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60-3702. Same; trier of fact determines whether damages allowed; separate proceeding for determination of amount; considerations; limitations; maximum amount of award. (a) In any civil action in which exemplary or punitive damages are recoverable, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall be conducted by the court to determine the amount of such damages to be awarded.

(b) At a proceeding to determine the amount of exemplary or punitive damages to be awarded under this section, the court may consider:

(1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant's misconduct;

(2) the degree of the defendant's awareness of that likelihood;

(3) the profitability of the defendant's misconduct;

(4) the duration of the misconduct and any intentional concealment of it;

(5) the attitude and conduct of the defendant upon discovery of the misconduct;

(6) the financial condition of the defendant; and

(7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situations similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected.

At the conclusion of the proceeding, the court shall determine the amount of exemplary or punitive damages to be awarded and shall enter judgment for that amount.

(c) 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.

(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:

(1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer; or

(2) an association, partnership or corporation for the acts of a member, partner or shareholder unless such association, partnership or corporation authorized or ratified the questioned conduct.

(e) Except as provided by subsection (f), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of:

(1) The annual gross income earned by the defendant, as determined by the court based upon the defendant's highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded, unless the court determines such amount is clearly inadequate to penalize the defendant, then the court may award up to 50% of the net worth of the defendant, as determined by the court; or

(2) $5 million.

(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant's misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to 1½ times the amount of profit which the defendant gained or is expected to gain as a result of the defendant's misconduct.

(g) As used in this section the terms defined in K.S.A. 60-3401, and amendments thereto, shall have the meaning provided by that statute.

(h) The provisions of this section shall apply only to an action based upon a cause of action accruing on or after July 1, 1988.

History: L. 1988, ch. 209, § 3; L. 1992, ch. 307, § 3; July 1.

Law Review and Bar Journal References:

"Oil and Gas Law: Using Tort Law to Police Oil and Gas Operations [Marshall v. El Paso Natural Gas Company, 874 F.2d 1373 (10 th Cir. 1989)]," Heather L. Osterhaus, 30 W.L.J. 163, 169 (1990).

"The Medical Malpractice Insurance 'Crisis': Did Kansas Tort Reform Really Work?" Bryan W. Smith, 31 W.L.J. 106, 117 (1991).

"Putting Punitive Damages in Perspective," Steven M. Dickson, J.K.T.L.A. Vol. XV, No. 3, 6, 7 (1992).

"Comparing Kansas Employment-at-Will Law with the Model Employment Termination Act," Eric D. Barton, 41 K.L.R. 169, 177 (1992).

"A Pragmatic Approach to the Eighth Amendment and Punitive Damages," Stephen R. McAllister, 43 K.L.R. 761, 780, 781 (1995).

"A Primer on Punitive Damages in Kansas," Paul W. Rebein, 64 J.K.B.A. No. 9, 22 (1995).

"Automobile Collisions: Defendants Are Liable for Punitive Damages When They Are Driving Under the Influence of Alcohol at the Time of the Collision," Gary D. White, Jr., J.K.T.L.A. Vol. XX, No. 2, 12 (1996).

"Addressing the Consumer's Worst Nightmare: Toward a More Expansive Development of the Law of Tortious Fraud and Deceptive Practices in Kansas," Ellen Byers, 38 W.L.J. 455 (1999).

"The Kansas Uniform Fraudulent Transfer Act," Leon B. Graves, 68 J.K.B.A. No. 6, 34 (1999).

"Pursuing a Punitive Damage Claim in a Hit-and-Run Automobile Collision," Gary D. White, Jr., J.K.T.L.A. Vol. XXII, No. 3, 16 (1999).

"The Imposition of Punitive Damages for the Tortious Acts of Employees in Kansas," Matthew E. Birch, J.K.T.L.A. Vol. XXIV, No. 3, 16 (2001).

"Survey of Kansas Tort Law: Part I," William E. Westerbeke and Stephen R. McAllister, 49 K.L.R. 1037 (2001).

"Cooper Industries, Inc. v. Leatherman and Its Affect on the Practice of Determining Punitive Damages in Kansas," Frederick J. Ernest, J.K.T.L.A. Vol. 25, No. 1, 8, 12 (2001).

"Why Punitive Damages Should Be a Jury's Decision in Kansas: A Historical Perspective," Ryan Fowler, 52 K.L.R. 631 (2004).

"Comparison of Federal and State Court Practice," David G. Seely, Charles E. Millsap and Ron Campbell, 75 J.K.B.A. No. 4, 28 (2006).

"Whose Award Is It Anyway?: Implications of Awarding the Entire Sum of Punitive Damages to the State," Kelly-Rose Garrity, 45 W.L.J. 395 (2006).

"Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic," Walter W. Heiser, 56 K.L.R. 609 (2008).

CASE ANNOTATIONS

1. Damages awarded in a tort of outrage case. Taiwo v. Vu, 249 K. 585, 589, 822 P.2d 1024 (1991).

2. Remanded for determination whether evidence could reasonably support jury verdict for punitive damages. Fusaro v. First Family Mtg. Corp., 17 K.A.2d 730, 731, 732, 733, 843 P.2d 737 (1992).

3. Early in trial plaintiff must prove by clear and convincing evidence defendant acted with malice to recover punitive damages. Powell v. Hauner, 817 F.Supp. 90, 93 (1993).

4. Incumbent on trial court to make sufficient findings of fact to afford meaningful appellate review. Gillespie v. Seymour, 253 K. 169, 172, 853 P.2d 692 (1993).

5. Under facts stated, punitive damages award within parameters considered by Kansas supreme court. Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 K.A.2d 396, 399, 853 P.2d 1175 (1993).

6. Whether section's burden of proof requirement is substantive law applicable in diversity cases in Kansas examined. Whittenburg v. L.J. Holding Co., 830 F.Supp. 557, 565 (1993).

7. Whether punitive damages may be imposed against corporation for employee's wanton acts without corporate authorization examined. H. Wayne Palmer and Assoc. v. Heldor Industries, 839 F.Supp. 770, 777 (1993).

8. Constitutional and statutory challenges to punitive damage awards examined. Smith v. Printup, 254 K. 315, 321, 866 P.2d 985 (1994).

9. Whether physician's conduct was sufficiently wanton to establish basis for punitive damages examined. Rios v. Bigler, 847 F.Supp. 1538, 1548 (1994).

10. Whether postsale warranty manual issued by manufacturer is admissible for punitive damages purposes examined. Meyerhoff v. Michelin Tire Corp., 852 F.Supp. 933, 942 (1994).

11. Whether punitive damage award was based on consideration of statutory factors examined. Patton v. TIC United Corp., 859 F.Supp. 509, 513 (1994).

12. Whether punitive damage award based on defendant's alleged authorization or ratification of employee's fraud appropriate examined. Citizens State Bank v. Shearson Lehman Bros., Inc., 874 F.Supp. 307, 308, 310 (1994).

13. Whether issue regarding whether employee was entitled to punitive damages in retaliatory discharge case examined. Hill v. IBP, Inc., 881 F.Supp. 521, 525 (1995).

14. Evidence sufficient to support award of punitive damages to plaintiff. Oliphant v. Perkins Restaurants Operating Co., 885 F.Supp. 1486, 1489 (1995).

15. Defendant not collaterally estopped from contesting punitive damage liability. Scheufler v. General Host Corp., 895 F.Supp. 1411, 1413 (1995).

16. Issue of fact regarding whether punitive damages were appropriate in retaliatory discharge action precluded summary judgment. Lyden v. Hill's Pet Nutrition, Inc., 907 F.Supp. 343, 347 (1995).

17. Statutory criteria to be considered when awarding punitive damages are not exclusive. Scheufler v. General Host Corp., 915 F.Supp. 236, 237, 239 (1995).

18. Evidence of association's treatment of greyhound owner insufficient to support punitive damages claim. Harnett v. Parris, 925 F.Supp. 1496, 1506 (1996).

19. Defendant's conduct supported imposition of punitive damages; punitive damage imposition did not violate due process. Patton v. TIC United Corp., 77 F.3d 1235, 1245 (1996).

20. Punitive damage award in medical malpractice case warranted. Wardrip v. Hart, 949 F.Supp. 801, 802 (1996).

21. Punitive damages appropriate in retaliatory discharge claim of plaintiff for filing worker's compensation claim. Ramirez v. IBP, Inc., 950 F.Supp. 1074, 1076 (1996).

22. Abuse of discretion standard to be used in review of award; trial court must make sufficient findings of fact. Smith v. Printup, 262 K. 587, 596, 938 P.2d 1261 (1997).

23. Trial court did not err in submitting special verdict form; burden of proof for punitive damages proper. Trendel v. Rogers, 24 K.A.2d 938, 940, 955 P.2d 150 (1998).

24. Sufficient evidence supported punitive damages award where defendants acted in willful, wanton or malicious manner. Hawkinson v. Bennett, 265 K. 564, 572, 605, 962 P.2d 445 (1998).

25. Evidence of intoxicated driver's conduct sufficient to support award of punitive damages to plaintiff. Reeves v. Carlson, 266 K. 310, 313, 316, 969 P.2d 252 (1998).

26. In case where bank employee repossessed wrong car by failing to follow bank policy of verifying VIN of car, no authorization or ratification of negligence by bank subjecting it to punitive damages. Lindsey v. Miami County National Bank, 267 K. 685, 688, 691, 984 P.2d 719 (1999).

27. Issue concerning whether parties' actions warranted punitive damages precluded summary judgment. Commerce Bank, N.A. v. Chrysler Realty Corp., 76 F.Supp.2d 1113, 1123 (1999).

28. Punitive damage award for termination in retaliation for filing state workers compensation upheld. Sanjuan v. IBP, Inc., 78 F.Supp.2d 1195, 1196 (1999).

29. Court applies Kansas law to determine punitive damages of $653,217; held as not constitutionally excessive considering actions of defendant even though fraud finding was only $67,694. United Phorsphorus, LTD. v. Midland Fumigant, Inc., 205 F.3d 1219, 1231 (10 th Cir. 2000).

30. Trial court award of punitive damages on fraud by silence claim affirmed. Safety Technologies L.C. v. Biotronix 2001, Inc., 136 F.Supp.2d 1169, 1176 (2001).

31. Material issue concerning whether physician acted in wanton manner precluded summary judgment. Kernke v. Menninger Clinic, Inc., 172 F.Supp.2d 1347, 1356 (2001).

32. Retention of overpayment warranted award of punitive damages. Commerce Bank, N.A., v. Chrysler Realty Corp., 183 F.Supp.2d 1318, 1321 (2002).

33. Employer's failure to point out objection at trial waived right to object to punitive damages on appeal. Sanjuan v. IBP, Inc., 275 F.3d 1290, 1298 (2002).

34. Amount of punitive damage award in personal injury products liability action against cigarette manufacturer upheld. Burton v. R.J. Reynolds Tobacco Co., 203 F.Supp.2d 1253, 1255 (2002).

35. Manufacturer did not act wantonly or fraudulently in products liability action as to support punitive damages. Messer v. Amway Corp., 210 F.Supp.2d 1217, 1220 (2002).

36. Amount of punitive damage award in securities fraud action upheld. Sheldon v. Vermonty, 237 F.Supp.2d 1270, 1280 (2002).

37. Material fact issue concerning whether defendant's conduct in auto accident was wanton precluded summary judgment. Stewart v. Mitchell Transport, 241 F.Supp.2d 1216, 1222 (2002).

38. Award of punitive damages affirmed. Werdann v. Mel Hambelton Ford, Inc., 32 K.A.2d 118, 79 P.3d 1081 (2003).

39. Fact issue concerning whether defendant ratified conduct supporting punitive damages precluded summary judgment. Lowe v. Surpas Resource Corp., 253 F.Supp.2d 1209, 1256 (2003).

40. Burden of proof for nondischargability under bankruptcy code less stringent than punitive damages standard. In re Shore, 305 B.R. 559, 570 (2004).

41. Plaintiffs in diversity action were not required to obtain court order to amend pleading to add punitive damages claim. Vance ex rel. Wood v. Midwest Coast Transport, 314 F.Supp.2d 1089, 1091 (2004).

42. In separately filed, but consolidated for trial cases, statutory cap applies separately for each case file. Hayes Sight and Sound, Inc. v. ONEOK, Inc., 281 K. 1287, 1325, 136 P.3d 428 (2006).

43. Punitive damages appeal affirmed from appellant who acted with fraud. Wilson v. Wilson, 37 K.A.2d 564, 565, 577, 578, 579, 154 P.3d 1136 (2007).

44. Punitive damages awarded in retaliatory discharge action; court discusses "willful conduct." Hysten v. Burlington Northern Santa Fe Ry. Co., 530 F.3d 1260, 1276-1280 (2008).

45. District court erred in denying motion to amend petition to include punitive damages relating to drug use. Adamson v. Bicknell, 41 K.A.2d 958, 207 P.3d 265 (2009).

46. Subcontractor awarded punitive damages on Kansas uniform trade secrets act claim where subsidiary knew serious harm would arise from disclosure of subcontractor's trade secrets. Ice Corp. v. Hamilton Sunstrand Corp., 615 F.Supp.2d 1266 (D. Kan. 2009).

47. Evidence sufficient to sustain punitive damages award in a retaliatory termination case. Jones v. United Parcel Service, Inc., 658 F.Supp.2d 1308 (D. Kan. 2009).

48. Statutory procedure whereby jury initially determines availability of punitive damages and then court determines punitive damages amount in second proceeding deemed unconstitutional as violative of seventh amendment. Capital Solutions v. Konica Minolta Bus. Solutions, 695 F.Supp.2d 1149 (D. Kan. 2010).

49. Failure of lender's employee to disclose that borrowers would be exposed to substantial early termination fee on swap interest rate agreement was wanton conduct supportive of a punitive damages award. Bank of America v. Narula, 46 K.A.2d 142, 261 P.3d 898 (2011).

50. Question of whether an occupational health manager in employer's human resources department acted with the intent necessary for the imposition of punitive damages was for the jury in retaliatory discharge action. Jones v. United Parcel Service, Inc., 674 F.3d 1187 (10 th Cir. 2012).

51. Establishing punitive damages award requires clear and convincing evidence that a party acted with willful or wanton conduct, fraud or malice. Adamson v. Bicknell, 295 K. 879, 287 P.3d 274 (2012).

52. Plaintiff did not present evidence that employer authorized or ratified nurse practitioner's particular medical treatment of plaintiff to warrant the imposition of punitive damages upon employer. D.M. by & through Morgan v. Wesley Med. Ctr., LLC, 487 F. Supp. 3d 1071, 1081 (D. Kan. 2020).


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