dissenting in part and concurring in part. I concur in the court’s decision with respect to parts III and IV of the opinion. Specifically, I believe the jury was left to speculate about what the proper attorney fees should have been, since there was no evidence submitted on this issue in accordance with the criteria set forth in Hutchinson v. J. C. Penney Cas. Ins. Co. (1985), 17 Ohio St. 3d 195, 200, 17 OBR 432, 437, 478 N.E. 2d 1000,1005. Also, I concur with the court’s decision to vacate the prejudgment interest awarded to the appellee. Additionally, I would vacate the award of prejudgment interest on the basis that there was no evidence in the record to indicate a lack of cooperation in the settlement negotiations, or unfair delay tactics by the appellant to justify the award. See Kalain v. Smith (1986), 25 Ohio St. 3d 157, 159-160, 25 OBR 201, 203, 495 N.E. 2d 572, 574; Ware v. Richey (1983), 14 Ohio App. 3d 3, 9, 14 OBR 6, 12, 469 N.E. 2d 899, 905-906.
Under the new quantum of proof of “clear and convincing evidence,” in order to establish malice for purposes of allowing punitive damages pursuant to recently enacted R.C. 2315.21(C)(3), it would have been appropriate for the trial court to direct a verdict for the defendant. However, this matter was tried under the former standard of proof of “preponderance of the evidence,” and under such a standard the evidence could reasonably support a determination that Lou Robb acted with a conscious disregard for the rights and safety of the appellee while acting in his capacity as a representative for the appellant.
However, I find that, under the facts as presented, the jury’s award for punitive damages was the result of passion and prejudice, and excessive in light of the appellant’s conduct toward the appellee and the appellant’s net worth. Specifically, as noted in the majority opinion, regarding the issue of passion and prejudice, there were frequent objections made by appellant’s counsel to the line of questioning and arguments made by appellee’s counsel. Originally, appellee’s counsel sought to elicit certain testimony from an attorney, Randy Snow, who apparently represented the appellee and was involved in a conversation with appellant’s general manager on the day of the conversion. Immediately after an objection to a question concerning the conversation, appellee’s counsel stated*
“MR. STEINER: But you definitely had a conversation with the representative of Waikem Motors over the phone?
“A. Yes.
“Q. At the request of Mr. Vilella [sic]?
“A. Yes.
“Q. OK. And it is my understanding because of the defendant’s objections we can go no further with this.
“THE COURT: Well it is as a result of the Court’s ruling.”
Again, appellee’s counsel attempted to allude to the conversation by asking:
“MR. STEINER: Mr. Snow, you, Mr. Baker [appellant’s counsel] brought out the fact that you told the *45Waikem representative over the phone what the law was[,] now I am going to ask you what you told him.
“MR. BAKER: I object.
“THE COURT: Sustained.” Later in closing argument, ap-pellee’s counsel referred to the inadmissible evidence by commenting:
“* * * Randy [Snow] talked to Robb, but the defendant objected to your hearing what Randy told Robb, and under technical rules of law, the court had to sustain that objection. So you don’t know what Randy told Robb that night.”
Additionally, in closing argument appellee’s counsel made the following analogy, which, if not calculated to arouse prejudice on the part of the jury, certainly seemed to have accomplished such result:
“Let’s assume that Mr. X has an income of $11,650.00 a year, gross income, before living expenses and taxes. Now, I picked that odd numbered figure deliberately because that is one-one thousandth of the income that Waikem Motors had during 1986. Their gross income was $11,653,000.00. I think you’d agree that Mr. X he did that to his neighbor [took his power mower], ought to be punished. And I think with that kind of income a fair and proper amount would be $250.00. That would have some sting from Mr. X who’s earning that kind of money.
“Ladies and gentlemen, to assess an equally stinging amount against Waikem Motors you would have to assess $250,000.00.”
Although there was no objection on the record to the above comment, the trial court could have, sua sponte, admonished counsel and taken curative action to nullify the prejudicial effect of counsel’s conduct. See, e.g., Jones v. Macedonia-Northfield Banking Co. (1937), 132 Ohio St. 341, 8 O.O. 108, 7 N.E. 2d 544 (grounds for new trial where counsel insinuated unfounded charges concerning opposing counsel thereby causing the jury to award damages based on passion or prejudice). Cf. Snyder v. Stanford (1968), 15 Ohio St. 2d 31, 44 O.O. 2d 18, 238 N.E. 2d 563.
I believe that the jury was swayed by the misconduct, evidenced above, on the part of appellee’s counsel, to the point where damages were awarded on the basis of passion and prejudice, instead of reason. As this court noted in Drake v. Caterpillar Tractor Co. (1985), 15 Ohio St. 3d 346, 347,15 OBR 468, 470, 474 N.E. 2d 291, 293, counsel may not “comment on evidence which has been excluded or declared inadmissible by the trial court or otherwise make statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider.” Additionally, this court in Fromson & Davis Co. v. Reider (1934), 127 Ohio St. 564,189 N.E. 851, paragraph three of the syllabus, established certain guidelines to follow in awarding punitive damages, where passion and prejudice on the jury’s part may have been present. Essentially, “[i]n order to determine whether excessive damages were so influenced, a reviewing court should consider, not only the amount of damages returned and the disparity between the verdict and remittitur where one has been entered, but it becomes the duty of such court to ascertain whether the record discloses that the excessive damages were induced by * * * misconduct on the part of the court or counsel, or * * * by any other action occurring during the course of the trial which can reasonably be said to have swayed the jury in their determination of the amount of [punitive] damages that should be awarded.” Id.
Therefore, I believe this case *46should have been reversed by the court of appeals due to the obvious misconduct by the appellee’s counsel, and the passion and prejudice such conduct caused.
Additionally, in focusing on the conduct exhibited by the appellant’s general manager toward the appellee, it is difficult for me to discern the level of egregious conduct which warranted the size of the award for punitive damages assessed by the jury. The record indicates that, at most, the conversion of the appellee’s car lasted for only two hours. Also, the appellee’s wife was present with her car while the negotiations for the appellee’s car took place, and appellee could have departed the dealership without incident and pursued his legal remedies at a later time. Finally, appellant’s general manager was acting under what he believed to be color of the law given the affirmative representations made by the appellee concerning the payment for repairs to his daughter’s car. Clearly, the conduct of the appellant’s representative did not warrant the exorbitant award for punitive damages dispensed by the jury. See, generally, for a discussion on conduct related to punitive damages, Prosser & Keeton on Torts (5 Ed. 1984) 9-10, Section 2; McCormick, Handbook of the Law of Damages (1935) 280-281, Section 79.
In reviewing whether the punitive damages awarded were at all reasonable, the record shows that appellee’s actual damages were only $250, and appellant’s net worth only $568,168. But the jury awarded appellee $150,000, or 26.4 percent of the appellant’s net worth, in punitive damages. Clearly, in considering the wealth of the appellant along with the actual damages assessed, it is evident that the jury became carried away with its desire to punish this automobile dealership.
Since I believe the jury’s award of punitive damages was the result of passion and prejudice and excessive, I would reverse the award of punitive damages and remand for a redetermin-ation of such damages.
A great deal of critical attention has been given nationally to the misuse of punitive damages. The unfettered discretion of juries in making such awards has been the topic of many law review articles and seminar discussions, and has found its way into the Supreme Court of the United States in the case of Brouming-Ferris Industries, Inc. v. Kelco Disposal, Inc. (June 26, 1989),_U.S____L. Ed. 2d_,_S.Ct___ 57 U.S.L.W. 4985. The Supreme Court in Browning-Ferris, supra, rejected an Eighth Amendment argument (Excessive Fines Clause) under the United States Constitution, but specifically left open a future appeal based upon due process grounds.
The Ohio General Assembly has adopted what I believe to be a reasonable approach to the issue of punitive damage awards by promulgating R.C. 2315.21 which provides that in order to warrant the imposition of punitive or exemplary damages:
<i(B) * * *
“(1) The actions or omissions of that defendant [must] demonstrate malice, aggravated or egregious fraud, oppression, or insult, or that defendant as principal or master authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate;
“(2) The plaintiff in question has adduced proof of actual damages that resulted from actions or omissions as described in division (B)(1) of this section.”
Also, the General Assembly promulgated a more rigorous standard to be followed in punitive or exemplary tort *47actions by providing that the burden of proof upon the plaintiff be by “clear and convincing evidence” rather than by a preponderance of the evidence. R.C. 2315.21(C)(3).
In addressing the role of the judge and jury in these cases the General Assembly resolved that:
“In a tort action, whether the trier of fact is a jury or the court, if the trier of fact determines that any defendant is liable for punitive or exemplary damages, the amount of those damages shall be determined by the court.” (Emphasis added.) R.C. 2315.21(C)(2). In essence, under R.C. 2315.21, the jury may determine the liability of any defendant, but the court decides the amount of punitive damages to be awarded.
Although the General Assembly did not formulate criteria to be followed in awarding punitive damages in tort actions, it did promulgate criteria that must be followed in calculating punitive damages for product-liability claims.3
In like manner, I would suggest that, in future cases where punitive damages are at issue in tort actions, the trier of fact, after necessarily awarding compensatory damages to the plaintiff, take the following factors under consideration in arriving at a just award for the plaintiff to the extent they are found to be relevant:
1. The nature of defendant’s conduct4; the presence or absence of actual malice or evil motive5; and the degree of the defendant’s awareness of the likelihood that harm would arise from his or her actions.6
2. Prior or similar acts by the defendant; the duration of the misconduct, and any concealment of it by the defendant7; and the profitability of the misconduct to the defendant.8
3. The attitude and conduct of the defendant upon the discovery of the misconduct and whether the defendant attempted to mitigate the harm incurred by the plaintiff.9
4. The deterrent effect of punitive damages on the defendant and others; the likelihood that the defendant would repeat the conduct if a punitive damage award is not made10; and the total effect of other punish*48ment imposed or likely to be imposed upon the defendant as a result of the misconduct.11
5. The economic condition of the defendant by way of net worth and a consideration of the defendant’s average net income over the last few operating years12; the award of punitive damages may penalize, but should not bankrupt the defendant.13
6. There should be some reasonable relationship between the amount of punitive damages awarded compared with the compensatory damages awarded.14
I would also add that a distinction must be maintained between those types of awards which are imposed solely to punish and those which are calculated to deter. Finally, punitive damages should be limited to those egregious situations which clearly call for punishment and deterrence beyond that which is inherent in compensatory awards.
Therefore, for the above reasons, I would reverse the judgment of, the court of appeals and remand for a new trial for the issue of damages and have the jury consider the factors indicated above, as well as any other pertinent evidence it would need in order to make its determination.
Moyer, C.J., and Wright, J., concur in the foregoing opinion.See R.C. 2307.80(B)(l)-(7).
See Walker v. Signal Cos. (1978), 84 Cal. App. 3d 982,149 Cal. Rptr. 119; Lynn v. Taylor (1982), 7 Kan. App. 2d 369, 642 P. 2d 131; Professional Seminar Consultants v. Sino American Technology Exch. Council (C.A. 9,1984), 727 F. 2d 1470; American College of Trial Lawyers Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice (March 3, 1989) 28-29 (“ACTL”); Sales & Cole, Punitive Damages: A Relic That Has Outlived its Origins (1984), 37 Vand. L. Rev. 1117, 1146.
See Preston v. Murty (1987), 32 Ohio St. 3d 334, 512 N.E. 2d 1174, syllabus.
See, e.g., R.C. 2307.80(B)(1) and (2); Minn. Stat. 549.20(3) (1986); Mallor & Roberts, Punitive Damages: Toward a Principled Approach (1980), 31 Hastings L. J. 639, 667; Owen, Punitive Damages in Product Liability Litigation (1976), 74 Mich. L. Rev. 1257, 1314-1319 (“Owen”); see, generally, Darling, Ohio Civil Justice Reform Act (1987) 84-91, 245-246.
See, e.g., R.C. 2307.80(B)(4); Minn. Stat. 549.20(3).
See, e.g., R.C. 2307.80(B)(3); Minn. Stat. 549.20(3); see, generally, Punitive Damages: Toward a Principled Approach, supra, at 667-668; Owen, supra, at 1316; ACTL, supra.
See Leimgruber v. Claridge Assoc. (1977), 73 N.J. 450, 456-461, 375 A. 2d 652, 655-658; see, e.g., R.C. 2307.80(B)(5); Minn. Stat. 549.20(3).
See ACTL, supra.
See R.C. 2307.80(B)(7); Minn. Stat. 549.20(3).
See Neal v. Farmers Ins. Exch. (1978), 21 Cal. 3d 910, 148 Cal. Rptr. 389, 582 P. 2d 980; Wynn Oil Co. v. Purolator Chemical Corp. (M.D. Fla. 1974), 403 F. Supp. 226; Citizens Bank of Univ. City v. Gehl (Mo. App. 1978), 567 S.W. 2d 423; see, e.g., R.C. 2307.80(B)(6); Minn. Stat. 549.20 (3).
See Wynn Oil Co. v. Purolator Chemical Corp., supra; see, generally, Annotation, Excessiveness or Inadequacy of Punitive Damages in Cases not Involving Personal Injury or Death (1985), 35 A.L.R. 4th 538, 554-556; ACTL, supra.
Clary Ins. Agency v. Doyle (Alaska 1980), 620 P. 2d 194; Miller v. Carnation Co. (1977), 39 Colo. App. 1, 564 P. 2d 127; Mailloux v. Bradley (Colo. App. 1982), 643 P. 2d 797; Cruz v. Montoya (Utah 1983), 660 P. 2d 723.
A reasonable-relation concept may not be applicable in certain situations, “ ‘[i]f the overriding consideration in an award of punitive damages is whether it bears a reasonable relation to the actual damages suffered the result may be to thwart completely the purpose of punitive damages. One example of this is the situation where a plaintiff has suffered only minor injury or is only able to prove a small amount of actual damages, yet the conduct of the defendant has been especially wanton or malicious. This would seem the precise situation in which a large award of punitive damages would be necessary to ensure that the defendant does not repeat his act and that others do not imitate him. Application of the reasonable relation rule, however, would limit the punitive damages to an amount not disproportionate to the actual damages suffered. This example illustrates the fact that in its operation the reasonable relation rule can ignore the punitive and deterrent functions of exemplary damages.’ ” Moore v. American United Life Ins. Co. (1984), 150 Cal. App. 3d 610, 636-637, 197 Cal. Rptr. 878, 895.
See, also, Comment, Punitive Damages and the Reasonable Relation Rule: A Study in Frustration of Purpose (1978), 9 Pac. L.J. 823, 839-840. But note that I have set forth several criteria to be reviewed in awarding punitive damages and a “reasonable relation” is only one factor among many that may be taken into consideration.