DARRELL J. RUSSELL,
        Plaintiff,

        vs.            Case No. 01C 341

TIMOTHY OATES,
        Defendant.

Plaintiff has filed a motion to amend the petition pursuant to K.S.A. 60-3703 to include a count for punitive damages. Defendant has filed a response and plaintiff has filed a reply to defendant's response. The court, therefore, deems the motion to amend petition ready for ruling. The court after carefully reviewing the memorandums filed by each party and the court file in this matter does hereby deny the motion to amend based on the reasons set forth below.

K.S.A. 60-3703 provides:

...a 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...

At trial, a plaintiff seeking punitive damages "shall have the burden of proving by clear and convincing evidence ... that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice." K.S.A. 60-3702(c).

Plaintiff cites the case, Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 987 P.2d 123 (1995) which sets forth the standard for the trial court to follow in ruling on a motion to amend to include a punitive damage claim. Fusaro clarifies that the trial court, in making the determination regarding whether a probability exists that the plaintiff will prevail on the claim at trial, must give consideration to the "clear and convincing" standard of proof. Probability means "more likely than not." Fusaro, 257 Kan. at 801. Furthermore, "[t]he trial court is to consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational fact finder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice, the trial court shall allow the amendment." Id at 802.

The Kansas Supreme Court in Reeves v. Carlson, 266 Kan. 310, Syl. 5, 969 P.2d 252 (1998) defined wanton conduct as:

One who with knowledge of existing conditions and aware from such knowledge that injury or death will likely or probably result from his or her conduct, and with reckless indifference to the consequences, consciously does some act or omits to discharge some duty, which produces the injurious result, is guilty of willful or wanton conduct.

Plaintiff did not file any supporting affidavits but he did file an excerpt of the deposition of defendant Oates where he was asked if he made a statement to the police officer. However, this court received two copies of the transcript page in which defendant was asked whether he made a statement to the police officer (p. 33) and no copy of the page in which defendant Oates answered the question. Therefore, plaintiff has submitted no evidence by way of affidavit (or deposition) that supports the contention that there is a probability that plaintiff will prevail on the claim for punitive damages. The Oates' statement in the police report was signed but it was not a sworn statement and, therefore, it does not suffice as an affidavit.

Even if plaintiff had submitted the pages of Oates' deposition in which he admitted signing the police report, this court does not find that there would be a probability that plaintiff would prevail on a claim for punitives. Although defendant Oates stated to the police that he had been having trouble with the rear brakes and that the left rear brake was kind of sluggish and the right one wasn't working, he stated in his deposition that he had fixed the brakes the day before the accident by changing the calipers and putting new brakes on it all the way around. The police report also makes reference to defendant Oates' new brakes. In addition, he testified in his deposition that he had taken the truck on a test run and the brakes felt fine.

Even if defendant's brakes were not working well the day of the accident, his attempt to fix the brakes the day before the accident lessens the possibility that a jury would find wanton conduct. With regard to the headlight, defendant admitted in his deposition to having only one headlight, but he testified that he had no problems seeing. This court does not find that either the brake situation nor driving with one headlight rises to the level of wanton conduct, ie. knowledge of a dangerous condition and reckless indifference to the consequences.

Therefore, this court does not find that there is a probability that the plaintiff will prevail on his punitive damage claim at trial in light of plaintiff's burden of showing clear and convincing evidence. The court, therefore, denies plaintiff's motion to amend to include a punitive damages claim.

The above constitutes the court's ruling on plaintiff's motion to amend and no further journal entry is required.

IT IS SO ORDERED.

Dated this day of February, 2002.

 
___________________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 12th day of February , 2002, to the following:

 
Kenneth J. Morton
115 SE 7th Street
P.O. Box 2667
Topeka, Kansas 66601

 
Randy M. Crawford
1650 NE Grand Avenue
Suite 200
Lees Summit, Missouri 64086

 
_________________
Norma J. Dunnaway
Administrative Assistant