KANSAS OFFICE of
  REVISOR of STATUTES

  

Home >> Statutes >> Back


Click to open printable format in new window.Printable Format
 | Next

60-1903. Amount of damages; jury instructions; itemized verdict. (a) In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs.

(b) If a wrongful death action is to a jury, the court shall not instruct the jury on the monetary limitation imposed by subsection (a) upon recovery of damages for nonpecuniary loss. If the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a), the court shall enter judgment for damages of $250,000 for nonpecuniary loss.

(c) In any wrongful death action, the verdict shall be itemized by the trier of fact to reflect the amounts, if any, awarded for:

(1) Nonpecuniary damages;

(2) expenses for the care of the deceased caused by the injury; and

(3) pecuniary damages other than those itemized under subsection (c)(2).

(d) Where applicable, the amounts required to be itemized pursuant to subsections (c)(1) and (c)(3) shall be further itemized by the trier of fact to reflect those amounts awarded for injuries and losses sustained to date and those awarded for injuries and losses reasonably expected to be sustained in the future.

(e) In any wrongful death action, the trial court shall instruct the jury only on those items of damage upon which there is some evidence to base an award.

History: L. 1963, ch. 303, 60-1903; L. 1967, ch. 329, § 1; L. 1970, ch. 241, § 1; L. 1975, ch. 303, § 2; L. 1984, ch. 214, § 1; L. 1987, ch. 224, § 2; L. 1998, ch. 68, § 1; July 1.

Source or prior law:

G.S. 1868, ch. 80, § 422; L. 1909, ch. 182, § 419; R.S. 1923, 60-3203; L. 1939, ch. 233, § 2; L. 1947, ch. 319, § 1; L. 1955, ch. 277, § 1.

Law Review and Bar Journal References:

"Handling an Air Crash Case," Terry O'Keefe, 37 J.B.A.K. 291, 293 (1968).

Wrongful death, Mark A. Buck, 17 W.L.J. 26 (1977).

"Infants: Child Can Sue for Loss of Parental Society and Companionship," Stuart L. Shapiro, 20 W.L.J. 652, 657 (1981).

"Euthanasia: A Medical and Legal Overview," Howard N. Ward, 49 J.B.A.K. 317, 325 (1980).

"Child's Right to Sue for Negligent Disruption of Parental Consortium," Derenda J. Mitchell, 22 W.L.J. 78, 93 (1982).

"K.S.A. 60-258a, Revisited Survey of Current Trends in the Kansas Law of Comparative Negligence," Craig C. Blumreich, 5 J.K.T.L.A. No. 6, 8, 13 (1982).

"Maximizing Recovery under the Kansas Wrongful Death Act," Mark V. Parkinson, Vol. VIII, No. 3, J.K.T.L.A. 21 (1984).

"The Scope of "Pecuniary Loss" Since Wentling v. M.A.S.," Vol. IX, No. 2, J.K.T.L.A. 7 (1985).

"The National Childhood Vaccine Injury Act: Implications for DPT Vaccine Manufacturers and Victims," Sandra Jaquot, 28 W.L.J. 274, 292 (1988).

"More Goo For Our Tort Stew: Implementing the Kansas Collateral Source Rule," James Concannon and Ron Smith, 58 J.K.B.A. No. 2, 19, 23, 28 (1989).

"From the Capitol," Tim Alvarez, J.K.T.L.A., Vol. XIII, No. 3, 4 (1990).

"Medical Malpractice in the 1990s: A Review of Changes in the Last Decade," Michael Sexton and Mark Sachse, J.K.T.L.A. Vol. XV, No. 4, 10, 13 (1992).

"Recovery by Stepchildren in Wrongful Death Actions," Robyn L. Meadows, 40 K.L.R. 777, 785 (1992).

"Consortium and the Cap—The Dual Nature of Loss of Consortium Damages," Michael L. Sexton, J.K.T.L.A. Vol. XVI, No. 6, 5, 7 (1993).

"Our Statutory System for Actual Damages in Tort: Kansas in Wonderland?" Bruce Keplinger and Scott M. Adam, 63 J.K.B.A. No. 1, 18, 19 (1994).

"Questioning Authority: Modifying P.I.K. Instructions to Get the Law Right," Benjamin M. Kieler and Thomas E. Hayes, J.K.T.L.A. Vol. XVII, No. 4, 20, 22 (1994).

"Online Medical Research-Grateful Med," Patrick Nichols, J.K.T.L.A. Vol. XIX, No. 6, 20 (1996).

"Survey of Kansas Tort Law: Part I," William E. Westerbeke and Stephen R. McAllister, 49 K.L.R. 1037 (2001).

"Survey of Kansas Tort Law: Part II," William E. Westerbeke, 50 K.L.R. 225 (2002).

"A Closer Look at Statutory Caps," Bradley Post and Robert E. Keeshan, J.K.T.L.A. Vol. XXVI, No. 5, 6 (2003).

"The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years," William E. Westerbeke, 52 K.L.R. 939 (2004).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-3203 and the 1961 Supp. thereto.

1. Adequacy of amount of damages considered. Roda v. Williams, 195 K. 507, 514, 407 P.2d 471.

2. Section applied in action for wrongful death resulting from attractive nuisance. Bartlett v. Heersche, 204 K. 392, 393, 404, 462 P.2d 763.

3. Action hereunder not barred by previous action brought by insurance company, without right of subrogation, where there was no determination of issues of wrongful death between parents of deceased child and the alleged wrongdoer, and no privity existed between the parents and the insurance company which would bar an action for wrongful death. Penachio v. Walker, 207 K. 54, 56, 483 P.2d 1119.

4. Statutes in pari materia must be construed together. Flowers, Administratrix v. Marshall, Administrator, 208 K. 900, 902, 494 P.2d 1184.

5. Evidence in wrongful death action sustained award for death of child who drowned in swimming pool. Burgert v. Tietjens, 499 F.2d 1, 2, 7.

6. Act applied in construing provisions of no fault insurance act (40-3109 and 40-3113); insurer's right as to reimbursement and indemnity determined. Farm & City Ins. Co. v. American Standard Ins. Co., 220 K. 325, 338, 552 P.2d 1363.

7. Construed; in resolving conflict with 60-258a greater weight should be given to the comparative negligence statute. Benton v. Union Pac. R.R. Co., 430 F.Supp. 1380, 1385.

8. Construed; when 60-258a applies jury will not be instructed about the $50,000 limitation on plaintiff's recovery. Benton v. Union Pac. R.R. Co., 430 F.Supp. 1380, 1386.

9. Section held not in violation of subject-title requirements of Article 2, Section 16 of the Kansas Constitution. Stueve v. American Honda Motors Co., Inc., 448 F.Supp. 167.

10. Section construed; statutes that increase, decrease, or repeal maximum limits on damages for wrongful death are not retroactive. Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 K. 437, 444, 581 P.2d 372.

11. Applied; plaintiff may sue to recover unlimited amount for pecuniary loss. Stueve v. American Honda Motors Co., Inc., 457 F.Supp. 740, 744.

12. Heir and heir at law construed as synonymous terms; widow of childless deceased is sole heir and has exclusive right to bring an action hereunder. Johnson v. McArthur, 226 K. 128, 130, 596 P.2d 148.

13. Jury required to separately determine pecuniary and nonpecuniary damages; application of comparative negligence statute to determination of nature and amount of damages. McCart v. Muir, 230 K. 618, 619, 620, 624, 625, 626, 629, 631, 641 P.2d 384 (1982).

14. Evidence that widow remarried in less than seven months after death not admissible on question of mitigation of her damages. Pape v. Kansas Power & Light, 231 K. 441, 445, 647 P.2d 320 (1982).

15. Error to show benefits received by plaintiff from source independent of wrongdoer; collateral source rule considered. Allman v. Holleman, 233 K. 781, 788, 789, 667 P.2d 296 (1983).

16. Plaintiff satisfies pecuniary damages burden by showing nature and extent of losses; fact triers capable of converting to money. Wentling v. Medical Anesthesia Services, 237 K. 503, 506, 514, 701 P.2d 939 (1985).

17. Nonpecuniary damage limitations herein do not violate any constitutional rights. Leiker v. Gafford, 245 K. 325, 365, 778 P.2d 823 (1989).

18. Determination of pecuniary damages considered in denying motion for summary judgment. Barnes v. Robison, 712 F.Supp. 873, 875 (1989).

19. Loss of enjoyment of life as an element of disability, pain and suffering noted. Gregory v. Carey, 246 K. 504, 512, 791 P.2d 1329 (1990).

20. Mother of deceased daughters could plead wrongful death damages in excess of $100,000 because of comparative fault; actual recovery limited. Mahomes-Vinson v. U.S., 751 F.Supp. 913, 925 (1990).

21. On question certified (60-3201 et seq.), 40-3403(h) abrogating certain common-law vicarious liability held constitutional. Bair v. Peck, 248 K. 824, 834, 811 P.2d 1176 (1991).

22. Appellant's failure to include instructions regarding accidental death of road maintenance worker in record on appeal precludes court's examination of their propriety. Sterba v. Jay, 249 K. 270, 279, 816 P.2d 379 (1991).

23. Cited in determining application of comparative fault under 60-19a01 in workers compensation/personal injury action. Bright v. Cargill, Inc., 251 K. 387, 416, 837 P.2d 348 (1992).

24. Viewed along with PIK instructions on child's recovery for parental care and wrongful death. Laterra v. Treaster, 17 K.A.2d 714, 726, 844 P.2d 724 (1992).

25. Whether legislature intended wrongful death cause of action to permit award of punitive damages examined. Smith v. Printup, 254 K. 315, 334, 866 P.2d 985 (1994).

26. Whether trial court erred in verdict form and jury instructions regarding pecuniary and nonpecuniary damages examined. Griffith v. Mt. Carmel Medical Center, 842 F.Supp. 1359, 1366 (1994).

27. Whether comparative fault percentages are determined first and deducted from total damages prior to applying nonpecuniary damage cap in negligence cases examined. Gann v. Joeckel, 20 K.A.2d 136, 137, 884 P.2d 451 (1994).

28. In wrongful death action trial court shall apply percent of lost chance to damage award before applying statutory cap. Dickey v. Daughety, 21 K.A.2d 655, 657, 659, 905 P.2d 697 (1995).

29. Nonpecuniary damages must be multiplied by percentage of lost chance before statutory cap is applied in wrongful death actions. Dickey v. Daughety, 260 K. 12, 13, 917 P.2d 889 (1996).

30. The cost, or lost investment, involved in rearing a deceased child is not included in any of three categories of damages in wrongful death action. Howell v. Calvert, 268 K. 698, 1 P.3d 310 (2000).

31. Maximum statutory nonpecuniary damages award was warranted for plaintiffs. Turman v. Ameritruck Refrigerated Transport, Inc., 125 F.Supp.2d 444, 445 (2000).

32. Section is limit on amount of damages that can be recovered, not on amount of damages sustained; settlement with co-defendant has no effect with right to recover from this defendant. Adams v. Via Christi Reginal Med. Center, 270 K. 824, 19 P.3d 132 (2001).

33. Arbitrator not empowered to apply a cap on damages not agreed to by parties. Flenorry v. Eagle's Nest Apts., 28 K.A.2d 906, 22 P.3d 613 (2001).

34. State wrongful death damage cap did not violate plaintiff's right to jury trial. Estate of Sisk v. Manzanares, 270 F.Supp.2d 1265, 1276 (2003).

35. Statutory caps on damages do not have to be pled or raised at pretrial conference. McGinnes v. Wesley Medical Center, 43 K.A.2d 227, 224 P.3d 581 (2010).

36. Pecuniary damages for wrongful death, in addition to medical and funeral expenses, include benefits or compensation that reasonably could have been expected to have resulted from the continued life of the deceased. Homes v. Krug, 242 F.Supp.3d 1177 (D. Kan. 2017).

37. Loss in a wrongful death case should be equivalent to those economic benefits or compensation that reasonably could have been expected to have resulted from the continued life of the deceased. Burnette v. Eubanks, 308 K. 838, 866, 425 P.3d 343 (2018).


 | Next

LEGISLATIVE COORDINATING COUNCIL
  6/03/2024 Meeting Notice Agenda
  LCC Policies

REVISOR OF STATUTES
  2023 New, Amended and Repealed by KSA
  2023 New, Amended and Repealed by Bill
  2024 Valid Section Numbers
  Chapter 72 Statute Transfer List
  Kansas School Equity & Enhancement Act
  Gannon v. State
  Information for Special Session 2021
  General Info., Legal Analysis & Research
  2022 Amended & Repealed Statutes
  2021 Amended & Repealed Statutes
  2020 Amended & repealed Statutes
  2019 Amended & Repealed Statutes

USEFUL LINKS
Session Laws

OTHER LEGISLATIVE SITES
Kansas Legislature
Administrative Services
Division of Post Audit
Research Department