Celeste and Gregory Kurtz sued Brown Shoe Company after an acrylic riser used to display small merchandise fell and hit one of Celeste Kurtz’ toes. There is a factual dispute regarding whether Celeste Kurtz hereinafter “Kurtz” knocked the riser off the cash register counter when she leaned on the counter or whether a salesperson knocked the riser off the cash register counter while handing Kurtz a box of shoes across the counter. In an amended complaint, Kurtz added a paragraph for punitive damages, claiming that the acrylic riser Brown Shoe Company produced for inspection was not the same riser which caused her injuries. According to Kurtz, the production of the wrong riser was “willful, wanton and malicious and intended to deny Plaintiffs’ constitutional right to due process” and she was therefore entitled to punitive damages. In addition, Kurtz filed a second amended complaint seeking punitive damages for emotional distress and mental anguish allegedly experienced by Kurtz when the salesperson “placed the acrylic riser back in its original position on the counter without a warning” after it had fallen on Kurtz’ toe. According to Kurtz, this action showed a conscious indifference to consequences for which punitive damages should be considered. The trial court granted Brown Shoe Company’s motion for partial summary judgment on the punitive damages claims, and Kurtz appeals. We find no error and affirm the trial court’s ruling. 1. First of all, the trial court correctly ruled that there is no statutory or common law basis for Kurtz to bring a punitive damages claim based on an alleged discovery dispute wholly unrelated to her injuries. “There is no provision for punitive damages arising because of conduct occurring during the litigation. The aggravating circumstance must relate to the tort being sued on.”1 The trial court properly granted Brown Shoe Company’s motion for partial summary judgment regarding Kurtz’ claim for punitive damages based on the alleged dispute concerning the riser produced during discovery.
We also find that the trial court properly granted Brown Shoe Company’s motion for partial summary judgment regarding Kurtz’ claim for punitive damages as alleged in Kurtz’ second amended complaint. Punitive damages may only be awarded in tort actions where it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, wantonness, oppression, or that entire want of care raising the presumption of conscious indifference to consequences.2 It is well-established that negligence, even gross negligence, is insufficient to support a claim for punitive damages.3 And, Kurtz admitted in her trial brief that her second amended complaint was based on whether Brown Shoe Company’s conduct was “grossly negligent.”
