¶1concurring 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.
¶2Rather, 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.