262 Kan. 587
(938 P2d 1261)
No. 76,025
BARRY L. SMITH, Administrator of the Estate of Glen C. Smith, deceased, et al., Appellants/Cross-appellees, v. ALBERT PRINTUP, SOUTHWEST MOVERS, INC., THE HARTFORD ACCIDENT & INDEMNITY COMPANY, and AMERICAN STATES INSURANCE COMPANY, Appellees, and AMERICAN RED BALL TRANSIT COMPANY, INC., Appellee/Cross-appellant, and KANSAS TURNPIKE AUTHORITY, MYERS CONSTRUCTION COMPANY, and ALLIED LABORATORIES, Defendants.
SYLLABUS BY THE COURT
1. The standard of review applied to questions involving the admissibility of evidence at trial is one of abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.
2. The qualifications of an expert witness and the admissibility of the expert's testimony are within the sound discretion of the trial court.
3. Subject to the provisions of K.S.A. 60-3701, the standard of review of a punitive damage award is one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in the determination of the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion.
4. When determining the amount of punitive damages to be awarded under K.S.A. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review.
5. Kansas law supports a conclusion that evidence of a victim's financial status or character is not relevant in a determination of the amount of punitive damages. While the relative financial positions of the plaintiff and the defendant may be considered, such consideration does not include adverse credit information or character evidence concerning the plaintiff.
6. Punitive damages are not given upon any theory that the plaintiff has any just right to recover them but are given only upon the theory that the defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant.
7. In determining the sufficiency of an affidavit filed for the purpose of disqualification of a trial judge pursuant to K.S.A. 20-311d, we examine whether the affidavit provides facts and reasons pertaining to the party or his or her attorney which, if true, give fair support for a well-grounded belief that he or she will not obtain a fair trial. The question of sufficiency of the affidavit is one of law for the court to determine. Previous adverse rulings of a trial judge, although numerous and erroneous, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him or her as a judge.
8. The standard to be applied to a charge of lack of impartiality is whether the charge is grounded in facts that would create reasonable doubt concerning the court's impartiality, not in the mind of the court itself, or even necessarily in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.
Appeal from Sedgwick district court, PAUL BUCHANAN, judge. Opinion filed June 6, 1997. Affirmed.
Randall E. Fisher, of Law Offices of Randall E. Fisher, of Wichita, argued the cause and was on the briefs for appellants/cross-appellees.
Stephen M. Kerwick, of Foulston & Siefkin, L.L.P., of Wichita, argued the cause, and Jay F. Fowler, of the same firm, was with him on the brief for appellee/cross-appellant American Red Ball Transit Company, Inc.
Randy J. Troutt, of Kahrs, Nelson, Fanning, Hite & Kellogg, L.L.P., of Wichita, argued the cause, and Vince P. Wheeler, of the same firm, was on the brief for appellees Southwest Movers, Inc., and American States Insurance Co.
The opinion of the court was delivered by
DAVIS, J.: This is the second appeal involving punitive damages awarded to the estate of Glen C. Smith, deceased, brought by the administrator, plaintiff Barry L. Smith, et al. (Smith). In Smith v. Printup, 254 Kan. 315, 866 P. 2d 985 (1993), we remanded this case with instructions. This appeal basically involves two questions: (1) whether reversible error occurred during the remand proceeding to determine if defendant Southwest Movers, Inc., (Southwest) authorized or ratified the wanton conduct of its employee, defendant Albert Printup; and (2) whether the trial court erred in reassessing punitive damages against defendants American Red Ball Transit Company, Inc., (Red Ball) and Printup. We conclude that no reversible error occurred and affirm.
The facts giving rise to the underlying claims in this action are set forth in Smith v. Printup:
"Near midnight on September 15, 1987, defendant Albert Printup was driving a moving van southeast in the right lane on the Kansas Turnpike near the Andover exit. He lost control of the van, jackknifed, crossed the median, and collided with a pickup truck operated by Carolyn S. Elliott. Glen C. Smith was a passenger in the pickup driven by Ms. Elliott. As a result of the collision, Ms. Elliott died instantly. Mr. Smith suffered massive chest and other severe injuries but had a pulse and was breathing and groaning after impact. He died at the scene. Albert Printup survived.
"Albert Printup was employed by Southwest Movers, Inc. (Southwes"The exclusion of evidence [relating to Red Ball's ratification and authorization of drivers' fatigue-causing conditions] also affected the substantial rights of plaintiffs as to the court's determination of the amount of punitive damages. The punitive damages awards against Red Ball and Printup are reversed and remanded for further consideration by the court. While the excluded evidence relates to authorization and ratification, it also relates to the conduct of Printup and Red Ball. With new evidence, a determination of the amount of punitive damages against these two defendants may change." (Emphasis added.) Smith v. Printup, 254 Kan. at 347. 03 against Southwest, Printup, and Red Ball in conjunction with their survivor action. The court ruled that punitive damages were not recoverable in the wrongful death actions.
"From the very beginning, plaintiffs challenged the constitutionality of K.S.A. 1992 Supp. 60-3701. The trial court rejected this contention and found the statute to be constitutional. On summary judgment, the trial court rejected plaintiffs' claim that they were entitled to punitive damages based on the allegation that Southwest and Red Ball negligently hired, retained, supervised, and trained Albert Printup. The court allowed Smith to present punitive damage claims against the corporate defendants, but, in accordance with K.S.A. 1992 Supp. 60-3701(d)(1), only to the extent that the corporate defendants authorized or ratified Printup's conduct. The jury determined that punitive damages should be awarded against Printup and Red Ball, but not against Southwest. The court awarded punitive damages in the amount of $20,000 against Printup and $100,000 against Red Ball." 254 Kan. at 318-19.
Additional facts from our first opinion and new facts developed upon remand are set forth in the discussion of the alleged errors raised in this second appeal. In the first appeal, a majority of this court reached the following conclusions and remanded the case for further proceedings:
"The judgment of the court is affirmed in the following particulars. K.S.A. 1992 Supp. 60-3701 is constitutional. Punitive damages are not available in a wrongful death action in Kansas. After the enactment of K.S.A. 1992 Supp. 60-3701 et seq., a plaintiff has no right to advance a separate claim for punitive damages against an employer or principal based upon negligent acts of the employer or principal in hiring, supervising, training, or retaining the employee/agent.
"The court's rulings regarding the admission of financial records to determine the amount of punitive damages are affirmed, and those rulings become the law of the case upon remand. Likewise, the court's rulings regarding the admission of evidence of remedial conduct together with evidence of settlement negotiations are affirmed and become the law of the case upon remand.
"The court's holding that joint and several liability is not available under the provisions of K.S.A. 1992 Supp. 60-3701(b), (e), and (f) is affirmed. The court's holding that treble damages under K.S.A. 66-176 are unavailable in this case is affirmed and becomes the law of the case upon remand. Finally, the court correctly determined that there was sufficient evidence to submit to the jury the plaintiffs' claim of conscious pain and suffering on behalf of Smith and the issue of wantonness of Printup's conduct.
"The court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A. 1992 Supp. 60-3701(d)(1) that affected the substantial rights of the plaintiffs. The court also committed clear error by failing to instruct the jury on authorization under 60-3701(d)(1). Accordingly, the decision regarding punitive damages is reversed, and the case is remanded with the following directions:
"(1) Upon remand, a jury will be required to determine, under the guidelines set forth in this opinion, whether punitive damages should be awarded against Southwest.
"(2) The jury determination that punitive damages should be awarded against Red Ball and Printup is affirmed, and the jury shall not consider this issue.
"(3) The court's determination of the amount of punitive damages against Red Ball and Printup is reversed.
"(4) After a jury has determined whether Southwest shall be assessed punitive damages, the court may be required to determine the amount, if any, of punitive damages to be awarded against Southwest consistent with this opinion.
"(5) The court will be required to determine the amount of punitive damages to be assessed against Red Ball and Printup consistent with this opinion." 254 Kan. at 359-60.
Consistent with this court's direction on remand, the issue of Southwest's liability for punitive damages on the basis of authorization and ratification was tried to a jury. This trial resulted in a mistrial. Soon after the declaration of a mistrial, Smith moved to disqualify the judge on the grounds of bias and prejudice. This motion was denied. In the second retrial, the jury ruled in favor of Southwest.
The trial court also conducted a hearing to redetermine the amount of Smith's punitive damages against Red Ball and Printup consistent with our opinion in Smith v. Printup, 254 Kan. at 360. At the conclusion of this hearing, the court increased the punitive damage award against Printup from $20,000 to $20,800 and took the matter of the punitive damage award against Red Ball under advisement. Thereafter, the trial court awarded Smith $100,000 in punitive damages against Red Ball, the same amount awarded in Smith v. Printup, 254 Kan. at 319.
ISSUES ON APPEAL
Smith claims that the trial court refused to follow the directions of this court upon remand (1) by refusing to admit certain evidence on the issue of whether Southwest authorized or ratified Printup's conduct; (2) by assessing the same amount of punitive damages upon remand against Red Ball that were awarded in the first trial; and (3) by assessing the amount of punitive damages against Printup under the provisions of K.S.A. 60-3701(e) instead of K.S.A. 60-3701(f). Smith also contends that the court erred in not granting his motion to disqualify the trial judge. Red Ball cross-appealed in the event that we remand again for reassessment of its punitive damages. Since we do not remand, we need not address Red Ball's cross-appeal.
1. Admission of Evidence on Whether Southwest Movers Authorized or Ratified Printup's Conduct
In Smith v. Printup, we remanded for a jury determination whether punitive damages should be awarded against Southwest. We did so on the basis that: "[t]he court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A. 1992 Supp. 60-3701(d)(1) that affected the substantial rights of the plaintiffs." 254 Kan. at 360.
Smith advances four arguments in support of his contention that the trial court erroneously excluded evidence which demonstrated that the "questioned conduct [of Printup] was authorized or ratified by a person expressly empowered to do so on behalf of the . . . employer [Southwest]." K.S.A. 60-3701(d)(1). Smith argues (a) that the district court excluded relevant evidence in its ruling on Southwest's motion in limine; (b) that despite the rulings made on the motion in limine, Southwest opened the door on the evidence previously excluded, thereby making such evidence admissible; (c) that the trial court improperly restricted the testimony of John Neal, an expert witness for Smith; and (d) that the trial court improperly restricted the questioning of Ron Davis, owner of Southwest.
Standard of Review
Before addressing the four arguments, we must first determine our standard of review. Smith's arguments involve the admissibility of evidence at trial. The standard of review applied to questions involving the admissibility of evidence at trial is one of abuse of discretion. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 626, 822 P.2d 591 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995).
Smith argues that the standard in this case should be a question of law because we have previously reviewed the matter and instructed the trial court what evidence should be admitted on retrial. However, this argument ignores our actual rulings regarding admissibility of evidence upon retrial. Far from identifying specific evidence that was to be admitted or excluded upon remand, this court defined the terms "authorization" and "ratification" contained in K.S.A. 60-3701, identified broad categories of relevant evidence that relate to authorization and ratification, and required for admissibility a causal connection between the evidence offered and accident. Smith v. Printup, 254 Kan. at 342, 344-46. Questions of admissibility upon retrial rested with the trial court. The standard applied during this appeal remains one of abuse of discretion.
a. Evidence Excluded By Motion in Limine
Smith argues that the trial court erred in granting the following portions of Southwest's motion in limine:
"Southwest . . . moves the Court for an order in advance of trial prohibiting the parties, their counsel, or any witnesses from mentioning in the presence of the jury any of the following:
. . . .
"4 That Southwest Movers, including any of its employees, failed to properly inspect or maintain any of its vehicles, either before or after the accident giving rise to this lawsuit, including Southwest Movers' vehicle involved in such accident.
. . . .
"6 That any drivers employed by Southwest Movers, other than defendant Albert Printup, either before or after the accident giving rise to this lawsuit, have been cited for any state, federal or company policy violations, or have been involved in any motor vehicle accident, or committed any act reflecting on their fitness to operate a motor vehicle.
. . . .
"12 Any line of questioning as to 'what it took' to stop what Albert Printup was doing in terms of his driving or logging . . . ."
In Smith v. Printup, we concluded that falsification of maintenance records was not admissible:
"The trial court did not err in excluding 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. Officer Joy specifically testified that he did not find any mechanical defects in Printup's truck that caused or contributed to the accident. . . . Absent any causal relationship between inadequate inspections and the accident, evidence of such violations is not relevant or admissible." 254 Kan. at 346.
While Smith sought to admit this evidence as a course of conduct contributing to Printup's falsification of logs which resulted in his fatigue, the trial court found no causal connection and excluded the evidence. Based upon our earlier ruling and the reasons for exclusion upon remand, we find no abuse of discretion.
We also directly addressed in Smith v. Printup evidence relating to other drivers for Southwest:
"Evidence about other drivers' conduct is not pertinent to ratification or authorization of Printup's conduct unless the other drivers' conduct is related to fatigue-causing conditions. The companies' tolerance of false logs and hours of service violations is evidence from which the jury could infer that the companies were sending a message to Printup and other drivers that such conduct was acceptable. The jury could infer that the companies authorized or ratified such conduct. Similarly, the trial court erred in excluding evidence about Southwest's recordkeeping practices to the extent the evidence pertained to driving logs or hours of service and thus driver fatigue." Smith v. Printup, 254 Kan. 346-47.
A determination of whether the falsification of logs and other legal violations by other Southwest drivers is related to fatigue-causing conditions depends upon the evidence. In support of his argument, Smith makes reference to the plaintiffs' exhibits 43 & 45A. These exhibits are not included in the record on appeal. "'Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.'" Smith v. Printup, 254 Kan. at 353.
Smith contends that the trial court erroneously excluded evidence that Southwest failed to discipline Printup when it learned he had another accident in Carbondale, Illinois, while his logs showed he was off duty. The trial court also excluded evidence that Southwest took no disciplinary action to terminate Printup until after this accident. The trial court excluded this evidence primarily for lack of causation. In responding to the evidence relating to the Carbondale accident, the court said: "If the jury could find that fatigue due to hours of service caused or contributed to the accident, and evidence the company knew of Printup's false logs and hours of service violations, it is relevant to the authorization." There was no evidence to connect the event to this accident. We do not believe the exclusion was an abuse of discretion.
b. Opening the Door
Smith argues that Southwest's opening statement and testimony from owner Ron Davis painted the picture that Southwest had no reason to violate the law and that it would not violate the law or permit its drivers to violate the law. Southwest responds that its opening statement and questions of Davis addressed only the issue of whether Southwest had knowledge of and approved of Printup's recordkeeping practices and hours of service violations. While Smith's argument presents a close question, we are not prepared to say that the trial court abused its discretion by adhering to its earlier ruling excluding this same evidence upon Southwest's motion in limine. We are not able to say that the exclusion was arbitrary, fanciful, or unreasonable.
c. Plaintiff's Expert Testimony
Smith alleges that the trial court impermissibly restricted the testimony of his expert witness, John Neal. Neal was qualified as a consultant to attorneys on heavy truck and bus accident cases. His testimony covers almost 100 pages of the record. His qualifications, as recounted before the jury, related to large trucking and busing concerns. After much discussion between counsel and the court outside the presence of the jury, the trial court sustained Southwest's objections to opinion evidence by Neal. The court ruled:
"The questions precipitated voir dire of the witness and so on had to do and started out with whether Mr. Neal was familiar with the standards of practice with respect to a company the size of Southwest Movers. In other words, mom and pop or mother and son business as to how they handled these things. Mr. Neal's experience has been purely with a large company, he has no experience to render an opinion about how Southwest Movers should have acted according to the industry standard of a company similar in size who operates on an agency agreement."
After this ruling, Smith attempted to advance Neal's additional qualifications to testify about smaller companies. The court responded:
"Just a minute now. We went through voir dire to qualify this witness as to the safety practices of the company the size of Southwest Movers. I made a ruling. No request was made for additional evidence to qualify the witness, and you cannot now qualify him on this matter."
"The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial court." Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 259, 815 P.2d 550 (1991). We do not believe that an abuse of discretion has been established with regard to the exclusion of the above evidence.
d. The Trial Court's Restriction of the Plaintiff's Questioning of Ron Davis, Owner of Southwest
Smith argues that the court sustained objections to his questions to Davis and impaired his ability to develop Southwest's authorization or ratification of Printup's conduct. Smith points to a series of questions asked during 4 of the 58 pages of counsel's direct examination. Our consideration of the entire direct examination demonstrates that counsel developed Smith's theory of authorization or ratification by showing, among other things, that Southwest took no action against Printup despite the many hours of service violations he received throughout the summer prior to the accident. Smith fails to establish an abuse of discretion on the part of the trial court.
2. Amount of Punitive Damages Assessed Against American Red Ball
The punitive damages assessed against Red Ball on remand were $100,000, the same amount assessed in the earlier proceeding. Smith asks that we reverse and remand because the trial court (1) ignored the new evidence regarding Red Ball's authorization or ratification of Printup's conduct admitted pursuant to our opinion in Smith v. Printup; (2) failed to follow the provisions of K.S.A. 60-3701(b); and (3) improperly considered one victim's financial status and both victims' character.
Standard of Review
Prior to the enactment of K.S.A. 60-3701 and 60-3702, which places the calculation of the amount of punitive damages with the trial court instead of a jury, we applied an abuse of discretion standard when reviewing a punitive damages award. See Folks v. Kansas Power & Light Co., 243 Kan. 57, 77, 755 P.2d 1319 (1988). In Gillespie v. Seymour, 253 Kan. 169, 172-73, 853 P.2d 692 (1993) (Gillespie II) (quoting Henderson v. Hassur, 225 Kan. 678, 694, 697, 594 P.2d 650 [1979]), we noted the change brought by the enactment of K.S.A. 60-3701:
"The enactment of K.S.A. 1992 Supp. 60-3701 (and its companion K.S.A. 1992 Supp. 60-3702) represents a substantial change in the award of punitive damages in Kansas. Prior thereto, the trier of fact determined the amount of damages based upon rather nebulous factors. Appellate review thereof was limited. We stated the general rules relative to punitive damages in Binyon v. Nesseth, 231 Kan. 381, 386, 646 P.2d 1043 (1982), as follows:
'An appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. [Citation omitted.]. . . .
"It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. [Citation omitted.] Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party's rights, the purpose being to restrain him and to deter others form the commission of like wrongs. [Citation omitted.] The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. [Citation omitted.] In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant's financial condition and the probable litigation expenses. [Citations omitted.]"'
"Under K.S.A. 1992 Supp. 60-3701, a bifurcated proceeding is established. The trier of fact determines if punitive damages should be awarded. The court, in a separate proceeding, then establishes the amount thereof. A substantial list of factors is set forth in the court's consideration in determining the amount of the award."
Subject to the provisions of K.S.A. 60-3701, the standard of review remains one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in setting the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable. See Ensminger v. Terminix Intern. Co., 102 F.3d 1571 (10th Cir. 1996). We also have stated that "[w]hen determining the amount of punitive damages to be awarded under K.S.A. 1992 Supp. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review thereof." Gillespie II, 253 Kan. 169, Syl.
a. The Trial Court's Consideration of Evidence Related to Authorization or Ratification
Upon remand, additional evidence excluded at the first trial was admitted. The evidence admitted supported Smith's theories that punitive damages should have been assessed against Red Ball because it had an attitude, pattern of practice, and mental state of mind which showed disregard, indifference, and defiance for federal safety rules and regulations and the safety of the public. The following new evidence was admitted: The transcript of deposition of Roberta Sisson, past employee of Red Ball who audited drivers' logs and log violations; transcript of deposition of Paul Nahre, Director of Safety for Red Ball; transcript of deposition of Chris Heiner, past employee of Red Ball; the transcript of deposition of Cheryl Riley, past safety coordinator of Red Ball; Red Ball's driver file for Southwest's driver Albert Printup; and Red Ball's safety audit file and correspondence concerning logging procedures.
Smith acknowledges that the trial court permitted the introduction of the evidence of wrongdoing on the part of Red Ball and Printup prior to November 8, 1983, which had been excluded at the first trial. However, Smith argues that the court completely disregarded the impact of this evidence. Smith argues that if this court in Smith v. Printup believed that the additional evidence would not have had the effect of raising punitive damages by at least one cent, it would have found the error to be harmless.
Smith misreads our decision in Smith v. Printup. We concluded that the evidence excluded was relevant and admissible on the issues of ratification or authorization. The trial court's exclusion of relevant and admissible evidence affected the substantial rights of the plaintiffs. 254 Kan. at 347. We did not express an opinion upon the effect such evidence would have had if it had been admitted. Our decision simply said that Smith should be given the opportunity to present such evidence and that its exclusion was prejudicial. We held:
"The exclusion of evidence [relating to Red Ball's ratification and authorization of drivers' fatigue-causing conditions] also affected the substantial rights of plaintiffs as to the court's determination of the amount of punitive damages. The punitive damages awards against Red Ball and Printup are reversed and remanded for further consideration by the court. While the excluded evidence relates to authorization and ratification, it also relates to the conduct of Printup and Red Ball. With new evidence, a determination of the amount of punitive damages against these two defendants may change." (Emphasis added.) Smith v. Printup, 254 Kan. at 347.
In its memorandum decision awarding the punitive damages, the trial court considered the new evidence but decided "that the additional evidence does not change the Court's decision as to the amount of punitive damages awarded" against Red Ball. The court further concluded:
"American Red Ball is liable because it ratified the actions of Printup. It will almost be impossible to prove a case of actual authorization of any person to act wantonly. American Red Ball is liable for punitive damages because of its actions in allowing Printup to drive in violation of the hours of service rules, therefore, it ratified the acts of Printup. In other words, American Red Ball is being assessed punitive damages because of its own conduct."
After indicating that it considered the statutory factors in K.S.A. 60-3701(b), the trial court concluded:
"[T]he additional evidence does not change the Court's decision as to the amount of punitive damages awarded. This decision is made for the best interest of justice. It is far better that a smaller award of punitive damages be paid rather than a large award that is