A Primer on Punitive Damages in Kansas
| Publication year | 1995 |
| Pages | 22 |
64 J. Kan. Bar Assn. November, 22 (1995). A PRIMER ON PUNITIVE DAMAGES IN KANSAS
November, 1995
Copyright (c) 1995 by the Kansas Bar Association; Paul W. Rebein
I. INTRODUCTION
Picture this: Your client's husband was killed when a road-weary truck driver fell asleep, crossed over the median, and collided with her husband's car. Your client's husband still had a pulse when rescue workers arrived at the scene, but died on the operating table. The truck driver survived.
Your client wants to sue the truck driver and his employer. In the course of investigating the case, you discover the following facts: (1) the truck driver falsified his logs; (2) the trucking company was aware that its drivers were falsifying their logs; (3) the truck driver had a previous DUI conviction which his employer knew about; and (4) the trucking company had no safety program in place to monitor its drivers. [FN1]
Your client wants to sue the trucking company for punitive damages. Can you make such a claim? Before filing suit, there are several legal issues that must be resolved. For example, can you recover punitive damages in a wrongful death case? Can you recover punitive damages from the employer for the acts of the driver? Is there a cap on punitive damages?
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In Kansas, the answers to all of these questions can be found in Article 37 of Chapter 60 of the Kansas Statutes, entitled Punitive and Exemplary Damages (the Statute). The Statute sets out the conditions whereby punitive damages may be recovered and sets forth specific procedures for pleading and proving punitive damages. Before filing or defending any punitive damages case, Kansas lawyers must be intimately familiar with the Statute.
This article is designed as a road map through the twists and turns of the Statute. It discusses each of the provisions in the Statute and surveys the cases interpreting them. The article then discusses several issues which arise in connection with the Statute.
II. DISCUSSION
A. K.S.A. 60-3701 or 60-3702?
The first step in any punitive damages claim is deciding whether K.S.A. 60-3701 or 60-3702 governs the case. K.S.A. 60-3701 applies only to causes of action accruing on or after July 1, 1987, and before July 1, 1988. [FN2] K.S.A. 60-3702 applies to causes of action accruing on or after July 1, 1988. [FN3]
Other than the different dates of application, the only difference between K.S.A. 60-3701 and 60-3702 is that 60-3701 was written so as not to apply to any actions governed by another statute establishing or limiting the amount of punitive damages; [FN4] this provision does not appear in K.S.A. 60-3702. The remaining provisions in the two sections are the same and the case law interpreting them can be used under either statutory section. [FN5] As a matter of convenience, this article refers only to K.S.A. 60-3702.
B. Are Punitive Damages Appropriate?
K.S.A. 60-3702(a) provides that it applies "[i]n any civil action in which exemplary or punitive damages are recoverable." [FN6] The Statute restricts the availability of punitive damages to cases where the defendant acted with "willful conduct, wanton conduct, fraud or malice." [FN7]
Cases interpreting the Statute have held that an "act" is not required; passive acts of omissions are sufficient to warrant punitive damages under the Statute. [FN8]
Kansas cases have further limited the types of cases in which punitive damages are recoverable. As an initial matter, "[t]he law does require a cause of action independent of a claim for punitive damages" [FN9] because "[n]o separate right of action existed at common law for punitive damages." [FN10] In addition, as a general rule, a plaintiff must obtain a verdict of actual damages before punitive damages can be awarded. [FN11]
This does not necessarily mean that a plaintiff must have suffered actual damages to obtain punitive damages. "Punitive damages may be awarded incident to equitable relief without an award of actual damages." [FN12]
Another limitation Kansas courts have placed on punitive damages is that they are not recoverable in breach of contract cases, even if the breach is intentional and unjustified. [FN13] Punitive damages are, however, allowed if there is some independent tort present. [FN14]
Punitive damages are not recoverable in wrongful death actions under K.S.A. 60-1901. [FN15] Nor are they recoverable in a claim against an employer for the negligent hiring, supervision, or retention of an employee. [FN16]
C. Pleading Punitive Damages
1. In State Court
In state court, a plaintiff may not include a punitive damages claim in the initial petition. [FN17] Instead, the plaintiff must file a motion requesting leave to file an amended petition to plead punitive damages and file an affidavit
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showing that the plaintiff has a probability of prevailing on the claim pursuant to K.S.A. 60-209. [FN18] The motion and affidavits must be filed -- it is not sufficient to simply include a claim for punitive damages in the pretrial order. [FN19] Importantly, the motion and the supporting affidavits must be filed before the pretrial conference. [FN20]
The affidavit must contain facts, not just averments by the party. [FN21] The trial court is to consider the evidence presented in the affidavits "in the light most favorable to the party moving for the amendment" and permit amendment "if the plaintiff is able to establish there is a probability that he or she will prevail on the punitive damages claims at trial." [FN22] "Probability" as used in K.S.A. 60-3703 "means that it is more likely than not that the plaintiff will prevail on a claim of punitive damages upon the trial of the case." Id.
2. In Federal Diversity Cases
Federal courts in Kansas have held that K.S.A. 60-3703 is procedural, not substantive, and therefore the federal courts are not bound under the Erie doctrine [FN23] to follow it. [FN24] As a result, a plaintiff may plead punitive damages in the initial complaint. [FN25] This does not, however, exempt the plaintiff from responding to a motion for summary judgment and coming forth with specific facts supporting a claim for punitive damages. [FN26]
D. Proving Punitive Damages
1. In General
In order to recover punitive damages, the plaintiff has the "burden of proving, by clear and convincing evidence in the initial phase of trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice." [FN27]
a. Willful Conduct
Willful conduct is defined as "an act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another." [FN28]
b. Wanton Conduct
Wanton conduct is defined as follows:
Something more than ordinary negligence but less than a willful act. It must indicate a realization of the imminence of danger and a reckless disregard and indifference to the consequences. Wantonness is said to be the mental attitude of the wrongdoer rather than a particular act of negligence. Acts of omission as well as acts of commission can be wanton since reckless disregard and indifference are characterized by failure to act when action is called for to prevent injury." [FN29]
c. Fraud
Fraud, as that term is used in the Statute, has two definitions. In common law fraud actions, the plaintiff must prove five elements: false representations or omissions, known to be false or made with reckless disregard for their truth, intentionally made or omitted, reasonable reliance, and damages. [FN30] In professional liability actions brought pursuant to K.S.A. 60-3401 et seq., on the other hand, the plaintiff is only required to prove the elements of fraud in K.S.A. 60-3401(b), which does not include a reasonable reliance element. [FN31]
d. Malice
Malice is defined as "a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse." [FN32]
e. Clear and Convincing Evidence
All of these elements must be established by "clear and convincing evidence," which is defined as follows: "To be clear and...
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