SUMMERS, Justice:
The jury concluded that an intoxicated nurse’s aide slapped an Alzheimer’s patient in the face while bathing him, and awarded punitive damages in the sum of $1.2 million against the nursing home. The nursing home appeals. We affirm.
The defendant’s theories on appeal are these: (1) as employer it must not be held responsible for the intentional tort of its employee; (2) there was no clear and convincing evidence, as required by statute, showing ■ conduct that would allow open-ended punitive damages; and (3) the Oklahoma punitive damages regimen violates the defendant’s right to due process under the federal Constitution.
Glen Rodebush, a victim of Alzheimer’s disease, was a resident of the New Horizon Nursing Home. His condition caused him to sometimes be combative. New Horizon is owned by Oklahoma Nursing Homes, Ltd. On the day in question Rodebush’s wife arrived at the nursing home around noon, and found large welts and red marks on Rode-bush’s face. She demanded that his physician be called and Rodebush was examined. The doctor offered his opinion'that the red marks had been caused by slaps of a human hand and that the marks were between six and twelve hours old.
Earlier that morning Rodebush had been awakened and strapped into a chair for use in a whirlpool bath. No injuries to his face were observable at that time. A male nurse’s aide wheeled him into the whirlpool bathroom and gave him the scheduled bath at approximately 6:30 A.M. The two were alone together for about thirty minutes. M-ter the bath, the nurse’s aide reported a “rash” on Rodebush’s face. The supervisor was not present when the “rash” was reported because she was late to work. When the [1244]*1244supervisor arrived, about thirty five minutes late, she confronted the aide and found him to smell of liquor. He told her he had “partied” all night and had only stopped the partying in time to come to work. The supervisor sent him home. He clocked out at approximately 7:30 a.m.
The nurse’s aide had been hired by New Horizon without any background cheek, contrary to nursing home policy. A background check would have revealed the aide’s prior conviction of a violent felony — assault and battery with intent to kill. He had also been convicted of escape and carrying a weapon after former conviction of a felony.
Furthermore, the records of the nursing home are void as to any training or instruction given to the aide prior to his assignment in the geriatrics ward. At trial, the head nurse testified that the aide had been given training, but that the documentation proving such training had been misplaced. She stated that she was positive he had been given training because all aides are given training before they start.
After the incident with Rodebush the aide was suspended for two days for working while intoxicated. Upon investigation by the Department of Human Services, the nursing home was found to be in violation of several regulations, and was reported for these violations. The violations included failure to properly train personnel, failure to follow in a timely manner the procedures for an intoxicated employee, failure to have a licensed nurse on duty at the time of the incident, and failure to notify the next of kin or the physician.
Zelda Rodebush, as guardian ad litem for her husband, brought suit against Oklahoma Nursing Homes, Ltd.1 The suit alleged negligence in hiring practices and supervision of employees on the part of New Horizon, the intentional infliction of physical injury and emotional distress as to Mr. Rodebush and the intentional infliction of emotional distress as to Zelda Rodebush. At the conclusion of the defendant’s case, the trial court dismissed the action for intentional infliction of emotional distress brought by Zelda, but refused to dismiss the claim of Glen Rodebush based on either negligence or wilful injury.
The trial court, outside the presence of the jury and pursuant to 23 O.S.Supp.1986 § 9, also made a finding that clear and convincing evidence showed that the conduct was wilful and wanton, and that the punitive damages in excess of the actual damages would be permitted. The jury returned a verdict in favor of the plaintiff Glen Rodebush on both theories of negligence and wilful misconduct2, awarding him $50,000.00 [1245]*1245in actual damages and $1,200,000.00 in punitive damages.
Oklahoma Nursing Homes appealed and the Court of Appeals affirmed. In its brief, Oklahoma Nursing Homes specifically waives any arguments with regard to the jury’s finding of liability based on negligence. It only seeks reversal of the finding that the defendant is liable for the intentional tort of its employee, and the subsequent award of punitive damages. We granted certiorari.
EMPLOYER’S RESPONSIBILITY FOR THE INTENTIONAL TORTS OF HIS EMPLOYEE
The nursing home asserts that the trial court erred in holding that the nurse’s aide was acting within his scope of employment. It claims that the aide’s action of slapping Rodebush was against the nursing home’s policy and had not been suggested as a method of blocking the combativeness of an Alzheimer’s patient. On the other hand, plaintiff asserts that the aide was acting to further the business of the employer, and was performing a task assigned to him by the employer. The incident took place while the aide was bathing Rodebush.
As a general rule, it is not within the scope of an employee’s employment to commit an assault upon a third person. Hill v. McQueen, 204 Okl. 394, 230 P.2d 483, 485 (1951); see also Tulsa General Drivers, Warehouseman and Helpers Union v. Conley, 288 P.2d 750, 753 (Okla.1955); Cooley on Torts, 4th Ed. §§ 392, 393 (1932). However, this general rule does not apply when the act is one which is “fairly and naturally incident to the business”, and is done “while the servant was engaged upon the master’s business and be done, although mistakenly or ill advisedly, with a view to further the master’s interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master’s business.” Russell-Locke Super-Service Inc. v. Vaughn, 170 Okl. 377, 40 P.2d 1090, 1094 (1935); See Ada-Konawa Bridge Co. v. Cargo, 163 Okl. 122, 21 P.2d 1, 7 (1933). An employee’s act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer. Id.; Brayton v. Carter, 196 Okl. 125, 163 P.2d 960, 962 (1945) (automobile accident held to be within scope of employment even though the accident occurred on a route that was twenty-eight miles out of the way); Com v. City of Sapulpa, 188 Okl. 418,110 P.2d 290, 291 (1941) (the petition properly withstood a demurrer based on the fact that the employee could have been acting within the scope of his employment even though he made an illegal u-turn while assigned to a task for his employer). In such an instance, an employer can be held liable even if the employee acts beyond the given authority. Patsy Oil & Gas Co. v. Odom, 186 Okl. 116, 96 P.2d 302 (1939) (employer held responsible for the employee’s taking of dynamite caps to an oil and gas well even though employer had not authorized the use of dynamite on the rig). It is the burden of the plaintiff to show that the employee was acting within the scope of his employment. Oklahoma Railway Co. v. Sandford, 258 P.2d 604, 607 (Okla.1953).
In Mistletoe Express Serv. v. Culp, 353 P.2d 9 (Okla.1959), this Court held an assault on customer by a truck driver to be within the scope of employment. The truck driver, a man of violent tendencies, was sent to deliver a television tube to a customer. The customer refused the tube, claiming that it had been damaged. The driver returned it to the employer. The employer declined to pay for the damage and directed that the tube be re-delivered to the customer. During the course of this second attempt to deliver the item, a fight ensued and the customer was injured. Looking to Hill v. McQueen, this Court stated that the rule of “scope of employment” must be considered on an individual basis. Id. at 15. We observed that in order for an employer to be responsible for the tortious acts of its employee, it must be shown that the act giving rise to the complaint “was done for the pur[1246]*1246pose of doing the work assigned-” Id. at 16. We concluded that under the facts, the driver was carrying out a duty assigned to him and the assault arose out of the perfor-manee of this duty.3
Similarly, in Russell-Locke, we held that an employer could be held liable for the damages caused by an assault by an employee. There, the employer sold storage batteries. After failing to receive payment from a customer, the employer sent an employee to repossess the battery. A fight arose when the employee attempted to repossess the battery. Holding that the assault was within the scope of employment, we stated this was a prime example of the employee carrying out the duties assigned to him. Id. 40 P.2d at 1094.
In the present case the nurse’s aide was assigned the duty of bathing residents. It was also a known fact that Alzheimer patients may be combative. The nursing home was in the business of taking care of Alzheimer patients. In this particular case, Rodebush was known to be particularly combative when being bathed. The nurse’s aide had not deviated from his assigned duties, and was carrying out an assigned task when the slapping occurred. Although the testimony was that slapping a resident was not to be tolerated, there was no documentation as to any training received by the aide in which he was told of this policy. The nursing home was cited by D.H.S. as violating the policy requiring training of personnel. The evidence supports a determination that the acts were within the scope of employment.
THE PUNITIVE DAMAGES STATUTE
New Horizon challenges the award of punitive damages for two reasons. Its first argument requires our review of legislation which imposed a new procedure for the consideration of punitive damages. Title 23 O.S.1991 § 9, the text of which was in effect at time of trial, provides:
A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and. prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury my give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply.4 (emphasis added)
We have not had the opportunity to review this amendment to Section 9. This version of the statute places a cap on the amount of punitive damages which may be awarded. Punitive damages are limited to the amount of actual damages unless the trial court makes a preliminary determination that the cap may be lifted. To lift the cap, there must be a preliminary finding by the judge that the defendant has acted with actual or presumed malice, wanton or reckless [1247]*1247disregard of the rights of another, fraud, or oppression. This finding must be supported by clear and convincing evidence. Only if this finding is made by the trial court can the cap on punitive damages be lifted, and the jury be permitted to consider the question of punitive damages in excess of the amount of actual damages. However, if the trial court does not find that at least one of the enumerated grounds was shown by clear and convincing evidence, the cap remains in place and the jury may award punitive damages only up to the amount of actual damages.
The Tenth Circuit interpreted the amended statute in Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1382 (10th Cir.1989). The defendant in Marshall asserted that there was not sufficient evidence to meet the statutorily-imposed “clear and convincing evidence” standard, and that this standard applied not only to the judge’s preliminary determination but also to the burden of proof required to be applied by the jury. The Tenth Circuit declined to interpret the statute that way, stating that the plain reading of the statute required only a standard of “clear and convincing evidence” during the preliminary determination by the judge. This initial determination is a question of law. Id. at 1384. However, once this determination is made, the case then proceeds to the jury to apply the “preponderance of the evidence” standard as in other civil actions of this nature.5
On appeal the nursing home contests the trial court’s preliminary finding that there was clear and convincing evidence to support the award of punitive damages. This threshold finding requires analysis of the evidence to determine whether there is clear and convincing evidence that the defendant acted with wanton or reckless disregard for the rights of the plaintiff, oppression, fraud, or actual or presumed malice. See 23 O.S.1991 § 9. We agree with the Tenth Circuit that this initial determination is a question of law for the trial court. See also Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1182 (10th Cir.1989) (construing Oklahoma law). The statute itself makes clear that this determination is one to be made by the judge as the decider of law.
We must first look to the statute to determine exactly what must be proven by clear and convincing evidence to lift the punitive damage cap. The statute provides that there must be clear and convincing evidence of the wanton or reckless nature of the defendant’s actions. Nowhere in the statute does it indicate that all or even some of the elements of the underlying cause of action must meet the “clear and convincing” standard.
A plea for punitive damages is generally considered to be an element of recovery of the underlying cause of action; it does not constitute a separate cause of action. Richardson v. Arizona Fuels Corp., 614 P.2d 636, 640 (Utah 1980); Gould v. Starr, 558 S.W.2d 755, 770 (Mo.App.1977), cert. denied 436 U.S. 905, 98 S.Ct. 2236, 56 L.Ed.2d 403 (1978); Cook v. Atlantic Coast Line R. Co., 183 S.C. 279, 190 S.E. 923, 924 (1937). The plea for punitive damages rests on the underlying claim, and if there is no recovery on the underlying claim, there can be no recovery of punitive damages. Eckels v. Traverse, 362 P.2d 680, 683 (Okla.1961). Contractor’s Safety Ass’n v. Cal. Comp. Ins. Co., 48 Cal.2d 71, 307 P.2d 626, 629 (1957).
As the statute expressly states, only specific types of behavior will permit the award of punitive damages. While the prayer for punitive damages is dependent on the underlying claim, the elements of proof are different. The statute requires proof of actual or presumed malice, oppression, fraud, or wanton or reckless disregard for the another’s rights. If the plaintiff seeks punitive damages in excess of actual damages, at least one of these enumerated types of behavior must be shown with clear and convincing evidence.
While the proof for punitive damages will probably overlap with that of the [1248]*1248underlying cause of action, the plaintiff need not prove all elements of the underlying cause of action by clear and convincing evidence.6 Rather, in remaining consistent with our prior case law which requires the “preponderance of the evidence” in most tort claims7, we interpret the clear language of the statute to mean that only those specific types of conduct which would support an award of punitive damages must be shown by clear and convincing evidence.
Here, the trial judge specifically found that clear and convincing evidence showed that “an employee of the Defendant, while acting in the course of his employment, did inflict the injury upon the Plaintiff Mr. Rodebush, in the manner that events [sic— evinces?] a wanton or reckless disregard for his rights.” The trial judge detailed his reasoning by pointing out that although the evidence was circumstantial, the most likely cause of the whelping of Glen Rodebush’s face was severe slapping. He recounted the testimony of the doctor called to examine the marks, and the doctor’s opinion that the injury was caused by a human hand. He also noted the testimony of nursing home personnel that while Rodebush was at times combative, he had never been known to inflict pain upon himself. The trial court concluded that plaintiff had met his burden of showing, by clear and convincing evidence, conduct on the part of the employee properly described as reckless and wanton. Thus, the statutory cap on punitive damages was lifted.8
In reviewing the issue of whether there was clear and convincing evidence of the wanton and reckless conduct of the nursing home’s employee, we find no fault with the trial court’s ruling. In addition to those facts stated by the trial judge in support of his ruling, we also note that the evidence showed that no other patient could have inflicted the injury, and that just prior to the bath, another nursing home employee saw Glen Rode-bush and testified there were no marks on his face. There was also some testimony that the nursing supervisor on duty was told by the administrator not to call Mrs. Rode-bush to inform her of the injury, in violation of nursing home policy.
The nursing home argues that there were no eyewitnesses, that Mr. Rodebush did not (could not) testify, and that the trial court’s finding could only be made on speculation, rather than by clear and convincing evidence. Our response is that lack of eyewitness testimony is no barrier to meeting the “clear and convincing” test; indeed the case books are replete with instances of defendants standing convicted of crimes, with the stricter “beyond a reasonable doubt” test, where the only evidence was circumstantial. See, e.g. Cavazos v. State, 779 P.2d 987, 989 (Okla.Crim.App.1989) (defendant convicted of first degree murder even though evidence was circumstantial); Johnson v. State, 764 P.2d 530, 532 (Okla.Crim.App.1988) (defendant convicted of drug charge based on solely circumstantial evidence of possession); Rawlings v. [1249]*1249State, 740 P.2d 153, 159 (Okla.Crim.App.1987) (defendant convicted of first degree murder even though no body had been found).
Additionally, the trial court doubtless took note, as do we, that the defendant declined to call the nurses’ aide as a witness to rebut plaintiffs’ circumstantial case, if in fact the plaintiffs’ theory was not what happened. The nursing home had listed the aide as its witness in the pretrial order, and offered no explanation as to why he was not called. It is not improper for a trier of fact to take such a failure into account, particularly where one party relies on circumstantial evidence and the other fails to call the witness who could prove the circumstances otherwise. Ft. Smith & W.R. Co. v. Collins, 26 Okl. 82, 108 P. 550 (1910). For these reasons, we hold that the initial inquiry as to whether the conduct of the defendant through its employee was wanton and reckless was supported by clear and convincing, albeit circumstantial, evidence. The cap was properly lifted for consideration by the jury.
THE CONSTITUTIONALITY QUESTION
The next contention by the nursing home is that the punitive damage award is unconstitutional.9 More specifically, it asserts that the award of punitive damages was based on a vague and standardless procedure which is in violation of its due process rights. The nursing home also claims that by requiring only a preponderance of the evidence as the standard for the jury’s determination, it was deprived of property without due process.
In Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the United States Supreme Court addressed these Due Process challenges to the award of punitive damages under a statute in Alabama.10 Haslip addressed that question left open in Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989): “[Wjhether due process acts as a check on undue jury discretion- to award punitive damages in the absence of any express statutory limit” must “await another day.”
Browning-Ferris held that the Excessive Fines Clause of the Eighth Amendment did not apply to a punitive damage award in a civil case, and that the federal common law did not provide a basis for disturbing the punitive damage award. The Court also held that the question of due process under the Fourteenth Amendment had not been presented to the courts below and would not be addressed.
Haslip was directly confronted with the issue of due process under the Fourteenth Amendment. The Court began its discussion by realizing the long tradition of punitive damages in our law. There has always been left to juries the discretion to set an amount of punitive damages consistent with the gravity of the wrong and the need to deter similar wrongful conduct. Id. While the disere[1250]*1250tion of the jury has been criticized by some, “the wisdom of allowing such additional damages to be given is attested by the long continuance of the practice.” Id. quoting Missouri Pacific R. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885).11
The Court then turned to the issue of “unlimited jury discretion” in the fixing of punitive damages.
We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.
It continued by holding that the punitive damages in that case were not violative of Fourteenth Amendment Due Process because although the jury was given significant discretion, the instructions limited the damages to those which would deter the unwanted conduct as well as serve the purpose of retribution. The instructions enlightened the jury as to the reason for punitive damages and the kind of conduct which could warrant the imposition of such damages. The Court concluded that the award was permissible. “As long as the discretion is exercised within reasonable constraints, due process is satisfied.” Id. 499 U.S. at 20, 111 S.Ct. at 1044.
The high court next noted that in Alabama there were post-trial procedures to scrutinize the punitive damage awards. Id. A trial court was to state into the record the reason for interfering with a jury verdict or refusing to do so, on grounds of excessiveness. The trial court was permitted to consider the conduct of the defendant when reviewing the award. The Alabama Supreme Court, in reviewing the award, used not only a comparative analysis, but also reviewed it to insure that the award did “not exceed an amount that would accomplish society’s goals of punishment and deterrence.” Id. quoting Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala.1989). Review of the award also involved consideration of factors such as the relationship between the punitive damages award and the harm likely, the degree of reprehensibility of the conduct, duration of the conduct, the defendant’s awareness, frequency of the conduct in the past, imposition of other sanctions and the financial condition of the defendant.
With this rationale in mind, we turn to the punitive damage award at hand. First, we note that our statute required a preliminary determination before the question could even be considered by the jury. The judge is required to find, by clear and convincing evidence, that the defendant committed conduct which fell within one of the enumerated categories. Such a finding by the judge must be clearly stated into the record. Second, unless this determination is made on the record, the jury’s discretion is statutorily limited to awarding punitive damages only up to that amount awarded for actual damages. Next, following the guidance of Haslip, we look to the instructions given to the jury. Here, the trial court instructed that punitive damages were only to be given if the defendant’s conduct showed wanton or reckless disregard for the rights of the plaintiff, malice, gross negligence or evil intent. The instruction stated that punitive damages were not compensation to the plaintiff, but were punishment to the defendant. It also made clear that the damages were not required, but only permitted. The instructions then went on to define wanton conduct as actions which show a deliberate or actual intention to injure the plaintiff, or which show an utter disregard or indifference for his rights. Malice was defined as ill will or [1251]*1251hatred or a wanton or oppressive manner and conscious disregard for the rights of the plaintiff. The jury was also instructed that it could consider the wealth of the defendant.
These instructions, which are supported by Oklahoma case law, do not permit unfettered discretion by the jury. They explain the purpose behind the award of punitive damages, as did the Alabama jury instructions. They specify conduct for which the damages may be given, as did the Alabama instructions. They make clear that the award of such damages are not required by law, but are permitted by way of punishment if the jury determines that certain criteria are met. In this way they are similar to the Alabama instructions. The jury is also instructed that this must be. shown by a preponderance of the evidence, and this term is explained. Hence, the jury’s discretion is again limited by the burden of proof. The jury was also instructed that the defendant’s wealth is a consideration when deciding the amount of punitive damages. Thus, the instructions clearly did not leave the jury unbridled to award punitive damages without guidance.
In Oklahoma, as in Alabama, post-trial procedures are available for review of the awards. Here, the nursing home filed a motion asking for judgment notwithstanding the verdict, a new trial and remittitur. The trial court denied these requests. Although New horizons was not given the relief requested in this case, the fact that they are in place and stand as a check on the jury’s discretion is important to note.
Finally we look to the appellate procedures available to stand as a guard against arbitrary and unreasonable punitive damage awards. As we stated earlier, the preliminary determination by the trial court necessary to lift the cap on punitive damages is a question of law, reviewable by this Court, which reviews the record to see if the plaintiff met its burden of showing by clear and convincing that the defendant acted in a manner warranting imposition of punishment. In this case, the decision of the trial judge was detailed. We reviewed his statement, as well as the record, and found that his decision was supported by clear and convincing evidence. As in Haslip, our appellate review of this question does not just pay lip service to the trial judge’s ruling, but is clearly effective to impose a restriction on the imposition of punitive damages.
This Court has on many occasions reviewed the amount of punitive damagés awarded to determine whether the amount is reasonably related to the conduct of the defendant. The award must bear some relation to the cause and extent of the injuries. Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105, 1115 (Okla.1991); Hobbs v. Watkins, 481 P.2d 746, 758 (Okla.1971). See also Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 910 (Okla.1982). We have also not hesitated to reduce the punitive award if the award is excessive as a result of the “passion, prejudice, or improper sympathy” of the jury. Id.; Chandler v. Denton, 741 P.2d 855, 867-68 (Okla.1987); Basden v. Mills, 472 P.2d 889, 896 (Okla.1970)12. In proper cases we have, upon request, ordered remittitur of punitive damages as a condition of affirmance. Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105,1115 (Okla.1991); Chandler v. Denton, 741 P.2d 855, 868 (Okla.1987); Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 910 (Okla.1982). We have also held that the financial condition of the defendant is a relevant consideration. Timmons, 653 P.2d at 919.
[1252]*1252Based on these restrictions, we hold that Oklahoma’s law regarding the award of punitive damages does not violate the Due Process Clause of the Fourteenth Amendment.13 As in Haslvp, the jury is not given unfettered discretion in awarding punitive damages. Rather, like Haslip, the combination of statutory law, jury instructions, post-trial procedures and appellate review provide adequate safeguards against the jury’s unbridled exercise of discretion in arriving at an award of punitive damages.
The jury’s award of punitive damages here, though large, can hardly be described as unbridled. Its amount coincides with the evidence of the lowest of the previous years’ net earnings distributed to the partners in the defendant nursing home enterprise. In fact the defendant expressly argued in its brief that although the punitive award should be reduced at least to the amount of actual damages as per the Section 9 cap, that it had not briefed, and did not request, a remittitur for the reason that the punitive damages award was imbalanced or excessive. (Reply brief P. 6) Nor did it argue that the verdict was actuated by passion, prejudice, or improper sympathy. The nursing home thus does not seek remittitur.
CONCLUSION
There is no contention on appeal that there was error in awarding actual damages based on the negligence theory. As to that part of the claim based on the wilful and wanton striking of the plaintiff, the evidence supports a finding that the nurses’ aide did so within the scope of his employment. The evidence is clear and convincing, though circumstantial, that it was done by the aide with wanton or reckless disregard for the rights of the plaintiff, thus justifying the lifting of the punitive damages cap. We also find that the jury’s discretion in awarding punitive damages was not unfettered, but was restricted by statutory guidelines, post-trial procedures and appellate review. The judgment of the District Court as based on the jury’s verdict is affirmed.
LAVENDER, V.C.J., and HARGRAVE, OPALA, ALMA WILSON, KAUGER and WATT, JJ., concur.
HODGES, C.J., concurs in result.
SIMMS, J., dissents and files opinion.