Olson v. Walker6/27/1989
d 80 (Utah Ct.App.1987). In this case, however, additional circumstances beyond intoxication were clearly shown. The trial court properly allowed the question of punitive damages to go to the jury.
II. AMOUNT OF PUNITIVE DAMAGES
Walker next argues that the $100,000 punitive damages award is excessive and that the jury acted out of passion or prejudice. Such an award, he argues, will destroy him financially. At the time of trial, Walker claimed his business was in bankruptcy , that he supported his wife and two children on an annual income of $38,000, that he had about $4,000 in the bank, and after paying bills had approximately $500 left over every month. He contends that $100,000 is well beyond the average working person's ability to pay. He points out that, even assuming he had $500 to pay at the end of every month, it would take him nearly seventeen years to pay the award, excluding any interest.
Olson responds that although Walker's employer was in bankruptcy , there was no evidence that Walker had ever filed bankruptcy. He also points out that Walker's income the year previous to trial was $44,356 and that Walker owns his own home.
As a general rule, the amount of a punitive damages award is within the fact finder's discretion and will not be disturbed on appeal, unless it is so unreasonable that it is the product of passion or prejudice.
Nielson v. Flashberg, 101 Ariz. 335, 341, 419 P.2d 514, 520 (1966); Nienstedt v. Wetzel, 133 Ariz. 348, 357, 651 P.2d 876, 885 (App.1982). The test is whether the verdict is "so manifestly unfair, unreasonable and outrageous as to shock the conscience of the Court." Acheson v. Shafter, 107 Ariz. 576, 579, 490 P.2d 832, 835 (1971) (citing Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 (1962)); see also Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 501, 733 P.2d 1073, 1084, cert. denied, 484 U.S. 874, 108 S.Ct. 212, 98 L.Ed.2d 177, reh'g denied, 484 U.S. 972, 108 S.Ct. 477, 98 L.Ed.2d 414 (1987). The amount of the award alone is insufficient evidence that a jury acted with passion or prejudice. Hawkins, 152 Ariz. at 501, 733 P.2d at 1084.
One factor that may be considered in awarding punitive damages is the defendant's wealth. The wealthier the defendant, the greater the amount of the award needed to punish him. Id. At the same time, however, the award "must not financially kill the defendant." Id.; see also Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 219, 693 P.2d 348, 362 (App.1984).
Another factor the jury can consider is the nature of the defendant's conduct. Hawkins, 152 Ariz. at 502, 733 P.2d at 1085. Thus, "the more reprehensible the defendant's conduct and the more serious the harm likely to occur, the larger the appropriate punishment." Id.
In support of his contention that the $100,000 punitive damages award will financially kill him, Walker relies on Hawkins, in which the court determined that a $3.5 million punitive damages award was not excessive because it represented only 1/25 of one percent of the corporate defendant's total assets and net income of approximately 3 1/2 days. In contrast, the $100,000 award against Walker represents approximately two and one-half times his gross annual income. Division 2 of this court, however, upheld a punitive damages
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