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60-1901. Cause of action. (a) If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had such person lived, in accordance with the provisions of this article, against the wrongdoer, or such wrongdoer's personal representative if such wrongdoer is deceased.

(b) As used in article 19 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, the term "person" includes an unborn child.

(c) As used in this section, the term "unborn child" means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth.

(d) The provisions of this section shall not apply to a wrongful death action if the death is of an unborn child by means of:

(1) Any act committed by the mother of the unborn child;

(2) any lawful medical procedure performed by a physician or other licensed medical professional at the request of the pregnant woman or her legal guardian;

(3) the lawful dispensation or administration of lawfully prescribed medication; or

(4) a legal abortion.

(e) If any provision or clause of this act or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.

History: L. 1963, ch. 303, 60-1901; L. 2013, ch. 48, § 2; 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:

"Highlights of the Kansas Code of Civil Procedure (1963)," Spencer A. Gard, 2 W.L.J. 199, 202 (1962).

Comment concerning right of action for prenatal injuries, Scott Beims, 6 W.L.J. 540, 544 (1967).

Discussion of various medical and legal definitions of death, M. Martin Halley and William F. Harvey, 69 J.K.M.S. 280, 281 (1968).

"The Beginning of Life," M. Martin Halley and William F. Harvey, 69 J.K.M.S. 384, 386 (1968).

"Boating and Water Sports in Kansas: Liability Under State and Federal Law," John H. Gibson, 11 W.L.J. 418, 431 (1972).

"Comparative Negligence—Kansas," William A. Kelly, 43 J.B.A.K. 151, 198 (1974).

Wrongful death act, Jeraldine B. Davis, 27 K.L.R. 141 (1978).

"Torts: 'Heirs at Law' Construed in Kansas Wrongful Death Statute," Pamela R. Hays, 19 W.L.J. 389 (1980).

"Proof of Pecuniary Loss in Child Death Cases," Victor A. Bergman, 2 J.K.T.L.A. No. 7, 6, 12 (1979).

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

"Punitive Damages in Wrongful Death Actions," Gregory M. Dennis, 11 J.K.T.L.A. No. 2, 14 (1987).

"Give a Kid a Chance," Michael D. Hepperly, XIV J.K.T.L.A. No. 1, 11 (1990).

"A Primer on Punitive Damages in Kansas," Paul W. Rebein, 64 J.K.B.A. No. 9, 22, 23 (1995).

"The Wrongful Death of a Fetus: Erasing the Barrier Between Viability and Nonviability," Sarah J. Loquist, 36 W.L.J. 259 (1997).

"Tort law: Wrongful Death—Statute of Limitations Begins to Run at Time of Death, Unless Death or Negligence Concealed or Misrepresented [Davidson v. Denning, 914 P.2d 936 (Kan. 1996)]," Peter J. Vanderwarker, 36 W.L.J. 339 (1997).

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

"2013 Legislative Session Report," Callie Jill Denton, 36 J.K.A.J. No. 6 (2013).

"'In Heaven there is No Beer, That's Why We Drink It Here' Making Kansas Roads Safer with Dram Shop Liability," Kacey R. Scott, 57 W.L.J 3 (2018).

CASE ANNOTATIONS

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

1. Proper party to bring wrongful death action under Kansas law should be determined by Kansas federal district court; case transferred from Colorado. Chenoweth v. Atchison, Topeka & Santa Fe Railroad Co., 229 F.Supp. 540, 543.

2. Heirs of deceased under workmen's compensation act may maintain action hereunder against negligent co-employee. Roda v. Williams, 195 K. 507, 508, 407 P.2d 471.

3. Summary judgment establishing negligence as a matter of law upheld. Smithson, Executor v. Dunham, 201 K. 455, 462, 441 P.2d 823.

4. Statute authorizes action against personal representative of deceased wrongdoer. Barr, Administratrix v. MacHarg, Administrator, 203 K. 612, 613, 455 P.2d 516.

5. Court erred in sustaining defendant's motion for a directed verdict; action brought hereunder remanded to district court. Mathes v. Robinson, 205 K. 402, 469 P.2d 259.

6. Action against Kansas highway patrol and city of Salina; recovery denied; doctrine of governmental immunity from tort liability applied. Daniels v. Kansas Highway Patrol, 206 K. 710, 482 P.2d 46.

7. 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.

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

9. Guardian of minor children is real party in interest under 60-217(a) where amount he received from insurance company was less than maximum obtainable hereunder. Cullen v. Atchison, T.&S.F. Rly. Co., 211 K. 368, 374, 507 P.2d 353.

10. Cited; workmen's compensation act provides exclusive remedy for accidental injuries arising out of and in course of employment. Lindsay, Administrator v. Hankamer Asphalt Co., Inc., 213 K. 855, 518 P.2d 934.

11. 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, 339, 552 P.2d 1363.

12. Wrongful death action not a true "joint" action; all injured need not join. Frost v. Hardin, 1 K.A.2d 464, 468, 571 P.2d 11.

13. Minor children not barred by running of statute of limitations against surviving spouse. Frost v. Hardin, 224 K. 12, 577 P.2d 1172.

14. 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, 135, 136, 596 P.2d 148.

15. Application of comparative negligence statute to determination of nature and amount of damages hereunder. McCart v. Muir, 230 K. 618, 630, 641 P.2d 384 (1982).

16. 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).

17. No cause of action exists if statute of limitations for wrongful act expired before death. Mason v. Gerin Corp., 231 K. 718, 719, 722, 723, 724, 647 P.2d 1340 (1982).

18. There is no spousal immunity for willful and intentional torts; heirs have cause of action against decedent's spouse. Stevens v. Stevens, 231 K. 726, 727, 728, 647 P.2d 1346 (1982).

19. Where alleged wrongful death occurred from health provider's negligence, 60-513 still applicable. Brubaker v. Cavanaugh, 542 F.Supp. 944, 948 (1982).

20. Mother not "heir at law" where children survived deceased; not proper party for wrongful death under 42 U.S.C. § 1983. Carter v. City of Emporia, Kan., 543 F.Supp. 354, 357 (1982).

21. 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).

22. Cited in dissent; discussion of double recovery by heirs through wrongful death action hereunder and survival action (60-1801) arising out of single act of wrongdoing. Ingram v. Howard-Needles-Tammen & Bergendoff, 234 K. 289, 301, 672 P.2d 1083 (1983).

23. Cited; heirs-at-law entitled to recover as insureds as defined in deceased's underinsured motorist policy. Horace Mann Ins. Co. v. Ammerman, 630 F.Supp. 114, 115 (1986).

24. Cited; sufficiency in priority in state court action to preclude action in federal court examined. Carter v. City of Emporia, Kan., 815 F.2d 617 (1987).

25. Cited; viable fetus as not a "human being" within meaning of aggravated vehicular homicide statute (21-3405a) determined. State v. Trudell, 243 K. 29, 33, 755 P.2d 511 (1988).

26. Unborn nonviable fetus not a person within statute; viability an important condition precedent to liability for wrongful death. Humes v. Clinton, 246 K. 590, 792 P.2d 1032 (1990).

27. When statute of limitations (60-513) begins to run examined. Crockett v. Medicalodges, Inc., 247 K. 433, 439, 799 P.2d 1022 (1990).

28. Wrongful death action preempted by ERISA. Settles v. Golden Rule Ins. Co., 927 F.2d 505 (1991).

29. Cited where court determined no remedy available to heirs of employee covered by workers compensation act. Karhoff v. National Mills, Inc., 18 K.A.2d 302, 305, 851 P.2d 1021 (1993).

30. Whether legislature intended wrongful death cause of action to permit award of punitive damages examined. Smith v. Printup, 254 K. 315, 316, 334, 866 P.2d 985 (1994).

31. Cause of action by minor for loss of parental care and society due to negligent injury to parents not recognized. Klaus v. Fox Valley Systems, Inc., 259 K. 522, 528, 912 P.2d 703 (1996).

32. Discovery rule applies to two-year wrongful death limitation of 60-513 (a)(5); reasonably ascertainable defined. Davidson v. Denning, 259 K. 659, 668, 914 P.2d 936 (1996).

33. Plaintiff who files state wrongful death claim is considered citizen of state of decedent for diversity purposes. Tank v. Chronister, 951 F.Supp. 182, 183 (1997).

34. Under contract, heir of person precluded from suing uninsured driver by illegality clause may not file wrongful death action. Parker v. Mid-Century Ins. Co., 25 K.A.2d 329, 331, 962 P.2d 1114 (1998).

35. No wrongful death action if person injured by medical malpractice survives more than four years beyond negligent act. Natalini v. Little, 278 K. 140, 92 P.3d 567 (2004).

36. Complaint involving suicide allegedly caused by debt collection stated claim for negligent infliction of emotional distress. Burdett v. Harrah's Kansas Casino Corp., 311 F.Supp.2d 1166, 1178 (2004).

37. Wrongful death action is subject to two-year statute of limitations under K.S.A. 60-513(a)(5). Bonura v. Sifers, 39 K.A.2d 617, 622, 181 P.3d 1277 (2008).

38. Cited; section is for heirs who sustain loss from damages accruing after death. Jeanes v. Bank of America, 40 K.A.2d 281, 290, 291, 191 P.3d 325 (2008).

39. Plaintiff's wrongful death action meets statutory prerequisite. Martin v. Naik, 43 K.A.2d 591, 228 P.3d 1092 (2010).

40. Wrongful death action may be brought against an alleged tortfeasor who is an heir at law of the decedent. Siruta v. Siruta, 301 K. 757, 762-65, 348 P.3d 549 (2015).

41. Claimants in a wrongful death claim on behalf of a minor child of the deceased cannot rely on tort liability to avoid terms of a contract for liability. Frost v. ADT, LLC, 947 F.3d 1261, 1272 (10 th Cir. 2020).


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