# Cabe v. Lunich

> Ohio Supreme Court · October 26, 1994 · 70 Ohio St. 3d 598

URL: https://www.frixlaw.com/law-library/cases/6770373

## Case

- **Full name:** Cabe v. Lunich
- **Court:** Ohio Supreme Court
- **Decided:** October 26, 1994
- **Citations:** 70 Ohio St. 3d 598; 640 N.E.2d 159
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wright
- **Judges:** Douglas, Moyer, Pfeifer, Resnick, Sweeney, Wright
- **Cited by:** 91 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6770373

## How later opinions describe it (automated extraction)

- holding that “evidence that a negligent driver had consumed alcohol prior to a vehicular accident is relevant and admissible to establish whether the driver can be deemed to have acted with actual malice justifying the award of punitive damages,” and concurring with courts tha…
- stating that "drinking and driving may well, under the circumstances of each individual case, constitute the kind of reckless, outrageous behavior" that would justify a jury's award of punitive damages
- observing that in a claim for malicious prosecution "[m]alice may, but need not be, inferred from the absence or lack of probable cause[.] * * * The existence of malice is determined from all the facts and circumstances in the evidence"

## Opinion text

Wright, J.,
concurring in part and dissenting in part. I concur in the opinion except as to paragraph four of the syllabus to which I dissent. I do not believe that a plaintiff should be entitled automatically to an instruction on punitive damages because a defendant exercised his or her statutory right to refuse to submit to a chemical test in accordance with R.C. 4511.19 and 4511.191. Ohio’s implied consent law may justify the suspension of the driving privileges of a driver who refuses to take the test, but in my view the implied consent law simply has no relation to whether a driver acted with actual malice, nor should we so hold.
Rather, the plaintiff should be required to submit evidence of the defendant’s intoxication. In the present case, the appellee’s own admission and other evidence indicated she was intoxicated. Therefore, I concur in the judgment not because appellee refused to take the test, but because the evidence of intoxication makes it a jury question whether appellee acted with “actual malice” as defined in Preston v. Murty (1987), 32 Ohio St.3d 334 , 512 N.E.2d 1174 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6770373. Public record. Not legal advice.