*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. 29 L.Ed. 463 Review the award also involved consideration of factors such as the relation- The Court then turned to the issue of ship punitive damages between the award jury fixing “unlimited discretion” in the likely, degree and the harm reprehen- sibility conduct, duration of the con- not, duct, cannot, awareness, We need and indeed frequency we draw defendant’s bright mathematical line past, imposition between the of other constitutionally acceptable and the consti- sanctions and the financial condition of the tutionally unacceptable every fit would defendant. say, however,

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. 32 L.Ed. 585 Stan 91 L.Ed.2d 249 Missouri, dard Oil Co. v. 224 U.S. 32 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. 769 F.2d 1451 Misco Kerr-McGee (10th Cir.1974) (construing Okla- 476 U.S. 106 S.Ct. F.2d 545 rt. denied ce damage (construing require homa law to 90 L.Ed.2d injury permitting related to consider award be reasonable and law on inflicted). regard with state of mind ation defendant’s *11 1252 restrictions,

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. 288 P.2d 750 est, impulse or from some of emotion majority recognizes general the rule that it is naturally grew which out or was incident scope employee’s employ- the not within attempt perform to the master’s party, a third ment to commit an assault on business, wholly from and did arise citing McQueen, v. Hill 204 Okla. external, independent, personal some and Drivers, (1951), P.2d 483 and Tulsa General part motive of the servant do Warehousemen, Helpers Union v. and Con upon act his own account.’” 40 P.2d at ley, supra. 1960). § (quoting Agency, Mechem Cargo, also Bridge See Ada-Konawa v.Co. finds, however, majority that the facts Carter, supra; Bray ton 196 Okla. exception place ease of this it within (1945); Patsy 163 P.2d 960 & Gas Co. Oil liability be the master imposed will where (1939). Odom, Okla. the servant commits an assault “further- materially “fairly ance of’ and and incident The case at bar also differs from Mistletoe business, doing master’s and in it to” his so Service, Express Culp, Inc. v. 353 P.2d 9 likens this situation to those decisions such (Okla.1959), employer, in which we found the McQueen, supra, Hill v. Mistletoe Ex as carrier, a common liable for the intentional Service, (Okla. press Culp, Inc. v. “Slug- employee, tort of its a driver known 1959), Super-Service and Inc. Russellr-Locke ger”, because the was aware Vaughn, 170 Okla. employee’s antagonistic, quarrelsome, pugil- hot-tempered and nature istic and deliberate- however, clearly Those cases are distin- ly an sent him with instructions to return presented guishable from the circumstances previously refused. item which had been In and raise not before us. here issues The evidence showed: Russellr-Locke, instance, for we held the em- feelings expecting “Mistletoe was bad battery sales ser- an automotive ployer, tube; about return of the and Mistletoe its business, employee’s liable for its vice was deliberately [Slugger] knowing sent the facts warranted assault because specific a situation with instructions into employee jury’s finding had been nature, which, known because of his violent of’ “acting in under instructions behalf and trigger temper certain to his was almost him had sent employer which to. very produced kind of result cause the plaintiff have place of plaintiffs business at in this case.” battery battery for or retrieve pay for pay. plaintiff When had failed law, stating not- applicable In the Court battery attempted out employee to take ed: vehicle, pulled plaintiff him out plaintiffs words, the time “In the fact that at other There, the fight ensued. car and upon person the third of the assault furthering his master’s inter- employee was employ- employee agent was about following his instruction engaged est sufficient to affix er’s is not business which, held, we was fight occurred when upon the liability resulting damages the master’s performing incident to therefore be employer, it must shown but Noting exception there that business. pur- was done complained act employee’s action is only when the applies him.” doing assigned work pose scope employment, the Court within added). (Emphasis 353 P.2d at stated: fighting plaintiff and did not The same cannot be said case warrant his with bar, employment.” employee attempting was come within the of his however. also, Drivers, patient. of such as See Tulsa General Warehouse- to bathe the Use force men, Helpers Conley, supra, slapping against policy Union v. the nurs- where we held that a union was not liable is not a case home. This where picketers upon the assault one of its hired in- furthering employer’s *13 being picketed a terests, worker business performing employer’s or under the most, picketer’s because the actions could not the instructions. At evidence shows “properly anticipated be as an incident to the employee likely slapped patient that the the ordinary authority exercise of to act as a personal patient’s as a reaction to the com- picketer.” peaceable cause, employ- the the bativeness. Whatever acting scope ee was not within the of his Although nursing may the home be liable employment authority slapped when he plaintiffs theory nursing to that the patient the and the cannot be held negligently investigate home to its em- failed short, responsible In for the intentional tort. ployee’s background to determine whether bathing patient the within the while violence, history liability he had a which scope employment, slapping of his him was nursing dispute, the home does not that fail- not. investigate negligence ure to amounts to only. respon- The cannot defendant be held home does not contest on upon pa- sible for the intentional assault appeal negligent failing in that it was to employee tient its it where had no knowl- properly investigate potential employees and edge employee propensity had a employee. train this Whether the employee’s violence and where the conduct properly trained in how to handle a scope authority was outside the of his not, patient there Alzheimer’s or is combative Drivers, employment. Tulsa General Ware- finding no evidence to warrant a that assault- housemen, Helpers Conley, Union v. patient the was within the supra. authority employee’s employment. or employee’s actions here were more in line employee/bus in

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).