Opinion
111,590.
07-17-2015
Emma McELHANEY, Appellant, v. Charles THOMAS, Larry Thomas, Susan Thomas, Appellees, and State Farm, Defendant.
Jeremiah Johnson, of Law Offices of Jeremiah Johnson, LLC, of Olathe, for appellant. Dana M. Harris and Emily A. Yessen, of Harris and Hart, LLC, of Leawood, for appellees Charles Thomas, Larry Thomas, and Susan Thomas. Stephen M. Kerwick and Craig W. West, of Foulston Siefkin LLP, of Wichita, for appellee State Farm.
Jeremiah Johnson, of Law Offices of Jeremiah Johnson, LLC, of Olathe, for appellant.
Dana M. Harris and Emily A. Yessen, of Harris and Hart, LLC, of Leawood, for appellees Charles Thomas, Larry Thomas, and Susan Thomas.
Stephen M. Kerwick and Craig W. West, of Foulston Siefkin LLP, of Wichita, for appellee State Farm.
Before MALONE, C.J., ARNOLD–BURGER and Gardner, JJ.
MEMORANDUM OPINION
ARNOLD–BURGER, J.
High school student Charles Thomas was driving his vehicle in the school parking lot when he ran over fellow student Emma McElhaney's feet, causing injury. McElhaney filed a civil lawsuit against Charles alleging negligence and the intentional tort of battery. In addition, she sued Charles' parents for negligent entrustment of the vehicle to Charles. This appeal follows a jury verdict awarding McElhaney $46,333 on the negligence claim. She appeals the district court's pretrial rulings dismissing her intentional tort claim, denying her request to seek punitive damages, dismissing State Farm as a defendant, granting summary judgment to Charles' parents on the negligent entrustment claim, and denying her motion to disqualify defense counsel. Finding no error, we affirm.
Factual and Procedural History
This appeal arises out of an automobile accident involving Charles, the driver of the vehicle, and McElhaney, the pedestrian. At the time of the incident, both were students attending Clay Center High School. Both individuals were preparing to leave with the baseball team from the school parking lot. McElhaney was walking in the school parking lot and Charles was driving his vehicle to park closer to the departing bus. As McElhaney was walking near some parking spots, Charles turned into the parking spot closest to her and ran over her feet, breaking one of them.
McElhaney filed a petition for damages in Douglas County, alleging a negligence claim and an intentional tort claim against Charles; a negligent entrustment claim against both Larry and Susan Thomas, Charles' parents; and a joint enterprise negligence claim against Adam Slagle, the passenger in Charles' vehicle at the time of the incident (McElhaney I ).
Both parties agreed to a change of venue from Douglas County to Riley County. After the district court denied McElhaney's leave to amend the petition to allow punitive damages, granted summary judgment to the defendants on the negligent entrustment claim, and denied her counterclaim for summary judgment on the negligent entrustment claim, McElhaney filed a motion to dismiss the case without prejudice, which was granted.
Three months later, McElhaney filed a petition for damages in Douglas County against Charles, Larry, Susan, and State Farm (McElhaney II ). In the petition, McElhaney asserted a negligence claim and an intentional tort claim against Charles; negligent entrustment claims against Larry and Susan; and an “uninsurance” claim against McElhaney's insurance company, State Farm. With the exception of removing the claim against Adam Slagle and adding an “uninsurance” claim against State Farm, the petitions in McElhaney I and McElhaney II are identical.
Charles, Larry, and Susan answered the petition and argued that McElhaney's petition was precluded through res judicata and that venue in Douglas County was improper. Charles, Larry, and Susan admitted that McElhaney's injuries were the result of Charles' negligence, but again denied McElhaney's intentional tort and negligent entrustment claims.
Charles, Larry, and Susan moved to dismiss McElhaney's petition or to at least have a venue change back to Riley County. In addition, they refiled a motion for summary judgment on McElhaney's negligent entrustment claims, relying on the doctrine of res judicata related to the prior Riley County lawsuit.
In addition, State Farm filed a motion to dismiss McElhaney's uninsured motorist claim for failure to state a claim. The district court granted State Farm's motion. Because State Farm was dismissed from the case, the district court found that a change of venue was appropriate. Although the proper venue would have been Clay County, the judge transferred the case back to Riley County, without objection from the parties.
Over a year later, McElhaney requested that her negligent entrustment claims against Larry and Susan be reinstated. In addition, McElhaney filed a motion for leave to add a punitive damages claim. Finally, McElhaney filed a motion to disqualify the defendants' attorney because of a conflict of interest between all three defendants and State Farm.
After a hearing on the numerous motions, the district court denied McElhaney's motion to disqualify the defendants' attorney because she lacked standing. In addition, the district court denied her request to add a punitive damages claim and her oral motion to add an intentional tort of battery claim. The district court also denied her motion to reinstate the negligent entrustment claims against Larry and Susan.
A jury trial was held. The jury awarded McElhaney $46,333. McElhaney filed a timely notice of appeal. Additional facts will be added as necessary.
The Intentional Tort of Battery Claim
McElhaney's first issue on appeal is whether the court erred in finding that she had not sufficiently pled the intentional tort of battery in order to send that claim to the jury.
At the pretrial conference in McElhaney II, in its oral ruling, the district court indicated that it had reviewed the pleadings and the motions relating to McElhaney's intentional tort claim and found that
“for an intentional tort not only must there be a battery and that definition, but there also must be an intent to injure. And in the pleadings it does not allege any intent to injure by Mr. Thomas. And in fact, one of them says—one of the motions says something about was no intent to harm. But there's no—or at least there's no evidence of any intent to harm or injure. So for those reasons and the reasons previously stated I'm not going to allow the jury to decide the intentional tort. I believe it's simply horseplay, as I've previously ruled, and on that grounds, the negligence grounds, the defendant has admitted to negligence. So that's my ruling on the intentional tort. ”
McElhaney then attempted to orally amend her motion to add the “intent to injure” language. The district court denied this request because the trial was 3 days away.
Standard of review
“A motion for judgment on the pleadings is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves.” Koss Construction v. Caterpillar, Inc., 25 Kan.App.2d 200, 200, 960 P.2d 255, rev. denied 265 Kan. 885 (1998). When a defendant files a motion for judgment on the pleadings, “[t]he motion operates as an admission by movant of all fact allegations in the opposing party's pleadings.” Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 140, 519 P.2d 682 (1974). The district court accepts the factual allegations in the opposing party's pleadings as true and makes a determination whether there is a potentially valid claim based on the alleged facts. Ramcharan–Maharajh v. Gilliland, 48 Kan.App.2d 137, 139, 286 P.3d 216 (2012), rev. denied 297 Kan. 1247 (2013). This court's review of the district court's ruling on a motion for judgment on the pleadings is de novo. Wagner v. State, 46 Kan.App.2d 858, 860, 265 P.3d 577 (2011).
But if the court considers matters presented outside the pleadings, then the motion is treated as one for summary judgment. K.S.A. 60–212(c). “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Law v. Law Company Building Assocs., 295 Kan. 551, 561, 295 Kan. 551, 289 P.3d 1066 (2012). An appellate court reviewing a district court's ruling on a motion for summary judgment reviews the matter de novo as a question of law, granting no deference to the district court's judgment. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014).
Our review is hampered by a bit of procedural confusion. Although the district court noted that the pleadings do not allege an intent to injure, the court also mentioned reviewing other motions filed by McElhaney and refers to the fact that there is “no evidence” of intent to harm. But because the standard of review for both summary judgment and a judgment on the pleadings is unlimited, we will examine both.
But first, we review the necessary elements of the intentional tort of battery.
The intent to inflict injury is an essential element of civil battery.
Kansas caselaw has long held that the “gravamen of a civil assault and battery is grounded upon the actor's intention to inflict injury.” Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366, 388 P.2d 824 (1964) ; see also Murray v. Modoc State Bank, 181 Kan. 642, 646, 313 P.2d 304 (1957) (an intention to injure is a prerequisite for a battery case).
In Stricklin, a stockyard employee was known for playing pranks or practical jokes on customers. Stricklin was sitting on a board on top of a cattle pen when the employee grasped Stricklin's feet and lifted him into the air causing him to lose his balance and fall 6 feet to the concrete floor below. As a result, Stricklin suffered serious injuries. The defendants moved to dismiss the case arguing that Stricklin's claims sounded in tort for assault and battery, not negligence as pled, and they were filed outside the statute of limitations. The Kansas Supreme Court held that there was no allegation of malice or intent to do physical harm. The employee's actions were nothing more than horseplay, with no intent to injure Stricklin. Although “[h]is conduct was that of a buffoon” his actions were no more than “a farcical prank involving rude, boisterous play with no intention to do bodily harm.” 192 Kan. at 366, 388 P.2d 824. The court went on to point out that the very definition of negligence is “ ‘an act which the actor as a reasonable man should realize as involving an unreasonable risk’ “ of harm. 192 Kan. at 366, 388 P.2d 824. Accordingly, the difference between negligence and battery rests in the actor's intent to cause injury.
The language in Stricklin requiring malice or an intent to do physical harm is consistent with the Restatement (Second) of Torts § 13 (1965), which states that a person will be subject to liability for battery if he or she “acts intending to cause a harmful or offensive contact with the person of the other” and “a harmful contact with the person of the other directly or indirectly results.”
In addition, under the Restatement (Second) of Torts § 8A (1965), the word “intent” is used “to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”
Furthermore, in explanation, the Restatement (Third) of Torts § 1, comment d (discussion draft April 5, 1999) states the following:
“A purpose to cause harm shows that the harm is intentional even if harm is not substantially certain to occur. Likewise, knowledge that harm is substantially certain to result is sufficient to show that the harm is intentional even in the absence of a desire to bring about that harm. Of course, a mere showing that harm is substantially certain to result from the actor's conduct is not sufficient to prove intent; it must also be shown that the actor is aware of this. Moreover, under Subsection (b) it is not sufficient that harm will probably result from the actor's conduct; this result must be substantially certain.”
Likewise, the requirement that there be an intent to do harm is further evident in the Patterned Instructions for Kansas (PIK). “A battery is the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive.” PIK Civ. 4th 127.02.
The most recent case in Kansas to discuss the intentional tort of battery and its definition is Thomas v. Benchmark Ins. Co., 285 Kan. 918, 179 P.3d 421 (2008). In Thomas, our Supreme Court was asked to determine the definition of the intentional tort of battery within the context of an insurance company's exclusion clause for intentional injury contained in the insurance policy language and whether the facts of the case precluded insurance coverage under the intentional act exclusion.
In Thomas, the driver of the vehicle was fleeing from police at a high rate of speed. The driver lost control of the vehicle, killing one passenger and injuring another. The parents' of the deceased passenger filed suit against the driver's insurance company. Our Supreme Court determined that the driver's intent to injure may be inferred by her actions of driving the vehicle at a high rate of speed. The Supreme Court stated, “[i]n Kansas, intent to cause injury may be inferred if the injury is the natural and probable consequence of [the driver's] intentional acts.” 285 Kan. at 923, 179 P.3d 421. Thus, our Supreme Court concluded
“that the ‘intentional act’ or ‘intentional injury’ exclusion test in Kansas should be as follows:
“The insured must have intended both the act and to cause some kind of injury or damage. Intent to cause the injury or damage can be actual or it can be inferred from the nature of the act when the consequences are substantially certain to result from the act. ” 285 Kan. at 933, 179 P.3d 421.
The district court did not err in finding that McElhaney failed to adequately plead an intentional battery.
While Thomas is not directly on point as it deals with an insurance policy's intentional injury exclusion, this case, coupled with the language provided in the Restatement (Second) of Torts, leads us to the conclusion that McElhaney, in her pleadings, was required not only to allege that Charles intended to make contact with her in his truck, but also that he intended the injury, either through actual intent or through an inference from the nature of the act when the result of the act would be substantially certain. McElhaney's pleading does indicate that Charles “intentionally ran into [McElhaney] with his truck” but then undermines the intent to injure element by stating “[p]erhaps intending to only bump into her with his truck, [Charles] ran over both of [McElhaney's] feet.”
Under K.S.A. 60–208(a)(1), a pleading must contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” McElhaney's failure to assert the essential element of battery of the “intent to injure” is tantamount to failing to state a proper claim on her intentional tort of battery theory and entitled Charles to a judgment on the pleadings.
Charles was entitled to judgment as a matter of law on McElhaney's claim of intentional battery.
Likewise, when examining McElhaney's other motions in this case, as the district court indicated it did, and reviewing this as we would a summary judgment motion, McElhaney never alleged any facts in either McElhaney I or in McElhaney II to support a finding that Charles intended to injure her. We note that both cases were before the same district judge and both are part of the record on appeal.
In her motion to add a claim of punitive damages in McElhaney I, she stated that “Emma McElhaney alleges that Defendant Charles Thomas recklessly struck her with his vehicle, although he did not mean to injure her.” She included a copy of her deposition with the motion in which indicated that Charles told her he did not intend to run over her foot, just to bump her. Likewise, in his response to McElhaney's request for punitive damages, Charles attached a copy of part of his deposition. Charles denied he ever told anyone he intended to “bump” McElhaney. He indicated he was turning into a parking stall when he ran over her foot. He did not intend to bump her. In the pretrial hearing in McElhaney I, counsel reaffirmed there was no evidence supporting an intentional battery by stating, “[h]owever, I believe for it to be an intentional tort he would have to intend the harm that resulted, whereas this was really just a case of he's goofing off, driving with a buddy in the parking lot and they're gonna scare, or you know, bump into her and he accident[al]ly runs her over.” He further stated “so it's somewhere in between your simple negligence and intentional, and to me it's reckless or wanton conduct as opposed to just simple negligence, but certainly not intentional.”
In McElhaney I, when McElhaney was given an option to amend the pretrial order and adequately plead an intentional tort claim, she chose not to do so and instead successfully obtained a dismissal of McElhaney I. She then filed a new, but identical, petition in McElhaney II, again failing to allege an intent to injure.
In McElhaney II, attached to McElhaney's motion in limine, she submitted an affidavit from a witness (Andrew Hecker) who was walking with her at the time of the incident. The affidavit states that Charles told him that “he only meant to bump into Emma with his truck, but he did not intend to run her over and injure her.” She also again submitted her deposition, Charles' deposition, and police reports as attachments to her memorandum in support of plaintiff's renewed motion for leave to add a claim for punitive damages. The police report completed at the time indicated that Charles told the police that he “accidentally got to [sic] close [to McElhaney] and ran over her foot.” Charles' passenger told police that Charles was pulling into a parking stall and “judged it wrong and accidentally ran over [McElhaney's] foot.” The police officer also reported that Charles' passenger stated to him that Charles was “messing around” but the passenger did not put that in his statement. In addition to the items extracted from Charles' deposition in McElhaney I, the full deposition submitted in McElhaney II noted Charles' statement that he believed he simply misjudged how close McElhaney was to his vehicle. In addition, McElhaney included a copy of the statement Charles made to the insurance investigator. Charles again indicated that he “got a little too close” and that he did not intentionally hit McElhaney and that she realized he did not do it on purpose because they discussed it at the time.
Therefore, even if we use a summary judgment standard of review, the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact. There is simply no evidence to support a claim that Charles had any intent to injure McElhaney. Nor could one conclude based on the evidence that harm was substantially certain to result from his conduct. Accordingly, Charles was entitled to judgment as a matter of law on any claim of intentional battery.
The Negligent Entrustment Claims
In McElhaney I, McElhaney contended that Larry and Susan were liable for negligent entrustment because they “entrusted their truck to their son, a driver they knew had been arrested and convicted of drunk driving which led to Charles Thomas' driver's license being suspended.” In addition, she claimed they were liable because they had allowed him to drive in violation of his restrictions several years earlier when he was 15. At that time he ran into a bridge on an icy road. Likewise, he also had a collision with a deer.
Larry and Susan were granted summary judgment on McElhaney's negligent entrustment claim. The district court found as follows:
“Counsel for the plaintiff states that their claim of negligent entrustment is ‘simply based on their (defendant's) own records that they provided, which show under the law he (Charles Thomas) had a suspended driver's license.’ Later counsel argues ‘It's (negligent entrustment) ... based upon the fact the defendant (Charles Thomas) had several driving instances prior to this where he either wrecked his vehicle or received a DUI.’
“To establish a claim of negligent entrustment the plaintiff must prove that the defendant (Charles Thomas) was known to be an incompetent driver, or his parents had reasonable cause to know that their son was an incompetent driver.
“As stated in [Upland Mutual] Insurance., Inc. vs. Noel, 214 Kan. 145, [519 P.2d 737 (1974) ], an incompetent driver is one who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.
“Plaintiff argues that since the defendant had been involved in two, single car accidents and had received a separate DUI two years prior, shows he was incapable of operating a vehicle with ordinary care.
“The uncontroverted evidence shows that the defendant was 17 years of age, had a valid driver's license, and had been driving back and forth from school on a daily basis for two years. There is no evidence that the defendant had known habits of recklessness. In 2006, the defendant received a non-accident DUI conviction. This conviction does not establish the defendant's inability to operate a motor vehicle with ordinary care, nor does the fact that the defendant had two prior, non-injury, single car accidents. The mere fact that a person has been involved in accidents, as here (icy bridge and deer) does not establish or prove that a person is incapable of operating a motor vehicle with ordinary care. Incompetence requires something more than just negligence.”
The judge attached a copy of Charles' driving record, which was stipulated to by the parties, to his order. It did not indicate a period of suspension at the time of the incident. It supported the judge's conclusion that Charles had a valid driver's license at the time of the incident.
McElhaney then made the exact same negligent entrustment claims in McElhaney II. Larry and Susan moved to dismiss the claims on the basis of claim preclusion, the same claims having been decided on the merits in McElhaney I. McElhaney responded that the court's ruling in McElhaney I did not constitute a final judgment. Larry and Susan filed a reply, again asserting res judicata. The motion to dismiss was not decided prior to transferring McElhaney II from Douglas County to Riley County. The case was returned to the same Riley County judge that ruled on the summary judgment motion in McElhaney I.
Once the case was transferred to Riley County, Larry and Susan asked the court to “Enforce Previous Orders” from McElhaney I, including the granting of summary judgment on the negligent entrustment claims to Larry and Susan. Finding that “[o]ther than the passage of time, I haven't heard anything, or heard any additional facts which would in any way persuade me to reconsider [my] previous rulings,” the judge let stand his previous order granting summary judgment to Larry and Susan on the negligent entrustment claim. He further stated it was his “intent to just reinstate those orders in this case.”
Not to be deterred, 3 months later, McElhaney filed a motion to reinstate her negligent entrustment claim. This time she claimed “several new opinions regarding negligent entrustment in Kansas” had been issued by the appellate courts since McElhaney I that justified a change in result. (Emphasis added.) She cited only one case, Martell v. Driscoll, 297 Kan. 524, 302 P.3d 375 (2013), which was decided after McElhaney I but before the judge's opinion in McElhaney II. She still alleged the same facts as she did in McElhaney I. Larry and Susan responded that McElhaney's claim was still barred by res judicata, the motion was actually a motion to reconsider that was untimely, and that Martell did not change the law applicable to McElhaney's claims. The court held a hearing on McElhaney's motion and denied it. The judge pointed out that McElhaney continued to argue that Charles' license was suspended on the date of the incident, when the evidence presented simply did not support such a conclusion.
On appeal, McElhaney makes the following arguments:
(1) Larry and Susan's summary judgment motion in McElhaney I should have been denied because it was filed out of time.
(2) The court in McElhaney I should have granted McElhaney's motion for summary judgment on the negligent entrustment claim because Charles' driver's license should have been suspended at the time of the incident and providing a vehicle to an unlicensed driver is negligent entrustment as a matter of law.
(3) Even if Charles' driver's license was valid, when the evidence is viewed in the light most favorable to McElhaney, there was sufficient evidence to present the facts on the issue of negligent entrustment to the jury, so summary judgment was granted in error.
Susan and Larry argue that because this issue was finally decided in McElhaney I, and McElhaney did not appeal that decision, she is precluded by principles of res judicata from raising the same issue in McElhaney II. They have maintained this position consistently throughout McElhaney II, beginning with their answer to the petition. See Kansas Health Care Stabilization Fund v. St. Francis Hospital, 41 Kan.App.2d 488, 502, 203 P.3d 33 (2009) (holding that preclusion can be waived if not pled as an affirmative defense), rev. denied 289 Kan. 1279 (2010). McElhaney counters that res judicata has no application here because there was no “final judgment in this case until the parties proceeded to jury trial.” We agree that principles of res judicata, specifically claim preclusion, prevent McElhaney from raising the same negligent entrustment claim in McElhaney II that was already fully decided in McElhaney I.
Whether claim preclusion applies is a question of law subject to unlimited appellate review. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012). In Kansas, four elements must be met to invoke the doctrine: “(1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits.” 293 Kan. at 777–78, 272 P.3d 583.
Clearly in this case, McElhaney II presents the same negligent entrustment claim against the same parties (Larry and Susan), already raised in McElhaney I. The claim was fully litigated, with McElhaney even filing a cross-motion for summary judgment. The sole remaining issue is whether the district court's order granting summary judgment in favor of Larry and Susan was a final judgment on the merits. It was. “[A] trial court's decision on summary judgment satisfies the final judgment on the merits requirement for purposes of claim preclusion when the parties were fully heard, the decision is made with a reasoned opinion, and the ruling is subject to appeal.” Grimmett v. S & W Auto Sales Co., 26 Kan.App.2d 482, 488, 26 Kan.App.2d 482, 988 P.2d 755 (1999). In this case the ruling was subject to appeal because it fully resolved all claims against Larry and Susan. See K.S.A. 60–254(b). “Summary judgment procedure, at least from the defendant's point of view, would become a virtual ity if plaintiffs could obtain ‘overs' by dismissing and refiling a case rather than fully litigating an adverse summary judgment decision through the appellate process.” 26 Kan.App.2d at 486, 988 P.2d 755. McElhaney did not appeal the ruling. She is precluded now from relitigating the same claim in McElhaney II.
The Punitive Damages Claim
McElhaney contends that the district court abused its discretion when it denied her motion to amend her petition to add a punitive damages claim against Charles. Again, to fully examine this issue, we must follow her claim from McElhaney I to McElhaney II.
In McElhaney I, McElhaney filed a timely motion for leave to amend her petition to add a claim of punitive damages against Charles. She argued in her motion that she was likely to prevail at trial because Charles did not dispute liability or hitting her with his vehicle. Further she claimed that the evidence would show that Charles only meant to “ ‘bump into her’ “ rather than run over her; that his actions were “reckless at best and willful, wanton and/or with malice at worse.” Finally, she alleged that Charles' “actions are the kind that the legislature sought to punish with punitive damages.” And she concludes that Charles' actions “demonstrate[ ] the recklessness.”
After a hearing, the district court denied her motion, finding that based on the pleadings and the statements of counsel she had failed to meet her burden that there was a probability she would prevail at trial. The court found that there was no evidence of willful or wanton conduct. In addition, the district court found that the pretrial order had not indicated that McElhaney was even alleging an intentional tort. But the judge went on to instruct that if McElhaney wanted to proceed under an intentional tort theory, he would allow an amendment to the pretrial order, set a new pretrial conference, and continue the case for trial to a later date than originally planned. McElhaney inquired whether the judge would revisit her motion for punitive damages if she did elect to amend the pretrial order and proceed on an intentional tort claim. The judge made some comments, but ultimately refused to give a hypothetical ruling. In his written order, the judge noted:
“As to defendant Charles Thomas, plaintiff's claim for punitive damages is based upon the allegation that the defendant did not have a valid driver's license and that his intent was to scare or bump into the plaintiff. Even if the plaintiff's evidence is viewed in a light most favorable to her, the statement by the defendant that ‘I only meant to bump into you’ does not rise to the level of an intentional tort. Although to act (bump) may have been intentional the resulting injury or intent to injure was not intentional.
“The plaintiff has failed to meet her burden that is required to support a claim for punitive damages and said claim is therefore denied. ”
Rather than seek to amend the pretrial order to clearly allege an intentional tort, McElhaney successfully requested the dismissal of McElhaney I.
In McElhaney II, the district court indicated that because no additional facts had been submitted “which would in any way persuade” the court to reconsider its previous rulings in McElhaney I, it “reinstate[d] those orders.” One of those previous rulings was the denial of McElhaney's motion for leave to add a punitive damages claim. Three months later, McElhaney filed a “renewed” motion for leave to add a claim of punitive damages. She again alleged that Charles' actions were wanton and reckless. Further, in support, she alleged that Charles had a suspended driver's license and Charles failed to report the accident. McElhaney attached a Kansas Motor Vehicle Report that clearly showed that Charles did not have a suspended license at the time of this incident as well as a motor vehicle accident report that also indicated Charles had a valid license at the time of the incident. Charles objected to reconsideration of a ruling from McElhaney I, when there had been no change in circumstances or claims since that time. He essentially argued that based on Stricklin, 192 Kan. 360, 388 P.2d 824, in the absence of any claim of intent to injure her, this was nothing more than negligent horseplay that could not support a punitive damages claim. The district court agreed and denied McElhaney's motion. The district court found that the pleadings and motions in the case still did not allege an intent to injure. The district court found that the facts as alleged solely supported a negligent horseplay theory, not an intentional battery. The district judge further found that there was no new evidence or argument made that would cause him to change his previous ruling on punitive damages in McElhaney I.
Prior to trial, Charles filed a motion in limine requesting that any evidence that he “intended to bump” McElhaney be excluded from trial. Charles argued that if McElhaney was not going to be allowed to pursue an intentional tort claim, under the remaining negligence claim Charles' intent was irrelevant, immaterial, and prejudicial. In addition, he asserted that he denied he ever made any such statement. The court took the matter up at a hearing prior to trial and immediately prior to selection of the jury. The court granted Charles' motion and prohibited any evidence that Charles intended to bump McElhaney. Although McElhaney challenged that ruling at the time, she does not challenge that ruling on appeal.
Finally, at trial, McElhaney's counsel made a proffer that he would have presented testimony from Officer Galindo that Adam Slagle, Charles' passenger at the time, told her (Officer Galindo) that Charles was “screwing around” and intentionally bumped McElhaney with his car. This evidence, McElhaney's counsel argued, should lead the court to conclude “that the act of running someone over with a vehicle, attempt to scare them with a vehicle, or just driving unreasonably close to them with a vehicle is reckless, and wanton, and willful behavior, and or willful behavior under Kansas law, and is eligible for punitive damages.” He admitted that if he called Slagle and asked him the same thing, he did not know what his response would be. With those procedural facts in mind, we next examine the law related to punitive damages.
Punitive damages are permitted when a defendant has invaded a plaintiff's rights in a malicious, vindictive, or willful and wanton manner. K.S.A. 60–3702(c) ; Adamson v. Bicknell, 295 Kan. 879, 888, 287 P.3d 274 (2012). They are imposed to punish the wrongdoer and deter others from similar wrongs. 295 Kan. at 888, 287 P.3d 274.
Under K.S.A. 60–3703, district courts have discretion to permit plaintiffs to make punitive damages claims. The district court may permit a punitive damages claim if the plaintiff can establish a probability—that it is more likely than not—that he or she will prevail on the claim. To prevail, he or she must prove, under the clear and convincing evidentiary standard, that the defendant's actions were willful, wanton, fraudulent, or with malice. K.S.A. 60–3702(c) ; Adamson, 295 Kan. at 888, 287 P.3d 274. The district court considers the evidence in the light most favorable to the moving party but does not make credibility determinations, weigh evidence, or draw inferences from the facts. 295 Kan. at 888, 287 P.3d 274. This court reviews the district court's decision under an abuse of discretion standard. 295 Kan. at 887, 287 P.3d 274. A district court abuses its discretion if its actions are: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
Willful acts are those indicating that the defendant's design, purpose, or intent was to do wrong or cause injury. Burdick v. Southwestern Bell Tel. Co., 9 Kan.App.2d 182, 185, 675 P.2d 922 (1984) (quoting Anderson, Administrator v. White, 210 Kan. 18, 19, 499 P.2d 1056 [1972] ). Wanton acts, which are something more than ordinary negligence but less than willful acts, indicate that the defendant realized that there was imminent danger to the plaintiff but recklessly disregarded it. “Wantonness is said to be the mental attitude of the wrongdoer rather than a particular act of negligence.” Cerretti v. Flint Hills Rural Electric Co-op. Ass'n, 251 Kan. 347, 368, 837 P.2d 330 (1992). The burden was on McElhaney to prove by clear and convincing evidence that Charles acted as claimed. “Clear and convincing evidence means evidence that is certain, unambiguous, and plain to the understanding and so reasonable and persuasive as to cause the jury to believe it.” 251 Kan. at 367, 837 P.2d 330.
Not only did McElhaney fail to properly bring her intentional tort of battery claim, but the language in her petition for damages undermines her argument that she should have been allowed to bring a claim for punitive damages. In her petition, she makes no allegation of malicious or wanton conduct and even asserts that Charles had no intent to injure her. In addition, McElhaney does not challenge on appeal the district court's ruling on Charles' motion in limine, prohibiting the admission of any evidence that Charles “intended to bump” her.
Furthermore, McElhaney continues to rest her punitive damages claim on her theory that Charles had a suspended driver's license at the time of the incident, when there is absolutely no evidence to support such a claim and the district court so found on at least two separate occasions. In fact, all the records from the Kansas Department of Revenue submitted in both McElhaney I and McElhaney II absolutely refute her argument. McElhaney's position is that because Charles had a DUI conviction, the law required that his license should have been suspended at the time of this incident and therefore there was a presumption that it was suspended at the time. But whether due to an error at the Kansas Department of Revenue or some other reason, the fact remains the State of Kansas recognized Charles' right to drive at the time by providing him with a valid driver's license.
Because McElhaney failed to properly assert her intentional tort of battery claim, and the district court prohibited her from presenting any evidence that Charles “intended to bump” her and because there was no evidence that Charles' driver's license was suspended, the only evidence that was left to present to the jury was of simple negligence, a claim that Charles did not deny. Accordingly, the district court did not abuse its discretion when it found that there was not a probability that she would prevail on a punitive damages claim.
The Claim Against State Farm
For the first time, in McElhaney II, McElhaney sued her own insurance company, State Farm, for uninsured motorist coverage. This was precipitated by actions that took place in McElhaney I. So yet again, we must pause to review what happened in that case. To avoid confusion, since both Charles and McElhaney have coverage from State Farm, we will refer to McElhaney's coverage as State Farm–UM.
In McElhaney I, during the discussion of whether McElhaney had properly pled a claim for an intentional tort, counsel for Charles indicated that if McElhaney was claiming an intentional tort, “they would lose their insurance coverage.” The judge indicated that there was nothing in the pretrial order that alleged an intentional tort, but if McElhaney wanted to proceed under that theory, since it was mentioned in the petition, he would allow an amendment to the pretrial order, set a new pretrial conference, and continue the case for trial to a later date than originally planned.
Rather than seek to amend the pretrial order and proceed on a claim of intentional tort, McElhaney filed a motion almost 2 weeks later to dismiss the action without prejudice. The motion informed the court that because of the issue raised by Charles' attorney concerning whether State Farm would indemnify Charles if McElhaney was successful under an intentional tort theory and because of McElhaney's belief that the issue could not be sorted out in the 7 months before the new trial setting, she wished to dismiss her action. Expressing a fear that McElhaney would attempt to refile the case in a different jurisdiction and attempt to relitigate the trial court's previous holding denying her claim for punitive damages and the trial court's ruling dismissing Larry and Susan from the case, Charles, Larry, and Susan objected to the motion. At the hearing, counsel for Charles, Larry, and Susan indicated that he was authorized by State Farm to commit that based on the evidence discovered to date, State Farm would not raise a coverage issue. In other words there would not be a need for State Farm–UM to intervene due to possible liability under the uninsured motorist provisions of McElhaney's policy. Such a commitment, counsel argued, would alleviate McElhaney's concerns and perceived need for a dismissal. Although Charles, Larry, and Susan requested certain orders to govern future filings, the district court did not believe it was “appropriate that I enter any orders that would anticipate something that may or may not happen.” The court granted McElhaney's motion to dismiss without prejudice.
This brings us to McElhaney II. Two months after the dismissal of McElhaney I, McElhaney did refile the petition in a different jurisdiction, Douglas County, named Larry and Susan as defendants in the case on the same negligent entrustment theory, and added State Farm based on a claim that “[c]ounsel for Defendants Charles, Larry, and Susan Thomas has made it known that there may not be any insurance coverage for the facts alleged in this case.” She further alleged that, as her insurance carrier, State Farm–UM was obligated to provide uninsured motorist coverage. State Farm–UM denied the allegations, stated that it had never indicated it would deny coverage, and therefore the petition failed to state a claim against State Farm–UM.
After a hearing on the matter, the court dismissed State Farm–UM. At the hearing, State Farm–UM stipulated that for this specific case it would be bound by the judgment if an intentional act was found to have been established limited only by the policy limits of the uninsured motorist coverage minus any duplicative personal protection limits. The court concluded that the cases cited by McElhaney were distinguishable, that there was no claim that State Farm had denied coverage, and that State Farm–UM had not elected to intervene after having been put on notice by McElhaney. Charles would be covered under a negligence theory or under an intentional tort theory. Therefore, Charles was not uninsured and there was no basis to add the uninsured motorist carrier. McElhaney filed a motion to reconsider, but the district court maintained its original decision.
McElhaney insists that the trial court erred. She argues State Farm was a proper defendant because if she would have succeeded in her claim of intentional tort it would have potentially left Charles as an uninsured defendant, i.e., his insurance company would not be legally allowed to indemnify him for intentional conduct.
In reviewing the district court's action granting a motion to dismiss for failure to state a claim, we are required to assume the facts alleged by the plaintiff are true. Our review is then unlimited as to whether the facts and inferences reasonably drawn therefrom state a claim based on plaintiff's theory or any other possible theory. Campbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011).
So we begin by assuming that McElhaney, at least at the time of filing, had a viable intentional tort claim and then examine whether a judgment on such a claim would result in Charles being left without coverage to pay the judgment. The heart of McElhaney's claim is that regardless of what State Farm commits to regarding coverage in this case, it is prohibited as a matter of law from insuring Charles against an intentional tort.
The record does not contain Charles' insurance policy, so we do not know if it specifically excluded coverage for an intentional act. Likewise, there is no discussion in the record of the contents of the policy. The only statement that suggested there may be a denial of coverage was the one made by Charles' attorney during a hearing in McElhaney I. The statement was corrected in short order by Charles' attorney. The attorney advised the court that based on the evidence discovered to date, State Farm would not raise a coverage issue. In other words, if there was an intentional act exclusion, it was not going to deny coverage on that basis, accordingly there would be no need to bring in McElhaney's uninsured motorist carrier, State Farm–UM.
McElhaney essentially claims that the policy is irrelevant because even if it did not exclude coverage for an intentional act, it was required to do so pursuant to the Kansas Supreme Court's holding in Thomas v. Benchmark Ins. Co., 285 Kan. 918, 179 P.3d 421 (2008), therefore any intentional acts by Charles would be excluded as a matter of law and subject State Farm–UM to uninsured motorist coverage. But McElhaney misinterprets Thomas and the applicable statutes. We first examine Thomas.
While fleeing police, Melissa Gutierrez lost control of the car she was driving at a high rate of speed, killing her and passenger Ramon Sanchez and injuring passenger Victor Reyes. In a declaratory judgment action, Reyes and Rene Thomas, as parent and natural guardian of minors and heirs at law of Sanchez, sought a ruling that Gutierrez' Benchmark Insurance Company provided coverage. Benchmark's policy had an intentional acts exclusion. The Supreme Court ultimately held that Benchmark was correct in denying coverage under the intentional act exclusion. In the process of reaching its decision, the Supreme Court noted that prior Kansas cases had made clear that
“[u]nder Kansas public policy, an individual should not be exempt from the financial consequences of his or her own intentional injury to another. Consequently, in K.S.A. 40–3107(i)(6), the legislature has authorized motor vehicle liability insurers to exclude coverage ‘for any damages from an intentional act.’ Such exclusionary clauses should be narrowly construed against the insurer.” 285 Kan. 918, Syl. ¶ 4, 179 P.3d 421.
The Supreme Court did not hold that insurance companies were prohibited from providing such coverage, it simply recognized that they should not be required to insure someone for intentional injury to another. Therefore, the court essentially noted that it made sense that the legislature would allow insurance companies to contain exclusions from coverage for intentional acts. In fact, a review of K.S.A. 40–3107(i)(6) reveals that an insurance company may exclude coverage for any damages arising from an intentional act. It is not mandatory. So to the extent McElhaney insists that Charles' insurance company was legally prohibited from covering his actions in this case if an intentional tort was established, and therefore she was required to file an action against State FarmUM, her claim fails.
McElhaney next argues that if she did not provide notice to her carrier, she would lose the ability to make a claim later for uninsured benefits. This is a correct statement. Pursuant to K.S.A. 40–284(e)(5) an insurer may provide for the exclusion of uninsured motorist coverage if a “suit is filed against the uninsured motorist without notice to the insurance carrier.” McElhaney provided that notice. She indicates that State Farm–UM declined to intervene. She implies that when State Farm–UM declined to intervene there was no other way to protect her future ability to collect uninsured motorist coverage than to sue State Farm–UM. She relies on Winner v. Ratzlaff, 211 Kan. 59, 65, 505 P.2d 606 (1973), for the proposition that if she has a claim against an uninsured motorist she can choose any of three paths. She may (1) sue State Farm–UM as the sole defendant; (2) sue both Charles and State Farm–UM; or (3) proceed against Charles only and then later attempt to collect from State Farm–UM. She argues it was her right to select option 2.
But this presupposes she has a claim against State Farm–UM. She does not. State Farm has indicated it will provide coverage to Charles and State Farm–UM has stated it will provide coverage if needed. So there is no claim against State Farm–UM, it has not denied her any coverage, and the court did not err in so finding.
Finally, because we have found that McElhaney had no intentional tort claim, the above discussion becomes academic. With no intentional tort claim, uninsured motorist coverage is not implicated at all and there could be no claim against State Farm–UM.
Change of Venue
Inextricably tied to McElhaney's claim that State Farm should not have been dismissed from the case is her allegation on appeal that the court erred in transferring the case to Riley County. We address this separately to fully review the issue of venue in this case.
Venue in civil actions is governed by statute. K.S.A. 60–603 provides that in an action against a resident of this state, the action may be brought in the county in which the defendant resides, in the county in which the plaintiff resides if the defendant is served therein, or in the county in which the cause of action arose. There is no dispute that the cause of action in this case arose in Clay County and defendants Charles, Larry, and Susan reside in and were served in Clay County. McElhaney asserts she resided in Clay County at the time the action arose but lived in Douglas County when both McElhaney I and McElhaney II were filed. In McElhaney I, the parties agreed that venue was in Clay County but that the case should be sent to Riley County, which is also part of the same 21st Judicial District, because “everybody knew everybody” in Clay County.
But, K.S.A. 40–218 provides that an insurance company may be sued in any county in the state in which the cause of action arose or in which the plaintiff resides. When McElhaney II was filed and State Farm–UM was named as a defendant, McElhaney claimed Douglas County as a proper venue because she resides there.
Because State Farm–UM was dismissed from McElhaney II, the district court found that a change of venue was appropriate. Douglas County was no longer a proper venue because none of the remaining defendants were served in Douglas County. See K.S.A. 60–603(2). The district court determined that the case would have to be transferred to Clay County (the residence of all defendants) unless the parties agreed to send it to Riley County. Charles, Larry, and Susan agreed Riley County was appropriate. McElhaney was not certain whether she wanted to agree to venue in Riley County. The judge advised the parties that unless they agreed the case would go to Clay County. He told the parties to let him know within 14 days and send him an order. Subsequently, more than 14 days later, an order was filed changing venue to Riley County.
McElhaney now claims the trial court erred because State Farm was a proper party and the court should reinstate the claim and “remand the case to Douglas County.”
A change of venue rests largely in the discretion of the trial court. See Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976). But if it is found that no cause of action exists in favor of or against a party upon whom venue is dependent, K.S.A. 60–611 requires the action be transferred to a proper venue. In this case, with State Farm–UM no longer in the case, the court was required to transfer the action to a proper venue. Therefore, there can be no abuse of discretion.
Moreover, K.S.A. 60–610 requires that an objection to venue is not allowed unless a timely motion is made before a trial is commenced on the merits. After the order changing venue was filed, the record is void of any objections to venue before a trial on the merits was held in February 2014. In fact, the pretrial order indicates that there were no objections to venue or jurisdiction. Failure to object to venue prior to trial constitutes a waiver. Rauscher v. St. Benedict's College, 212 Kan. 20, 23, 509 P.2d 1137 (1973). Accordingly, McElhaney has waived any objections to venue in Riley County in this case.
The Motion to Disqualify Defense Counsel
McElhaney finally contends that the district court erred when it dismissed her motion to disqualify defense counsel because defendants Charles, Larry, Susan, and State Farm had a conflict of interest with their attorney.
In McElhaney II, McElhaney filed a motion to disqualify Charles', Larry's, and Susan's attorney alleging both a conflict of interest among all three defendants, and a conflict of interest between their insurance carrier, State Farm, and the other defendants' interests. The district court dismissed McElhaney's motion for lack of standing.
When reviewing an attorney disqualification issue, this court must decide whether the district court's findings of fact are supported by substantial competent evidence and are sufficient to support the conclusions of law. Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 761–62, 897 P.2d 104 (1995).
There are very few cases on point; however, in National Bank of Andover, N.A. v. Aero Standard Tooling, Inc., 30 Kan.App.2d 784, 791, 49 P.3d 547, rev. denied 274 Kan. 1113 (2002), one party filed a motion to disqualify the opposing party's counsel for a conflict of interest. The moving party had no prior connection to opposing counsel and was merely claiming that opposing counsel had a conflict in representing opposing counsel's own client. This court held that there was no “standing to raise the issue of a conflict with another party's attorney, and any discussion of a general conflict of interest is inappropriate.”30 Kan.App.2d at 791, 49 P.3d 547.
In Chrispens, the attorney for the plaintiff had formerly represented the defendant and the defendant moved to have its former attorney disqualified. There was also an argument that the attorney may end up being a witness in the case because of this prior relationship. Standing was not an issue in that case because there was a relationship between the moving party and the attorney giving rise to the motion to disqualify. But even in such a case, the Supreme Court pointed out that motions to disqualify are often used as a tactical resource to divest opposing parties of their counsel of choice. 257 Kan. at 772, 897 P.2d 104. “A court deciding a motion to disqualify counsel must balance several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process. [Citation omitted.]” Lansing–Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 571, 808 P.2d 1369 (1991).
In LeaseAmerica Corp. v. Stewart, 19 Kan.App.2d 740, 750, 876 P.2d 184 (1994), another case with an attorney as a potential witness, this court stated the following:
“ ‘Motions to disqualify “should be reviewed with extreme caution for they can be misused as a technique[ ] of harassment.’ “ [Citation omitted.] ‘Such motions are often simply “ ‘common tools of the litigation process, ... used ... for purely strategic purposes.” “ [Citation omitted.] ‘The right to be represented by counsel of choice is an important one, subject to override only upon a showing of compelling circumstances.’ [Citation omitted.] ‘[T]he purpose of the [Model Rules of Professional Conduct] can be subverted when they are involved by opposing parties as procedural weapons.’ [Citation omitted.]”
We hold that the district court did not err when it determined that McElhaney lacked standing to file this type of motion to disqualify. McElhaney was not a former client of Charles' attorney or his firm and there was no allegation that counsel would be a witness in the case. Moreover, the conflict of interest raised by McElhaney is a waivable conflict of interest and there is no reason to believe that the defendants did not give written consent. Kansas Rules of Professional Conduct 1.7(b) (2014 Kan. Ct. R. Annot. 531). Finally, McElhaney's attempt to remove opposing counsel for a conflict of interest certainly has the character of a procedural weapon in this case, used purely for a strategic purpose. Thus, the district court did not err when it denied McElhaney's motion to disqualify defendants' counsel.
Affirmed.
MALONE, C.J.
Concurring in part and dissenting in part: I agree with the majority on all issues except that I believe the district court abused its discretion in denying Emma McElhaney's motion to amend her petition to add a claim for punitive damages against Charles Thomas (Charles).
The facts in the light most favorable to McElhaney establish that Charles made a conscious decision to bump her with his truck, but he did not intend to run over and injure her. Charles' passenger told the police that Charles was “messing around” with McElhaney when he bumped her with the truck. McElhaney also testified that Charles told her that he only intended to bump her with his truck, but he did not intend to run over her foot. The district court concluded that Charles was engaged in “horseplay” when he ran over McElhaney's foot with his truck.
Under K.S.A. 60–3703, the district court may permit a punitive damages claim if the plaintiff can establish a probability—that is more likely than not—that he or she will prevail on the claim. To prevail on a claim for punitive damages, the plaintiff must establish by clear and convincing evidence that the defendant acted willfully, wantonly, fraudulently, or with malice. K.S.A. 60–3702(c) ; Adamson v. Bicknell, 295 Kan. 879, 888, 287 P.3d 274 (2012). The district court considers the evidence in the light most favorable to the moving party but does not make credibility determinations, weigh evidence, or draw inferences from the facts. 295 Kan. at 888, 287 P.3d 274. An appellate court reviews the district court's decision under an abuse of discretion standard. 295 Kan. at 887, 287 P.3d 274. A district court abuses its discretion if its actions are: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
Wanton acts, which are something more than ordinary negligence but less than willful acts, indicate that the defendant realized that there was imminent danger to the plaintiff but recklessly disregarded it. Cerretti v. Flint Hills Rural Electric Co-op. Ass'n, 251 Kan. 347, 367, 837 P.2d 330 (1992). The keys to finding wantonness are the knowledge of a dangerous condition and indifference to the consequences. Bicknell, 295 Kan. 879, Syl. ¶ 4, 287 P.3d 274. “In order for a plaintiff to prove wanton conduct, it is not necessary that the plaintiff's evidence establish a formal and direct intention to injure any particular person.” Reeves v. Carlson, 266 Kan. 310, 314, 969 P.2d 252 (1998).
Applying the facts to the law, and viewing the evidence in the light most favorable to McElhaney, I believe that Charles' actions provide a classic example of wanton conduct. Charles intended to bump McElhaney with his truck but he did not appreciate the danger associated with such an action. Engaging in “horseplay” by bumping a pedestrian with a 2–ton truck clearly meets the definition of a wanton act. Based on this evidence, I believe that McElhaney established a probability that she would prevail at trial on her claim for punitive damages against Charles. See K.S.A. 60–3703.
The district court denied McElhaney's motion for punitive damages, in part, because the district court found that McElhaney was not asserting a claim of intentional tort. The district court seemed to be under the impression that McElhaney had to prove that Charles engaged in an intentional act, as opposed to a wanton act, in order to recover for punitive damages. This determination was an error of law which constituted an abuse of discretion by the district court. See Northern Natural Gas Co., 296 Kan. at 935, 296 P.3d 1106.
The majority upholds the district court's denial of the punitive damage claim, in part, because the district court subsequently granted Charles' motion in limine excluding evidence at trial that Charles intended to bump McElhaney. McElhaney has not challenged that ruling on appeal. But McElhaney's motion to amend her petition to add a claim for punitive damages was resolved based on the evidence in the record at the time the district court ruled on the motion. At the time the district court ruled on the motion for punitive damages, the evidence in the record in the light most favorable to McElhaney clearly established that Charles intended to bump her with his truck. Evidence that was later excluded at trial does not factor into the equation on whether the district court erred in denying McElhaney's motion for punitive damages.
From a practical standpoint, one might question why McElhaney wants to pursue a claim for punitive damages against Charles who was a high school student at the time this incident occurred. Nevertheless, because Charles engaged in wanton conduct, I believe the district court abused its discretion by denying McElhaney's motion for punitive damages. I would remand the case for retrial solely on the question of whether the jury should allow McElhaney's claim for punitive damages against Charles. If the jury allowed such a claim, the district court would need to conduct a separate hearing to determine the amount of damages to be awarded. See K.S.A. 60–3702(a).