages in automobile collision cases. In fact situations similar to the instant one, different courts have reached quite different results as to when negligence is so gross as to amount to wanton disregard of plaintiff's rights.
Aside from the stipulation, the appellate court has inherent power to review the case upon the whole record and make such disposition as justice requires. Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082; State Tax Commission v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950; Minnesota v. National Tea Co. Allied Stores, 60 S.Ct. 676, 84 L.Ed. ___, decided March 25, 1940; Trapp v. Metropolitan Life Ins. Co., 8 Cir., 70 F.2d 976; Walsh v. Segale, 2 Cir., 70 F.2d 698. The challenged instruction is not clear.
Counsel for both parties tried the case on the theory that the sums paid by appellant under statutory liability were recoverable if appellant otherwise proved her claim. This is an error of which we may take notice even though not assigned. Walsh v. Segale, 2 Cir., 70 F.2d 698; Rice v. Baltimore Ohio Railroad Company, 6 Cir., 42 F.2d 387; Thompson v. Hocking Valley Railroad Company, 6 Cir., 45 F.2d 155; New York Central Railroad Company v. Johnson, 279 U.S. 310, 333, 49 S.Ct. 300, 73 L.Ed. 706. The question does not open up a new field of legal investigation.
” Downing v. King, 2007 WL 4191765, at * 3 (N.D.N.Y. Nov. 26, 2007) (quoting Pepe v. Maklansy, 67 F.Supp.2d 186, 187-88 (S.D.N.Y. 1999) (“‘It is generally recognized that, in cases of personal torts, ‘vindictive actions,' such as assault and battery . . . where the elements of fraud, malice, gross negligence, cruelty, or oppression are involved, punitive or exemplary damages may be recovered.'” (quoting Walsh v. Segale, 70 F.2d 698, 699 (2d Cir. 1934))).
Finally, “in cases of personal torts, ‘vindictive actions,' such as assault and battery . . . where the elements of fraud, malice, gross negligence, cruelty, or oppression are involved, punitive or exemplary damages may be recovered.” Pepe v. Maklansky, 67 F.Supp.2d 186, 188 (S.D.N.Y. 1999) (citing Walsh v. Segale, 70 F.2d 698, 699 (2d Cir. 1934)). Punitive damages have “been awarded and upheld in cases involving intentional torts . . .” Laurie Marie M. v. Jeffrey T.M., 559 N.Y.S.2d 336, 340 (2d Dep't 1990), affd, 77 N.Y.2d 981 (1991).
The Second Circuit has stated that, "[i]t is generally recognized that, in cases of personal torts, 'vindictive actions,' such as assault and battery . . . where the elements of fraud, malice, gross negligence, cruelty, or oppression are involved, punitive or exemplary damages may be recovered." Pepe v. Maklansky, 67 F. Supp. 2d 186, 187-88 (S.D.N.Y. 1999) (quoting Walsh v. Segale, 70 F.2d 698, 699 (2d Cir. 1934)). Furthermore, "'[i]t is well settled that the determination whether to award punitive damages lies in the discretion of the trier of the facts.'"
Such damages are particularly appropriate in the case of intentional torts where "'elements of fraud, malice, gross negligence, cruelty, or oppression are involved . . .'" Pepe v.Maklansky, 67 F. Supp. 2d 186, 187-88 (S.D.N.Y. 1999) (quotingWalsh v. Segale, 70 F.2d 698, 699 (2d Cir. 1934)). Sanders argues that the facts as presented at trial do not demonstrate the required element of "malice or insult" necessary to sustain the jury's award of punitive damages.
" (Def.Br., p. 5). The Second Circuit has stated that, "[i]t is generally recognized that, in cases of personal torts, `vindictive actions,' such as assault and battery . . . where the elements of fraud, malice, gross negligence, cruelty, or oppression are involved, punitive or exemplary damages may be recovered." Walsh v. Segale, 70 F.2d 698, 699 (2d Cir. 1934). Punitive damages have "been awarded and upheld in cases involving intentional torts . . ."
In order to allow plaintiff and Mauser punitive damages in this case, I must find that Hartford acted maliciously in its refusal to pay the plaintiff's judgment. See Walsh v. Segale, 70 F.2d 698 (2d Cir. 1934). The evidence in this case shows no indication of malice on the part of Hartford.
Smith v. Roland, 243 Ala. 400, 10 So.2d 367. Citing Central of Georgia v. Corbitt, 218 Ala. 410, 118 So. 755. Ordinary collision on public highway does not constitute wantoness. Walsh v. Segale, 2 Cir., 70 F.2d 698. For there to be wanton conduct the defendant must with reckless indifference of the consequences consciously and intentionally do some wrongful act or omit some duty which produce the injury and such elements of wantoness cannot be left to conjecture. Griffin Lumber Company v. Harper, 247 Ala. 616, 25 So.2d 505. Citing Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277.