Kansas Tort Laws

In 2023, 283.44 million medical products were recalled in the U.S., mostly due to subpar quality. If they had not been promptly removed from the market, they could have caused harm and led to lawsuits, like in the case of the Bard PowerPort.

The PowerPort, which was made to facilitate the transfer of IV fluids to the body, has been alleged by several individuals across various states — including Kansas — to have caused injuries such as thrombosis, vascular damage, and infection. Because of these claims, there is a mass tort action against the device’s manufacturer that is underway.

Mass tort actions like these are typically complex cases that can drag on for years due to the number of people affected and the huge sums of money involved. Just like individual personal injury lawsuits, mass tort actions fall under tort law. Tort law, in general, deals with any civil wrongdoing that causes another party to suffer harm.

If you or someone you know is a victim of tort — whether it’s in the field of mass tort, personal injury, or another category — learning the basics of Kansas tort and mass tort laws through this article can help you navigate the legal processes you may need to go through.

Basic Tort Categories in Kansas

Negligent Torts

A tort based on negligence is an action that is done without reasonable care for the safety of others. An example of this is a driver going beyond the speed limit, which consequently leads to an injury-causing accident.

For a negligent tort victim to claim compensation, they must prove the following elements:

• The defendant owed the victim a duty of reasonable care.

• The defendant failed to fulfill this duty. 

• The failure to fulfill the duty of care led to the victim’s injuries.

• The victim suffered losses due to their injuries.

Intentional Torts

Deliberately doing something wrong that leads to another person’s harm is called committing an intentional tort. The element of intent makes it different from doing a negligent tort.

The following actions are examples of intentional torts:

• Defamation is the act of saying or writing damaging things about a person to harm their good reputation. It can be in the form of slander (verbal) or libel (written). Posting false news on social media is a type of libel, while spreading rumors can count as slander.

• Assault and battery are related offenses that may involve threatening and physically attacking someone. An example of assault is waving a gun, while surgically operating on a patient without their consent is a form of battery.

• Conversion, which is similar to theft in some ways, constitutes exerting control over another person’s property.

• False imprisonment involves unlawfully confining someone or restricting their movement. Locking someone inside a room can be considered false imprisonment.

Strict Liability Torts

Under the strict liability doctrine, a tortfeasor — or someone committing a tort — is legally liable for any harm they cause, regardless of whether their action is intentional or negligent. There are three categories of torts covered by the strict liability doctrine:

• Product liability: Product manufacturers and sellers can be held liable if their consumers suffer harm after using their products. Some grounds for a product liability claim are manufacturing defects and the lack of warning labels.

• Animal attacks: Pet owners can be strictly responsible for the damage their pets cause. This rule applies to dog breeds deemed dangerous, such as wolf hybrids, Rottweilers, and pit bulls, as well as wild animals kept as pets like tigers, snakes, and alligators.

• Abnormally dangerous or ultrahazardous activities: Those who commission dangerous or ultrahazardous activities that cause damage to properties or injuries to people can also be held strictly liable. Examples of these activities include fumigation using cyanide gas, the controlled burning of fields, and the use of explosives.

Other Tort Categories in Kansas

Other tort categories in Kansas include:

• Economic torts: These refer to someone’s action that may lead to the economic loss of a business. Breaching a contract, conspiring with others to harm a business, and causing loss through wrongful means are types of economic torts.

• Nuisance: Another person’s wrongful act or interference that prevents another person from enjoying their rights is called a nuisance. An example of this is a rowdy activity that causes public disturbance.

Tort vs. Crime in Kansas

There are some important distinctions between a tort and a crime, according to the law:

Note that there are instances where an action is both a tort and a crime, like in the case of fraud, assault, and DUI.

For instance, the arresting officer in a DUI case can press charges against the drunk driver involved. If the drunk driver gets into a car accident, the injured victim can also pursue a personal injury lawsuit against them to seek compensation for their injuries.

Mass Torts in Kansas

When many people are similarly harmed by the same wrongful act, the lawsuits that they file may be consolidated into a single mass tort action. This can be the case even if they are residents of different states, as long as they have similar claims against the same defendant as a result of similar conditions.

Some situations that may lead to mass tort actions include:

• Exposure to toxic chemicals: This involves being exposed to harmful substances, such as lead-based paint, cleaning solutions, asbestos, pesticides, glue, and petrol, in the workplace, at home, or elsewhere.

• Large-scale accidents: Many people can die or get injured from large-scale accidents, such as commercial airline crashes, train derailments, and gas leak explosions.

• Defective and dangerous products: There are instances where consumers can be harmed by certain products, such as defective children’s toys, vehicle parts, and medical devices. There are also specific brands of goods on the market, including infant formula, hair relaxers, and talcum powder, that can pose dangers to one’s health.

• Natural and man-made disasters: When numerous people die from a natural disaster, the liable entities, such as the government and corporations, can be sued. Such disasters include hurricanes, tornadoes, and wildfires. Man-made disasters, such as oil spills, pollution, and groundwater contamination, can also lead to mass tort actions.

Because a mass tort action typically involves consolidating related cases, the plaintiffs can combine resources, share legal costs, and make trials less lengthy, thereby reducing costly litigation expenses and saving more time than when pursuing a case on their own. Consulting a mass tort attorney or a litigation lawyer is a way for tort victims to determine whether filing an individual case or joining a mass tort action is the right step to take.

Mass Torts vs. Class Actions

Mass tort actions and class action lawsuits both involve several claimants or plaintiffs against one common defendant. However, some key differences between them lie in how cases are handled and how much control each plaintiff has over the case.

In a mass tort action, plaintiffs are still treated as individual claimants despite being part of a single group. This means that each plaintiff needs to file a separate lawsuit and prove specific details about their case, such as how they were harmed by the defendant.

In contrast, a class action suit only entails filing one case and being represented by one plaintiff, also called the class representative. If the class representative fails to secure a victory, the rest of the class fails as well. If the case is won, the total award is divided among the class members.

Generally, there are more members in a class action suit than in a mass tort action. Class certification is also a necessary procedure in a class action before a lawsuit can be filed, unlike in mass tort cases. If plaintiffs cannot meet the requirements of a class action, a mass tort lawsuit can be an option.

The Mass Tort Process

A mass tort action allows lawsuits to be filed in each victim’s local jurisdiction instead of where the defendant is located to avoid overwhelming one jurisdictional court with similar lawsuits against the same party. For complex lawsuits, cases around the country are typically consolidated in a single jurisdiction.

A Kansas resident with a potential claim may consider the following basic processes for a mass tort action:

1. Assessment of injuries and losses: They may seek the assistance of a lawyer in reviewing the details of their case along with their medical records. An expert witness within the medical field may also be consulted to professionally assess the victim’s injuries.

2. Determination of similarities to other cases: The lawyer may check if the party to be sued has other victims with similar injuries to determine if their client’s case can qualify under a mass tort action. For example, victims who used the same defective medical device and are suffering similar issues as a consequence may be qualified to file a mass tort action.

3. Consolidation of the case: After the victim files their case in their own jurisdiction, it may be consolidated with similar cases through multi-district litigation, a special procedure where a federal judge oversees the proceedings.

4. Bellwether trials: Because there may be hundreds of cases in a mass tort action, a few cases may be tried first under a process called bellwether trials. Through these trials, the plaintiffs can determine if their cases have merit and how much compensation they can possibly obtain.

5. Settlement or trial: The defendant may choose to settle before trial, but if a settlement cannot be reached, the cases will proceed to trial. A judge or jury will then decide the outcome.

Kansas Tort Liability Insurance Requirements

There are no state requirements for businesses to carry tort liability insurance. However, business owners in Kansas are recommended to purchase liability insurance, whether as part of a package or a standalone policy. 

A standalone liability insurance policy protects businesses from financial loss if someone sues them for injuries caused by their employees, products, or operations.

The premises/operation coverage compensates someone who slips and falls on business premises, while the product/completed operation coverage pays for claims arising from product-related injuries.

The Statute of Limitations for Tort Cases in Kansas

Depending on the type of tort, there are different statutes of limitations or deadlines for filing a lawsuit in Kansas. These include the following:

Note that the two-year statute of limitations is just the general deadline for most personal injury claims. Depending on the facts surrounding a case, it may become shorter or longer. For example, a minor or a mentally disabled person is given eight years to file a lawsuit.

Another important statute to consider is the discovery rule; the two-year deadline for filing a personal injury lawsuit starts on the date the injury is discovered or should be reasonably known, and not necessarily when the incident that caused the injury took place.

The absolute deadline to bring a lawsuit is called the statute of repose. In Kansas, the statute of repose is 10 years, except for medical malpractice cases, which can only be filed within four years. When this period lapses, a victim loses the legal right to pursue compensation.

How Much Someone Can Sue in a Tort Case in Kansas

The amount of compensation that victims in tort cases can recover depends on factors such as the severity of their injuries, the skill of their legal team, and the newsworthiness of their case. What the latter means for mass tort cases is that a company being sued is more likely to settle if the trial can harm its reputation and profits.

For an estimate, it is important to determine the types of damages one can sue for:

• Economic damages: These refer to the victim’s losses that can be easily calculated. Such losses include lost income or wages, medical bills, rehabilitation costs, and injury-related out-of-pocket expenses.

• Non-economic damages: These pertain to losses that are difficult to determine by dollar amount. Some examples are disfigurement, emotional distress, and pain and suffering. 

• Punitive damages: On rare occasions, the court awards victims punitive damages to punish the defendant for malicious, fraudulent, and wanton conduct and to prevent others from committing the same offense.

Caps on Damages

Currently, there is no cap on economic and non-economic damages awarded in Kansas personal injury claims. There used to be a $350,000 non-economic damage cap, but in 2019, the Kansas Supreme Court ruled that such damages caps are unconstitutional.

An exception to this is for medical malpractice cases involving wrongful death; the cap is $250,000 for non-economic damages.

Additionally, there are limits to the compensation a victim can receive when the defendant is a government employee or agency. Under the Kansas Tort Claims Act, the limit is $500,000 per claim.

Victim’s Fault in Negligence Torts

In a negligence tort case, if the victim is in any way responsible for their injuries, the compensation they can recover will be reduced in line with their level of fault. Such is in accordance with Kansas’ modified comparative negligence system.

For instance, a patient may sue their doctor for malpractice due to incorrect medication and be entitled to $100,000. However, if the court finds them to be 10% at fault for their injuries because they took alcohol along with their medication, their final compensation will be reduced to $90,000. This is because the percentage of their fault is also the percentage to be subtracted ($10,000) from their award.

Additionally, victims who are at fault more than the defendant are barred from recovering compensation at all. 

If there are multiple defendants, Kansas’ ​​pure several liability legal system dictates that they can only be liable for their own contributory fault. This means each one has to pay damages according to their respective degree of fault.

Other Legal Remedies in Tort Cases in Kansas

Restitutionary remedies can also be awarded to plaintiffs in Kansas tort cases. Their purpose is to re-establish victims as closely as possible to their pre-tort condition. These remedies include the following:

• Restitution is calculated based on how much money the defendant gained instead of how much the plaintiff lost.

• Replevin allows victims to recover the property they lost because of the tort.

• Lien on the defendant’s property will be imposed if they do not have the financial means to pay the damages they owe.

• Injunctive relief, also known as an injunction, may be sought by a victim to stop the defendant from doing something against them. An example of this is a temporary restraining order that prohibits the defendant from contacting the victim.

Legal Resources for Tort Victims in Kansas

Kansas Legal Services

This nonprofit organization provides free or low-cost legal services for income-eligible Kansans. To apply, fill out the online application form or call its toll-free number: 1-800-723-6953. Self-represented individuals may peruse the organization’s webpage on free legal forms for more information. They are advised, however, to consult a lawyer before undertaking legal action.

Kansas Crime Victims Compensation Board

Victims of violent crimes can receive financial support for their loss of income and injury-related out-of-pocket expenses. The support includes medical care and mental health counseling. The Attorney General's Office oversees the Kansas Crime Victims Compensation Board. Call 785-296-2359 to get in touch with the division.

Metropolitan Organization To Counter Sexual Assault

The MOCSA serves select counties in Kansas. It helps sexual abuse and assault victims recover from the transgressions against them as well as prevent sexual violence in society. Victims can call the 24-hour crisis hotline at 913-642-0233 for support. The organization also offers legal representation, counseling support, and hospital, court, and policy assistance.