Can you get punitive damages in Kansas? The simple answer is yes. However, it is a complicated path.In State court in Kansas, our legislators got rid of a plaintiff’s ability to file a claim for punitive damages in state court without first obtaining the permission of the court. This usually means that a plaintiff must file a motion to amend their lawsuit and then have a hearing in order to have a court determine that there is a likelihood of prevailing on the punitive damages at court. K.S.A. 60-3701 requires that in any civil action in which exemplary or punitive damages are recoverable the jury or trier of fact shall determine concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed the court will hold a separate proceeding which will be conducted to determine the amount of such damages to be awarded. The factors to analyze are provided under K.S.A. 60-3701 which set forth the following 7 factors:
(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.
Subparagraph (d) of this statute that a principal or an employer is not liable for the acts of an agent or employee for punitive damages unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer.
Subparagraph (e) then limits the court to an amount that can be assessed to 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 5 years immediately before the act for which damages are awarded or $5 million dollars.
Subparagraph (f) provides generally that there is a cap of $5 million dollars as a maximum with the caveat that if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e) then the limitation on the amount of exemplary or punitive damages the court may award shall be an amount equal to 1 ½ times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct.
In the case of Smith v. Printup, 254 Kan. 315 the Kansas Supreme Court analyzed K.S.A. 60-3701 (d) ruling that ratification and authorization are broad enough to an encompass evidence that the corporate defendants knew or should have known about employee misconduct and evidence of corporate policies, procedures, or managerial behavior that a jury reasonably could infer implicitly authorized or ratified the questioned bad conduct is relevant to the issue of authorization and/or ratification. Ratification may be accomplished before or during the employee’s questioned conduct and may be based on an express grant of authority or on a course of conduct indicating that the employee was empowered or given the right or authority to engage in the questioned conduct. (See also, PIK 4th 107.09.)
In the usual case involving motor carriers and tractor-trailer operators evidence about the driver’s conduct and perhaps other drivers in the company that failed to follow the Federal Motor Carrier Safety Regulations (FMCSR) maximum hours limits of time then it may be possible to show that the company’s tolerance of false logs and hours of service violations is evidence from which a jury can infer that the trucking company was sending a message to the driver and other drivers that such type of conduct was acceptable. In the correct case, the jury could infer that the company’s authorized or ratified conduct was such that considered as a basis for punitive damages. The court, also determined that the lower trial court had erred in excluding evidence about the trucking company’s record-keeping practices regarding driving logs and hours of service records and longs which are all required to prevent driver fatigue and tractor-trailer crashes and injury and death human beings.
One of the more important holdings of the Kansas Supreme Court was the holding that evidence of remedial conduct can be relevant pursuant to K.S.A. 60-3701(b)(5) as it relates to the attitude and conduct of the defendant upon discovery of any misconduct by the employee or other drivers. The amount of time that elapses between the accident and the time the corrective measure goes into effect relates more to the weight of the evidence and the Kansas Supreme Court held in this particular case that the trial court had not erred in allowing in evidence of subsequent remedial conduct.
When you are looking for a personal injury attorney that concentrates their practice in semi-accidents, large truck accidents, fleet safety accidents, motor carrier accidents and big tractor-trailer cases it is extremely important to find a lawyer with a large expertise in taking depositions and trying cases which involve tractor-trailer accidents. If the lawyer is a true advocate that works in the field of tractor-trailer accidents they will have training books on the Federal Motor Carrier Safety Regulations as well as texts and treatises about fleet safety, driver qualification, the maximum hours of service rules, and other books related to driver qualification, supervision and training.
In Kansas, tractor-trailer accident cases can allow a lawyer to bring a separate cause of action for the driver’s negligence and then add additional causes of action for negligent hiring, negligent training, the negligent supervision and negligent retention. Normally, we will present a claim for the driver’s negligence and use that to establish the negligence of the employer and motor carrier that owns the trucking company under the doctrines of respondeat superior and vicarious liability.
At Brad Pistotnik Law we strive to help personal injury victims who have been injured due to the negligence of other drivers and we handle cases in multiple states for tractor-trailer accidents, big rig accidents, semi-accidents, fleet safety accidents, auto accidents, car wrecks, motorcycle accidents and many other areas dealing with vehicular injury and wrongful death. We are Brad Pistotnik Law. ® We are Abogado El Toro. ® Hire the real Brad. ® Call in the Bull. ® We are the Bull Attorneys! ™ Call us at 1-800-241-BRAD or call us on our local line at 316-684-4400. You can call Brad Pistotnik on his cell phone at any time at 316-706-5020. You can call Tony Atterbury on his cell at 416-617-9237.
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