Every state has different laws when it comes to wrongful death lawsuits. The advantages and disadvantages of where a case is filed are numerous and can have a tremendous effect on what outcome the victims receive.

Kansas’ wrongful death statute is Section 60-191. [1] A wrongful death in Kansas is understood as not a separate cause of action. Rather, it is a claim that the individual who died could have brought for damages they suffered had they lived. The requisite elements are: 1) death of an individual and 2) caused by “wrongful act or omission of another.” [2] The details of bringing a wrongful death claim are discussed below.

Who Can Bring The Suit?

Any heir who sustained a loss by reason of the deceased dying can bring a wrongful death claim. [3] Heir has the same meaning in this context as it does in the property and estate law context. It is one who would receive property or the estate from an individual at their passing because of the relationship between them. This includes a surviving spouse, grandparents, parents, children, and any other relatives who would be the deceased’s heir at their death. However, this does not include the executor of the decedent’s estate. Therefore, if a person’s parental rights had been previously severed, this will end the rights of their former children to file a wrongful death claim upon their death. [4]

The requisite “loss” is generally not an issue. However, the court has suggested that where the children didn’t have a “meaningful relationship” with their estranged birth mother’s child and little evidence of a relationship or grief was present, it may not be enough to fulfill the requisite “loss” element. [5]

Who Can They Sue For?

Per statute, a individual for whom you can bring a lawsuit for includes an unborn child. Kansas cases have previously held that an “unborn child” must be viable outside the womb before it can bring a suit for wrongful death. [6] However, Kansas law doesn’t not require the fetus to be so. The law includes a fetus in any stage (fertilization to birth). [7] However, if the unborn child’s death was a result of the mother’s actions or a form of legal abortion, then no wrongful death action is available upon the fetus dying. [8]

What Damages Are Available In A Kansas Wrongful Death Claim?

Non-economic damages for a wrongful death claim are capped, by law, at $250,000. The trier of fact will itemize the verdict in a wrongful death claim to reflect amounts awarded for the following:

  • non-pecuniary damages
  • expenses for the care of the deceased caused by the injury;
  • other pecuniary damages, such as lost income.[9]

The elements of damage for which recovery may be awarded include:

  1. Mental anguish, bereavement, or suffering;
  2. Loss of companionship, society, comfort, or protection;
  3. Loss of attention, counsel, advice, or marital care;
  4. Loss of attention or filial care;
  5. Loss of training, education, guidance, or parental care; and
  6. Reasonable funeral expenses. [10]

There is some strategy when it comes to damages in wrongful death actions. Some plaintiffs and counsel will not submit the issue of non-economic damages to the jury, rather they will submit only categories of economic damages in order to avoid the non-economic damages cap of $250,000. [11]

Wrongful death claims do not allow recovery of punitive damages. However, they are recoverable via a survival action. A decedent’s estate can file a survival action for the decedent’s claimed damages for both economic and non-economic, which arose out of the defendant’s negligence. This survival action is the way a punitive damages claim can be conducted.

What limitations are there for Kansas wrongful death claims?

The statute of limitations for these claims are two years from the date of the deceased’s death. [12] This time can be shortened, but it cannot be extended. [13] A wrongful death claim is based on the decedent’s rights and if the statute of limitations have expired on the decedent’s original claim, an heir is not permitted to bring a wrongful death claim after their death. For example, where an individual had a personal injury lawsuit against a company, didn’t bring it, and then died as a result of that personal injury; their spouse cannot bring a wrongful death action because the personal injury claim’s statute of limitations had run before the wrongful death claim was filed. [14]

In a medical malpractice scenario, an individual surviving more than four years after the alleged malpractice effectively destroys any potential wrongful death claim that heirs could have had on the individual’s death. This is true even when the individual’s death was likely caused by the malpractice. [15]

Finally, only one claim is allowed to be brought against any one defendant for the death of a particular individual. Therefore, any heir who isn’t a part of the original action is allowed to join the lawsuit (in legal terms this is called intervening).

[1] Available at this Link.

[2] KSA 60-1901, available at this Link.

[3] KSA 60-1902, available at this Link.

[4] See case Wilson v. Kansas Gas and Elec. Co., available at this Link.

[5] See case Wilson v. Kansas Gas and Elec. Co., available at this Link.

[6] See Humes v. Clinton, available at this Link.

[7] KSA 60-1901(b)-(c), available at this Link.

[8] KSA 60-1901(d), available at this Link.

[9] K.S.A. 60-1903(a), available at this Link.

[10] KSA 60-1904, available at this link.

[11] Any counsel handling a wrongful death case in Kansas would be well-served to review closely the case of Wentling v. Medical Anesthesia Services, available at this Link; see also Huffman v. Thomas, 26 Kan.App.2d 685, available at this Link.

[12] KSA 60-513(a)(5), available at this Link.

[13] See case Clark v. Parkalapakorn, available at this Link.

[14] See case Mason v. Gerin Group, available at this Link.

[15] For details, see case Natalini v. Little, available at this Link.