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Click here for the full text of this decision FACTS:USA Truck driver Donald Ray Jones was on his way from Chattanooga to Dallas, carrying a load of motorcycles in his 18-wheel rig. He left Chattanooga at 6 a.m. on Dec. 21, 2000. Approximately 18 hours later, Jones neared his home in Sulphur Springs and decided to stay there overnight. Jones decided it would be better to back his truck into his driveway off the highway, so he could drive forward in the morning, instead of having to drive in forward now and back up into the highway in the morning. To back his truck into his driveway, Jones had to maneuver his truck so that it blocked oncoming traffic. Jones checked for traffic for 30 second before making the maneuver. As Jones backed into his driveway, straddling the highway, he saw headlines approaching the rig. Jones flashed his lights to get the driver’s attention, but the driver did not stop. Instead, the driver, Nathan Gary Condor, ran into the side of the truck and was killed. Condor’s mother, Patricia West, sued Jones and USA Truck. A jury found Jones 50 percent liable for the accident, Condor 30 percent liable and USA Truck 20 percent at fault. The jury also found that the harm to Condor resulted from malice by Jones. Jones appeals the finding on malice. HOLDING:Affirmed. The court uses the following definition of malice to guide its review: an act or omission: 1. which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and 2. of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety or welfare of others. The court finds the first factor met by such evidence that Jones backed his truck across lanes of oncoming traffic on an urban highway on a moonless night, that Condor would have been confused by Jones’ flashing headlights, that Jones’ acts were generally risky and that Jones had driven longer than he was supposed have under relevant regulations. The court rejects Jones’ argument that he had performed the same maneuver on previous occasions without incident. Even if Jones had done the same time on previous occasions, the jury was not precluded from finding that Jones’ actions were objectively extremely risky on the night of the accident. The court then turns to the second prong of the definition of malice. The court notes that Jones admitted he was aware of the danger of backing across the highway lanes. Combined with the other evidence, this is sufficient to show that Jones had actual, subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety or welfare of others. Responding to Jones’ assertion that it was safer to back into the driveway at night rather than during the day, the court says a jury is not precluded from finding that he was consciously indifferent to the safety of others, even assuming the truth of Jones’ assertion. “If one is in a crowded room, throwing a knife may be safer than shooting a gun. But, to proceed with either action is to act with a conscious disregard for the safety of others.” The court upholds the punitive damages awarded against Jones, too. In the list of factors that are to be considered when weighing the propriety of a punitive damages award, the only one that is “ambivalent” is the one on whether the defendant’s conduct greatly offends a public sense of justice and propriety. “There is no evidence that Jones intended to harm anyone or that he had previously harmed others by backing into his driveway. However, Condor was killed, Jones showed little remorse, and there is ample evidence to support the jury’s determination that Jones acted with malice. We hold that the jury’s assessment of punitive damages was not excessive.” The award is constitutionally sound, too, under U.S. Supreme Court standards: “Here, the harm was predominantly physical, resulting in the loss of human life. The jury determined, and the evidence supports, that Jones acted with a conscious disregard for the safety of others. Because the harm was mostly physical, the financial vulnerability of the victim is less important. The evidence shows the conduct which resulted in Condor’s death had been performed repeatedly, albeit without harm. Finally, while the harm was not the result of intentional malice, trickery, or deceit, it was more than a mere accident. Weighing these five factors to determine the reprehensibility of Jones’ conduct, we find the evidence supports the jury’s award.” OPINION:Ross, J.; Morriss, CJ, Ross and Carter, JJ.

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