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Understanding the Kansas Tort Claims Act
Kansas statute, passed in 1979, provides rules
of immunity and liability for public entities .
T
he Kansas Tort Claims Act (KTCA) was passed
by the Kansas Legislature in 1979 as a way
to formalize when a governmental entity
would be entitled to sovereign immunity or
subject to common law negligence. The KTCA provides
legal immunity to governmental entities in twenty-four
enumerated exceptions (and perhaps more situations
through some catch-all language at the end of the statute).
Approach to Governmental Immunity
Prior to the passage of the KTCA, Kansas followed the
common law doctrine of sovereign immunity, which
rendered the state and its various subdivisions immune
from tort claims unless the state consented to being sued.
However, as state and local governments grew in size and
the range of activities they provided grew, more citizens
were injured by tortious acts of governmental entities
and/or their employees. Leaving injured citizens without
recourse seemed inherently unfair and Kansas courts began
to recognize a variety of exceptions to this immunity.
The KTCA sought to change the approach to
governmental immunity by waiving the immunity of
governmental entities and instead impose tort liability on
a governmental entity when its employees were negligent
(negligence being one of the requirements of a tort
claim). The KTCA allows the state and its subdivisions
to be held liable for the torts of its employees. It also
allows public entities to be held liable for their own
negligence in the hiring and supervision of its employees.
Additionally, the KTCA purports to make liability the rule
and immunity the exception, which was quite the contrast
to a history of governmental immunity.
Scope of Liability
Despite attempting to make liability the rule, the KTCA
did impose some limitations on the scope of liability. For
instance, the state is not liable for punitive damages or for
prejudgment interest. It also set a cap on the state’s liability
for compensatory damages at $500,000 per occurrence
or for the amount of the governmental entity’s insurance
coverage (or through a pooling agreement), whichever
is greater. For instance, if a public entity has a $1,000,000
per occurrence limit on its general liability policy, then the
$500,000 cap is waived and the public entity’s insurance
carrier would be responsible for the full $1,000,000
insurance limit. The $500,000 limitation increases to match
the limit on the entity’s insurance policy.
Additionally, it is important to remember the KTCA does
not apply to all causes of action that can be brought against
a public entity and thus, the $500,000 cap is not an iron-
clad limitation. The KTCA does not apply to federal causes
by Elizabeth Smoller
of action such as racial, sexual, or age discrimination
lawsuits. For more information on exposures to which the
KTCA does not apply, please read an article previously
written by Will Larson, KAIA attorney, at bit.ly/TortClaims
Exceptions Under Which Immunity is Provided
As previously stated, the KTCA does provide immunity to
governmental entities under twenty-four listed exceptions.
Those exceptions are enumerated in Kan. Stat. Ann. 75-
6104 and are as follows:
1. Legislative functions
2. Judicial functions
3. Enforcement of or failure to enforce a law
4. Adoption or enforcement of, or failure to adopt or
enforce a written personnel policy
5. Discretionary functions
6. Assessment or collection of taxes or special assessments
7. State employee vs. state employee claims if the claim
falls under workers compensation coverage (or the claim
isn’t subject to workers compensation because the injured
employee was a member of a firemen’s relief association)
8. Malfunction, destruction or unauthorized removal of a
traffic or road sign, signal or warning device
9. Any claim that is limited or barred by another law
10. Any claim based upon emergency management
activities, except those claims allowed by Kan. Stat. Ann.
Chapter 48, Section 9 (emergency preparedness for natural
disasters). Workers compensation claims are allowed and
other claims are only allowed in cases of willful misconduct,
gross negligence, or bad faith
11. The failure to make an inspection or an appropriate
inspection of any property other than government property
to determine whether the subject property complies with or
violates any law or is a hazard to the public
12. Snow or ice conditions or other temporary conditions
on public roadways unless the temporary condition was
caused by the act of the governmental entity
13. Plan or design of construction of or improvement to
public property
14. Failure to provide or the method of providing police
and fire protection
| March - April 2018 | KANSAS INSURANCE AGENT & BROKER
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