Smith v. Printup

67,591 No.

Barry Smith, Smith, of Glen C. of the Estate Administrator L. al., v. Albert Print-

deceased, Appellants/Cross-Appellees, et up Company, Inc., Appel Red Ball Transit and American Inc., Movers, Amer and Southwest lees/Cross-Appellants, Co., In & Hartford Accident Insurance ican States Turnpike demnity Authority; Co., Appellees, Kansas Myers Laboratories, Company; and Allied Construction Defendants. 985)

(866 P.2d Opinion filed December 1993. Bradshaw, Wichita, Fisher, Michaud, argued Hutton & of Randall E. of appellants/cross-appellees.

the cause and was on the briefs Lonker, Wichita, Webb, Shultz, argued the Webb & of Dennis D. of Printup. appellee/cross-appellant Albert cause and was on the briefs for Siefkin, Wichita, cause, Kerwick, argued Stephen of Foulston & of M. West, firm, Jay Craig with him and Fowler and W. of the same were F. appellee/cross-appellant Red Ball Transit Com- on the briefs for American pany, Inc. Wheeler, Kahrs, Nelson, Wichita, Fanning, Kellogg, Hite & of Vince P. cause, Troutt, firm, argued Randy with him of the same was J. Movers, Inc., appellees In- the briefs for Southwest American States surance Co. Bowman, Adams, Philip Metcalf, James, Michael T. and Teresa L. J. Malone, Chartered, Wichita, Jones, & were brief Robinson on the appellee Indemnity Hartford Accident Co. Keeshan, Hamilton, Peterson, Keeshan, Tipton Topeka, Robert E. & Lawyers was on the brief for amicus curiae Trial Kansas Association. opinion of the court was delivered appeal This arises out of a punitive damage award Davis, J.: wrongful in a death and survivor action. None of the issues involve of compensatory award giving The facts rise to the cause of action are as follows. midnight Near on September defendant Albert Prin- was tup driving moving van southeast in the lane on the Kansas Turnpike near the Andover exit. He lost control of the van, median, jackknifed, crossed the collided a pickup operated truck by Carolyn S. Elliott. Glen C. Smith a pas- senger pickup driven Ms. Elliott. As a result of the collision, instantly. Ms. Elliott died Mr. Smith suffered massive injuries chest and other severe but a pulse breathing had and was and groaning after impact. He died at the scene. Printup Albert survived. Movers, Printup

Albert was employed by Southwest Inc. (Southwest). paid He was a flat salary, with no bonuses for extra accident, hours At or miles. the time of the he had been “leased Inc., out” to American Red Ball Company, (Red Ball) Transit for the last years. four to five He had anyone not driven for else during him, that period of time. Red Ball dispatched and he shipping turned in his driving logs documents to Red Ball. He turned in expense receipts his to Southwest for reimburse- ment. Southwest,

Plaintiffs sued Printup, and Red Ball wrongful and, Smith, death respect with to Mr. pain suffering. complaint amend their plaintiffs to allowed the Smith The court K.S.A. 1992 Supp. damages in accordance punitive to seek Southwest, conjunction and Red Ball in Printup, against 60-3703 court ruled that action. The with their survivor wrongful death actions. in the were not recoverable the constitu- challenged beginning, plaintiffs the very From rejected The trial court 60-3701. Supp. of K.S.A. tionality to be constitutional. On and found the statute this contention rejected plaintiffs’ claim that the trial court summary judgment, allegation damages based on were entitled to they hired, retained, negligently super- and Red Ball that Southwest vised, Smith The court allowed Printup. and trained Albert defendants, against corporate claims punitive damage present but, 60-3701(d)(l), only Supp. in accordance with K.S.A. ratified that the defendants authorized or corporate the extent determined that jury conduct. The Printup’s Ball, against and Red but not against Printup be awarded should in the amount punitive damages awarded Southwest. The court $100,000 $20,000 Red Ball. against Printup hard-fought appeal case. The record on long This was a briefs, the Kansas Trial parties’ In addition to the voluminous. curiae brief. Most issues Association has filed an amicus Lawyers the facts. Some dependent upon of law not raised are questions sensitive, and, issues, however, necessary, to the extent are fact reader opinion in the so that the facts will be discussed those decision. better understand our issues; raises two issues separate Printup Plaintiffs raise 11 cross-appeal. one issue in its and Red Ball raises cross-appeal; his court’s award of No upon All issues center awarding compensatory dam- appealed has verdict party ages. following issues:

Plaintiffs raise the because 1. Is K.S.A. 1992 60-3701 unconstitutional trial, right process, to due right violates the to a equal protection? and/or holding that Elliott’s heirs could 2. Did the trial court err damage wrongful claim under the death bring punitive statute? of re- limiting plaintiffs’ err in theories the trial court

3. Did asserting independent from by plaintiffs covery prohibiting hiring, negligent Ball Southwest against Red and claim training, Printup? retention supervision, excluding in about Red Ball’s 4. the trial court err evidence Did limiting in evidence before November and operations other Red Ball drivers’ safety program about Red Ball’s conduct? excluding evidence South-

5. Did the trial court err about recordkeeping practices qualifications and the and con- west’s duct of other Southwest drivers? what instructing jury

6. Did the trial court err about Ball conduct Red or Southwest amounted to ratification or authorization conduct? Printup’s in refusing require 7. Did the trial court err Red Ball produce parent company certain financial and information for in the to determine post-trial proceedings use the amount of punitive damages? during

8. Did the trial court err proceedings post-trial admitting post-accident mitigate evidence of conduct pu- by admitting contents of nitive settlement ne- gotiations? refusing

9. Did the trial err in jointly court to hold Red Ball damage severally liable for the award assessed against Printup? refusing

10. Did the trial err in court to assess treble against Printup part damage and Red as the punitive Ball award?

11. Did the trial court its in determining abuse discretion punitive damages?

amount of In his cross-appeal, Printup following raises the issues: 1. Did the trial err in submitting court to the Smith’s claim pain suffering? submitting 2. Did the trial err in to the Smith’s claim conduct was wanton? Printup’s Red Ball Finally, cross-appeal contends its the court by allowing punitive damages single finding erred on the jury’s that Red Ball ratified Printup’s post-accident conduct when no conduct was shown. 60-3701(a) K.S.A 1992 SUPP. UNCONSTITUTIONAL?

(1) IS matter, we note that K.S.A. 1992 60- preliminary As 1, accruing July to causes of action on or after applies only 3701 1, 1987, 60-3701(i). K.S.A. 1992 July Supp. and before 1988. however, language plaintiffs challenge, Language identical to 60-3702, in K.S.A. 1992 which to causes Supp. applies is included 1, accruing July Supp. of action on or after 1988. K.S.A. 1992 therefore, 60-3702(h). holding, applies equally Our to 60-3702. following provisions Plaintiffs contend that the of K.S.A. 1992 Supp. 60-3701(a)render the statute unconstitutional: any exemplary damages “In civil action in which are recov- determine, erable, the trier of fact shall concurrent with all other issues damages such are presented, whether such shall be allowed. If allowed, separate by proceeding a shall he conducted the court to determine the amount added.) such to be awarded." (Emphasis of law, court, argue Plaintiffs that at common not the jury, punitive damages. argue determined the amount of They legislative requiring action court to determine the amount of punitive damages rights guar- violates their to equal protection by anteed the Fourteenth Amendment of the United States Con- stitution, substantially rights guar- their to trial impairs by jury Constitution, by Rights anteed 5 of the Bill of of the Kansas § guaranteed and denies them due of law process by the Fourteenth Amendment to the United States Constitution. Right

A. to Equal Protection Equal Protection Clause of the Fourteenth Amendment provides to the United States Constitution that no state shall “deny any person jurisdiction within its the equal protection argue of the laws.” Appellants equal pro- 60-3701 violates because it treats seeking punitive damages tection tort victims it differently than treats other tort victims.

Equal protection legislation becomes an issue when treats “ar- See, indistinguishable” guably people differently. classes of e.g., 609, Ross v. 417 U.S. 41 L. Ed. 2d Moffit, S. Ct. (1974). Supp. K.S.A. 1992 60-3701 treats all tort victims seeking punitive damages equally. Such tort victims are “arguably another, indistinguishable” distinguishable from one but are from By allowing punitive damages other tort victims. of recovery cases, particularly treated the victims has always the law certain victims. K.S.A. from other tort differently conduct egregious that results dis- a classification not create 60-3701 does application Its situated individuals. similarly parate treatment the United States Clause of Equal Protection not violate does Constitution. by Jury to Trial Right

B. right by their to trial that 60-3701 violates argue Plaintiffs also the amount of that the court determine jury requires because claim specifically, plaintiffs awarded. More damages to be jury were determined that because law, deter- guarantees common the Kansas Constitution damages. Section mination of the amount of “The provides: Bill of the Kansas Constitution Rights shall inviolate.” trial be argument, argues Red Ball there no response to this right punitive damages,

vested to and therefore there is no con- right punitive to determination of the amount of stitutional a damages. argues right lack of a Southwest the to damages, coupled purpose the nature and of dam- ages, permits legislative procedure by modification of the which punitive damages the amount of is determined. issues,

As with most meritorious there is an element of truth parties’ conflicting damages each of the contentions. Punitive are awarded to a a plaintiff right, as matter of damages were subject jury’s available common law to the de- proper termination a case. 1888, early

As as the Kansas Supreme Court held that punitive damages are given upon any theory plaintiff any just right “not has to recover them, given only upon theory but are the defendant deserves acts,

punishment wrongful proper public for his if for the to impose upon punishment them wrongful the defendant as for such acts in private brought by plaintiff recovery action for of the real and Norton, Schippel damages by 567, 572, v. actual suffered him.” 38 Kan. 16 (1888). Pac. 804 A claim for damages is not a “cause of action” triable to a a jury; punitive damage award is incident to and dependent

upon the recovery damages. of actual Schippel notes:

323 suffered, damage surely exemplary damages actual “Where no no can Exemplary be allowed. can never constitute basis of cause They of action. are never more than incidents to some action real plaintiff; given they given substantial suffered and when are only in addition the real actual to suffered and recovered however, right exemplary damages, him. . . . given No of action for is ever any private damages. individual who has suffered no real or actual He right merely punishment upon has no to maintain an inflict action some supposed wrongdoer. independent supposed If he has no action of a cause of right exemplary damages, to recover he has no cause of action at all.” 38 Kan. at 572. At common law and today,- punitive damages claim for exists only subject incidental and to a cause of for actual action Burden, See Moore v. State Bank 240 Kan. 729 (1986), P.2d 1205 (1987). cert. denied 482 906 U.S. exists, Although punitive damages no punitive damages 1864, were available at early common law. As as this court made it clear that availability punitive damages long had been 250, recognized in law. In Murphy, Malone v. 2 Kan. (1864), the court said: adopt compensatory theory, believing “We would rather it to be more correct; nearly logically established, having long but the other been rec- Courts, ognized upon by enlightened disposed and acted we are not

change change it where a would make no difference in the results.” The availability of punitive damages continued in early deci Rice, sions of this court. *426, See L. & G. Rld. v. Co. Keokuk, ¶ Syl. (1872); Wiley v. (1870). Kan. 106-07 Ex emplary damages today are available in various tort actions “in fraud, volving malice, ingredients circumstances or oppression Note, or willful and disregard wanton rights.” another’s Survey Damages, Tort L. (1975). Washburn J. above, In those early cases cited jury the determined the Rice, *426, punitive 3; amount of damages. See 10 Syl. Kan. § 106; Malone, Wiley, 6 Kan. at 2 Kan. at 257. So it remained until legislature enacted what is now K.S.A. 1992 60- 3701. Perhaps most definitive jury’s statement of a role prior to the adoption of 60-3701 is set forth in Folks v. Kansas Power Co., 57, 76, & Light 243 Kan. (1988): 755 P.2d plaintiff right “A punitive damages except has no by to when awarded jury under punitive damages the common law. Whether to award awarded, jury determine. When to in what amount is by post-trial requested mo- by judge if damages the trial reviewed are damages will be set aside unless not . . award of tion. . The bias; (1) passion, prejudice, or judge was based on trial finds that the award fact; evidentiary support.” (3) lacked (2) of law or was based on mistake available, law, Thus, and the damages were at common and, damages were to be awarded whether such jury determined so, be awarded. if the amount to Hamilton, (1974), P.2d 213 Kan. v. Craig guaranteed by trial litigant’s right jury to a

we said “[a] Constitution of the State of Rights 5 of the Bill of of the Section it at common law.” More right Kansas refers to that as existed Bell, 243 Malpractice in Kansas Victims Coalition v. recently, “ 333, 342, (1988), we noted that Kan. 757 P.2d 251 ‘[t]rial at right in those cases where the existed jury guaranteed only is ” above, de- historically As have juries common law.’ discussed damages question, amount of Kansas. The termined the resolve, however, his- juries is whether the fact that we must punitive damages the amount of rises torically have determined law. right to the level of a that existed common right by jury in Kansas that the to trial question There is no actual See right jury includes the to have a determine Victims, finding this 243 Kan. at 342-43. The basis for Malpractice First, question, the amount of is a fact is twofold. Second, the juries traditionally availability decide issues of fact. distinguishes equity, at law one in the suit from Thus, jury law tried to a at common law. the court suits at were illogical jury a case to a try has reasoned that would be determine sought, jury because are but not allow damages. 243 Kan. at 343. the amount of reasoning require does not determination of The above character punitive damages. the amount of We must look to the claim determine whether it one for which a of the Holdren, by jury Estey trial exists. In v. (1928),

Pac. 1098 this court said: pleadings, designated pleader, “The substance label character an action. When a cause [Citations omitted.] determines properly justiciable a trial not be denied [of action] is before such parties. without the assent of [Citations omitted.]”

325 Nusz, (1942), 127 P.2d 441 v. Kan. Nusz In 155 pleadings raised de- stated: “The issues Court Supreme action, essentially and where the issue is nature of an termine the demanded as jury a trial be at common law justiciable one right.” a matter of regarded as damages may be punitive the amount of

Although compensatory damages are different from question, punitive a fact another damages subject yet are the damages. Compensatory Rights guar- Bill 18 of the Kansas right. constitutional Section law, administered justice due course of “remedy by antees a damages category fall into the delay.” Compensatory without above, however, punitive law. As at common noted remedy law, but damages remedy were considered common requesting in com- merely incident to those causes of action tort as com- damages. regard punitive damages We do not pensatory Co., Brewer v. Home-Stake Production pensatory any way, 96, 1, (1967), right ¶ there is no Syl. 200 Kan. 434 P.2d 828 damages. Schippel, 38 Kan. at 572. Punitive punitive in the any special plaintiffs are not awarded because of merit Miller, 59, 12, v. ¶ case. Nordstrom 227 Kan. 605 P.2d 545 Syl. (1980). punitive damages is and been express purpose has. punish the tortfeasor and to deter it and others from com- Folks, 57, Syl. mitting wrongs similar the future. 6; Nordstrom, 12; ¶ Wiley, ¶ Kan. 6 Kan. at 107. Syl. existed at common law for separate right No action Schippel, Kan. at 572. Indeed, distinguishes availability while the of actual thus, and, legal historically actions determined equitable from available, damages may regarded when a trial be jury was Analog Supply, & v. North Digital as in nature. equitable (1992), Supreme the Ohio Court Ohio St. 3d 590 N.E.2d determined that a not entitled to a determination plaintiff was The court’s of this issue attorney analysis of the amount of fees. “wholly appro is instructive. The court determined attorney to treat fees in the same manner as priate presented is to be respect to whether such issue that an 3d at 662. The Ohio court found jury.” to a 63 Ohio St. (and equitable) remedy.” “a thus attorney award of fees is Ohio, Kansas, as at 662. In St. 3d 63 Ohio in nature. 63 sought equitable if the relief trial does not exist 3d at 662. Ohio St. damages, the fact for punitive of a claim the character

Given damages at common punitive determined juries historically right a that such determination law does not establish right punitive have a does not plaintiff law. Because a common could, infringing upon a without legislature damages, the damages. If punitive rights, abolish basic constitutional plaintiff’s may, damages, then also punitive legislature may abolish accomplish by jury, to trial upon the impinging without that, the court to determine requiring as of such anything short of the the amount capping or the amount of determine how courts jurisdictions We have reviewed other restrict of statutes constitutionality addressed have pu- of the require portion of availability Eight states a state fund. paid award to be into nitive damages award to portion of some of require payment states are: funds. These state-sponsored the state or [1987]) (Colo. Rev. Stat. 13-21-102[4] 1. Colorado § Supp.]) (Fla. 2. Florida Stat. 768.73[2][b] [1993 § Supp.]) (Ga. Code Ann. Georgia 51-12-5.l[e][2] [1993 3. § [1993]) (Iowa 4. Iowa Code § 668A.l[2][b] Supp.]) (Mo. Rev. Stat. 537.675[2] [1992 5. Missouri § (N.Y. [McKinney Prac. L. & R. 6. New York Civ. § Supp.]) [1991]) (Or. Rev. Stat. Oregon

7. § 18.540[1] [1992]) (Utah Ann. 8. Utah Code § 78-18-1[3] of constitutionality that have addressed Of the four states be have held such statutes to unconstitutional provisions, such two to be constitutional. and two have held the statutes Co., 1991), In Kirk v. Denver Pub. (Colo. P.2d 262 requiring payment held that a statute Supreme Colorado Court general the state punitive damage judgment one-third of the of taking private property without fund was an unconstitutional however, opinion, of this is not just compensation. basis we have before us because helpful analysis question the court’s decision is based upon judgment existence of a creating property deserving interest protection. constitutional The court held that the provisions of Colo. Rev. Stat. 13-21- § 102(4), requiring payment damage of one-third of a punitive judg- fund, general ment to the state violated the federal state against constitutional proscriptions taking private property without just compensation because the statute allowed the taking judgment of a creditor’s property judgment interest without any constitutionally permissible government interest. 818 P.2d at 264.

The United States District Court for the Middle District of Georgia held unconstitutional provisions Georgia’s two tort (1) reform statute: 51-12-5.1(e)(1), Ga. Code Ann. which allowed § only punitive damage one award a product liability de fendant, regardless number causes of action arise liability, (2) from the Ga. Code Ann. 51-12-5.1(e)(2), § required which payment to the state treasury of of a punitive 75% case, damage award in product a liability less a proportionate costs. McBride v. General Motors Corp., 737 litigation share of F. Supp. (M.D. 1563 1990). Ga.

The court found both provisions unconstitutional on their faces they because impermissibly discriminated product liability plaintiffs. 737 F. at 1569. The court specifically found that the Georgia statute equal violated protection because there was no rational basis for the statute’s disparate treatment of product liability plaintiffs. F. Supp. 737 at 1578. McBride,

Unlike Georgia provisions the at issue which ap- plied only product to liability plaintiffs, Kansas does not create an impermissible classification of tort victims. State, Gordon v.

In (Fla. 585 2d App. 1991), So. a Florida appellate court upheld the constitutionality of Fla. Stat. which, time, 768.73(2)(b), at the required payment § of 60% of punitive the damage award to the state General Revenue Fund Fund, or Public Medical Assistance Trust depending on the type of cause of The action. Florida found that there was no taking unconstitutional property of without process due because a plaintiff protectable right had no punitive damages. to recover Additionally, the court concluded that there was no violation of a substantive due process right because the statute had a rational the objective. deciding In a

relationship legitimate legislative to issue, damages that are punitive court held appellate the Florida and, thus, pu- a claim for public policy solely allowed based authority of ultimate damages subject to the plenary nitive “is ., It is legislature.” . . 585 So. 2d 1035. policy-maker Supreme Colorado holding this difficult to reconcile Pub. Co. in Kirk v. Denver Court decision Petrides, al., et Shepherd Components v. Brice Finally, Iowa (Iowa 1991), upheld Court of Supreme N.W. 2d 612 which 668A.l(2)(b), required Iowa of Code constitutionality § damage to the state Civil punitive a award payment of 75% of today, here Trust In with our decision Reparation Fund. line law, “punitive Iowa are not court noted under Iowa right discretionary.” a and are allowed as matter of not are intended Supreme Court noted beneficiary that “a is a fortuitous compensatory plaintiff be else damage of a award because there no one simply it.” N.W. 2d at 619. The court concluded to receive punitive damages before plaintiff did not have vested we that the trial entry judgment. “Consequently, hold court’s con punitive damages plaintiff’s does violate distribution N.W. 619. rights.” stitutional 2d at limit avail- jurisdictions seven Our research discloses seven, five states disallow ability Of statute or other expressly unless allowed Vermont, Connecticut, Nebraska, pro- rule law. this Conn. Gen. Stat. applies only specific types hibition cases. arising In- (1993) under the Common (applies 47-212 cases § 1-106 Ann. Ownership Act); (1992); terest Neb. U.C.C. Vt. Stat. 9A, 1-106(1) (1966) (apply arising tit. to cases under the Uniform § Dakota, In New Code). Hampshire Commercial and South prohibition appears general prohibition applicable be a to all (1992 Rev. Stat. Ann. S.D. Supp.); civil actions. N.H. 507:16 § 21-1-4 (1987). Codified Laws Ann. § limit of in medical availability punitive Two states prohibits legal malpractice actions. Illinois dam- and/or ages “healing legal in Ill. Rev. Stat. malpractice art cases.” 735, (1993). ch. para. Oregon prohibits punitive 5/2-1115 licensed, registered, practitioners or certified health scope the license and within the of conduct regulated conduct Stat. (1991). for which the license was issued. Or. Rev. 18.550 § availability dam- Two additional states restrict ages law. Louisiana courts have held that Louisiana by common See, Scott, damages. law allow Hall e.g., does not v. (La. 1982); App. Corp. 416 So. 2d 223 Universal C.I.T. Credit Jones, (La. App. 1950). Although v. So. 2d 359 does Louisiana specific damages, have a statute disallows requires case law to be based on a appears statutory provision damage to “repair” they only tortfeasors do. Because the statute requires reparation, the courts have concluded that it does not See, State, permit punitive damages. e.g., Ricard v. 2d 382 So. (La. 1980). App. similarly Nebraska does not allow civil punitive damages in See, 124, actions. e.g., Kingsley, Miller v. 194 Neb. N.W. (1975). 2d 472 The rule is an interpretation based on above, the Nebraska State Constitution. As noted Nebraska’s prohibits punitive damages UCC also in arising cases thereunder unless specifically 1-106(1) allowed statute. Neb. U.C.C. § (1992). have any We been unable to addressing discover cases the constitutionality provision of the case law or UCC Ne- braska.

Finally, the Supreme upheld Illinois Court has the constitu- tionality of the state’s statute barring punitive damages awards of Burris, healing legal malpractice. actions for art or Bernier v. 113 Ill. 2d (1986). 2d 497 N.E. In upholding the con- statute, stitutionality this the court pro- determined that the hibition at issue did not offend equal protection because was related rationally legitimate government goal avoiding liability. excessive 113 Ill. 2d at 246. Not unlike case in our victims, malpractice distinguished Kansas of pu- court also compensatory nitive from jurisdictions

The above cases and statutes from other provide little, if any, support addressing we question which are faced. Our decision is based upon the Kansas Constitution. The Seventh Amendment has United States Constitution not been to apply held to the states.

We note recent directly one case addresses more the issue with which we are concerned in this v. Al- case. Henderson 1993), (Ala. Co., So. 2d 878 Craig 12-year-old

abama Tower mother, Al suit, '»his and Henderson through by brought while he sustained for playing abama Power injuries Company Company. Alabama operated by and Power on a tower owned lines, resulting in an elec one of power His head contacted the in severely from the tower -and trical “flash” that knocked him negligence was .and wantonness. jured The suit based him. deliberation, -jury, to trial the after proceeded The court and $15,303.84 in compensatory awarded Henderson $500,000 damages. Company Power moved in Alabama verdict, or, alternative, judgment notwithstanding a for trial; the.punitive damages a remittitur of award. for a new Henderson, declaratory judgment entry in a motion for $250,000, challenged constitutionality judgment excess which, Code, .subject (1975), Ala. 6-11-21 to enumerated § $250,000 awards exceptions, jury limits to Court that-this statute violated the Supreme The Alabama held which, Constitution, Alabama not unlike the Kansas Constitution right inviolate.” by jury “that the of trial shall remain provides Alabama in the case of Moore v. Mobile previously had held Code, Ass'n, 1991), (Ala. 592 So. 2d 156 that Ala. 6- Infirmary § $400,000 the “non- 5-544(b) (1975), which limited to amount of action, in medical malpractice economic” recoverable right by guaranteed by trial as art. plaintiff’s jury violated 1, In deciding present 11 of the Constitution. Alabama § case, no compensatory Alabama drew distinction between right jury. plaintiff’s as it related to trial issue, Supreme par relied analyzing Alabama Court tially on decision the court had held prior wherein 1, right trial 11 of the protected art. 1901 constitution § right is the at law: as existed common “ right ‘The ... is confined to classes of cases in which those law, adoption at the existed at common or which it used time of the Wallace, v. 292 Ala. 292 So. Constitution.’ Gilbreath 2d General, (1974), Ala. v. State ex rel. quoting Attorney Alford 178, 188-89, Henderson, (1910) 54 So. 215-16 dissenting).” (Mayfield, J., 627 So. 2d at 884. law,

In our have protection case we extended constitutional law, rights but we nothing which existed common have said have been used in which a of cases classes about those have We Kansas Constitution. of the adoption the the time of at punitive compensatory between distinction a clear drawn damages punitive compensatory that both We know damages. at the time our law and at common by juries determined were time, only compensatory At the same adopted. constitution action, at remedy and a cause of right, a a damages existed as at com- damages determining punitive method of that time. The However, recognized cases all of our trial. by jury law was mon damages and that right punitive no vested to plaintiff has that action, separate in Kansas remedy or existed right, cause of no compensatory from an action for apart Henderson, in his Houston notes dissenting opinion Justice “ case a of the are in no that right plaintiff, damages ‘[e]xemplary for the in- of the at the discretion are assessed purpose but dam- had the to remit . . . The state dicated. [punitive] right of rati- when it the act did so passed by implication ages, ” Henderson, “All further notes: So. 2d at 909. He fication/ to recover citizen has a that no punitive right agree Justices life, therefore, interest is no there liberty, property damages; concerned.” are involved where of a damages punitive plaintiff Henderson, He further notes that 2d at 912.” 627 So. Justice Scalia, Mutual in in judgment in the his concurrence Life Pacific Ed. 113 L. 2d Haslip, v. 499 U.S. Insurance Co. “ have legislatures and courts (1991), wrote: ‘State S. Ct. 1032 pu- practice abolish the common-law to restrict or power the ” damages.’ nitive Henderson, Maddox, objective sought. way stantial relation to the One to meet [Citation omitted.] process requirements through due is substitute remedies.” Malpractice Kansas Victims Coalition deals with lim- statutory right itations on a plaintiff’s to compensatory damages: Rights provides “Section 5 of the Bill of of the Kansas Constitution right by jury guarantees right every of trial shall be inviolate. It of by jury. right by jury citizen trial ‘The to of trial is a substantial and valuable right. by jury right carefully guarded The law favors trial should be Inc., infringement.’ Waggener Systems, v. Seever 233 Kan. Atchison, Co., (1983) (quoting 664 P.2d Rly. 813 Bourne v. T. & S.F. 209 511, [1972]). by jury guaranteed Kan. only P.2d 110 ‘Trial in those Kimball, Connor, right cases where at existed common law.’ et al. v. al., *414, (1866). recovery damages et 3 Kan. *432 Common law for allows of Wilcox, negligent injury (Tefft [1870]), v. *46 6 Kan. and therefore right jury applies trial here.” Malpractice Kansas Victims Coalition deals exclusively with a remedy for damages actual in does not any way address punitive damages. Unlike compensatory damages, separate no cause of action punitive damages, existed for punitive dam- ages were not considered a remedy at common law. A plaintiff had no right to punitive damages at common law. legislative change

The from in judge the determination not, therefore, the amount of punitive damages does affect a action, right, common-law a common-law remedy cause or a by due course of legislative law common law. The change from damages punitive of the amount determination judge under the Kansas by jury to trial affect plaintiffs’ does not therefore, free, choose legislature Constitution. without implicating determining method process rights. due plaintiffs’ IN THAT COURT ERR HOLDING

(2) DID THE TRIAL A COULD NOT RRING PUNITIVE ELLIOTT’S HEIRS DEATH UNDER THE WRONGFUL DAMAGE CLAIM STATUTE? action, instantly. wrongful In her death Sue died

Carolyn Elliott held that The court sought punitive her heirs in wrongful a death action. damages were not recoverable 1905, damages were not this decided that In Townsend, Co. v. Railway death actions. wrongful available 524, 4, (1905), ¶ the court held Kan. 81 Pac. 205 Syl. was “for statutory wrongful pecuniary death cause of action deceased, exemplary sustained the relatives loss reviewing the law other allowed.” After from be exceptions, that “with a few the court concluded jurisdictions, wrongful death exemplary damages are not allowed actions] [in 71 Kan. expressly unless constitution statute.” provided Express Rochester v. Townsend at 532. The court reaffirmed Co., (1912), Kan. 123 P. 729 but has not addressed the Folks v. Kansas plaintiffs argue since time. The issue Co., Light Power & (1988), implicitly 755 P.2d 1319 Townsend, but, note, Folks as a overruled defendants included action, supported survivor which claim. Kan. at 58. urging us very persuasive argument

Plaintiffs to overrule make Townsend. Plaintiffs note illogical to allow punitive if damages if the survives but them the tortfeasor deny victim in also refer to other killing the victim. Plaintiffs us succeeds damages wrongful in jurisdictions that have allowed by not allowed statute. though expressly death actions even Nevertheless, Townsend message of is that the because statute, damages only purely cause of action is creature of expressly in allowed wrongful available death actions are those establishing the cause wrongful death statute. statute by in damages limits that it allows damages compensatory action damages resulting” of an from maintenance action “for person wrongful act or omission death of a caused Moreover, 60-1904(a) another. K.S.A. 60-1901. K.S.A. 1992 provides: for, “Damages be recovered but are not limited to: bereavement;

(1) anguish, suffering Mental or (2) society, companionship, protection; comfort or loss of attention, care, counsel; (3) loss marital advice or attention; (4) care or loss of filial care, education; (5) parental training, guidance loss (6) expenses (Emphasis supplied.)” funeral for the reasonable deceased.” Although language might “but are not limited to” suggest recoverable, punitive damages Supp. 60-1903(c) are K.S.A. 1992 only clarifies the intimation of 60-1901 that actual are 60-1903(c) recoverable. K.S.A. 1992 Supp. requires the trier of fact to render verdict itemized reflects the amount nonpecuniary damages, awarded for expenses for the care of the deceased caused injury, pecuniary damages. other It makes no provision punitive damages. Clearly, the statute on in wrongful death not contemplate Kansas does A recent Kansas Law Review comment analyzes the availability of punitive wrongful in in death actions Kansas and in Comment, other states. See Damages Punitive Wrongful Death will Respond?, Actions: How Kansas Rev. (1990). L. Kansas, In addition to the comment identifies 20 states and the District punitive damages of Columbia that do not allow wrong ful death actions. 39 Kan. L. Rev. at wrongful 208-09. The death statutes in 11 states expressly recovery allow of punitive damages. 39 Kan. L. Rev. at n. 55. The comment identifies 16 states that allow even though they do not have a expressly statute that allows recovery. such 39 Kan. L. Rev. at 211-12. statute,

The wrongful death is a action creature of and we do not Legislature believe the Kansas the wrongful intended permit death statute an award of punitive damages. In Town- send, Kan. the statute at issue did not expressly provide damages, and that punitive concluded dam- ages were therefore available death wrongful action. Likewise, present our statute does not punitive damages authorize damages that are recover- type identifies specifically court, absent this with earlier decisions In accordance able. authorizing damages, punitive in the statute express provision an in a not recoverable damages are punitive we conclude wrongful action in Kansas. death PLAIN- IN LIMITING ERR

(3) DID THE TRIAL COURT BY PROHIBITING OF RECOVERY TIFFS’ THEORIES AN ASSERTING INDEPENDENT PLAINTIFFS FROM AND FOR RED BALL SOUTHWEST CLAIM AGAINST HIRING, TRAINING, SUPERVISION, OR NEGLIGENT PRINTUP? OF RETENTION on that South- appeal at trial contend

Plaintiffs contended only vicariously Printup’s for Ball not liable west Red were negligent hiring, training, they but also that were wrongdoing, advance these retaining Printup. Plaintiffs supervising, and/or independent an basis for their claims in an effort to establish Ball Southwest. The damages against for Red claims summary motion for granted part district defendants’ claims, pursue their judgment plaintiffs these and allowed on only on the bases allowed K.S.A. punitive damages claims for Red Ball au- Southwest 60-3701(d)(l) 1992 Supp. and/or —that conduct. Printup’s thorized or ratified be made that trial court should

Although argument might an theory negligent their plaintiffs proceed have allowed on retention, respect hiring, supervision training, and/or damages, issue not court. compensatory presented is Plaintiffs concede that their liability “appeal any question relating on to the of defendants taken appeal damages is taken actual or the amount of actual

for trial limitation those and issues which relate to the court’s on on orders claims, liability presented punitive damage theories and evidence damages, and the amount defendants awarded.” 60-3701(d)(l) availability pu- limits

K.S.A. 1992 employer or acts of principal nitive agent: an employee or “(d) pursuant exemplary shall be assessed no case against:

to this section (X) principal employer agent employee A or for the acts of an or unless questioned person

the expressly conduct was authorized or ratified empowered prinicpal employer.” to do so on behalf of the or

Plaintiffs contend that if employer the or principal is indepen- dently liable negligent for its own in hiring, training, acts su- pervision, or retaining employee/agent, the then the limitation in (d)(1) would apply.

Whether the employer’s liability premised on the principle of negligent hiring/retention or the principle of respondeat su- perior, the employer’s liability is agent based on the acts of an or employee. An employer is not damages liable for for negligently hiring an employee unless and until the employee’s conduct causes damage to another. K.S.A. Supp. 60-3701(d)(2) limits an employer’s liability punitive employee’s for its conduct to those cases in which the employer authorized rat- or ified the employee’s conduct.

(cid:127) There are several under an theories which employer may be liable for its employee’s recently misconduct. We summarized Thies v. Cooper, 149, these theories in 1, ¶ 243 Kan. Syl. P.2d (1988): employer “An is liable for employee only the tortious acts of under special Special circumstances. employee circumstances exist when the is on employer’s premises, the performing employer, work for using the or the chattel; employer’s employer voluntarily when duty assumes a to control employee; employer or negligently when the retains a known incom-

petent employee.” or unfit 60-3701, Before enactment a corporation could be liable for damages because of an employee’s tortious acts com- during mitted the course of employment under following specific circumstances: “(a) corporation managerial agent or its doing authorized and manner act; (b) employee corporation unfit was and the managerial or its agent him; employing was retaining (c) reckless employee or was employed managerial capacity in a acting scope within the of em-

ployment; (d) corporation or managerial agent or its approved ratified or employee.” the act of Cablevision, Inc., Kline v. Multi-Media Syl. ¶ (1983). 666 P.2d 711 recovery Although Kline expressly allowed based retention, hiring reckless or 60-3701(d)(l) changed the above rule and specifically limited the circumstances in which a employee’s for its punitive damages be liable for corporation could (rat- (d) (a) (authorization) those described acts to tortious ification) in Kline. case, for actual liability vicarious defendants admitted

In this could be punitive damages which only bases on damages. The or au- Red Ball were ratification Southwest or assessed negligent acts employer’s principal’s alleged thorization. The retaining employee/agent training, supervising, or hiring, claim for separate advanced as a not be the claims correctly limited trial employer’s or 60-3701(d)(l) under based on the to those available questioned of Printup’s authorization or ratification principal’s conduct. IN EVI- TRIAL ERR EXCLUDING

(4) DID THE COURT ABOUT RED BALL’S OPERATIONS BEFORE DENCE 8, 1984, IN EVIDENCE AND LIMITING NOVEMBER AND OTHER RED BALL’S SAFETY PROGRAM ABOUT BALL RED DRIVERS’ CONDUCT? EVI- TRIAL ERR IN

(5) DID THE COURT EXCLUDING DENCE ABOUT SOUTHWEST’S RECORDKEEPING AND AND CON- QUALIFICATIONS PRACTICES THE OF OTHER DRIVERS? DUCT SOUTHWEST and respond (4) (5) does not above. Southwest really Red Ball argues the evidence about South- properly that the excluded cause South- west because it was unrelated to the of the accident. evidence proffer west of this was complains plaintiffs’ also by signed plain- in the form of affidavits improper because was affidavit partially tiffs’ counsel. Southwest is correct. The counsel, signed dep- it also citations to by plaintiffs’ but contains testimony testimony and The reference to sworn osition exhibits. plaintiffs’ being from discarded on protects proffer exhibits a form. The satisfies K.S.A. 60-405. proffer matter of evi- argue erroneously

Plaintiffs that the trial court excluded exemplary damages should be pertinent dence to whether The determined that should exemplary awarded. Printup against be Red South- against awarded Ball and but not argue have concluded west. Plaintiffs that the well Southwest should have been awarded argue that the They if evidence had been admitted. also exclusion of the prejudiced evidence further them the court’s determination of the amount exemplary damages to be awarded against Red Ball and Printup. question evidence involved the following:

(1) evidence of events that occurred before November

including evidence Printup’s previous driving under convictions, (DUI) violations, influence Printup’s safety record, Printup’s driving Department of Transportation Ball, audit safety of Red and Red Ball’s allegedly inadequate review and procedures; audit

(2) concerning evidence Red Ball’s allegedly inadequate safety

program; (3) evidence concerning the qualifications and conduct of other drivers;

Red Ball and Southwest (4) evidence concerning Southwest’s recordkeeping practices. Because liability and compensatory damages are not at issue in this appeal, admissibility of the above governed evidence by provisions of K.S.A. 1992 Supp. 60-3701(d)(l): “(d) exemplary In no case shall or pursuant be assessed against: to this section (1) principal employer A or agent employee the acts of an or unless questioned conduct was person authorized or expressly ratified empowered to do so principal on behalf of employer.”

Before we precise raised, address the question questions three must be answered concerning the application of the (1) statute: What is meant by “ratified”; “authorized” (2) what is meant phrase conduct”; questioned “the (3) what is meant by the words “a person expressly empowered to do so on behalf of the principal or employer”?

(a) Authorized and ratified

K.S.A. 1992 Supp. seq. 60-3701 et does not define authorization or ratification. There is no pattern jury instruction Kansas that defines In terms. its instructions to the jury, the court did authorization, not define the term which presents a problem that will be discussed later opinion. this The court did define ratification to mean acceptance “the of a course of conduct or act with an intent to ratify, and with full knowledge of all the material circumstances.”

339 (1986) 146 de- Dictionary International Third New Webster’s endorse, per- or justify, empower, “to to mean: “authorize” fines custom, (as authority recognized proper or if some by or as bymit . .: SANCTION.” evidence, regulating power). right, or personal formally (as esp. and sanction approve as: “to “ratify” It defines legally or a valid (as treaty) make servant): or agent act of an International Dic- New Webster’s Third CONFIRM.” operative: 1990) defines (6th ed. Dictionary Black’s Law 1885. tionary as follows: “authorize” authority authority endow with give to act. To empower; a or “To to warrant, permit right. To a omitted.] legal power, [Citation or

or effective meaning, mandatory or effect thing in the future. It has a to be done implying a direction to act. “ ‘permitted’; equivalent or as to construed ‘Authorized’ is sometimes is, ‘directed’, authority; mandatory language. Possessed to similar or ‘competency.’ synonym legal rightful power, of which is possessed omitted.]” [Citation “To as follows: “ratify” 1262 defines Dictionary

Black’s Law confirm; valid; sanction; give sanction to make approve and to.” con- ratification authorization and

This court has defined principal’s authority to act on agent whether an has text of law, principal “if the authority exists agency express behalf. expressly which agent by words authority delegated has State Bank delegable act.” Mohr v. to do a agent authorize the 42, 2, (1987). Accord ¶ 734 P.2d Syl. 241 Kan. Stanley, 438, 250 Kan. Corp., Supply v. Kansas Gas Barbara Oil Co. if authority 8, implied An has (1992). agent ¶ P.2d 24 Syl. parties and other relevant appears and conduct of “it from the statements ap- agent with an such was to clothe the intention circumstances normally agency it would authority was exercised pearance that when the being person’s authorized rely acts as naturally on the lead others 42, Mohr, Syl. ¶ Kan. 3. by principal.” 438, Co., ¶ Syl. 8. 250 Kan. Barbara Oil Accord law, as ratification we have defined agency In the context act performed of an principal “the or confirmation adoption without agent, performed which act behalf on his Leis, ¶ 686 P.2d Syl. v. authority.” Schraft (1984).

340

Kansas has not addressed the definition of the above terms However, provisions 60-3701(d)(l). under the the above cited and the cases following Kansas cases from other that jurisdictions punitive damages against allow employers ratifying or au thorizing employees’ wrongful conduct are ju instructive. Other to 60-3701(d)(l) risdictions with statutes similar have held that conduct, knowledge wrongful an employee’s coupled with fail ure to discipline employee, amounts to ratification implied See, or e.g., authorization. Khalid Bin Talal v. E.F. Etc. Hutton Co., 671, (N.D. & 720 F. Ill. 1989) (applying 683 Illinois law, illegal company’s trading activity awareness of and allowing it to continue “more than suffices to constitute authoriza ratification”); tion ... as well as Hart v. Mortgage National & Co., 1420, 7,¶ Land 189 Cal. App. Syl. 3d Cal. Rptr. 235 68 (1987) allegations (plaintiff’s superiors were aware of harass ment nothing but did to discipline coworker sufficient allege employer’s ratification misconduct); of coworker’s Hartman v. Co., 240, 3, Shell Oil 68 Cal. App. ¶ 3d Cal. Syl. Rptr. 244 (1977) (management’s knowledge of employee’s fraudulent rep coupled resentations discharge failure to reprimand or em ployee among are factors supported jury’s finding that corporation authorized ratified employee’s conduct); Wirig v. Kinney Corp., Shoe 448 N.W.2d (Minn. App. 1989), part, part rev’d in other grounds 461 N.W.2d 374 aff’d (Minn. 1990) (corporation implicitly employee’s ratified harass ment of by observing coworker it and allowing to continue unchecked).

Some have courts held an employer’s knowledge actual and obvious tolerance of employee’s misconduct is not re- quired. example, general For corporate policies can “authorize” employee Co., misconduct. In Templin v. Mountain Bell Tel. 4,¶ N.M. Syl. 263 (Ct. P.2d App. 1982), the New Mexico Court of Appeals held summary judgment was im- proper genuine because issue material fact existed regarding phone whether general company’s policies authorized pro- cedures that ultimately permitted installation of an off-premises extension of phone a woman’s her apartment. ex-husband’s testimony at trial indicated that the employees did not violate granting in the ex-husband’s procedure or any company policy N.M. 701-04. off-premises extension. 97 request for the wrongful its investigate employees’ An failure to employer’s up In justify imposition conduct also can against a award a holding damage corporate employer action, on in a sexual harassment based ratification/authorization District Court the District of Ohio found the United States or have known” that the management that the knew “should withholding harassing wrongfully plaintiff’s per was the employee The salary reviews. court stated that formance evaluations work, appraise plaintiff’s the harasser’s “failure to addition to . . circulating among managerial him . em the rumors about investigate superiors have his to the ployees, prompted should However, Black taken.” Shrout v. Claw was situation. action no Co., Brink’s, son Supp. (S.D. 1988). F. Ohio Accord York, v. New City Inc. (S.D.N.Y. 546 F. 1982).

At least court impose punitive damage one has declined to liability for where the employer did ratification/authorization Com- knowledge wrongful have actual act. employee’s Equipment Corp. Stamps, mercial Credit v. (7th 920 F.2d 1361 1990), credit filed company judgment Cir. a action declaratory alleged an the debtor determine debtor/defendant’s the liability beginning on a note. The defendant had claimed from and, out, forged that the as it they loan documents were turned forged. impose liability were The on the attempted defendant fraud, company employee’s credit for its action, filing the alleging judgment that the credit declaratory the company employee’s forgery ratified of the documents. The contention, rejected finding court this that the was en- company the rely possession though titled documents its even alleged always they forged. debtor maintained were noted: “(If accept any allegations forgery, truthful its lender must as business enterprise lived.) Inferring . . be short . ratification of fraud from a would efforts, company’s finance loan out collection when the documents turned forged, place corporations to be would finance in an untenable Catch-22

position false.” F.2d whenever debtor claims loan documents are at 1370. however, dis-

Stamps, distinguishable is the other from cases put cussed above wherein there were facts that should have was employer employee engaged on notice miscon- duct. definitions, law, upon dictionary

Based Kansas case the law of other we jurisdictions, hold authorization under the provisions 60-3701(d)(l) of K.S.A. 1992 Supp. may be either express or implied generally accomplished during before or employee’s questioned may conduct. It be based on ex- press grant authority or on a conduct indicating course of employee empowered given or or authority engage in questioned conduct. Ratification under the provi- 60-3701(d)(l) may sions of be express implied either before, be accomplished during, the employee’s ques- or after may tioned conduct. It express be based on an or ratification based on a course conduct indicating approval, sanctioning, the or questioned confirmation of the conduct.

(b) Questioned conduct

K.S.A. Supp. 60-3701(d)(l) requires that an au- employer thorize or ratify employee’s the that gives conduct rise the to words, cause of action. In other the conduct that is authorized or ratified causally must be the resulting connected to harm.

This is interpretation consistent with Kansas law regarding em ployers’ See, e.g., Hollinger liability employees’ misconduct. Nurses, v. Stormont & Hosp. Training School 2 Kan. App. 302, 307-08, 2d P.2d rev. denied 225 Kan. 844 (1978) (approving in negligent hiring instruction claim that a required causal connection between the employee’s dangerous propensities injuries suffered). the We conclude that there a must be determination corporate that the defendants authorized or ratified the conduct Printup that caused proximately the accident.

(c) By person a expressly empowered to do so on behalf of the

principal employer or K.S.A. 60-3701(d)(l) 1992 Supp. that requires the or principal employer or ratify, authorize or that a person expressly empow- ered to do so on behalf of the or principal employer authorize or ratify, above, the questioned conduct. As stated both author- ization and ratification be based a on course of conduct engage in the empowered to indicating employee the approved or employer implicitly conduct or the questioned Therefore, when 60-3701(d)(l) conduct. questioned sanctioned or rat- conduct was authorized questioned that “unless the states to behalf of the do so on person expressly empowered aby ified necessarily person provided it refers to a employer,” or principal bind the express authority prin- act on behalf of and with the managing agent employer of an employer. example, or For a cipal power to bind normally possess express would principal or Thus, agent acting managerial or employer principal. or ratify of the or could authorize principal employer behalf meaning conduct within the agent’s employee’s questioned or connection, In this terms under the words 60-3701(d)(l). those of the Kline decision “(a) corporation are or its instructive: manner of the managerial agent doing authorized act; managerial agent ... or its ratified (d) corporation or ¶ Kan. 4. employee.” Syl. or the act of approved expressly be statutory require person does not phrase questioned or empowered ratify to authorize conduct em- agent employee only person expressly or but be bind the principal employer. act on behalf powered Having 60-3701(d)(l) how to be generally applied, addressed questioned to the evidence. The application we now consider its pre-November trial court excluded evidence of 1984 occurrences they in time to relevant. It is not because were too remote be the court selected November but precisely why clear Red Ball the part give have selected the date appears problems Department of opportunity Transportation to correct that (DOT) during agree identified an audit. While we conduct time, nearly three before the accident be remote in years aof course of related misconduct over a three- causally evidence Thus, or-more-year if the conduct issue period relevant. 8, 1984, with trial only agree occurred before November we that it cause and properly is not relevant to the of action was excluded. If there is of related misconduct causally evidence that occurred before and after November November the pre-November evidence of 1984 conduct never- pattern long-term theless is relevant because it shows of following guidance respect same misconduct. We offer the categories of specific pre-November to the 1984 evidence about plaintiffs complain. which argue Printup’s previous

Plaintiffs that evidence of primarily negligent employment DUI convictions was relevant to their contend, however, claims. that such They also evidence indicates corporate disregard safety defendants’ indifference to and and, thus, punitive damages. considerations is relevant There was, however, Printup’s no evidence use of alcohol caused or to the accident. Highway Heryford contributed Patrol Officer testified that he secured blood samples party from each involved samples the accident and sent those to the Kansas Bureau of Investigation He testified that analysis. the results of the analysis bearing had no on the accident. Absent some evidence accident, use of Printup’s alcohol caused or contributed to the we need not address whether alleged Red Ball’s or Southwest’s disregard Printup’s prior DUI convictions amounted to ratifi- cation or authorization driving under the influence. Absent accident, some connection to the evidence Printup’s' prior DUI convictions is not or admissible. The trial court relevant did not in excluding err Printup’s pre-November evidence of 1984 DUI convictions. argue

Plaintiffs also the trial court erroneously excluded audit, evidence of the results of Red Ball’s safety 1983 DOT Red Ball’s allegedly inadequate procedures to review and audit drivers’ logs, Red Ball’s allegedly inadequate safety program, Southwest’s allegedly inadequate recordkeeping practices, and evidence other drivers’ conduct. These are broad categories of evidence. record, Based on our review of the plaintiffs briefs appear to be primarily concerned about evidence that Southwest Red Ball did not enforce requirements federal and corporate pol- service, icies regarding books, drivers’ hours of log drivers’ safety inspections. above,

As noted ratification and authorization are broad enough to encompass evidence corporate defendants knew or should have known about employee misconduct and evidence of corporate policies, procedures, managerial behavior that a jury reasonably could implicitly infer authorized or ratified the ques- tioned conduct. Accordingly, evidence that Southwest or Red Ball knew or should have known that Printup violating safety is relevant compliance, his nothing require to did but regulations, is admis- such evidence Whether or ratification. authorization to however, finding safety that the sible, an additional upon depends accident. to the caused or contributed at issue violations record, evidence the at least some review of Based on our is relevant procedures and safety programs companies’ the about long history Printup had a theory Plaintiffs’ admissible. and the driving logs inspection reports falsifying his tolerating long history had a which he worked companies hours fatigue find that due to If the could violations. such accident, then to the caused or contributed service violations had to know of knew or reason companies the evidence is relevant to violations logs and hours of service Printup’s false or contributed conduct that caused and ratification of authorization to the accident. which the could in the record from

There is evidence the lost control of asleep tired or fell Printup infer that was midnight. The tractor- near The accident occurred tractor-trailer. median, blocking path and crossed jackknifed trailer his variously day about when Printup traffic. testified oncoming accident, at day September On started. latest, a.m.; earliest, got up he at 4:30 at duty he went on Foristell, a.m. He drove from duty went on at 6:30 at 4:30 and Missouri, delivery. made a He testified City, Kansas where he to Olathe, 6:00 stayed he from about went to where that he then at about 9:00 leaving that after Olathe 9:00 He testified p.m. accident, get a ticket except not until stop he did p.m., consistent, is not Although Printup’s testimony gate. at the toll (although go had been on the long day. had a He it is clear that he driving” of federal duty purposes “on necessarily took, when he p.m. 6:30 a.m. until 6:00 regulations) from at least most, three hours driving before another a three-hour break the accident. prior as whether not conclusive investigation was

The accident Joy equiv- Brent was at the wheel. Patrolman Printup asleep fell fatigue Heryford was a factor. Officer whether driver ocal about right-hand lane Printup that he concluded testified cross-examination, Heryford started. On Printup’s problems when generally tend to follow asleep who fall testified drivers road, crossing contour of the rather than hump in the center Thus, of the road. if Printup performed had like the normal driver, his truck sleeping gone would have off the side of course, crossing the road instead of fatigue median. Of could have been a if contributing factor even did not Printup actually Moreover, asleep. jury weigh fall was entitled to this evidence it saw fit. as

The jury could have found that Printup’s fatigue caused or contributed to the accident. inconsistency The of his testimony logs his could support inference that he was tired because he had worked more hours than he shoiild have. Accordingly, the trial excluding court erred by relevant evidence that South- west and Red Ball knew log or should have known about book and hours of service violations and had failed to require com- pliance with safety regulations. those recognize

We that at the time of the accident and for several accident, years before the had Printup logs submitted his to Red Ball, had, however, not Southwest. Printup worked for Southwest historical, years. for 26 Southwest’s Printup’s alleged treatment noncompliance log and hours of requirements service is relevant. Southwest was his employer and had authority to fire him. To the Printup’s extent noncompliance was related to fa- tigue, Red Ball’s and Southwest’s tolerance noncompliance of such was both relevant and admissible.

The trial court did excluding not err in evidence that Printup falsified vehicle inspection reports because there was no evidence in the record that a mechanical problem caused or contributed to the accident. Joy Officer specifically testified that he did not find any mechanical defects Printup’s truck that caused or contributed to the Joy accident. did find problem with one tire, brake drum and one but plaintiffs present did not any ev- idence that those defects caused or contributed to the accident. Absent any causal relationship between inadequate inspections accident, and the evidence of such violations is not relevant or admissible.

Evidence about other drivers’ conduct is not pertinent to rat- ification or authorization of Printup’s conduct unless the other drivers’ conduct is related to fatigue-causing conditions. The com- panies’ logs tolerance of false and hours of service violations is were companies infer that could jury which the from evidence that such conduct and other drivers Printup message sending author- companies infer The could acceptable. erred in trial court Similarly, conduct. ratified such ized or recordkeeping practices about Southwest’s excluding evidence hours of driving logs or pertained the evidence the extent fatigue. thus driver service reversal grounds of evidence is erroneous exclusion 60- K.S.A. rights parties. the substantial

unless affects on the from the the above evidence The exclusion of 261. dam- awarded should be plaintiffs of whether question plain- rights of affected the substantial ages against Southwest reversed, judgment Accordingly, portion tiffs. plaintiffs of whether jury determination the case remanded damages against Southwest. punitive to recover are entitled should be awarded that punitive The determined jury ad- It did so based on evidence Printup. Ball and against Red prej- the exclusion of evidence concluded that mitted. We have However, suffered plaintiffs the the rights plaintiffs. udiced the of regarding Red Ball of such exclusion evidence prejudice no admitted, because, jury con- evidence based on Printup and Red Ball against awarded damages should be punitive cluded that be the result would to believe There is no reason Printup. ruling because our on remand Printup Red Ball and different and rat- authorization bearing evidence will additional allow determination, no prej- suffered plaintiffs jury to this ification. As udice, is affirmed. determination jury of portion rights the substantial also affected

The evidence of exclusion amount of the court’s determination as to plaintiffs Ball against Red damages awards punitive further consideration and remanded for are reversed Printup authorization evidence relates to the excluded by the court. While and Red ratification, Printup to the conduct also relates evidence, pu- of the amount a determination Ball. With new may change. two defendants damages against these nitive remand, are If, plaintiffs should decide upon Southwest, court must damages against entitled to otherwise, If the concludes determine the amount.

court’s consideration is limited to a determination of the amount Printup. be assessed Red Ball and realize that specifically

We we have not addressed each par- Rather, ticular item of evidence about which plaintiffs complain. we have attempted categories to discuss of evidence and set forth guidelines to aid the and the trial parties determining what additional evidence should be admitted. As should be clear discussion, foregoing from the admissibility of particular ev- idence about Southwest or depends upon Red Ball whether evidence tends to prove company either ratified or authorized conduct that caused or contributed to the accident. We trust foregoing discussion will the parties and the court in deter- aid. mining the admissibility items particular of evidence upon remand.

(6) DID THE TRIAL COURT ERR IN INSTRUCTING THE ABOUT WHAT CONDUCT BY RED BALL OR

JURY SOUTHWEST AMOUNTED TO RATIFICATION AND AUTHORIZATION OF PRINTUP’S CONDUCT? The only basis for punitive damages against Red Ball or South- west was under the provisions of K.S.A. Supp.. 60-3701(d)(l): “(d) exemplary pursuant no case shall or be assessed against: to this section (1) principal employer agent A or employee for the acts of an or unless questioned conduct was authorized person expressly or ratified empowered principal employer.” (Emphasis to do so on behalf of the added.)

Plaintiffs requested the court instruct the jury as to au- thorization and ratification. The court defined only by ratification saying that it meant “the acceptance of a course of conduct or act with an intent and with ratify, knowledge full of all the material circumstances.” The court used the term ratify to define ratification and failed to define authorization. The court’s failure to instruct the jury upon request on both means which the jury could conclude that damages may be awarded was clearly erroneous. ratification,

Under the more restrictive definition of jury concluded that Red Ball should be responsible dam- ages. There is no reason to conclude that this result change would with a new jury under expansive more definitions of ratifi- Ball in this Red has no adopted opinion. cation and authorization However, instructions on both proper jury complain. basis authorization, that Southwest jury may a conclude ratification we damages. Accordingly, responsible be also should on the issue of whether that verdict have concluded must be awarded Southwest should be remand, jury by the court should instruct Upon reversed. Its failure to authorization and ratification. defining the terms Powers v. Kansas clearly erroneous. See define authorization Co., (1983). In & 671 P.2d 491 Light Power opinion. consistent with this remand should be upon structions Ball, in claims that the trial court erred cross-appeal, Red its ratification when finding on a allowing punitive Ball’s conduct after the accident there was no evidence of Red of the cases we have might Many amount to ratification. au opinion speak read and in this of ratification and discussed if man together, they suggest corporate thorization but all that causes the agement obviously tolerates kind conduct to ratification authorization. Most of injury, amounts and/or cases, however, continuing a course of tortious these involve Co., & conduct. Khalid Bin Talal Etc. v. E.F. Hutton F. 1989) (recurring in commodities (N.D. Ill. misconduct Co., Mortgage Hart v. National & Land trading); App. 189 Cal. Wirig v. (séxual harassment); Rptr. (1987) 3d Cal. Kinney Corp., Shoe (Minn. 1989) (sexual App. 448 N.W.2d 526 cases, harassment). ongoing logically tolerance amounts those to ratification. Ball, however, argues this case involves one-time

Red and, circumstances, must show that plaintiffs tort under these accident to con- corporate something defendant did after the Thus, Red Ball con- acceptable. behavior was Printup’s firm ratifying con- post-accident tends that absent some evidence duct, Printup’s ratified it was not to find that Red Ball proper above discussion action. We have addressed this contention our The cases cited in the of the terms authorization and ratification. but does not nec- section indicate that ratification previous Upon act after the tort is committed. essarily require express remand, on ratification the court should instruct opinion. manner consistent with this RE- ERR IN REFUSING TO

(7) DID THE TRIAL COURT CERTAIN FINAN- RED BALL TO PRODUCE QUIRE FOR AND PARENT COMPANY INFORMATION CIAL IN PROCEEDINGS TO DE- USE THE POST-TRIAL PUNITIVE DAMAGES? TERMINE THE AMOUNT OF pertinent Financial information about Red Ball is issue First, damages respects. gross Red Ball’s annual two respect statutory cap income is relevant with to the on 60-3701(e) Supp. caps punitive K.S.A. 1992 (1) highest gross any at the lesser of Red Ball’s annual income (2) years preceding one of the five the accident or million. $5 Second, determining the amount of to be awarded, 60-3701(b) permits K.S.A. 1992 the court to con- sider, among things, “(3) other of the defendant’s profitability misconduct; defendant; (6) ... the financial condition of the (7) the total deterrent effect of other and punishment defendant as a imposed upon the result of the misconduct.” complain appeal Plaintiffs on the trial court erred in not Red Ball requiring produce “complete financial records re- garding relationship its financial condition and with its parent company, identify any American Red Ball.” Plaintiffs do not particularity they produced. only the records claim were not specifically sought records trial were “financial they records reflecting gross its annual income earned in the years through do not They complain appeal 1987.” that Red Ball records, produce pro- failed to such and the records that were record, in the any duced are not so we are unable to make independent plaintiffs determination about whether obtained the records, records. If requested plaintiffs only specific asked motion, granted produced trial court their and Red Ball the re- records, cannot now quested we find the trial court erred failing compel production requested. of records not It is ap- pellants’ designate burden to a record that is sufficient to present Jay, Sterba v. points their and to establish the claimed error. 270, 280, (1991). 249 Kan. 816 P.2d adequate Without record, See, State v. plaintiffs’ alleged claim of error e.g., fails. Dunn, P.2d 412 (1991). plaintiffs’ position

We also note that at trial seemed to be that defendant, Ball, only specifically information about Red Saubert, relevant and admissible. Red Ball called as a witness Mr. of American Ball president Corporation, parent Red com- pany of Red Ball. objected grounds Plaintiffs on relevance to Red Ball’s about various of one of the inquiry operations other sub- sidiaries. The court asked what all this had to do with defendant Red Ball. Defense counsel it trying assured the court was to make clear the distinction corporations between the two because con- solidated being financial statements were submitted. These fi- nancial statements are not in the it record. court made clear only would look to Red Ball evaluating when its financial con- dition for purposes damages assessment. Before re- however, linquishing questioning, this line of defense counsel sought assurances from the court and plaintiffs’ counsel they agreed that “American Red Ball Transit Company only is the corporation is at issue at this point.” Plaintiffs’ counsel stated on the record: “That’s I always what have assumed. If there’s on, something going I else don’t know about it.” Moreover, plaintiffs objected at trial to the admissibility of an "audited financial statement of American Corporation Red Ball objected subsidiaries.” Plaintiffs to the exhibits on relevance grounds because only “couple pages” anything had to do with Red Ball. It was the trial court that decided the exhibits should be admitted because the corporations may “interconnect.”

Plaintiffs did not ask the court Red Ball require produce specific additional and appeared willing information to be to defer to the court’s determination of what it needed. plaintiffs While methods, stated in the record that accounting information on attachments, expenses, nature of and supporting documents were produced not and that information accounting about methods give complete picture, would a more did plaintiffs specifically Thus, request production any specific additional information. deny the court did not a specific request specific information. Finally, appeal, plaintiffs have not been able to explain to exactly this court what information did not they receive in the trial Plaintiffs claim they court. are entitled to “complete financial regarding records financial condition and relationship [Red Ball’s] with its Plaintiffs did parent company.” not include the record receive, they did and plaintiffs documents have not precisely described, court, here or the trial what additional information circumstances, did not trial court want. Under these

they remand, only presentation limited to parties are Upon err. previously records admitted. those financial ERR POST-TRIAL (8) DID TRIAL COURT DURING THE BY OF ADMITTING EVIDENCE PROCEEDINGS TO MITIGATE PUNI- POST-ACCIDENT CONDUCT AND ADMITTING OF TIVE DAMAGES BY CONTENTS SETTLEMENT NEGOTIATIONS? Conduct

A. Post-Accident allowing Red Ball Plaintiffs claim trial court erred that oc- present post-accident evidence of remedial conduct accident, long mitigate punitive curred after in an effort includes, not damages. subsequent remedial conduct but is 1987; drug testing program implemented limited to: in a driver a drivers; initiated in and used qualify evaluation form to in training training programs implemented classroom and driver 1988; 1988; a in and a log implemented driver evaluation form assigned point system points that for various infractions and im- posed consequences upon points various based accumulated.

K.S.A. 60-3701 that remedial provides subsequent and on the of punitive measures are relevant admissible issue Supp. 60-37Ql(b)(5) to K.S.A. 1992 allows the court and upon consider “the attitude conduct of defendant dis- is covery theory provision of the misconduct.” The behind this a remedy that a defendant takes to promptly steps contrite who to be problem plaintiff’s injury that contributed a should not punished severely as a who maintains business as as defendant usual after the incident rise to the claim dam- giving ages. hearing punitive damages, plain-

At the the court sustained objection Red Ball’s of subsequent tiffs’ to evidence remedial proffer conduct. Ball was a of evidence present Red allowed to testimony. Brantley in the form of Lamont testified Brantley’s in Red later improvements safety program. about Ball’s The court notified counsel letter that it had its earlier de- reconsidered cision to admit evidence. were then decided Plaintiffs to, did, Brantley by allowed How- deposition. cross-examine ever, record, that not transcript deposition of is in the so appellants to determine if were correct that impossible is “[t]wo things during significant testimony.” were revealed Brantley’s revealed deposition testimony Plaintiffs claim subsequent just part remedial conduct was of the “natural progression” company’s safety program “nearly 1991; all changes of these were made 1990 or most were made plaintiffs within a few months of trial.” claim the Accordingly, not of the subsequent probative evidence of remedial conduct upon discovery “attitude and conduct of the defendant misconduct” Red Ball was to take this action because scheduled event, long and most of the action not taken until any after the accident. Even if this would render all or testimony inadmissible, some subsequent remedial conduct evidence deposition transcript, without we unable to are determine designate whether claim is true. “A must ad plaintiffs’ party equate appeal record on to the to substantiate contentions made record, appellate Without a error alleged court. such claims appellate must fail. in an are not Assertions brief sufficient Eisenhut v. Stead satisfy inadequacies appeal.” the record on man, 2d App. (1989). 767 P.2d “the

Additionally, language attitude conduct of the upon reasonably defendant misconduct” be discovery construed to extend remedial conduct after the On taken tort. case, the facts this improve safety the efforts to program a large moving company likely are require substantial amount of time implement and refine. It would be unreasonable to assume that such action very well take from a few months to a few The of years. elapses amount time that between accident goes and the time the corrective measure into effect relates to the weight more than evidence to its admissi- that, case, bility. We conclude on the facts of court this the trial did allowing not err in evidence of remedial subsequent conduct.

We that K.S.A. Supp. 60-3701(b)(5) hold above makes the evidence of remedial conduct relevant. in- Plaintiffs have not cluded their cross-examination of in the Brantley record. describes, testimony that is in the part, record for the most remedial taken within a after year actions or two the accident. This was as of evidence admissible reflective the attitude conduct upon discovery of Red Ball of conduct within the to des- 60-3701(b)(5). plaintiffs have failed

meaning of Because of specific allegations error sufficient review ignate record does not the evidence of time alone render lapse because the inadmissible, trial that the we conclude of remedial conduct subsequent remedial conduct allowing not err in evidence of did pro- ruling govern Our is to as it related to ceedings remand. upon Negotiations

B. Settlement during the hear- plaintiffs’ testify called counsel Defendants punitive damages. response This action was taken ing on 59, plaintiffs’ of Exhibit plaintiffs’ the court’s admission which plaintiffs’ litigation expenses. about We note counsel’s affidavit on plaintiffs’ ap- that Exhibit 59 was not included in the record argued expenses .the peal. Plaintiffs the court should consider determining litigation punitive damages award. The trial plaintiffs’ objections. court admitted Exhibit 59 over defendants’ In of Exhibit the defense response to admission called as a in order to cross-examine Exhibit plaintiffs’ counsel witness cross-examination, this 59. For the court directed purposes plaintiffs’ testimony counsel treat Exhibit as counsel’s direct examination. cross-examination, this

During course of defendants’ coun- inquired negotiations during pretrial sel into settlement arose stages litigation. plaintiffs’ The defense contended that if liti- gation damages, costs were relevant to settlement dis- they cussions also were relevant because demonstrated un- necessary Basically, were incurred. defendants claimed expenses could have settled the before trial plaintiffs because case litigation than damage judgment, many more their actual of their unnecessary. expenses were support argument erroneously of their that the court allowed concerning negotiations, rely upon

evidence plaintiffs settlement Co., the case of Exterminating Ettus v. Orkin P.2d wherein held (1983), the court that absent unusual circumstances, negotiations “settlement offers and are inadmis- purpose sible evidence even when offered for the limited defending against damages.” an award 233 Kan. at this, Ettus, noted in is that so many 570-71. The reason as we enter factors the defendant’s into settlement culpability besides negotiations, behind is policy punish- ment and deterrence of conduct. at 570. Ac- culpable is cordingly, evidence of discussions not particularly settlement punitive damages on probative may in fact the waters muddy Ettus, holding in issues. We but we note that the support circumstances, that in court in that indicated set- case unusual tlement and negotiations may offers be admissible in evidence defending when an purpose offered for limited award of punitive damages. case, we this unusual circumstances were demon- believe

strated and allowed question that defendants properly were by cross-examining 59 of plaintiffs Exhibit basis of whether the expenses in Exhibit were actually necessary contained expenses. hearing We think it important this occurred presence before trial court outside the for the allowing purpose plaintiffs’ defendants to claim of respond litigation expenses. The under necessary evidence admissible circumstances, probative these unusual even its though may value have been limited. We note one is so other many limitation culpability factors besides enter into settlement ne- defendants’ gotiations that the of failure to is of value. evidence settle limited hindsight We also recognize 20-20. It was defen- always dants’ that plaintiffs’ litigation expenses contention were unnec- essary because offers or exceeded approximated settlement damage actual award which judgment. the court entered factors, however, go weight All of these given to the to be the evidence not to admissibility. its evidence defendants offered is guess involving at best second of settlement decisions Yet, many again, factors than punitive other while the value, evidence have probative plain- of limited it was been tiffs who the question by claiming necessary and raised reasonable litigation circumstances, expenses. Under unusual is fair these given necessity defendants be question opportunity such litigation expenses. Accordingly, the trial court did not by allowing regarding err necessity evidence reasonableness and litigation expenses under these limited circumstances. (9) DID THE TRIAL COURT ERR IN TO REFUSING

HOLD RED BALL AND LIABLE SEVERALLY JOINTLY

FOR THE ASSESSED PUNITIVE DAMAGE AWARD AGAINST PRINTUP? joint and permits imposition of

Plaintiffs that Kansas law claim dam- employee punitive and for employer on an liability several cite support, they In Kline employee. the ages against assessed Cablevision, Inc., P.2d 233 Kan. v. Multi-Media Inc., 13 Gabbert-Jones, and Ins. v. (1983), Southern American (1989). P.2d involved App. 2d Kan. Gabbert-Jones (1) liability damages issues: whether following the two agreement between the two insuring within of the scope was the prevented the insurer’s (2) public policy and whether parties; App. 2d at 326. and liability for punitive Joint was not employee an and an liability employer several between issue Gabbert-Jones. in the liability and was not an issue Kline several also Joint Kline, agents employees; sue the and plaintiff

case. the did not The sued 233 Kan. at 989. issue only employer/principal. he the in Kline whether the could be liable for employer was damages employees’ jointly for whether it was its acts—not award severally punitive damage separately liable for assessed its against employees. liability imposition joint punitive damages

The several for contrary purpose the which are for wrongdoer. awarded. to punish Punitive are awarded wrongdoer punitive damages Each is liable to assessed pay him or her. The of the award is to be calculated amount with the financial conduct in individual defendant’s status and Supp. 60-3701(b), (e) (f). mind. K.S.A. 1992 and several Joint liability undermines these and therefore is una- considerations contrast, joint vailable. In liability compensatory and several circumstances, damages, appropriate under is consistent with purpose, their which is to victim. compensate tort Accord- ingly, refusing the trial court did to hold Red not err Ball jointly severally damage liable for the award assessed against Printup.

(10) DID IN THE TRIAL ERR REFUSING TO COURT AS-

SESS TREBLE DAMAGES PRINTUP AND AGAINST RED BALL AS PART OF THE PUNITIVE DAMAGE AWARD? erred in assessing

Plaintiffs claim that the trial court not treble 66-176, which damages pursuant provides: to K.S.A. “Any public utility any pro- carrier which shall violate or common regulation public visions of law for of such utilities common carriers or offense, forfeit, corporation every person, company ag- to the shall or grieved thereby, party three times the actual sustained suit, fee, aggrieved, together attorney with the and a costs of reasonable court; appeal judgment any fixed and if an taken from be be thereof, appellate part duty it shall be the include in the

judgment appellate attorney’s fee additional reasonable for services court or courts.” plaintiffs claim timely did raise this issue. This presented

not to the trial months after nearly court until four filed notice of trial plaintiffs appeal. Accordingly, their their properly modify judgment. denied motion to Plaintiffs seek this court’s on indulgence the basis that the Court 27, 1991, Appeals did not decide until December that K.S.A. 66-176 created a injured by action for individuals common Atchison, Co., carriers. Dietz v. & Santa Topeka Rwy. Fe However, Kan. App. (1991). 2d 823 P.2d 810 Dietz was decided before filed plaintiffs their notice of and K.S.A. appeal, long 66-176 was on the books this case before ever went to trial. We decline plaintiffs’ to entertain claim.

(11) DID THE TRIAL COURT ABUSE ITS DISCRETION IN

DETERMINING THE DAM- AMOUNT OF PUNITIVE AGES?

Because we have reversed of punitive the court’s assessment consideration, and remanded for further we need not address this issue.

PRINTUP’S CROSS-APPEAL (1) DID THE TRIAL COURT ERR IN SUBMITTING TO

THE SMITH’S CLAIM OF PAIN AND SUFFER- JURY ING?

Printup the court in submitting jury claims erred to the Smith’s claim of pain suffering supported conscious and because it was not by the evidence. Printup argues (the that sole witness expert coroner) testified that Smith no and suf- pain endured conscious fering and remaining testimony that the was Lay inconclusive. witness can testimony support suffering. for pain verdict 504, 510, (1990); P.2d 1329 Carey, Kan.

Gregory v. P.2d 823 There (1989). Gafford, Leiker v. behavior testimony in this case about Smith’s lay was witness supporting a reasonable inference of the accident scene testified suffering. Mark Woodhouse pain he endured conscious that he breathing appeared erratically was Smith body to Wood- sound and movement respond two-syllable way. was on its help statement house’s personnel. conflicting testimony emergency was from There un- believed Smith was highway patrolman One testified he that he firefighter opine A testified could conscious. volunteer An immediately impact. was after whether Smith conscious suggested Smith was not EMT testified that what he observed after died tes- The coroner who examined Smith he conscious. that, injuries, possible, tified of Smith’s given nature that Smith was after medically probable, but not conscious impact.

Woodhouse, however, was the first scene. None person until minutes experienced personnel of the more arrived 10-25 in- Accordingly, reasonably after have the crash. could not, and things ferred that that others did Woodhouse observed pain that what he indicated Smith endured observed conscious suffering. There was sufficient evidence the record to submit claim of pain suffering. Smith’s

(2) DID THE TRIAL COURT ERR IN SUBMITTING TO

THE SMITH’S CLAIM THAT PRINTUP’S CON- JURY WAS DUCT WANTON? wantonness, For an act to amount to the actor must have reason may injure to believe that his and commit the act act another another. Frazier with anyway, injures indifference to whether it Co., v. Oil Cities Service (1945). 157 P.2d 822 that not and evidence argues convincing there was clear Printup the his danger he realized imminence from actions. required regarding testified that he knew what the law Printup logs accurate and limited work He nevertheless acknowl- hours. violations, edged log including logs days the numerous and immediately preceding testimony weeks the accident. His huge logs, prior testimony, between his his discrepancies included and trial his on the of the ac- testimony activity day his about a.m., a.m., cident. left at 4:30 6:30 noon. He either Missouri or 12:30, a.m., He in Kansas 11:30 or 4:30 He City p.m. arrived he at either arrived at the residence where delivered furniture p.m., p.m., 12:30 or and arrived at Olathe at either 2:00 3:00 he p.m. 5:00 6:00 remained for either three hours p.m., or He there it Printup or one and hours. testified that he knew one-half reckless and could lead an accident if he worked 17-18 hours to a his a that he from day, yet testimony supports finding worked occurred, midnight 4:30 a.m. give until when the wreck or take a Printup’s testimony disregard few hours. wanton indicated regulations the safety requiring limited work hours and accurate recordkeeping. disregard To the that such inter- extent be accident, preted as related to the cause of the supports claim wantonly. that he acted accident,

Printup testified before began also his trailer fishtail, which he as a recognized sign that the road was slick control; losing yet, that he was speed. he did not reduce his circumstances, Under these the court not err in submitting did this claim of wanton jury. conduct

CONCLUSION judgment The following of the court is affirmed in the partic- ulars. 1992 Supp. K.S.A. dam- 60-3701 constitutional. Punitive ages are available in wrongful a death action in After Kansas. 60-3701 et seq., enactment K.S.A. 1992 plaintiff separate has no for punitive advance claim employer principal upon negligent or based of the acts hiring, employer principal supervising, training, retaining or the employee/agent. rulings regarding court’s of financial records admission affirmed, determine amount of are Likewise, rulings

those become the upon law case remand. rulings the court’s regarding admission of evidence of remedial together conduct negotiations evidence of settlement are affirmed upon and become the law of the remand. case holding

The court’s avail- joint liability several is not provisions (e), able under K.S.A. Supp. 60-3701(b), (f) holding is affirmed. The under court’s treble K.S.A. 66-176 are this unavailable case is affirmed and becomes correctly the court Finally, upon remand. the law of the case to the to submit there was sufficient evidence determined suffering behalf and on pain claim of conscious plaintiffs’ jury conduct. Printup’s wantonness and the issue of of Smith authori- erroneously relevant evidence of excluded The court of K.S.A. 1992 provisions under or ratification zation rights plaintiffs. the substantial 60-3701(d)(l) that affected failing to instruct clear error The court also committed Accordingly, the de- 60-3701(d)(l). jury authorization under reversed, is and the case damages is regarding punitive cision following remanded with the directions: determine, remand, under will be (1) Upon jury required damages opinion, the guidelines set forth in this whether against be awarded Southwest. should be (2) jury The determination should affirmed, against Red is Printup awarded Ball and shall this not consider issue. determination amount of

(3) court’s against Printup Red Ball and reversed. After a has whether shall be

(4) determined Southwest deter- required assessed the court be punitive damages, amount, if mine the to be awarded any, against opinion. Southwest consistent this

(5) The will determine the amount of required be Printup Ball and punitive damages be assessed Red opinion. consistent with this part,

Affirmed in further part, reversed remanded proceedings opinion. consistent with our

Six, J., dissenting concurring: I would affirm the trial court. My dissent addresses three issues identified the issue numbers in the Amer- majority opinion: (4) exclusion evidence about Inc.’s, (Red Ball) ican Ball Company, operations Red Transit be- 8, 1984; (5) of evidence of fore November exclusion Southwest Movers, Inc.’s, (Southwest) practices; (6) jury recordkeeping the ma- instructions on ratification or authorization. I concur thoughtful analysis jority’s questions difficult constitutional remaining and in the issues. Evidence

Exclusion of A threshold is important. jury pu- observation The found against nitive should be awarded Red Ball in the sum $100,000 $20,000. Printup of and Smith, pain suffering

The conscious and award to L. Barry the (the Administrator), administrator of the estate of Glen C. Smith $1,000. $1,000 award, damage was The which the linch- actual bar, pin severally in the case was jointly and assessed Ball, Printup, Red and Southwest. trial judgment wrongful

The court entered on the death claim $199,881.85 Smith, in amount plaintiffs the of for the Barry Lisa Smith, and Brian Smith as the heirs-at-law of Glen C. Smith. Elliott, That is not us. judgment Phillip before D. the heir at Elliott, $139,844.91 law Carolyn of Sue a judgment recovered of wrongful his death action. No punitive arising claim the of from death Ms. Elliott is before us. amounts, majority, negating

The the pu- has affirmed the retrial, of exposure nitive Red Ball Printup. pre- On 8, 1984, November Red Ball evidence that was will excluded go jury. second The new for the only evidence second will relate to Southwest’s recordkeeping practices. accident, September

On of Printup, date who Southwest, employed by had been “leased out” Red Ball years. for 4 to 5 Printup only drove for Red Ball. Red Ball him, and dispatched he turned in his documents shipping driving logs expense to Red BalL His receipts were turned in to Southwest for expense receipts reimbursement. The are not at issue.

The finds majority that the rights Administrator’s substantial affected, have been so the error was not harmless under 60-261, by: (1) K.S.A. the exclusion from of the South- records, 8, (2) 1984, west the exclusion the pre-November Red Ball records from judge during consideration statutory punitive damages I hearing. agree. do not

Rulings on the admissibility of evidence within fall the sound Administrator, discretion of the trial court. The objects who ruling, the trial court’s must show abuse of discretion. stan- Our dard of review on abuse of discretion us that instructs such abuse the view person would take when reasonable only no

exists Co., Sears, v. Roebuck & Enlow trial adopted court. 740, 732, (1991). 822 P.2d Kan. Ball limitation was discretion. Red

I find abuse of no occurring November before only on records events imposed 8, records Administrator was entitled introduce 1984. The years the acci covering approximately three before period ordinarily relevancy ruling on remoteness rests A based dent. standard trial court. The abuse discretion the discretion Lower, v. (1967). Tucker Kan. 434 P.2d 320 controls. the trial the selection of November date: judge explained The think, period giving, I . . date certain of time “THE . the is a COURT: months, implement company changes giving the to the two chance it is agency. with federal made the settlement after you intending So aré to exclude the [Plaintiff’s Counsel]: “MR. FISHER government? they safety that were for defects the federal fact cited “THE COURT: Yes. they going able hbw func- “THE You are to be to show were COURT: forward, 8, you tioning going and then are 1984] on that date [November they doing that. be able show were after to how Okay, that’s “MR. fine.” FISHER: I of Southwest excluded. recordkeeping practices The were an that was abuse of discretion when cannot such exclusion say accident, years of 4 or had Printup, period for a before the driving only particularly Red Ball. This is true when been records, e.g., driving logs the facts that the relevant indicate documents, were turned into Red Ball. shipping The finds that trial should be reversed on majority in the the evidence issues because is evidence record “[t]here that jury Printup from which the could infer Was tired arid fell asléep and lost control the tractor-trailer.” candidly

The that majority investiga- observes accident “[t]he was whether Printup asleep tion not conclusive as to fell at the Joy equivocal wheel. Patrolman was about whether Brent driver fact, fatigue was a Officer testified if Heryford factor-.” that driver, Printup sleeping had like the normal his truck performed crossing off the gone would have side of the road instead of However, I with agree majority’s the median. statement: weigh was entitled to as it saw fit.” this evidence “[T]he found that have jury could observes majority “[t]he The The in- the accident. caused or contributed fatigue Printup’s infer- support an logs his could testimony and of his consistency hours than had worked more tired because he was ence that he Ball, Red from is that records My point have.” he should movement, a period over-the-road controlling Printup’s entity accident, a rea- provide before the years three approximately laxity and establish to demonstrate source sonable document 15, 1987. The present September fatigue factor whether establish, 1984, as of 8, period adequate post-November have known Ball knew or should what Red September violations, books, and records hours of service log records of from Because safety regulations. comply Printup’s failure books, dispatch Printup, log receive did not Southwest documents, ruling that the trial court I reason shipping his process of discretion. records was not an abuse to Southwest’s as Jury Instructions reversal majority’s to the disagreement relates third

My area the trial majority holds that instructions. The on the based clearly erroneous define authorization was court’s failure to majority were defective. on ratification the instructions from the no prejudice Administrator suffered reasons be awarded should jury’s determination grafted majority Has Printup. Ball and against Red punitive Ball was branded its rationale? Red anomaly onto The ratification used at trial. the defective instructions damages by Southwest, was, according instruction, although defective as Ball. as to Red instruction majority, proper to the mix of remand, considering a different jury, a different On instructions, will determine receiving different evidence the sideline. will be on Red Ball punitive exposure. Southwest’s against awards jury be informed of the Will the second the Southwest records any aspect of Printup and Red Ball? Could to Red positively relate possibly mix forming the new evidence change A in the issue? or ratification Ball on the authorization liability resulting bifurcation multi-party formula the remand lit- chemistry of change will determination also igation. ratification,” majority

The discusses “authorization opinion using law reasoning agency punitive damage from our cases and cases from other The has jurisdictions. majority informed the trial “[ijnstructions court upon remand should be consistent with this trial opinion.” The is left to refashion the correct au- thorization and ratification instruction when the case returns retrial. appealed Red Ball also on the ratification instruction issue. punitive damages award Red Ball resulted from two single special interrogatory instructions and a response jury on the verdict Ball objected form. Red to all Ball three. Red tort; contends the instant case involved a one-time conse- quently, the Administrator must something show Red Ball did after the accident to signal that Printup’s behavior was acceptable.

I express also concern analysis as to the of “authorized ratified” under K.S.A. 60-3701(d)(l). The majority give finds the failure to an authorization clearly instruction er- roneous. The majority acknowledges that “[mjany of the cases we have read and discussed in this opinion speak of ratification and together, authorization but all they suggest if corporate man- agement obviously tolerates the kind of conduct that causes the injury, amounts to ratification authorization.” and/or majority’s analysis, the terms “authorization” and “ratification” are together. linked Query: What distinction between the two has been identified majority? mean,

The trial court defined ratification to “the acceptance of a course of conduct or act with an intent to ratify, and with full knowledge all the material circumstances.” The “full knowl- edge” phrase appears objectionable to be to the majority. I dis- agree. nature, damages, Punitive penal because of their are not favored in the law. Courts must be cautious in seeing that they are not improperly or unwisely awarded. Commercial Credit Equipment Corp. v. Stamps, 920 F.2d 136.1, (7th 1990). Cir.

Commercial Credit is cited and distinguished majority’s Credit, view. In Commercial the employer did not have actual knowledge of the employee’s wrongful act. The majority indicates jurisdictions cases from other are dis- tinguishable because in those cases there were facts that should put have employer on notice that employee engaged in misconduct. I find difficulty understanding how the

365 by majority sup- cited jurisdictions cases from other of ratification authorization majority’s conclusion port virtually all of the key is a of Knowledge aspect implied. be For in by majority. example, damages cases cited 774, Co., (S.D. 783 Ohio 689 F. Supp. Black v. Clawson Shout stated, that certain of “We further concluded 1988), the court managers knew or should have known high-level the defendant’s perform annual wrongfully withholding plaintiff’s was that Lewis Inc. City In Brink’s v. salary reviews.” ance evaluations of 403, York, 1982), 412 the court Supp. (S.D.N.Y. 546 F. New have found that over reasonably could observed “[t]he officials, with management period Brink’s’ senior a substantial of company illicit and violations knowledge repeated of activities take in employees, appropriate of failed to rules number and discharge in an effort vestigative apprehend measures See also Bin Talal Etc. v. E. F. employees.” dishonest Khalid Co., 671, (Hutton Ill. Supp. (N.D. 1989) Hutton & F. 683 720 trading illegal trading of securities and “allowed was aware [the] more suffices to constitute au activity to continue.” “This than act, as well as rati doing thorization of the manner of & thereof.”); National approval Mortgage fication and Hart v. Co., 7,¶ Rptr. 3d 235 Cal. 68 App. Syl. Land Cal. (Plaintiff his were aware other em (1987) alleged superiors have harassing permitted were him. “The should ployees allege that his employee pleadings superiors’ to amend his act ratification the em knowledge failure to constituted ‘officer, was an director alternatively, or that the coworker ployer, ratification managing agent,’ which also constituted under or Co., 3d statute.”); App. v. Shell Oil 68 Cal. Hartman (“The basing action or Rptr. (1977) bringing 137 Cal. of an knowledge ma a defense on an unauthorized act with is, minimum, ratification.)”; terial facts at a some evidence (Minn. Kinney Corp., App. v. 448 N.W.2d Wirig Shoe 1989), part, part grounds 461 N.W.2d rev’d on other aff’d (Minn. 1990) (The court found that there evidence misconduct.). principal’s approval alleged have the definition I favor “knew or should known” element 60- authorization ratification under K.S.A. reasoning arising nonpunitive from tradi- 3702(d)(1). Definitional be with agency applied tional cases should caution a K.S.A. 60-3701(d)(l) punitive damages case. We have before impression us a first case. The majority could assist the bench drafting and bar specific instruction on “authorization or ratification” and thus share proper this court’s view of the lan- guage be in a punitive damages used future case. 9,

The trial in lengthy. began the case at It July bar July and ended on 1991. The record consists of 25 separate volumes. The case was tried experienced before an trial judge. parties represented by The were experienced We counsel. received an amicus brief from the Kansas Trial Lawyers Associ- view, my ation. In although parties may not have received trial, perfect they fair They received a one. cannot ask for more. 325, 366, See Leiker v. Gafford, 245 Kan. (1989). 778 P.2d 823 The failure to instruct on authorization was I error. find in re- viewing the justice record that substantial was done under the totality of the circumstances. Any instruction developed hindsight from within perimeters the definitional of the majority’s discussion on “authorization and ratification” would not have al- tered the result (particularly considering the majority’s acknowl- edged linkage sameness “ratification"). “authorization” and instruction omission was not reversible or prejudicial error. See Pearce, Lucas v. 576 P.2d (1978) (failure give an issue instruction in a medical malpractice case). I any conclude that error that may have occurred was harmless. See K.S.A. 60-261 and K.S.A. 60-2105.

Holmes, McFarland, C;J., and J., join in the foregoing con- curring and dissenting opinion. in notes dissenting part also Justice held, the earlier had not unlike Supreme Court that the Alabama law, power had the to legislature that the holdings in Kansas the and not cause of action abolish the merely power entirely Henderson, 2d at 899 627 So. action. limit the recovery conclusion, above have concluded we As in Maddox’s n.11. Justice power have the to abolish legislature if or courts the right has the legislature certainly altogether, then our damages are determined. by the method which those modify legislature right in this case have not attacked Plaintiffs vesting alleged damages but have cap punitive violates in a instead of a judge to determine Kansas We rights by jury their to a trial and the Constitution. nothing find Kansas or the common law of Constitution legislature vesting from the deter- prevents this state that of re- mination of in a district court instead quiring performed jury. to be function Right C. Process to Due dam- argue juries Plaintiffs that because determined law, ages any change legislature comport common must requirements with due Kansas and States process United in Kansas rely upon opinion Constitutions. Plaintiffs this court’s Coalition, Malpractice Victims at at 343-44: “[A]ny statutory process law modification the common must meet due requirements ‘reasonably public necessary promote and be in the interest general people welfare of of the state.’ Due [Citation omitted.] process requires legislative means selected have a real and sub-

Case Details

Case Name: Smith v. Printup

Court Name: Supreme Court of Kansas

Date Published: Dec 30, 1993

Citation: 866 P.2d 985

Docket Number: 67,591

Court Abbreviation: Kan.