of the judgment of the Court of Appeals in an unpublished
opinion filed July 17, 2015. Appeal from Riley District
Court; MERYL D. WILSON, judge. Opinion filed December 1,
2017. Judgment of the Court of Appeals affirming the district
court is affirmed in part and reversed in part. Judgment of
the district court is affirmed in part and reversed in part,
and the case is remanded with directions.
Jeremiah Johnson, of Law Offices of Jeremiah Johnson, LLC, of
Olathe, argued the cause and was on the briefs for appellant.
M. Harris, of Harris and Hart, LLC, of Leawood, argued the
cause, and Emily A. Yessen, of the same firm, was with him on
the brief for appellees Charles Thomas, Larry Thomas, and
Crouse, of Foulston Siefkin LLP, of Overland Park, argued the
cause, and Stephen M. Kerwick and Craig W. West, of the same
firm, of Wichita, were on the briefs for appellee State Farm.
Civil 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.
intent to injure is a necessary element of the intentional
tort of battery. 3.
"intent to injure" element of a civil battery claim
can be satisfied in alternative ways-either by (1) an intent
to cause a harmful bodily contact, that is, to cause the
other physical injury; or by (2) an intent to cause an
offensive bodily contact, that is, to invade the other's
reasonable sense of personal dignity. Both states of mind are
sufficiently culpable to justify imposing civil battery
liability for damages, including any actual physical injury
that is legally caused by the resulting bodily contact.
contrary language in Stricklin v. Parsons Stockyard
Co., 192 Kan. 360, 388 P.2d 824 (1964), along with the
nebulous concept of "horseplay" as a legal
category, is disapproved.
2008, Charles Thomas, then a student at Clay County High
School, drove his parents' Ford F-150 truck over
fellow-student Emma McElhaney's feet in the high school
parking lot. The incident caused significant injury to
McElhaney and led to a complex and tangled string of
lawsuits, dismissals, refiled claims, venue transfers, and
other sundry maneuverings involving Thomas, McElhaney,
Thomas' parents, and the assorted insurance companies.
end, most of McElhaney's claims were dismissed by the
district court; Thomas conceded he was negligent; and the
case was submitted to a jury solely on the appropriate
measure of McElhaney's actual damages. McElhaney accepted
the jury's award of actual damages but appealed the
adverse rulings on her other claims. A majority of a Court of
Appeals' panel affirmed the district court, and we
stage of the litigation, four issues remain: (1) whether the
district court properly dismissed McElhaney's intentional
tort claim against Thomas; (2) whether the district court
properly denied her request to add a claim for punitive
damages against Thomas; (3) whether the district court
properly dismissed her negligent entrustment claim against
Thomas' parents; and (4) whether the district court
properly dismissed McElhaney's uninsured motorist claim
against her own insurance company.
upfront we have not ventured upon a lengthy untangling of the
confusing procedural history behind McElhaney's third and
fourth claims on appeal. Such an undertaking is unnecessary
because after a thorough review, we conclude the Court of
Appeals correctly held: (1) the negligent entrustment claim
was barred by res judicata; and (2) the undisputed facts
demonstrated that McElhaney was not entitled to recover on
her uninsured motorist claim as a matter of law. With respect
to these claims, we adopt the Court of Appeals opinion-both
its account of the underlying procedural and substantive
facts and its analysis of the legal issues-and affirm these
the tortured path of these properly dismissed claims permits
us to focus on, and clarify, the issue at the heart of this
dispute-did the district court properly evaluate the evidence
concerning Thomas' state of mind and its impact on the
legal theories and damages properly available to McElhaney
pursuant to Kansas law? Here, we conclude the district court
erred when it dismissed McElhaney's intentional tort
claim and denied her request to seek punitive damages.
Factual and Procedural Background
spring of 2008, Thomas and McElhaney were both students at
Clay County High School. Thomas, a senior, played on the
baseball team, and McElhaney, a sophomore, was the team's
manager. The day of the incident, both were in the parking
lot headed to the team bus to travel to an away game. Thomas
was in the process of relocating his parents' truck
closer to the bus so he would not have to walk as far when
the team returned. A teammate, Adam Slagle, was with Thomas.
same time, McElhaney was walking through the parking lot with
another student, Andrew Hecker. As the two approached the
bus, Thomas saw them and approached from behind. McElhaney
heard the truck and moved toward the curb to avoid being hit.
The front-passenger tire of the truck then rolled onto
McElhaney's feet, trapping her. With her feet caught
under the tires, McElhaney fell to the ground. Hecker yelled
at Thomas to back up, which he did. McElhaney realized she
could neither stand nor walk, so Slagle lifted her into the
cab of the truck so Thomas could drive her to the bus to
receive medical aid. McElhaney was later taken to a hospital,
at which point an emergency responder contacted the police to
report the accident.
basic facts are not in dispute. Instead, the parties'
disagreement centers on Thomas' state of mind. McElhaney
testified that after Slagle set her inside the truck, Thomas
said, "Oh, my gosh, I'm so sorry. I just meant to
bump you." In an affidavit, Hecker likewise claimed
Thomas said that "he only meant to bump into Emma with
his truck." In the accident report, the investigating
officer noted that Slagle said Thomas was "messing
around." Thomas, however, denied ever saying he meant to
bump McElhaney. He maintains he merely pulled too close to
McElhaney while attempting to park.
first petition alleged Thomas was liable for damages under
both negligence and intentional tort theories. The
intentional tort claim alleged that "[o]n or about April
15, 2008, Defendant intentionally ran into Plaintiff with his
truck, causing painful and permanent injuries." In the
next paragraph, McElhaney asserted, "Perhaps intending
to only bump into her with his truck, Defendant Charles
Thomas ran over both of Emma McElhaney's feet."
then timely moved to amend her petition to add a punitive
damages claim against Thomas. McElhaney cited her deposition
testimony as well as Hecker's affidavit to support her
claim that Thomas intended to bump her with the truck. She
claimed that Thomas' "actions were reckless at best
and willful, wanton, and/or with malice at worse."
Thomas responded by denying any intention to bump her with
the truck, citing his own deposition testimony in support.
district court held a hearing on the motion and, following
arguments from counsel, denied McElhaney's request to add
a punitive damages claim against Thomas. The district court
found McElhaney had failed to carry her burden "to
determine a probability that [she] will prevail on [her]
claim in a clear and convincing standard of proof."
Following this ruling, but during the same hearing, the
parties sought clarification of ...