| LEGAL EASE |
WHEN THE KANSAS TORT
CLAIMS ACT DOES NOT APPLY
Public entities need to consider the potential of liability exposures
by Will Larson
I
n defending public entities over the years, I have often
found there is a popular misconception that unless a
public entity has insurance over $500,000, its exposure
is always limited to the $500,000 cap under the Kansas
Tort Claims Act. It is certainly true K.S.A. 75-6105, a part of
the Tort Claims Act, provides a public entity’s tort liability
exposure, as well as the exposure of its employees, is
limited to $500,000 unless there is insurance over this
amount. The problem is; however, the Kansas Tort Claims
Act does not apply to certain causes of action that can be
brought against public entities.
For example, the Kansas Tort Claims Act will not apply to
federal causes of action. In the case of Reidenbach v. USD
No. 347, 878 F. Supp. 178 (D. Kan. 1995) the federal district
court here in Kansas held the Kansas Tort Claims Act
does not apply to causes of action under federal statutes.
Likewise, in the case of Sage v. Williams, 23 Kan. App. 2d
624, 933 P.2d 775 (1997) the Kansas Court of Appeals also
held limitations under the Kansas Tort Claims Act do not
apply to federal causes of action.
Several claims may be brought against public entities
based on federal, not state law. For example, various types
of discrimination claims, including sex discrimination, age
discrimination, race discrimination, etc. can and often are
brought against public entities. The Kansas Tort Claims Act
does not apply to any of these claims.
Several claims can be brought against public entities under
the federal statute 42 U.S.C. §1983. A good example is
the Reidenbach v. USD No. 347 case I referred to above.
In Reidenbach, the plaintiff was a former school bus driver
who sued the school district and her immediate supervisor
claiming she was terminated because of public comments
she made concerning school bus safety. She argued that
she was fired for exercising her first amendment right of
free speech. One of the defenses raised by the school
district was the district, and the plaintiff’s supervisor was
immune from liability, according to the Kansas Tort Claims
Act. As mentioned above, the federal district court judge
decided the Kansas Tort Claims Act did not apply to a
federal cause of action, and hence the exposure of the
school district was not limited to $500,000.
Another example is the case of Sisk v. Shawnee County,
et al. In Sisk, the plaintiffs were the family of an inmate in
the Shawnee County Jail who committed suicide while in
a suicide prevention cell under suicide watch. The claim
was brought under 42 U.S.C. §1983, based on the County’s
alleged failure to protect Mr. Sisk from committing suicide
adequately. The family claimed this constituted cruel and
unusual punishment and therefore was a violation of his
civil rights. It is well settled under federal law that if a public
entity, or the employees of the entity, are deliberately
indifferent to the medical needs of an inmate, including
deliberately failing to protect against an inmate’s suicide,
where it is known the inmate is suicidal, it constitutes
cruel and unusual punishment in violation of the inmate’s
civil rights. The family alleged Shawnee County and its
employees were deliberately indifferent to the suicide
risk posed by Mr. Sisk. They also brought a state action
claiming Shawnee County was negligent in preventing Mr.
Sisk’s suicide.
The case was tried to a jury in federal court in Shawnee
County. The jury returned a verdict well over $500,000.
Fortunately for Shawnee County, the jury did not find the
15