Successfully including a claim for punitive damages in a pleading is more difficult in Kansas than in other jurisdictions. A Kansas plaintiff cannot proceed with a claim for punitive damages without first applying to the trial court and requesting permission to amend a petition to include a claim for punitive damages. K.S.A. § 60-3703 provides as follows:
No tort claim or reference to a tort claim for punitive damages shall be included in a petition or other pleading unless the court enters an order allowing an amended pleading that include a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto. (Emphasis added.)
In the context of K.S.A. §60-3703, “probability” has a specific meaning. “It means more likely than not and, when applied to K.S.A. § 60-3703, means that it is more likely that not that the [movant] will prevail on a claim of punitive damages upon trial of the case.” Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 801, 897 P.2d 123 (1995). Simply, a court should only allow such an amendment “if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the [non-movant] acted towards the [movant] with willful conduct, wanton conduct, fraud, or malice.” Id. at 802. An unknowing action unmotivated by any intent to harm the movant does not satisfy this standard.
In examining a motion to amend a pleading to add a claim for punitive damages, the court must also consider the “clear and convincing” standard of proof the movant will be required to meet at trial. Thus, “[t]he initial question for the trial court when considering the evidence is whether ‘plaintiff has established that there is a probability [considering that the burden on plaintiff is proof by clear and convincing evidence] that the plaintiff will prevail on the claim.’” Id. In making this determination, the trial court may not usurp the jury’s responsibilities of determining credibility of the witnesses, weighing the evidence, and drawing inferences from the facts, but is required to view the evidence as disclosed from the affidavits in the light most favorable to the movant. A motion to amend a petition to include punitive damages must not be granted if the evidence relied upon “would not be likely to clearly and convincingly prove [non-movant] acted willfully or wantonly.” Moore v. Associated Material & Supply Co., 263 Kan. 226, 248, 948 P.2d 652 (1997).
When seeking to include a claim for punitive damages in a petition in Kansas, the proper procedure must be followed and a higher standard must be met than in other jurisdictions. These standards should be considered during the discovery process of a tort claim by both plaintiff’s attorney and defendant’s attorney, alike.