The Kansas Tort Claims Act the Evolving Parameters of Governmental
| Publication year | 1997 |
| Pages | 30 |
66 J. Kan. Bar Assn. October, 30 (1997). THE KANSAS TORT CLAIMS ACT THE EVOLVING PARAMETERS OF GOVERNMENTAL
October, 1997
Copyright (c) 1997 by the Kansas Bar Association; Terri Savely Bezek
On July 1, 1979, the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101, et seq. went into effect. [FN1] The KTCA was hailed as a monumentous change in Kansas law. [FN2] The KTCA swept away the broad tort immunity previously extended to governmental entities [FN3] and replaced it with principles that made liability for tortious conduct the rule and governmental immunity the exception.
In the nearly two decades since its enactment, the KTCA has been the subject of a broad range of judicial and legislative refinement. Litigation has resulted in extensive judicial interpretation of the parameters of the act. Throughout those years, the Legislature also has amended the act, sometimes in response to judicial interpretation of its various provisions.
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The purpose of this article is to explore the liabilities and protections provided under the KTCA, as defined by statute and case law. Clearly, an in-depth analysis of the act and relevant case law would fill a treatise. Therefore, this article is focused on providing the practitioner a guide to the general framework of the KTCA and clarifying the limits of the primary exceptions to liability set forth in the act. Likewise, this article will focus on the considerations litigators must take into account to successfully prosecute or defend tort claims brought under the KTCA.
I. Governmental entities and employees subject to the KTCA
The KTCA imposes liability for tortious conduct on all "governmental entities" in the State of Kansas. This term is defined broadly to include all state agencies and institutions. It also extends to all local governmental entities including counties, townships, municipalities, school districts and any taxing subdivision and its agencies. [FN4] Municipalities are specifically prohibited from exempting themselves from the act by charter ordinance or other municipal action. [FN5]
The KTCA extends tort liability to all employees of governmental entities. The term "employee" is broadly defined to include elected, appointed and other personnel regardless of whether they are paid employees or serve without compensation. [FN6] The act's liabilities and protections also cover former employees for any of their acts or omissions that occurred during their employment with the government.
There are limits to the breadth of the act. The provisions of the KTCA do not apply to so-called "independent contractors" working under contract with governmental entities. [FN7] As a result, contractors working for a state or local agency cannot generally claim any of the immunities provided under the KTCA. [FN8] Whether an agent is an "employee" or %'independent contractor" for purposes of the act is determined by standard common law principles of agency. [FN9]
In addition, the KTCA's application to governmental entities and employees that provide health care services [FN10] is limited. Even though governmental health care providers are covered by the act, the KTCA does not apply to claims arising from the rendering or failure to render professional services by a health care provider. [FN11] Instead, these claims, like claims brought against non-governmental health care providers, are governed by the Health Care Provider Insurance Availability Act. [FN12] Thus, the KTCA applies only to health care providers in tort actions not arising from the actual providing of health care services.
II. Predicates to liability of governmental agencies
When the KTCA went into effect, immunity for tortious conduct [FN13] became the exception and liability became the rule for governmental entities and employees. The act specifically provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." [FN14]
Because the KTCA establishes liability for tortious acts the same as any private person, bringing a tort action against a governmental party requires the plaintiff to establish all the ordinary elements of a tort action: a) a duty owed by the agency or employee; b) breach of that duty; c) causation; and d) damages. [FN15] Claims brought under the KTCA will be subject to dismissal or summary judgment if any of these necessary elements are absent as a matter of law. Similarly, a party claiming damages from the conduct of a governmental employee--as in cases claiming negligence by an employee of a private employer--must establish the employee was acting within the scope of his or her employment in order to hold the agency liable.
A. The question of duty
A frequent issue in litigation under the KTCA is whether the government agency owed a "duty" to the plaintiff under tort principles. Because the existence of a legal duty is a question of law, [FN16] actions brought under the KTCA can be dismissed based upon the pleadings or through summary
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judgment procedures if no duty is established. A plaintiff seeking to get to a jury, therefore, must be well-prepared to establish the existence of a duty prior to filing suit.
One stumbling block in establishing liability of a governmental agency is the so-called "public duty doctrine." That doctrine, discussed in Fudge v. City of Kansas City, [FN17] establishes the general principle that a governmental agency generally owes duties to the public at large rather than to individuals. In other words, the fact that a legal duty exists toward the public at large does not equate to a claim that the governmental entity owed a legal duty to the individual plaintiff. [FN18] Accordingly, no duty exists under the KTCA unless the plaintiff establishes that the agency owed a special duty to the injured party. [FN19]
Exploring the parameters of the "public duty doctrine" goes beyond the limitations of this article. The doctrine, however, is vital in establishing a tort claim against a governmental agency. A special duty to an individual can be created, according to the Kansas Supreme Court, when the governmental entity performs an affirmative act that causes injury or where it made a specific promise or representation that under the circumstances creates a justifiable reliance on the part of the person injured. The special duty may arise when mandatory guidelines, as opposed to discretionary procedures, are created by the agency being sued. [FN20]
Situations where a "special duty" has been established vary greatly. State correctional officials owe a special duty to nearby residents and local law enforcement officials that requires them to exercise reasonable care in maintaining prison security and issuing warnings when dangerous inmates escape a correctional facility. [FN21] A state university, as landlord of dormitory students, has a duty to exercise reasonable care to protect students from reasonably foreseeable dangers which includes protecting students from other students known to be dangerous. [FN22] Government officials owe a special duty to detainees in correctional and juvenile facilities to protect them from other detainees who pose a known risk of harm. [FN23]
On the other hand, tort claims against a governmental entity have been dismissed on a number of occasions because no special duty was owed to the plaintiff. In P.W. v. Kansas Dept. of SRS, [FN24] for example, the Kansas Supreme Court held that the Department of Social and Rehabilitation Services (SRS) and the Kansas Department of Health and Environment (KDHE) did not owe a special duty to children in state-licensed day-care centers to protect them from abuse. Likewise, SRS and its agents also owe no special duty to allegedly abused children or alleged child abusers to avoid negligence in investigating allegations of child abuse. [FN25] Likewise, in Robertson v. City of Topeka, [FN26] the court held that a law enforcement officer owed no special duty to a homeowner when the officer refused to remove a trespasser from the premises.
B. Establishing respondeat superior
Establishing that the governmental entity owes a legal duty to a party suing the agency is only the first step to a successful claim. Because a government agency can only act through the conduct of its officials and employees, agency liability requires a party to establish the respondeat superior doctrine applies. In other words, the plaintiff must prove that the alleged tortious act or omission of the employee was done in the scope of his or her employment. [FN27]
The standards for determining whether a governmental employee has acted within the scope of his employment is the same standard as applied generally in respondeat superior cases. For an employee's act to fall within the scope of governmental employment, several factors are taken into account. First, was the employee's wrongful act done in furtherance of the state's business or for the employee's personal benefit? Did the governmental employee have express or implied authority to perform the act in question? Or was the employee's wrongful act reasonably foreseeable by the State? [FN28]
Generally, whether an employee's act was within the scope of employment is a question of fact. As a result, summary judgment is usually not appropriate. However, a governmental employee who accepts a bribe in exchange for governmental favors has been found, as a matter of law, to have acted outside the scope of his employment. [FN29] Similarly, no employer-- including a...
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