Our Statutory System for Actual Damages in Tort Kansas in Wonderland
| Publication year | 1994 |
| Pages | 18 |
| Citation | Vol. 63 No. 01 Pg. 18 |
63 J. Kan. Bar Assn. January, 18 (1994). OUR STATUTORY SYSTEM FOR ACTUAL DAMAGES IN TORT KANSAS IN WONDERLAND
January, 1994
Scott M. Adam [FNaa]
Copyright (c) 1994 by the Kansas Bar Association; Bruce Keplinger and Scott M. Adam
Prior to 1985, Kansas tort actions were generally handled by the judge and jury with little statutory intervention. The only exception was a statutory cap on non-pecuniary wrongful death awards. With the exception of wrongful death actions, the jury would consider the evidence, elements of the claim and items of damages, as submitted by the judge. After considering the evidence and instructions, if the jury ruled in a plaintiff's favor, they would set an amount of damages. If that verdict was inconsistent with the evidence, the judge could order remittitur or additur, or order a new trial altogether.
As all Kansas trial practitioners now know, this system has been replaced by statutory categories of damages and certain limitations on the amount of damages that a plaintiff may recover. The purpose of this article is to review the present status of Kansas law on actual damages in tort and to suggest improvements. [FN1]
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Current Status of Kansas Law
Personal Injury Actions (Excluding Wrongful Death Actions)
K.S.A. § 60-19a02 [FN2] is the current statute applying to "personal injury actions" that accrue on or after July 1, 1988. This statute defines "personal injury action" as "any action seeking damages for personal injury or death." This statute also provides, however, that it shall not be construed to repeal or modify limitations provided by the wrongful death statute, K.S.A. § 60-1903. [FN3] The basic provisions of K.S.A. § 60-19a02 limit the amount each party may recover from all defendants for all claims of "non-economic loss" to $250,000. As shown below, however, the statute leaves many questions unanswered. Before interpreting the statute in response to these questions, a brief discussion of the legislative history is helpful.
In 1985, the Kansas Legislature enacted the first limitation on personal injury damages in the form of a cap placed on punitive damages in medical malpractice actions. [FN4] In 1986, the legislature went further by enacting K.S.A.1986 Supp. § 60-3407, which attempted to limit liability of health care providers in medical malpractice actions by capping recovery for non-economic losses at $250,000 and by placing a total cap on all losses, both economic and non-economic, at $1 million. [FN5] The constitutionality of K.S.A.1986 Supp. § 60-3407 was attacked on several bases by the Kansas Malpractice Victims Coalition. Two of these constitutional attacks were successful.
In 1988, the Kansas Supreme Court held the statute invalid as violating Sections 5 and 18 of the Kansas Bill of Rights in Kansas Malpractice Victims Coalition v. Bell. [FN6] In that case, the Court held that the statute violated Section 5 of the Kansas Bill of Rights, which provides "the right of trial by jury shall be inviolate." [FN7] The court found this section of the Bill of Rights guarantees the right of every citizen to trial by jury, and that this right is "a substantial and valuable right" that "should be carefully guarded against infringement." [FN8] The court then wrote "Kansas'
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cases hold that the right to a jury trial includes the right to have a jury determine damages," [FN9] and the effect of K.S.A.1986 Supp. § 60-3407 was "a statutory compulsory, preestablished remittitur." [FN10] This was an impermissible infringement on the right of a plaintiff to have damages set by a jury, the court reasoned; the caps were therefore unconstitutional under Section 5 of the Kansas Bill of Rights.
The court also held the cap provisions of K.S.A.1986 Supp. § 60-3407 violated Section 18 of the Kansas Bill of Rights, which guarantees "remedy by due course of law." After reviewing a number of prior Section 18 cases, the court wrote the governing rule under Section 18 is "the legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished." [FN11] The $250,000 cap on non-economic damages and $1 million cap on total damages were arbitrary amounts and provided no adequate substitute remedy. Finally, the court held the statute "eradicates the right to a remedy by due course of law for certain injuries" and "eliminates the right to a remedy for those injured by a certain favored group of tortfeasors." [FN12] Thus, the statute was an unconstitutional infringement in violation of Section 18.
After K.S.A.1986 Supp. § 60-3407 had been struck down by the trial court, but prior to the decision by the Supreme Court, the Kansas Legislature passed K.S.A.1987 Supp. § 60-19a01. This statute limited damages in "personal injury actions" for pain and suffering to $250,000. The statute defined "personal injury actions" as "any action for damages for personal injury or death, except for medical malpractice liability actions." [FN13] K.S.A.1987 Supp. § 60-19a01 was held to be constitutional in an "informal opinion" filed in Samsel v. Wheeler Transport Services, Inc. [FN14]
The formal opinion concerning constitutionality of this new statutory cap on damages was filed the next year in the same case, Samsel v. Wheeler Transport Services, Inc. [FN15] Prior to either of the Samsel decisions, the 1988 Legislature had passed the current version of K.S.A. § 60-19a02 and limited the application of K.S.A. § 60-19a01 to causes of action accruing between July 1, 1987 and July 1, 1988.
In Samsel II, the Kansas Supreme Court, by a 5-2 decision, held both K.S.A. § 60-19a01 and § 19a02 to be constitutional in a decision that is difficult to square with the reasoning of Kansas Malpractice Victims Coalition v. Bell, supra. The court in Samsel II reaffirmed that the Kansas Constitution guarantees a right to a jury trial that includes the right to have a jury determine damages. [FN16] The court reviewed its decisions upholding the Workers Compensation Act [FN17] and the Kansas Automobile Injury Reparations Act, [FN18] and its decision striking down K.S.A.1986 Supp. § 60-3407, [FN19] and found that these decisions stand together for the proposition that the legislature could limit an injured party's right for the jury to determine the total amount of damages, if a sufficient quid pro quo for any such limitation was provided. The court then searched for a sufficient substitute remedy.
The court found an adequate quid pro quo, stating K.S.A. § 60-19a01 and § 19a02, "while taking away a plaintiff's right to receive non-economic losses in excess of $250,000, also ensured the injured plaintiff that the court will not exercise its discretion to award less than $250,000,
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when higher damages are awarded by the jury. These statutes do provide a quid pro quo to the individual whose jury awards damages for pain and suffering for economic loss that exceed the cap." [FN20]
As Justice Herd noted in his dissent, however, there is no language in the statute itself to support this limitation on the trial court's inherent right to order remittitur or grant a new trial. [FN21] Nevertheless, although the decision is based on what Justice Herd termed "conjuring up a fictitious quid pro quo for compromising both Section 5 and Section 18 of the Kansas Bill of Rights," [FN22] Samsel II remains the governing decision on the constitutionality of caps on non-economic damages. Under Samsel II, the $250,000 cap statutes are the law of Kansas, applying to either pain and suffering or non-economic damages, depending upon when the cause of action accrued.
Wrongful Death Actions
Recovery of damages in a wrongful death action is currently governed by K.S.A. § 60-1903, which allows the court or jury to award "such damages as are found to be fair and just under all of the facts and circumstances," but limits damages "other than pecuniary losses sustained by an heir at law" to the aggregate sum of $100,000 and costs. [FN23]
The cap on non-pecuniary damages was found to be constitutional in Leiker v. Gafford. [FN24] In Leiker, a jury awarded plaintiffs $2 million in non-pecuniary damages, which were reduced to $100,000 by the trial court, pursuant to K.S.A. § 60-1903. On appeal, plaintiffs challenged both the constitutionality of the limitation amount and the prohibition from informing a jury of the existence of such a cap on non-pecuniary damages.
The Kansas Supreme Court upheld the limitation itself for two reasons. First, since the cause of action for wrongful death is purely a creature of statute, the legislature could shape the cause of action by limiting non-pecuniary damages. Secondly, such a limitation did not violate the guarantees to equal protection of the laws because, under a "reasonable basis analysis," the limitation serves legislative goals of 1) preventing excessive damages awarded out of sympathy for a decedent's family; and 2) limiting damages for harm that has inherent difficulties of quantification and proof. [FN25] The Kansas Supreme Court further held there was no constitutional problem with prohibiting a jury from learning of the statutory limitation, holding that knowledge of a statutory limitation upon the amount of recovery is not essential to proper performance of the jury's task. [FN26]
Justice Herd dissented from that portion of the opinion which held K.S.A. § 60-1903 constitutional. Justice Herd wrote he would hold it unconstitutional under the Equal Protection Guarantee of Sections 1 and 18 of the Kansas Bill of Rights. [FN27]
K.S.A. § 60-19a02 defines "personal injury actions" as actions seeking damages for personal injury or death. K.S.A. §...
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