*1 majority go I much further. would court’s all My opinion declare that contracts would call future controver-
which for submission of 23, § are violative of Art.
sies to arbitration § The terms of 8
and hence unenforceable. promise-based
explicitly prohibit waivers of may arise in the
constitutional benefit that party’s
course future contractual deal- law
ings.6 Because our fundamental abso- judicial
lutely exec- interdicts enforcement of
utory ex to relin- contractu commitments may
quish be avail- constitutional futuro, in arise I disputes
able would
today pronounce legally agree- as infirm all require any fu-
ments which submission controversy
ture to arbitration.7 RODEBUSH, By Through H.
Glen RODEBUSH, guardian
Zelda ad friend, Appellee,
litem and next HOMES,
OKLAHOMA NURSING
LTD., Appellant.
No. 73340.
Supreme Court of Oklahoma.
Dec. 1993. Okl., target § Massey Art. 8 do not Group, 7. The terms of v. Farmers Ins. P.2d validity waivers forensic access is C.J., of all (1992) concurring (Opala, re- arbitration; all their renounced nor forms of sult); Independent Dist. School No. Raines promise-based sweep surrender is confined Okl., (1990) (Opala, 304-305 Nothing pre- §in benefit. constitutional J., Reynolds, concurring); V.C. Dean Witter Inc. praesenti or one that is effect- cludes a waiver Shear, Okl., (1990); Long v. (Raines, supra ed declaration DeGeer, Okl., (Opala, V.C.J., 11-14) (Opala, *2 Threlkeld, E.
Tom Mullen Ann M. Fenton, Smith, Fenton, Moon, & Reneau City, Mattingly, Matting- and Jack Snow, Seminole, ly appellant. & *3 SUMMERS, Justice: concluded that an intoxicated patient slapped nurse’s aide an Alzheimer’s him, bathing in the face and while awarded punitive damages in the million sum $1.2 nursing nursing against home. The appeals. home affirm. We appeal The defendant’s theories on are (1) these: as it must be held responsible tort of for the intentional its em- (2) ployee; no and there was clear evidence, statute, required by showing as n allow open-ended would damages; and Oklahoma damages regimen violates the defendant’s right process to due federal under the Con- stitution. Rodebush, a
Glen victim of Alzheimer’s disease, was a resident of the New Horizon Nursing Home. His condition caused him sometimes be combative. New Horizon is Homes, Nursing Oklahoma Ltd. owned day question Rodebush’s wife ar- On noon, at the rived home around and large and marks on Rode- found welts red his physi- bush’s face. demanded that She examined. cian be called and Rodebush was his red opinion'that The doctor offered by slaps of a marks had been caused human and that the marks were between six hand twelve hours old. morning Earlier that Rodebush had been strapped into a chair for use awakened and whirlpool injuries No face in a bath. A at time. male were observable whirlpool nurse’s aide wheeled him into gave him scheduled bath bathroom approximately 6:30 A.M. two were together thirty M- alone for about minutes. bath, reported a ter the the nurse’s aide supervisor face. “rash” Rodebush’s Serivner, report- present “rash” was was not when the and James R. Michael G. Smith Ada, Smith, Serivner, late When the appellee. ed because she was to work. & Shew arrived, supervisor thirty about five minutes tions. The violations included failure to late, she the aide him properly confronted and found personnel, train failure to follow in liquor. “par- to smell of He told her he timely had procedures manner the for an intoxi- night tied” all stopped and had employee, cated failure to have a licensed partying in time to come to work. The su- duty incident, nurse on at the time of the pervisor sent him home. He clocked out at notify failure to physi- the next of kin or the approximately 7:30 a.m. cian. The nurse’s aide had been hired New Rodebush, guardian Zelda ad litem for cheek, any background Horizon without con- husband, brought her against suit
trary policy. background home A Homes, Nursing alleged neg- Ltd.1 The suit prior check would have revealed the aide’s ligence in hiring practices supervision *4 felony conviction of a violent and employees Horizon, part —assault New battery with kill. intent to He had also been physical intentional injury infliction of and escape carrying convicted of weapon and emotional distress as to Mr. Rodebush and felony. after former conviction of a the intentional infliction of emotional distress as to Zelda Rodebush. At the conclusion of Furthermore, nursing the records of the case, the defendant’s the trial court dis- any home are training void as to or instruc- missed the action for intentional infliction of given tion prior assignment to the aide to his Zelda, emotional brought by distress but re- geriatrics trial, in the ward. At the head fused to dismiss the claim of Glen Rodebush nurse testified that given the aide had been negligence based on either injury. or wilful training, but that proving the documentation training such misplaced. had been She stat- court, The trial pres outside the ed that positive she was given he had been jury ence of the pursuant and to 23 training given because all training aides are O.S.Supp.1986 § also finding made a they before start. clear and evidence showed that wanton, After the the conduct incident with Rodebush the was wilful aide and and that suspended days was for working damages two for in excess of the actual Upon while investigation by damages intoxicated. permitted. would be jury The re Services, Department of Human turned a verdict in plaintiff favor of the Glen home was found to be violation of several Rodebush on negligence both theories of and regulations, reported and was misconduct2, these viola- wilful awarding $50,000.00 him Still, 1. Two (Okla.1991); other defendants were dismissed from the v. 819 P.2d Alpine Jones v. plaintiffs’ request. suit at Investments, (Okla.1987); 764 P.2d Moth Mothershed, ershed v. dissenting opinion Appeals' The in the Court of However, we objec- also note that there was no opinion, opinion, suggests and the dissent to this during tion to the verdict trial or at the close of requires that a flawed verdict form that the case long evidence. A discussion was had be sent back for new trial. The verdict form parties regard and the trial court with to the jury plaintiff stated that the found in favor of the instructions, question objection but no or II, $50,000.00 awarding on both counts I and ever raised as to the form of the verdict. Where damages. actual The verdict form stated that if party object fails to to the form of the verdict jury plaintiff found in favor of the on count discharged, before objection is II, misconduct, punitive damages the wilful Muskogee Stockyards waived. Downum v. & (Count could be simple awarded. I was for Auction, Inc., (Okla. Livestock 565 P.2d negligence only) filled in the blank line 1977) (plaintiff object did not to the form of the $1,200,000. dissenting with comparative negligence, verdict in a case of judge punitive damages may states that because waived); Montgomery such error Ward & Co. given only be when actual have been Oldham, (Okla.1964) awarded, (sepa- 391 P.2d and because it is unclear from the rate together causes of action were verdict form submitted whether actual were II, although practice awarded the better for count the case must is to submit the be sent back separately, for a new trial. This issue is causes it is not not raised reversible error if parties. Generally objection by parties prior we will not there is no issues consider to the presented by parties appeal. discharge jury). Wilson An $1,200,000.00 puni- go, Okl. damages and in actual employee’s scope employ act is within the damages. being ment if it is incident to some service appealed Nursing Homes Oklahoma performed employer out of arises brief, In its Appeals affirmed. the Court response being an to actions taken emotional Nursing specifically Homes waives Carter, Id.; Brayton employer. regard jury’s any arguments with (1945) (auto 196 Okl. negligence. finding liability based on It scope mobile accident held to within be finding that seeks reversal employment though even the accident oc for the intentional tort of defendant is liable twenty-eight curred a route that was employee, subsequent award of its way); City Sapul miles out of the Com granted We certiorari. (1941)(the 418,110 pa, 188 Okl. petition properly a demurrer based withstood the employee on the fact that could have FOR EMPLOYER’S RESPONSIBILITY acting employ of his been within THE TORTS OF INTENTIONAL though illegal he ment made an u-turn even HIS EMPLOYEE assigned employer). to a for his while task the trial home asserts instance, In such an an can be held *5 holding the nurse’s aide court erred in that employee beyond liable if the acts the even acting scope employment. of within was authority. v. given Patsy Oil & Gas Co. slapping the aide’s action of It claims that (em Odom, 186 Okl. against the home’s Rodebush was ployer responsible employee’s the held for policy suggested and not been as meth- had taking dynamite caps gas to an oil and well of blocking of an Al- od of the combativeness employer though even had not authorized the hand, patient. plain- On the other zheimer’s dynamite rig). of It is use the the burden acting to the aide fur- tiff asserts that was plaintiff employee the to the was of show that employer, the the of was ther business employment. acting scope the of his within by assigned to him the performing a task Sandford, Railway Co. v. place incident while the employer. The took bathing was Rodebush. aide Express Culp, In v. Mistletoe Serv. (Okla.1959), held an assault P.2d this Court rule, not general it is within As a by a truck driver to be within on customer scope employment to employee’s of an the driver, employment. truck scope the of upon person. an third Hill commit assault tendencies, was to a man violent sent of McQueen, 204 Okl. v. a television tube to a customer. deliver Drivers, (1951); Tulsa see also General tube, claiming that it customer refused the Helpers Union Con Warehouseman damaged. it had The driver returned been (Okla.1955); Cooley on ley, 288 P.2d to employer. employer the declined to However, Torts, §§ 4th Ed. damage pay and directed that for the general apply does not when the act this rule Dur- tube to the customer. be re-delivered “fairly naturally which incident is one is attempt to of this second the course business”, and “while the is done item, fight ensued and deliver the upon engaged the master’s busi servant was injured. Looking Hill v. to done, mistakenly customer was although or ill and be ness McQueen, rule of this Court stated advisedly, view to further master’s with a “scope employment” must be considered interest, of impulse of emotion or from some at 15. ob- an basis. Id. We individual naturally grew out of or was incident which employer in order an to be served that perform the master’s attempt to busi to acts of its em- responsible for the tortious Super-Service Inc. ness.” Russell-Locke giving ployee, must be act it shown Vaughn, 170 Okl. pur- complaint (1935); done Bridge rise “was Co. Car See Ada-Konawa pose doing assigned-” requires of the work legislation Id. at ment our of review facts, concluded that under the We imposed procedure a new for the consider- carrying duty assigned driver was out a ation of Title 23 O.S.1991 him perfor- and the assault out of the arose 9,§ the text of which was in effect at time of duty.3 manee of this trial, provides: Russell-Locke, Similarly, in we held that any A. In action for the breach of an employer an could be held liable for the obligation contract, arising from where employ- caused an an assault guilty the defendant has been of conduct There, employer storage ee. sold batter- evincing a disregard wanton or reckless failing payment ies. After to receive from a another, rights oppression, of fraud or customer, sent an malice, presumed, jury, actual or repossess battery. fight A arose when damages, may give addition to the actual employee attempted repossess the bat- example, for the sake of tery. Holding that the assault was within way defendant, punishing of in an employment, of we stated this was exceeding amount not the amount actu- prime example employee carrying Provided, however, al awarded. out assigned the duties to him. Id. 40 P.2d at the conclusion the evidence and. if at 1094. prior to the submission the case to the jury, find, the court shall on the record present In the case the nurse’s aide presence and out jury, assigned duty bathing residents. there is clear and evidence that It was also a known fact that Alzheimer guilty evincing defendant patients may be combative. The a wanton or reckless home taking the business of care of another, oppression, fraud or mal- patients. case, Alzheimer In particular *6 ice, presumed, actual or jury my then the particularly Rodebush was known to be com give damages example, the sake and being bative when bathed. The nurse’s aide for of by way punishing defendant, duties, and assigned had not deviated from his of percentage carrying assigned damages and was limitation on such out an task when slapping Although occurred. set in this apply.4 testi section shall not forth mony added) slapping was that a (emphasis resident was not to tolerated, be there was no documentation as opportunity We have not had the to any training by to received the aide in which review this amendment to Section 9. This he policy. was told of this The home places version of the cap statute on the by was cited violating policy D.H.S. as punitive amount of damages may be requiring training personnel. of The evi damages awarded. Punitive are limited to supports dence a determination that the acts the amount of actual unless the trial scope employment. were within the of preliminary
court makes determination cap may that the cap, be lifted. To lift the THE PUNITIVE DAMAGES STATUTE preliminary finding by there must be a judge challenges New Horizon that the puni- the award of defendant has acted with actu malice, argu- presumed two reasons. Its first al or wanton or reckless Morrison, (Okla. legislation 3. See also Shrier v. 4. Prior to this amended which was 1960) 1986, (employee’s overcharging act of customers enacted in the relevant statute did not have performed “cap” fell within the realm of acts incident legislation, The assigned to required only § tasks and could be held 23 O.S.1981 that it be shown acts); responsible Roring Hoggard, guilty v. that the "oppression, defendant was of (Okla.1958) malice, (employee’s operat P.2d 812 presumed.” act of fraud or actual or It did not injured by require by bulldozer when a child was an initial determination the trial court employment bulldozer was within the of convincing of whether there was clear an evi- though simply way even imposition punitive on his dence to warrant the dam- work). ages. to (10th Co., another, fraud, Mortgage 868 F.2d Cir. disregard of the or 1989) law). (construing The stat- finding supported be oppression. This must ute itself makes clear that this determination convincing Only if by clear and evidence. by judge is one made as the decider to be by finding the trial court can the is made of law. lifted, punitive damages cap on be and the question permitted to be consider We must first look to the statute to deter- in punitive damages excess of the amount of proven exactly mine must be clear what However, damages. if the trial court actual convincing punitive and to lift evidence at least does not find that one enumer- damage provides cap. The statute that there grounds shown clear and con- ated convincing must be clear and evidence of the evidence, vincing cap place remains wanton reckless nature defendant’s jury may punitive damages award and actions. Nowhere the statute does it indi- up only damages. to the amount of actual cate that all or even of the elements of some underlying cause action must meet the Tenth interpreted Circuit amend- convincing” “clear and standard. statute in v. El Paso Natural
ed Marshall Co., (10th Cir.1989). 874 F.2d Gas plea A asserted The defendant Marshall generally considered to be an element of to there was not sufficient evidence meet the action; recovery underlying cause of it “clear evi- statutorily-imposed separate ac does not constitute a cause of standard, ap- this standard dence” Corp., v. tion. Richardson Arizona Fuels plied only judge’s preliminary (Utah 1980); Gould proof also to the burden of determination but Starr, (Mo.App.1977), 558 S.W.2d jury. required applied by be 98 S.Ct. cert. denied U.S. interpret Tenth Circuit declined stat- (1978); L.Ed.2d 403 Cook Atlantic Coast way, stating plain reading ute that Co., 923, 924 Line R. 183 S.C. 190 S.E. required the statute a standard “clear plea rests during prelimi- convincing evidence” claim, if underlying on the there is no nary judge. This determination initial claim, recovery underlying there can question of law. determination is a Id. recovery be no Eckels However, once this determination is Traverse, 680, 683 made, proceeds the case then *7 Comp. Safety v. Cal. Ins. Contractor’s Ass’n “preponderance of the evidence” apply the (1957). Co., 626, 48 307 P.2d 629 Cal.2d of as in other civil actions standard states, only specif- expressly As the statute nature.5 types permit the ic of behavior will award nursing contests the appeal the home On prayer pu- punitive damages. for While finding that there preliminary court’s trial underly- on dependent nitive convincing support clear evidence claim, proof are different. the elements This thresh the award pre- requires proof of actual or statute finding analysis the evidence requires old fraud, malice, oppression, or wanton sumed and con there is clear to determine whether rights. disregard the another’s or reckless acted vincing that the defendant evidence punitive damages plaintiff If the seeks disregard for the damages, wanton or reckless one of with actual least excess of fraud, or oppression, types behavior must be plaintiff, of the these enumerated convincing 23 O.S.1991 clear and evidence. presumed malice. See shown with actual the Tenth Circuit agree § with 9. We proof dam question of law While is a
this initial determination overlap with that of ages probably v. Pool will trial court. See also Jackson (Okla.1966); McCaslin, P.2d316, Bank, Gener 321 417 P.2d Young 628 First State 5. See v. Edwards, Corp. Exchange 181 Okl. Corp. Ins. v. (Okla.1981); Pennsylvania al Sand Glass (Okla.1967); Ozment, Peyton 434 P.2d action, underlying cause of plaintiff need In reviewing the issue of whether there prove all elements of underlying was clear and convincing evidence of the by cause of action clear and convincing evi- wanton and reckless conduct of nursing Rather, dence.6 in remaining consistent with employee, home’s we find no fault with the prior our requires case “pre- law which ruling. trial court’s In addition to those facts ponderance of the evidence” in most tort by stated judge the trial in support of his claims7, interpret we language the clear ruling, we also note that the evidence showed only statute to mean that specific those patient that no other could have inflicted the types of conduct support which would an injury, just prior bath, and that anoth- punitive damages award of by must be shown nursing er employee home saw Glen Rode- clear convincing evidence. bush and testified there were no marks on his face. There was testimony also some Here, judge specifically the trial nursing supervisor duty was told found that clear convincing evidence by the administrator not to call Mrs. Rode- employee Defendant, showed that “an injury, bush to inform her of the in violation acting while employment, the course of his nursing policy. home did injury upon inflict the the Plaintiff Mr. argues home that there were Rodebush, in the manner that [sic— events eyewitnesses, no that Mr. Rodebush did not evinces?] wanton or reckless (could not) testify, and that the trial court’s rights.” judge The trial detailed his rea finding only speculation, could be made on soning by pointing although out that rather than convincing clear and evidence. circumstantial, evidence likely the most response eyewitness Our is that lack of testi whelping cause of the of Glen Rodebush’s mony is no meeting barrier to the “clear and slapping. face was severe He recounted the test; convincing” indeed the case books are testimony of the doctor called to examine the replete with standing instances of defendants marks, opinion inju and the doctor’s crimes, “beyond convicted of with the stricter ry was caused a human hand. He also test, a reasonable doubt” where the testimony person noted the home See, e.g. evidence was circumstantial. Cava nel that while Rodebush was at times com State, (Okla.Crim. zos v. bative, he had never been known to inflict (defendant App.1989) convicted of pain upon first de himself. The trial court concluded gree though murder even evidence was cir plaintiff showing, had met his burden of cumstantial); State, evidence, Johnson v. clear and conduct on (defendant (Okla.Crim.App.1988) part employee properly described convict Thus, statutory drug charge solely ed of reckless and wanton. based on circum cap punitive damages possession); Rawlings was lifted.8 stantial evidence of (9th.Cir.BAP Aubrey, (employer may In In re B.R. Oki. 1990), punitive damage the court reviewed a be liable for if the *8 "oppression” award and stated that had been acting scope employment within the was of his by shown clear and evidence as re- showing even if there is no of ratification of the quired by California Other states have statute. Inc., by employer); Frito-Lay, act the Ramos v. legislation requiring also enacted clear and con- 667, (Tex.1990) (employer 784 S.W.2d 668-69 vincing supporting puni- evidence of the conduct punitive damages though was liable for even § See Ann. 27-1-211 Mont.Code resulting liability "management a act decision,” was not (1991); (1991); § Nev.Rev.Stat. 42.005 Utah resulting non-managerial but from a § Code Ann. 78-18-1 Inc., task); Homes, Northrup v. Miles 204 N.W.2d 850, (Iowa 1973) (to punitive recover 858-59 claims, fraud, 7. We realize that some tort such as damages corporate employer, employ from a require higher proof. a standard of acting scope within the of his ee must have been employment); or her Binder v. Gen. Motors Ac damages may punitive 8. We be as- note that 894, Corp., ceptance 222 N.C. 23 S.E.2d 896 against corporate employer sessed a for the acts (1943) punitive (employer responsible can be acting employees employee its is within of if employee wantonly damages acted in the if the scope employment. Russell- of his or her Chadwell, Locke, 1094; employment). course of 169 40 P.2d at Holmes
1249 determination, jury’s it was State, (Okla.Crim.App. 159 standard process. 1987) (defendant of without due degree deprived property convicted of first body though had been no murder even In Insurance Co. v. Mutual Pacific Life found). Haslip, 499 S.Ct. U.S. (1991), Supreme the United took L.Ed.2d States Additionally, the trial court doubtless note, we, Due Process chal- to addressed these as that the defendant declined Court do lenges punitive damages to of aide as a witness to rebut the award call nurses’ case, if plaintiffs’ Haslip in fact a in Alabama.10 ad circumstantial under statute Browning- theory happened. question open what left plaintiffs’ was not dressed Inc., Disposal, as its Kelco nursing home had listed aide Ferris Industries v. order, no pretrial in the offered 109 S.Ct. 106 L.Ed.2d witness U.S. “[Wjhether (1989): why not It acts explanation process to he was called. due as a as of to take on to improper is not a trier fact check undue discretion- award account, particularly damages any into in the ex- punitive such failure absence statutory evi- limit” “await party press one relies on circumstantial must another where call day.” dence the other fails to the witness prove the circumstances other-
who could
Browning-Ferris held that the Excessive
Collins,
&
Co.
wise. Ft. Smith W.R.
Eighth
Fines
Amendment did
Clause
(1910). For
P. 550
these rea-
Okl.
apply
punitive damage
to
in a
not
award
sons,
inquiry
that the initial
we hold
case,
that the federal common
civil
law
whether
the conduct
defendant
provide
disturbing
did not
basis for
through
wanton and reck-
its
was
damage award. The Court
held
punitive
also
convincing,
by
supported
less was
clear
question
process
of due
under
circumstantial,
cap
was
albeit
evidence.
pre-
Amendment had not been
Fourteenth
jury.
by
properly lifted
consideration
and would not be
sented
the courts below
addressed.
QUESTION
THE CONSTITUTIONALITY
directly
Haslip
confronted with the
process
due
the Fourteenth
by
home
issue of
under
The next contention
began
The Court
its discussion
punitive damage
award is uncon- Amendment.
is
realizing
long
punitive
specifically,
tradition
it asserts that
stitutional.9 More
always
has
our law. There
been
punitive
was based
award
juries
an amount
the discretion to set
vague
procedure which
left
and standardless
grav-
with the
process rights. The
consistent
in violation of its due
ity
wrong
and the need to deter simi-
requiring
home also claims
wrongful
conduct. Id. While
disere-
only a
the evidence as
lar
preponderance of
Home,
Haslip
ques-
Nursing
Incidentally,
all
also addressed
Ltd. asserts that
9. Oklahoma
damage
employee's
Oklahoma are uncon-
were
awards in
of whether the
actions
tion
Corp. v. Alliance Re
TXOProduction
employment
stitutional.
and whether the
within his
— U.S. —,
Corp.,
113 S.Ct.
sources
be held liable under
doctrine
could
There,
contrary.
L.Ed.2d 366
held
superior.
respondeat
The Court answered
asserted that
defendant
employee commit-
both in the affirmative. The
of actual dam-
which
526 times the amount
were
promising
a fraud
customers
insurance
ted
ages
Four-
so excessive as
violate the
were
coverage
in fact obtained.
Process Clause. The
teenth Amendment’s Due
urged
employer,
company, the
that it
insurance
disagreed, stating
*9
Supreme
United
Court
States
impose
the
Amendment
violated
Fourteenth
bright
used make this
no
line test could be
that
damages
liability
punitive
of
basis
Instead,
be on
the focus should
determination.
disagreed,
respondeat superior. The
stat-
Court
"reasonable."
-U.S.
the award was
whether
liability by
imposition
the
of such
—,
at
S.Ct.
2720. Reasonableness
minimizing
the state’s interest
state furthered
potential
depends
such as
the award
on factors
fraud.
not be
The award need
harm of the conduct.
relationship
solely
between com-
based
damages
damages.
pensatory
actual
some,
jury
by
analysis,
tion of the
has been criticized
but also reviewed it to insure
allowing
“the wisdom of
such additional dam-
that the award did “not exceed an amount
ages
given
by
long
to be
is attested
that
accomplish society’s goals
pun-
would
practice.”
quoting
continuance of the
Id.
quoting
ishment and deterrence.” Id.
Green
Humes,
(Ala.
218,
Missouri
R.
Hornsby,
Co. v.
U.S. Oil Co.
539 So.2d
Pacific
512,
110,
(1885).11
1989).
6 S.Ct.
case.
can
general
We
concerns of
adequate
mind,
reasonableness and
With this rationale in
we turn
guidance from the court when the
punitive damage
case is
to the
award at hand.
jury
First,
tried
properly
to a
enter into the
required
we note that our statute
constitutional
preliminary
calculus.
ques
determination before the
jury.
tion could even be considered
by holding
It continued
punitive
find,
judge
required
clear and
damages in that case were not violative of
evidence,
that the defendant com
Fourteenth Amendment Due Process be-
mitted conduct which fell within one of the
although
jury
given
cause
significant
categories.
enumerated
finding by
Such a
discretion, the instructions limited the dam-
judge
clearly
must be
stated into the
ages to those which would deter the unwant-
Second,
record.
unless this determination is
ed conduct
purpose
as well as serve the
record,
made on
jury’s
discretion is
retribution.
enlightened
The instructions
statutorily
awarding punitive
limited to
dam
as to the
punitive
reason for
dam-
ages only up to that amount awarded for
ages and the kind of conduct which could
Next,
damages.
actual
following
guid
imposition
warrant
of such
Haslip,
ance of
we look to the instructions
The Court concluded that
the award was
given
Here,
jury.
to the
the trial court
permissible.
long
“As
as the discretion is
instructed that
only
were
constraints,
exercised within reasonable
due
given
to be
if the defendant’s conduct showed
process
20,
is satisfied.” Id. 499 U.S. at
disregard
wanton or
reckless
S.Ct. at 1044.
malice,
plaintiff,
gross negligence or evil
high
court next noted that in Alabama
intent. The
instruction stated that
post-trial procedures
there were
scrutinize
compensation
were not
plain
punitive damage
tiff,
awards.
Id. A trial
punishment
but were
to the defendant.
court was to state into the record the reason
It also
made clear that the
were not
interfering
with
refusing
verdict or
required,
only permitted.
but
The instruc
so,
grounds
to do
of excessiveness. The
tions then went on to define wanton conduct
permitted
trial court was
to consider the
as actions which show a deliberate or actual
conduct of the defendant
reviewing
when
injure
intention to
plaintiff,
or which
Supreme Court,
award. The Alabama
in re-
show an
utter
or indifference for
award,
viewing
used not
compara-
rights.
Malice was defined as ill will or
11. The
empha
(1912);
tradition of
56 L.Ed.
Dry
Louis
Goods
Pizitz
Supreme
Yeldell,
sized
numerous
Court
case law
Co. v.
274 U.S.
47 S.Ct.
See,
spoken
which has
e.g.,
to their wisdom.
(1927);
L.Ed.
Memphis Community
School
Co., Beckwith,
Minneapolis & St. Louis R.
Stachura,
Dist. v.
477 U.S.
106 S.Ct.
(1889);
U.S.
9 S.Ct.
1251 a cap punitive damages is sary to lift the manner oppressive or aor wanton hatred Court, law, by this question of reviewable rights of the disregard for the and conscious plain- if the record to see it which reviews that jury also instructed The plaintiff. showing clear and tiff met burden of its of the defendant. the wealth consider could in a acted convincing that defendant instructions, supported by are These warranting imposition punish- manner law, not unfettered permit do case Oklahoma case, trial In the decision of the ment. this explain the jury. They by the discretion judge reviewed his state- was detailed. We punitive dam- the award of purpose behind ment, record, that as the and found as well jury instructions. as did Alabama ages, supported by clear and con- decision They specify for which conduct Haslip, appel- vincing our evidence. As given, the Alabama instruc- may be as did just pay question does not late of this review They clear the award of make tions. judge’s ruling, is lip to the trial but service law, required not but are such clearly to impose restriction effective if way of permitted by punishment are punitive imposition are certain criteria met. jury determines way many the Alabama re they are similar to This has on occasions In this Court damagés instructions. is instructed that punitive also viewed the amount of by a preponderance must is this be. shown to determine whether amount awarded evidence, explained. and this term is reasonably to the de related Hence, again jury’s discretion is limited The award bear some relation fendant. must proof. jury was also by the injuries. burden Buz to the cause and extent of Inc., 1105, the defendant’s wealth is Co., instructed that v. Ins. 824 P.2d zard Farmers deciding the amount of Watkins, consideration when (Okla.1991); 481 1115 v. Hobbs Thus, instructions (Okla.1971). 746, See also Tim P.2d 758 clearly unbridled to did not leave Co., 907, 653 Royal mons Globe Ins. P.2d guidance. punitive damages award without (Okla.1982). We have also hesitated 910 punitive if the to reduce the award award Alabama, Oklahoma, post-trial In as in “passion, preju result excessive as a review of the procedures are available for dice, jury. improper sympathy” of Here, nursing home filed a awards. Id.; Denton, 741 P.2d 867- Chandler v. judgment notwithstanding asking for motion Mills, (Okla.1987); 68 Basden v. verdict, a new trial and remittitur. (Okla.1970)12. proper In we cases 896 Although requests. trial court denied these have, request, remittitur upon ordered given the relief re- horizons was not New affir punitive damages as a condition of case, they are quested fact Inc., Co., mance. v. Farmers Ins. Buzzard jury’s as a place and stand check (Okla.1991); 1105,1115 824 Chandler P.2d important note. discretion is Denton, (Okla.1987); P.2d Tim 868 Co., Royal procedures mons v. Globe Ins. Finally appellate look to the we also that the guard against We have held as arbi- available stand damage of the defendant is a rele trary punitive financial condition unreasonable Timmons, earlier, prelimi- vant consideration. awards. As we stated nary court neces- determination the trial America, Spaeth safety employees); of its v. Union also v. Subaru 891 F.2d
12. See Moore
denied,
Co.,
Cir.1985)
Cir.1989)
(10th
(10th
(construing
law
Oil
762 F.2d
cert.
Oklahoma
permit
when
476 U.S.
106 S.Ct.
L.Ed.2d
the award of
(1986) (Construing
require
law
which reflected a
Oklahoma
the defendant showed conduct
public safety);
punitives
relation between the award of
and the
Silkwood
reckless
Cir.1985),
Keller,
(10th
inflicted);
injuries
Leasing,
Corp.,
Inc. v.
Based on these we hold that employment. within the of his regarding puni- convincing, though evidence is clear and cir- Oklahoma’s law the award of cumstantial, that it was done the aide with does not violate the Due Pro- wanton or reckless cess Clause of the Fourteenth Amendment.13 plaintiff, justifying lifting thus of the Haslvp, given inAs is not unfettered punitive damages cap. We also find that the awarding punitive discretion jury’s awarding punitive discretion in dam- Rather, Haslip, like the combination of statu- unfettered, ages was not but was restricted law, tory instructions, post-trial proce- by statutory guidelines, post-trial procedures appellate provide adequate dures and review appellate judgment review. The of the safeguards against jury’s unbridled exer- jury’s District Court as based on the verdict arriving cise of discretion in at an award of is affirmed. LAVENDER, V.C.J., HARGRAVE, jury’s punitive award of dam OPALA, WILSON, ALMA KAUGER and here, ages though large, hardly can be de WATT, JJ., concur. scribed as unbridled. Its amount coincides with the evidence of the previ lowest of the HODGES, C.J., concurs in result. years’ earnings ous net distributed to the partners in nursing the defendant home en SIMMS, J., dissents opinion. and files terprise. In fact the expressly defendant argued in although punitive its brief that SIMMS, Justice, dissenting: award should be reduced at least I respectfully must dissent. Not Ido per amount of actual the Section believe that the home is not liable for cap, briefed, 9 that it had not and did not employee, intentional tort of its Ibut am request, a remittitur for the reason that the majority’s also troubled determination punitive damages award was imbalanced or cap damages may be 6) (Reply excessive. brief P. Nor did it pursuant lifted O.S.Supp.1986, § to 23 un- 9 argue that the by pas verdict was actuated estimation, der the my facts this case. In sion, prejudice, improper sympathy. or is, best, negligent hiring case of nursing home thus does not seek remittitur. training, presents nothing further in the
way liability part tort home. CONCLUSION appeal There is no contention on that there I. in awarding
was error
actual
based
negligence
theory.
part
As to that
RESPONDEAT SUPERIOR LIABILITY
the claim based on the wilful and wanton
striking
plaintiff,
sup-
evidence
It is settled law that in order to hold an
ports
finding
that the nurses’ aide did
so
liable for the intentional tort of its
Baxter,
13. Several other state courts have
512,
reached simi-
Estate
App.3d
73 Ohio
597 N.E.2d
lar
question
decisions when confronted
1157,
with the
(1992);
Fleming
Games v.
Landfill
process
Independent
of due
violations.
School
Inc.,
(1991)
186 W.Va.
(up-
S.E.2d 897
Corp.,
District No. 622 v. Keene
495 N.W.2d
punitive damage
held the
law but set out five
(Minn.App.1993);
250-51
Prudential Ins. v. Jef
(1)
factors to be considered:
reasonable relation
ferson,
(Tx.App.1992);
839 S.W.2d
Vi
award, (2)
between the harm and
reprehensi-
Jester,
king
Ins. v.
310 Ark.
836 S.W.2d
conduct,
bility
(3) profit
wrongful
from the
(1992) (upheld
given
the instructions
under
conduct should
not be less than the
case,
Haslip
questions
but did not address the
(4)
damages,
punitive damages should be reason-
post-trial procedures
appellate procedures);
ably
compensatory
related to
damages,
finan-
Co.,
Hodges
v. S.C.
&
833 S.W.2d
Toof
defendant.);
cial condition of
Oberg
v. Honda
517,
(Tenn.1992) (refined
permit
Tennessee law to
Co.,
Motor
Or.App.
punitive damages only when conduct is shown to
intentional, fraudulent,
reckless);
be
malicious or
Bower,
(S.D.1992);
492 N.W.2d
Hoff v.
*12
“
first,
employee,
plaintiff
the
show
employ-
‘[A]n
must
act is within the
of
“course
(1)
and servant
at
fairly
the relation master
existed
ment”
something
if
it be
and
second,
time and
that the tortious act was
business,
the
naturally
to the
if
incident
and
scope
authority.
of his
committed within the
it
the
be done while
servant was en-
Gilmore,
Kirk, Inc.,
v.
&
Allison
Gardner
gaged upon the master’s business and be
(Okla.1960);
P.2d
298
Tulsa General
done, although mistakenly
advisedly,
or hi
Drivers, Warehousemen,
Helpers
and
Union
awith
to further the
inter-
view
master’s
Conley,
v.
with those of driver II. Sandford, Ry. Co. (Okla.1953),in which the bus driver became PUNITIVE DAMAGES car, angry at the driver of a exited from bus, the other driver. In and assaulted in This Court has never considered a case that the bus driver we determined cap on was lifted Sandford employment stepped aside from his to do an pursuant provisions to the amended of 23 act neither beneficial to nor which was O.S.Supp.1986, § and the case before us is result, employer. best interests of his As appropriate allowing not an one for limitless employer/bus line was we concluded that the upon the automobile
not liable for the assault jury § general, permits In to award driver the bus driver. punitive damages in tort actions where Gilmore, too, in Gardner & So Allison guilty of finds that the defendant was Inc., (Okla.1960), Kirk, an alia, evincing, inter a wanton or conduct brought by plaintiff who was assaulted action another. reckless are, however, when employee/driver of defendant limited to Punitive temperature attempted of actual plaintiff to test the amount of the amount truck, Only the trial gasoline in this Court in most cases. when defendant’s awarded that clear and nothing connected with finds on the record concluded “there was court driver, King, convincing evidence shows that the defendant the truck employment may cap guilty of such the truck of whose duties were to drive damages be lifted. The case before gasoline, that would defendant and deliver bar, In the could have present a situation which case at us does not negligent apply excep- § Legislature intended to found home was cap. failing investigate hiring employ- when tion to the failing properly employ- or in ee train Legislature puni- to limit chose When the However, there was not clear and con- ee. provide lifting vincing of such evidence recklessness under extreme circum- limitation gross negligence lifting as to warrant the stances, provided provi- it further cap strictly § be construed.” 23 sions of 9 “shall 9(B). § O.S.Supp.1986, majority fails to Although employee in the actions of the provision. recognize this vital the case could be characterized as bar oppressive, malicious or those actions cannot long has held that This Court because *14 imputed to the home. As noted be punitive damages, highly penal the nature of above, I in Part home is not Slocum, imposed. they lightly not be should damages resulting responsible for the actual P,2d Co., 678 Phillips Petroleum personal from the nurse aide’s attack be- addressing punitive In dam- acting he cause was not within the long-standing law ages, this Court stated the authority employment. simple and in as follows: judge fact is the trial determined that plaintiff “To exem- entitle recover convincing and there was clear evidence damages sounding in plary an action part which tort, some proof must show elements wanton, be as reckless and could described fraud, oppression. or The act malice majority opinion wrongly allows such but must which constitutes the cause action imputed employer. conduct to be accompanied or some be actuated with suggesting If there was evidence nurs- intent, evil or must be the result of such damages, for punitive home was liable gross negligence-such anoth- necessarily be such evidence would equivalent rights-as er’s to such deemed gross negligence reckless form of or disre- intent. rights, gard of another’s and record sim- n n ‡ n n n not clear and ply does contain Thus, of such. the trial court erred evidence damages Exemplary are allowed after allowing jury punitive to award dam- guilt fact of the trier of the determines ages damages of actual over the amount soci- transgressor acts tolerated awarded. ety. Exemplary damages penal are highly be punishment and thereof should not Additionally, majority has refused to P.2d at lightly imposed.” 678 concerning issue the ver- consider crucial parties of the dict forms utilized basis Slocum, although In we determined it. See footnote failure raise Phillips Company negligent Petroleum majority opinion. cursory A review of the prop- owned the failing to ascertain who apparent is error record discloses there erty they constructing a were across face, I believe the matter consti- on its Phillips’ pipeline, there was no evidence that fundamental error. The verdict form tutes accompanied actuated with acts were jury plaintiff on the found for shows gross negli- an evil intent or the result (Count theory hiring training negligent trespassed gence it and constructed when (Count 1) theory intentional tort feet of its ease- pipeline three outside valid $50,- 2). However, Thus, it is unclear whether held the trial court ment area. we 1 Count 2.1 awarded was for Count or submitting 000.00 erred in the issue of punitive damages may damages jury. This is crucial because $50,000.00 despite parties stipulat- plaintiff, ages as dam- 1. The awarded actual given damages be when actual have Metropolitan been Moore awarded. Utili Co., (Okla.1970); Phillips
ties LeBlond, Inc.,
Machinery F.Supp. Co. v. (N.D.Okla.1980). puni-
The verdict form itself states that damage may
tive upon award not be based Therefore,
finding plaintiff on Count 1. if $50,000.00 damages was awarded
Count award cannot Only $50,- portion
stand. if all or a
000.00actual are awarded for Count may even consider dam-
ages. nothing There is in the record to any
indicate whether of the actual parties
were awarded for 2. The Count speculation Court must resort to in or- upon to determine puni-
der which Count the based, award was and this *15 long
Court has held that a verdict cannot be upon speculation conjecture.
based mere Island, Chicago,
Elms v. Rock and Pacific Co.,
Railroad Be-
cause the verdict form is unclear as to which
Count upon, are based judgment
the verdict and I cannot stand. judgment reverse the
would of the district
court and remand this cause for retrial.
OKLAHOMA INDIGENT DEFENSE
SYSTEM, Petitioner, HOPPER,
Honorable Presiding Clifford
Judge, District Court of Tulsa
County, Respondent.
No. 81985.
Supreme Court of Oklahoma.
Dec. patient’s physician and the determining $1,200,000.00 then awarded dam- medical necessary. treatment was ages. notes con- note 6 at 306 J., concurring). curring).