¶1 dissenting.
¶2 An award of punitive damages against a tortfeasor is allowable in this state to date, even though there is great pressure upon the legislature and judiciary to limit or deny such recovery.
¶3 Under rule and case law, leave to file an amended complaint should be freely given in the interest of justice and is within the sound discretion of the court. It is also incumbent upon the party seeking to amend to establish operative facts which support the claim sought to be pleaded. In this I agree with the majority.
¶4 In this cause, appellant presented facts from which the trier of fact could find that appellee’s mental state was one of conscious disregard for the rights and safety of other persons and therefore constituted actual malice. It appears that the same circumstances which are not sufficient to allow the award of punitive damages in a civil matter are sufficient to establish beyond a reasonable doubt the culpable mental state necessary to convict in the prosecution of a traffic charge. An operator of a motor vehicle may be incarcerated for his driving violation, but the injured party may not recover punitive damages as a result of the same acts.
¶5 I believe the trial court had sufficient operative facts presented to allow the amendment of the complaint and the denial of leave to file was an abuse of discretion, and therefore I dissent.