Maybe. But that circumstantial evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty.  Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065, 1090. The Louisiana Supreme Court recently granted writs in a case to answer how convincing circumstantial evidence of intoxication has to be to survive summary judgment. The case is Obadiah Stephenson, Jr. v. Bryce W. Hotard, Sunbelt Rentals, Inc. and Travelers Property and Casualty Company of America, Docket No. 2019-CC-0478 in the supreme court, decided May 20, 2019.

The question of intoxication is important because drunk/high driving cases are one of the few in which punitive damages are allowed in Louisiana. Compensatory damages are damages that compensate the victim for the damages they suffered such as lost wages, medical expenses, and pain and suffering. Punitive damages are meant to punish the wrongdoer and deter similar wrongful conduct. Despite some tort reformers’ allegations that Louisiana is a uniquely plaintiff-friendly state, the Louisiana Civil Code only allows punitive damages in a few instances, contrary to some other states that allow them in a wider range of cases. In the decision, the supreme court cited Louisiana’s general public policy against punitive or exemplary damages.

In the present instance, the plaintiff only could allege that the defendant driver seemed nervous after the accident, was sweaty, and had droopy eyes. The plaintiff driver did not testify that the defendant smelled like alcohol and there was no third-party testimony supporting intoxication. The plaintiff did allege the defendant driver did not follow his employer’s protocol requiring him to report the accident and submit to a blood test. The plaintiff argued that he should benefit from an adverse inference against the defendant due to spoliation of evidence, but the court found that failing to submit to a blood test did not amount to spoliation of evidence.

This case may seem damaging to plaintiffs seeking to recover punitive damages in drunk driving cases, but the decision seems to be very fact specific. Seemingly, slightly stronger evidence of intoxication could have allowed the plaintiff to survive summary judgment and present the question of intoxication and punitive damages to the jury.