Smith v. Printup
| Decision Date | 30 December 1993 |
| Docket Number | No. 67591,67591 |
| Citation | 254 Kan. 315,866 P.2d 985 |
| Parties | , 62 USLW 2464 Barry L. SMITH, Administrator of the Estate of Glen C. Smith, deceased, et al., Appellants/Cross-Appellees, v. Albert PRINTUP and American Red Ball Transit Company, Inc., Appellees/Cross-Appellants, and Southwest Movers, Inc., American States Insurance Co., and Hartford Accident & Indemnity Co., Appellees, and Kansas Turnpike Authority; Myers Construction Company; and Allied Laboratories, Defendants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A.1992 Supp. 60-3701 does not create a classification that results in disparate treatment of similarly situated individuals. Its application does not violate the Equal Protection Clause of the United States Constitution.
2. At common law, punitive damages did not constitute the basis of a cause of action. Punitive damages never were more than incidents to an action for real and actual damages suffered by the plaintiff.
3. Punitive damages are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant. No right of action for punitive damages is ever given to any private individual who has suffered no real or actual damage.
4. At common law and until the passage of K.S.A.1992 Supp. 60-3701 et seq., the amount of punitive damages was an issue for the jury to resolve. After passage of K.S.A.1992 Supp. 60-3701 et seq., the jury under proper instruction determines whether punitive damages should be awarded, and the court, if the jury recommends such an award, determines the amount of the award.
5. Trial by jury is guaranteed only in those cases where the right existed at common law. While juries historically have determined the amount of punitive damages to be awarded, the right to have a jury determine the amount of damages extends only to the determination of the amount of compensatory damages.
6. Compensatory damages fall into the category of a remedy at common law. Punitive damages were not a remedy at common law.
7. Punitive damages are more in the nature of an equitable action, that is, a punitive action for the purposes of punishing the wrongdoer and deterring any such future conduct.
8. A plaintiff does not have a right to punitive damages; the legislature could, without infringing upon a plaintiff's basic constitutional rights, abolish punitive damages. If the legislature may abolish punitive damages, then it also may accomplish anything short of that, such as requiring the court to determine the amount or capping the amount, without impinging upon the right to trial by jury.
9. The legislative change from jury to judge in the determination of the amount of punitive damages does not affect the plaintiffs' right to trial by jury under the Kansas Constitution. The legislature was free, therefore, to choose the method of determining punitive damages without implicating plaintiffs' due process rights.
10. An action for wrongful death is a creature of statute. K.S.A. 60-1901 et seq. does not authorize punitive damages and specifically identifies the types of damages that are recoverable. In the absence of an express provision in the wrongful death statute authorizing punitive damages, we hold that punitive damages are not recoverable in a wrongful death action in Kansas.
11. K.S.A.1992 Supp. 60-3701(d)(2) limits an employer's liability for punitive damages for its employees' conduct to those cases in which the employer authorized or ratified the employees' conduct. Under this statute, in a claim for punitive damages, the employer's or principal's alleged negligent acts in hiring, supervising, or retaining the employee/agent may not be advanced as a separate claim for punitive damages.
12. Admissibility of evidence with regard to a claim for punitive damages involves consideration of what is meant by "authorized," "ratified," "the questioned conduct," and "by a person expressly empowered to do so on behalf of the principal or employer," all as used in K.S.A.1992 Supp. 60-3701(d)(1). The statutory language is considered and applied.
13. On the facts of this case, the district court's failure to define by instruction the term "authorization" under K.S.A.1992 Supp. 60-3701(d)(1) was clearly erroneous.
14. An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant's claim of alleged error fails.
15. K.S.A.1992 Supp. 60-3701(b)(5) provides that subsequent remedial measures are relevant and admissible on the issue of punitive damages. The statute allows the court to consider "the attitude and conduct of the defendant upon discovery of the misconduct."
16. Absent unusual circumstances, evidence about settlement offers and negotiations is inadmissible when offered for the limited purpose of defending against an award of punitive damages. Unusual circumstances existed in this case that supported the court's admission of evidence about settlement negotiations in the proceeding to determine the amount of punitive damages to be awarded.
17. Punitive damages are awarded to punish the wrongdoer. The amount of the award is to be calculated with the individual defendant's financial status and conduct in mind. Joint and several liability undermines 18. A claim for treble damages pursuant to K.S.A. 66-176, involving violations of the law regulating common carriers, must be timely presented.
these considerations and therefore is unavailable.
Randall E. Fisher, of Michaud, Hutton & Bradshaw, Wichita, argued the cause and was on the briefs, for appellants/cross-appellees.
Dennis D. Webb, of Shultz, Webb & Lonker, Wichita, argued the cause and was on the briefs, for appellee/cross-appellant Albert Printup.
Stephen M. Kerwick, of Foulston & Siefkin, Wichita, argued the cause, and Jay F. Fowler and Craig W. West, of the same firm, were with him on the briefs, for appellee/cross-appellant American Red Ball Transit Co., Inc.
Vince P. Wheeler, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Randy J. Troutt, of the same firm, was with him on the briefs, for appellees Southwest Movers, Inc., and American States Ins. Co.
Philip L. Bowman and Teresa J. James, of Adams, Jones, Robinson & Malone, Chartered, Wichita, were on the brief, for appellee Hartford Acc. and Indem. Co.
Robert E. Keeshan, of Hamilton, Peterson, Tipton & Keeshan, Topeka, was on the brief, for amicus curiae Kansas Trial Lawyers Ass'n.
This appeal arises out of a punitive damage award in a wrongful death and survivor action. None of the issues involve the award of compensatory damages.
The facts giving rise to the cause of action are as follows.
Near midnight on September 15, 1987, defendant Albert Printup was driving a moving van southeast in the right lane on the Kansas Turnpike near the Andover exit. He lost control of the van, jackknifed, crossed the median, and collided with a pickup truck operated by Carolyn S. Elliott. Glen C. Smith was a passenger in the pickup driven by Ms. Elliott. As a result of the collision, Ms. Elliott died instantly. Mr. Smith suffered massive chest and other severe injuries but had a pulse and was breathing and groaning after impact. He died at the scene. Albert Printup survived.
Albert Printup was employed by Southwest Movers, Inc. (Southwest). He was paid a flat salary, with no bonuses for extra hours or miles. At the time of the accident, he had been "leased out" to American Red Ball Transit Company, Inc., (Red Ball) for the last four to five years. He had not driven for anyone else during that period of time. Red Ball dispatched him, and he turned in his shipping documents and driving logs to Red Ball. He turned in his expense receipts to Southwest for reimbursement.
Plaintiffs sued Printup, Southwest, and Red Ball for wrongful death and, with respect to Mr. Smith, for pain and suffering. The court allowed the Smith plaintiffs to amend their complaint to seek punitive damages in accordance with K.S.A.1992 Supp. 60-3703 against Southwest, Printup, and Red Ball in conjunction with their survivor action. The court ruled that punitive damages were not recoverable in the wrongful death actions.
From the very beginning, plaintiffs challenged the constitutionality of K.S.A.1992 Supp. 60-3701. The trial court rejected this contention and found the statute to be constitutional. On summary judgment, the trial court rejected plaintiffs' claim that they were entitled to punitive damages based on the allegation that Southwest and Red Ball negligently hired, retained, supervised, and trained Albert Printup. The court allowed Smith to present punitive damage claims against the corporate defendants, but, in accordance with K.S.A.1992 Supp. 60-3701(d)(1), only to the extent that the corporate defendants authorized or ratified Printup's conduct. The jury determined that punitive damages should be awarded against Printup and Red Ball, but not against Southwest. The court awarded punitive damages in the amount of $20,000 against Printup and $100,000 against Red Ball.
This was a long and hard-fought case. The record on appeal is voluminous. In addition to the parties' briefs, the Kansas Trial Lawyers Association has filed an amicus curiae brief. Most issues raised are questions of law not dependent upon the facts. Some issues, however, are fact sensitive, and, to the extent necessary, those facts will be discussed in the opinion so that the reader may better understand our decision.
Plaintiffs raise 11 separate issues; Printup raises two issues in his cross-appeal; and Red Ball raises one issue in its cross-appeal. All issues center upon the court's award of punitive damages. No party has appealed the jury verdict awarding compensatory damages.
Plaintiffs raise the following issues:...
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