Johnson County, Kansas Wrongful Death & Serious  Personal Injury Law

What are punitive damages in the first place?

“In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongdoings.”  Folks v. Kansas Power and Light Co., 243 Kan. 57, Syl. No. 6, 755 P.2d 1319 (1988). 

In Missouri, the standard to be applied for the imposition of punitive damages in an intentional tort case is set forth in MAI 10.01, which requires conduct that is outrageous because of defendant's evil motive or reckless indifference to the rights of others. Nemani v. St. Louis University, No. E.D. 75291 and 75292 (Mo.App. E.D. 1999).  For punitive damages, the evidence must meet the clear and convincing standard of proof. Clear and convincing evidence is that which tilts the scales in the affirmative when weighed against the evidence in opposition; evidence that clearly convinces the fact finder of the truth of the proposition to be proved. Punitive damages are imposed for the purpose of punishment and deterrence; the remedy is so extraordinary or harsh that it should be applied only sparingly. The awarding of punitive damages is peculiarly committed to the jury and the trial court's discretion; an appellate court will only interfere in extreme cases.  Ellis v. Kerr-McGee Chemical, No. E.D. 74835 (Mo.App. E.D. 1999)

How does a wrongful death/personal injury lawyer make a punitive damage claim in Missouri or Kansas Courts?

In Kansas courts, punitive damages cannot be pled in an initial Petition for Damages, the Plaintiff and her personal injury/wrongful death attorney must request leave from the Court to amend their Petition to include a punitive damage claim. 

If the judge allows the Petition to be amended, then the Plaintiff must still demonstrate at trial that a punitive damage award is justified.  If the court agrees, then the judge will set the amount of punitive damages to be awarded in a separate proceeding.

In Missouri courts, punitive damage claims can be made from the outset of a case.

What is the Standard for Amending A Personal Injury or Wrongful Death Claim to Add Punitive Damages in Kansas?

The standard for determining whether a plaintiff should be allowed to amend a pleading to state a claim for punitive damages is set forth by statute, which states, in pertinent part:

The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto. 

K.S.A. 60-3703. 

The Kansas Supreme Court has interpreted this provision as requiring a plaintiff to show that it is more likely than not that he will prevail on his punitive damages claim.  Fusaro v. First Family Mortgage Corp., Inc., 257 Kan. 794, 801, 897 P.2d 123 (1995).  In determining whether a plaintiff has met this burden, the trial court should take into account the clear and convincing standard of proof that that plaintiff will be required to meet at trial.  Id. 

Although the plaintiff bears the burden of establishing the probability that he will prevail on his punitive damages claim, the evidence is still viewed in a light most favorable to the plaintiff.  The Kansas Supreme Court stated:

In making this threshold determination [of whether plaintiff has established that there is a probability that plaintiff will prevail on a punitive damages claim], the trial court is not to usurp the role of the jury.  Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts remain jury functions.  The trial court is to consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice, the trial court shall allow the amendment.

Id. at 802. 

What is the standard a personal injury/wrongful death lawyer uses for claiming punitive damages in Kansas Courts including Johnson County, Wyandotte County, Shawnee County, and Sedgwick County?

As stated above, in moving for amendment of the pleadings to assert a claim for punitive damages, the plaintiff bears the burden of establishing the probability that he will prevail on the claim at trial.  A Plaintiff’s burden at trial with respect to a punitive damages claim is also set forth by statute:

In any civil action where claims for exemplary or punitive damages are included, the plaintiff shall have the burden of proving, by clear and convincing evidence in the initial phase of the trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud, or malice.

K.S.A. 60-3702(c). 

Although the statute speaks in terms of “willful conduct, wanton conduct, fraud or malice,” Kansas courts have generally recognized that gross negligence falls within the scope of these terms.  See, e.g., Trendel v. Rogers, 24 Kan.App.2d 938, 942, 955 P.2d 150 (1998)(citing Tetuan v. A.H. Robins Co., 241 Kan. 441, 481, 738 P.2d 1210 (1987))(“punitive damages may be awarded whenever the elements of fraud, malice, gross negligence, or oppression arise in a dispute”).  A finding of gross negligence is generally characterized by knowledge or awareness of the danger associated with negligent conduct. 

Kansas courts have also recognized that reckless disregard provides a sufficient basis to impose punitive damages.  Specifically, Kansas courts have recognized that a “wanton act” is “[a]n act performed with a realization of the imminence of danger and reckless disregard or complete indifference to the probable consequences of the act.”  Cerretti v. Flint Hills Rural Elec. Co-op. Assn., 251 Kan. 347, 367, 837 P.2d 330 (1992).  In other words, a wanton act is “something more than ordinary negligence but less than a willful act.  It must indicate a realization of the imminence of danger and a reckless disregard and indifference to the consequences.”  Id. at 368. 

Taken together, these authorities indicate that reckless disregard or grossly negligent conduct is sufficient to support imposition of punitive damages.    Thus, if the defendant acted negligently, and is aware, or should be aware, of the danger associated with such negligent conduct, then the defendant’s conduct may be characterized as grossly negligent and will provide a basis for the imposition of punitive damages.  Similarly, if a defendant acts with reckless disregard for whether his or her actions will pose a danger to others, then his conduct is wanton and will be sufficient to support the imposition of punitive damages. 

“In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongdoings.”  Folks v. Kansas Power and Light Co., 243 Kan. 57, Syl. No. 6, 755 P.2d 1319 (1988).