IN KANSAS, WHO CAN BRING A WRONGFUL DEATH LAWSUIT?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Wilson v. Kansas Gas & Electric Co., 12 Kan. App. 2d 336, 744 P.2d 139 (1987).
This case addresses the following issue:
Who can bring a wrongful death suit under Kansas law?
Wrongful death actions are created by statute in Kansas, under Section 60-1902. Id. at 339-40. A wrongful death action may be brought by “any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” Id. at 340. In this case, the court held that none of the Plaintiffs could bring a wrongful death suit. Id. at 340-41. The estate could not bring the suit because the deceased’s estate is not an “heir at law.” Id. at 340. The children could not bring the suit because the deceased’s parental rights had been terminated, and no meaningful relationship between the children and the deceased existed. Id. at 341.
The deceased in this case was a mother of seven children who was killed while crossing a street at night. Id. at 337. Defendants were the driver that struck the woman and the company charged with maintaining the street lights at the scene of the accident. Id. All the street lights had burned out and the driver was reaching to turn his headlights on when he hit the woman. Id. Several years before this accident, the woman’s parental rights had been terminated in a court proceeding following findings of child abuse and neglect. Id. at 340. None of the seven children continued any meaningful relationship with the mother following the extinguishment of her parental rights, and most of the children were adopted by other parents. Id. This wrongful death suit was filed by the executor of the decedent’s estate, and later the seven children intervened and were added as additional Plaintiffs. Id. at 337.
Pursuant to Section 60-1902, only a deceased person’s heirs at law may bring suit. Id. at 340. The executor of the deceased’s estate is not an heir at law, so that Plaintiff could not maintain this suit. Id. Normally, children are quintessential examples of heirs. Id. However, this case offers an example of when children are not heirs. Id. It was well established that when “a termination of parental rights” has occurred, this termination serves as “a complete and final divestment of all legal rights, privileges, duties and obligations of the parent and child with respect to each other.” Id. Basically, after the termination of rights, the parent and child are complete strangers; though they are biologically related, the law treats them as unrelated. Id. This is sort of the opposite of an adoption, where no biological relation exists but the law treats the parent and child are related in all aspects. Id.
Even though it had been established that no Plaintiff was appropriate to bring the wrongful death claim, the court offered another consideration as to why the children would not be eligible to bring the claim. Id. The children had not seen or had any meaningful contact with the deceased in several years. Id. In fact, four of the children did not even attend the trial. Id. Demonstrating “loss” caused by the death is an essential element of a wrongful death claim, and Kansas courts had previously found that the emotional toll that an estranged parent would not support a finding of such a loss. Id. at 341. Thus, no Plaintiff could bring the wrongful death claim and it must be dismissed. Id.