Hit By a Drunk Driver: Do You Get Enhanced Compensatory Damages?

In the state of New Hampshire, punitive damages are almost never permitted under New Hampshire Law. The term punitive damages relate to additional monetary damages awarded by a jury for the purposes of punishing the defendant for egregious wrongdoing. However, the Doctrine of Enhanced Compensatory Damages has been developed in New Hampshire to somewhat replace the role of punitive damages. Enhanced Compensatory Damages are only awarded when an act is malicious, oppressive or wanton. The purpose of Enhanced Damages is to reflect the aggravating circumstances of an injury rather than to merely punish the defendant.  

In Gelinas v. Mackey (1983), the New Hampshire Supreme Court set out a general principle that a Plaintiff cannot get Enhanced Compensatory Damages when hit by a drunk driver because the act of drunk driving does not constitute “wanton or malicious” conduct as defined at common law for purposes of enhanced damages. This issue has been tested on several occasions and several Superior Court justices have indicated that there is another activity such as driving at a high rate of speed or other conduct that enhanced damages may be awarded in a drunk driving case. Recently, in Walker v. Bennett, docket #216217-CV00151, the Court found that the view that drunk driving not qualifying as “wanton or malicious” conduct warranting enhanced damages was increasingly out of step with the majority of jurisdictions in the country, noting New Hampshire as the only jurisdiction where punitive damages are unavailable in common law or statute in personal injury actions involving drunk drivers. The Court held that the question of whether the defendant’s conduct in the case was malicious, oppressive or wanton is appropriate for submission to the trier of fact.

The New Hampshire Supreme Court has not addressed this issue since Gelinas v. Mackey. However, given where we are as a society in 2018 and the lethal consequences of drunk driving, it may make sense from a public policy perspective to reexamine whether drunk driving should constitute “wanton or malicious” conduct and subject the perpetrator to enhanced compensatory damages.