In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1853

Tamara Purnick,

Plaintiff-Appellant,

v.

C.R. England, Inc. and David P. Belgrade,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99-CV-69-RL-2--Rudy Lozano, Judge.

Argued September 28, 2001--Decided October 19, 2001



  Before Flaum, Chief Judge, and Bauer and
Evans, Circuit Judges.

  Flaum, Chief Judge. Plaintiff Tamara
Purnick appeals the district court’s
grant of summary judgment in favor of the
defendants on her punitive damages claim.
For the reasons stated herein, we affirm.

I.   Background

  Just before midnight on July 24, 1999,
David Belgrade, a commercial driver for
C.R. England, Inc., rear-ended Tamara
Purnick’s car while driving a tractor-
trailer in the course of his employment.
Under federal regulations, a commercial
driver may spend no more than ten hours
on continuous duty. Belgrade, although
approaching the tenth hour of his trip,
had not surpassed this limit when he hit
Purnick’s car. The tractor-trailer was
equipped with a global positioning
satellite system ("Qualcomm") that
tracked the truck’s movement. Although
the Qualcomm showed that Belgrade’s truck
had not moved for seventeen hours prior
to the beginning of the trip that ended
in the crash, Purnick’s expert witness at
trial analyzed the data and found that
Belgrade had intentionally falsified his
written logs, indicating that he drove
beyond the ten-hour limit several times
during the week preceding the crash.
Belgrade admitted that when he hit
Purnick’s car, he was "mesmerized" by the
road, did not brake until after impact,
and could not recall when he first saw
the vehicle. Purnick filed a complaint
for compensatory and punitive damages in
Indiana state court on February 4, 1999.
Defendants removed the case to the
Northern District of Indiana on the basis
of diversity jurisdiction. Defendants
admitted their liability for negligence,
and the parties settled Purnick’s
compensatory damages claim. On June 9,
2000, defendants filed a motion for
summary judgment on the issue of punitive
damages. The district court granted that
motion and dismissed the remainder of the
case. Purnick now appeals that grant of
summary judgment.

II.   Discussion

  We review the district court’s grant of
summary judgment de novo, construing all
of the facts and reasonable inferences
that can be drawn from those facts in
favor of the nonmoving party. See Central
States, Southeast & Southwest Areas
Pension Fund v. Fulkerson, 238 F.3d 891,
894 (7th Cir. 2001). A grant of summary
judgment is appropriate if the pleadings,
affidavits, and other supporting
materials leave no genuine issue of
material fact, and the moving party is
entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).

  Under Indiana law, a plaintiff may
recover punitive damages only if he can
show by clear and convincing evidence
that the defendant engaged in conscious
and intentional misconduct that he knew
would probably result in injury. Dow
Chem. Co. v. Ebling, 723 N.E. 2d 881, 909
(Ind. Ct. App. 2000); see Wanke v. Lynn’s
Transp. Co., 836 F. Supp. 587 (N.D. Ind.
1993) (citing similar standard). Purnick
fails to meet this standard.
  Purnick argues that Belgrade’s
intentional falsification of log books
and habitual deprivation of sleep the
week before the crash culminated in his
dangerous fatigue at the time of the
crash. These acts of intentional
misconduct, Purnick contends, should give
rise to punitive damages. The punitive
damages standard in Indiana, however,
presents a high hurdle that Purnick does
not clear. Even assuming that Purnick has
shown that Belgrade falsified his logs,
drove beyond the ten-hour limit several
times in the week preceding the crash,
and was fatigued when he hit her car, she
presents no evidence that Belgrade
actually knew that his misconduct would
probably result in injury.

  It is arguable, though far from clear,
that a reasonable person would know that
driving beyond the ten-hour limit several
times a few days before a trip could lead
to a level of fatigue that would probably
result in injury. What a reasonable
person would know is not the test for
punitive damages in Indiana, however.
Wanke, 836 F. Supp. at 599 ("Mere
negligence will not support an award of
punitive damages in actions arising in
tort; failing to act as a reasonable
person would have acted does not
constitute the kind of conduct punishable
by punitive damages under Indiana law.").
Purnick simply cannot show that Belgrade
actually knew that he was so tired that
continuing to drive would likely cause
injury; in fact, the Qualcomm shows that
he did not drive for the seventeen hours
before the trip that ended in the crash--
evidence that tends to show that Belgrade
likely thought he was rested.

  The fact that Belgrade intentionally
falsified log books, by itself, does not
support the grant of punitive damages. It
simply is not misconduct that would
probably result in injury or that
actually caused the injury. The log
violations, even when construed in the
light most favorable to Purnick, are
merely evidence that Belgrade drove
beyond the ten-hour limit earlier in the
week and, therefore, may have been tired
when he hit Purnick’s car. They do not
show Belgrade’s knowledge that an
accident would probably occur, however.
The fact that Belgrade intentionally
lied, even if correct, is beside the
point; it does not evidence his intention
to consciously behave in a way likely to
cause injury. Purnick’s conclusory claim
that Belgrade intentionally and
systematically caused himself to become
fatigued, and that he was aware that
driving in this state would likely cause
injury, is unavailing. She presents no
evidence of the amount of sleep Belgrade
actually got the days prior to the crash.
Her only support for the contention--that
he drove beyond the ten-hour limit on
several occasions before the accident--is
weak.

  Purnick argues that the district court
applied the wrong standard in requiring
clear and convincing evidence of
proximate cause, and that Belgrade
conceded cause when he admitted to his
negligence. This contention fails,
however, because she presents no valid
evidence that any intentional misconduct
that Belgrade knew could result in injury
proximately caused the crash; by
admitting that his negligent driving
caused the accident, Belgrade did not
concede that his excessive driving, sleep
deprivation, or even fatigue was the
cause. Also, Purnick does not even
attempt to show that Belgrade knew that
his actions would probably cause harm.
See Burke v. Maasen, 904 F.2d 178, 183
(3d Cir. 1990) (evidence that defendant
violated the ten-hour driving limit does
not show that he "consciously appreciated
the risk of fatigue and the potential for
fatal accidents that accompanies driving
for more than ten hours" under the
Pennsylvania punitive damage standard,
which is nearly identical to that of
Indiana). Belgrade had taken seventeen
hours off before beginning his July 24
trip; there is no evidence that he knew
that driving in his condition would
probably cause harm to Purnick or to
anyone else. A court will impose punitive
damages under Indiana law if a defendant
"knew of, but consciously disregarded,
the likely injurious consequences of his
course of conduct." Wanke, 836 F. Supp.
at 600. Purnick does not present evidence
to meet this standard.

III.    Conclusion

  Punitive damages may be awarded "only
upon a showing by clear and convincing
evidence that the defendants subjected
other persons to probable injury, with an
awareness of such impending danger and
with heedless indifference of the
consequences." Id. at 599 (quoting Bud
Wolf Chevrolet v. Robertson, 519 N.E. 2d
135, 137 (Ind. 1988)). Purnick does not
make such a showing. For the reasons
stated herein, the judgment of the
district court is AFFIRMED.
