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Roth Davies, LLC

Losing a loved one is always tragic. The law offers redress when a death is caused by the carelessness of someone else. While these lawsuits cannot bring the loved one back, they can ensure that those individuals who survived the deceased are provided for. These claims are known as wrongful death claims and are directly provided for by Kansas law. The details of the Kansas wrongful death statute (K.S.A. § 60-1901) are discussed on this page.

Who can bring a claim?

Generally, lawsuits are brought by the injured party and are allowed to continue if that party dies. However, wrongful death claims are different. K.S.A. § 60-1902 will only allow an “heir at law” of the deceased to initiate a wrongful death lawsuit. This is not the estate of the deceased. An heir at law is a spouse or blood relative of the deceased individual. “The estate” of the deceased refers to the estate’s executor. The executor is in charge of dealing with the deceased individual’s affairs, debts, and other business. This distinction can result is some odd findings, as is what happened in the case Lewis v. BHS College Meadows. In Lewis, a man died after he received negligent medical treatment which prompted his daughter to bring both a claim for medical malpractice and wrongful death. The court held that the she could only bring the wrongful death claim (as she was heir at law to the deceased) but she couldn’t bring the medical malpractice claim as only the decedent’s estate can maintain an action that an individual could have originally brought while living.

There is an additional difficulty for plaintiffs in a wrongful death cases; how to divide the reward among the heirs. K.S.A. 60-1905 requires the awarded damages be apportioned to the heirs at law according to “the loss sustained by each of the heirs”. This is true even if an heir didn’t take part in the litigation (meaning they didn’t help retain an attorney, gather evidence, testify, etc). However, this can be addressed by having that heir sign a waiver of their portion of the recovery or very simply, have all heirs take part in the lawsuit.

What causes of death are covered by wrongful death claims?

K.S.A. § 60-191 permits an heir to recover when the decedent’s death was a result of “wrongful acts or omissions” of another. This means, in Kansas, any careless action that causes a death of another, the basis of a wrongful death lawsuit is formed. Intentional harms can also be a basis for a wrongful death lawsuit. For example, under K.S.A. § 60-1901 both a car accident and an intentional shooting that result in a death can constitution wrongful death actions.

A specific type of conduct that can warrant special attention is governmental actions. Usually, under the term sovereign immunity, both the federal and state governments are immune from being sued by persons for monetary damages. However, both the federal government (via the Federal Tort Claims Act, 28 USC § 2671) and Kansas (via the Kansas Tort Claims Act, KSA § 75-6101) have waived a portion of their sovereign immunity in certain situations. Common wrongful death suits against the government includes medical practice by VA doctors and vehicle accidents caused by a state vehicle. However, their sovereign immunity hasn’t been waived completely by either act which means not all wrongful death cases permit an imposition of liability. Examples of this include actions of law enforcement that are covered by qualified immunity and discretionary functions by government officials.

What types of damages are available in a wrongful death claim?

K.S.A. § 60-1904 outlines the six considerations for damages in a wrongful death claim. First is mental anguish which includes bereavement. Second is loss of companionship which is the actual pain and suffering of missing the deceased individual. The next three considerations are closely related and are as follows; seeking to compensate for lost advice, attention, care, and counsel provided by the deceased in their role as a spouse, parent, and a relative. The last consideration is funeral expenses.

Kansas legislature has instituted a cap on the amount of damages a wrongful death lawsuit can have. Thus, under Section 60-1903, the amount a plaintiff can receive is limited, no matter what the jury wants to award them. This cap applies to all damages except for pecuniary loss. Pecuniary losses are those loses that can be readily calculated such as lost wages and medical bills. Plaintiffs all permitted to recover the full amount of those pecuniary damages. All other damages, loss of companionship, emotional harm, and punitive damages (those designed to punish the defendant for their conduct) are not allowed to exceed $250,000. Although this is not a small sum of money, when considering the nature of a wrongful death claim, it is strange that this amount has been determined as enough to redress the heirs’ possible losses.

Wrongful death lawsuits are a very difficult and trying experience. Through the course of litigation, it will mean that the loss of the loved one will be revisited time and time again. The individual’s last moments will be analyzed thoroughly. Consulting with experienced legal counsel ensures that not only with the recovery be fair and sufficient, but also that the process of litigating the claim isn’t more difficult than it needs to be.

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