McDermott v. Kansas Public Service Co.
| Decision Date | 17 January 1986 |
| Docket Number | No. 57184,57184 |
| Parties | LeRoy McDERMOTT, Appellee, v. KANSAS PUBLIC SERVICE COMPANY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Punitive damages are allowed not because of any special merit in the injured party's case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party's rights, the purpose being to restrain and deter others from the commission of like wrongs.
2. The purpose of punitive damages is to sting, not to kill, a defendant.
3. Whether punitive damages may be recovered in a second action between different plaintiffs and the same defendant must be determined on a case-by-case basis. Such an award does not violate due process.
4. Offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.
5. Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has already litigated and lost against another defendant.
6. An issue is res judicata only when there is a concurrence of four conditions, namely, (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made.
Justice B. King, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and Olin Petefish, of Petefish, Curran & Immel, Lawrence, and Glenn McCann, of Knipmeyer, McCann, Fish & Smith, Kansas City, were with him on the brief for appellant.
Pedro Luis Irigonegaray, of Irigonegaray, Eye & Florez, Topeka, argued the cause and was on the brief for appellee.
Thomas L. Theis and Jeffrey W. Jones, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, were on the brief for amicus curiae Kansas Ass'n of Defense Counsel.
This is an appeal by defendant, Kansas Public Service Company, from a judgment entered against it and in favor of the plaintiff, LeRoy McDermott, following a jury trial in Douglas County. This is a companion case to Kearney v. Kansas Public Service Co., 233 Kan. 492, 665 P.2d 757 (1983). This case was consolidated with the Kearney case for the purpose of that appeal.
On December 15, 1977, McDermott was the lessee of a third-floor apartment in a building commonly known as 747 Massachusetts Street, Lawrence, Kansas. Shortly after midnight on that date, defendant's two-inch plastic gas main under the alley behind the building pulled out of a compression coupling which joined it to a steel gas main. Natural gas escaped through the separation and flowed into the building where plaintiff leased his apartment. Within an hour after the separation the accumulated gas exploded, and the building, including plaintiff's apartment, was damaged by the explosion and the resulting fire. For further factual background as to the cause of the catastrophe, we refer to Justice Holmes' opinion in Kearney.
There are two principal issues on this appeal. First, defendant contends that the trial court erred in submitting the issue of punitive damages to the jury when that issue was previously submitted to and determined by a jury in Kearney, and second, defendant claims that the trial court erred in finding that collateral estoppel barred the defendant from relitigating the issue of liability, and consequently that the court erred in refusing to submit that issue to the jury.
The Kearney jury, in addition to awarding compensatory damages, returned a verdict in favor of the plaintiffs in that case, Edgar Dale Kearney and Helen C. Kearney, for $80,000 in punitive damages. The issue was submitted under the usual instruction:
"If you find that the conduct of the defendant Kansas Public Service Company was wanton, then in addition to the actual damages to which you find plaintiff entitled, you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant Kansas Public Service Company and to deter others from like conduct."
In the present case the issue was submitted to the jury under the following instruction:
The jury returned a verdict in favor of the plaintiff, LeRoy McDermott, for the loss of academic materials and other personal property in the amount of $100,348, and for punitive damages in the amount of $100,000.
Kansas Public Service (hereafter KPS) calls our attention to three factors in support of its first argument. It first points out the nature and purpose of punitive damages. We agree that punitive damages, by definition, are not a right of every plaintiff, but are awarded in certain cases to punish the defendant and not to compensate the plaintiff. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl p 17, 681 P.2d 1038, cert. denied 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984), we stated the principle as follows:
"Punitive damages are allowed not because of any special merit in the injured party's case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party's rights, the purpose being to restrain and deter others from the commission of like wrongs."
See also Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759-60, 69 L.Ed.2d 616 (1981), where the United States Supreme Court said:
KPS also points to the fact, noted above, that punitive damages have already been assessed against it, and finally, KPS contends that it is being punished for the same act for which it was punished in Kearney. Both cases arose due to damages caused by the same explosion and resulting fire, the result of defendant's failure to properly connect a plastic pipe to a steel gas main.
Defendant and amicus curiae both cite a number of cases that discuss a concern over multiple punitive damage awards. One of the first cases to reflect this concern was Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1967). That was a products liability action for personal injuries resulting from the use of a drug manufactured by the defendant. Both compensatory and punitive damages were claimed. More than 1500 such lawsuits were filed. The Roginsky court was concerned that an award of punitive damages in a large number of those cases would be staggering. The Roginsky court disallowed the award of punitive damages, however, not because of the multiplicity of punitive claims but because the evidence presented on trial was not sufficient to allow the issue to go to the jury. In a later Oregon case, State ex rel Young v. Crookham, 290 Or. 61, 618 P.2d 1268 (1980), the court discussed Roginsky and said:
In State ex rel. Young v. Crookham, the Oregon Supreme Court faced the issue of whether Oregon should adopt the "one bite" or "first comer" theory, so that the award of punitive damages to the first plaintiff would preclude the recovery of punitive damages for all subsequent plaintiffs. In a lucid and well-reasoned opinion, Oregon rejected the "one bite" theory, concluding that such a rule would threaten to reduce civil justice to a race to the courthouse steps, would provide a windfall to the first plaintiff, and would not be fair. The court points out possible alternatives such as class actions, remittitur, total elimination of punitive damages in mass litigation, and jury consideration of earlier and possible future punitive awards in each case. We have found no case holding that a plaintiff is prohibited from recovering punitive damages from a defendant merely because a previous plaintiff has recovered punitive damages from the same defendant based on the same conduct. Our Court of Appeals faced the same issue in U.S.D. No. 490 v. Celotex Corp., 6 Kan.App.2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). In that case, Celotex argued that a mass-marketer should not be subject to a multiplicity of punitive damage awards when the alleged misconduct does not give rise to damages different in kind and degree from those suffered by all other users affected by the product. The Court of Appeals stated:
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