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McElhaney v. Thomas

Supreme Court of Kansas

December 1, 2017

Emma McElhaney, Appellant,
Charles Thomas, Larry Thomas, Susan Thomas, and State Farm, Appellees.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 17, 2015.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.

          Dana 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 Susan Thomas.

          Toby 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.


         1. 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.

         2. An intent to injure is a necessary element of the intentional tort of battery. 3.

         3. The "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.

         4. The 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.

          Stegall, J.

         In 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.

         In the 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 granted review.

         At this 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.

         We note 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 holdings.

         Avoiding 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

         In the 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.

         At the 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.

         These 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.

         McElhaney's 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."

         McElhaney 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.

         The 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 ...

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