Use it or Lose it - Giving Notice of Tort Claims to Municipalities Under K.s.a. 12-105b(d)
| Publication year | 2005 |
| Pages | 24-33 |
74 J. Kan. Bar Assn. 3, 24-33 (2005). Use it or Lose it - Giving Notice of Tort Claims to Municipalities Under K.S.A. 12-105b(d)
74 J. Kan. Bar Assn. 3, 24-33 (2005)
KS.A. 12-105b(d) requires any person with a tort claim against a municipality to submit a written notice of claim before filing suit. The notice must be filed with the clerk or governing body of the municipality and must include certain basic information. One cannot file suit unless and until the notice of claim has been presented and denied in whole or in part. A claim is deemed denied if no action is taken within 120 days. Filing a notice of claim operates to extend the statute of limitations in some situations.
The primary purpose of the notice of claim requirement is to afford the municipality an opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate them.(fn1) The courts have also suggested that the statute provides protection to the taxpayers against meritless claims.(fn2) The statute in its various forms has weathered a variety of constitutional attacks.(fn3)
While the language of the statute is fairly straightforward, Kansas cases are replete with plaintiffs who either failed to file a notice of claim, or filed a notice of claim with the wrong person, at the wrong time or with the wrong (or missing) information. Making matters worse, noncompliance is the death of a state tort claim against a municipality. It is little wonder that some consider the statute a "trap for the unwary."(fn4) However, despite repeated pleas for relief from missteps involving the statute, Kansas courts have consistently held plaintiffs responsible for knowledge of the existence and operation of the statute.
Fifty years ago the Kansas Supreme Court said:
"[T]he statute was not intended as a trap for the unwary, but its language is elementary and without innuendo, contains nothing to confuse or mislead, and the fact [plaintiff] does not comply with it does not imply he was trapped but rather that he failed to read the statute, or, having read it, neglected to comply with its requirements."(fn5)
The statute has since been amended and has, admittedly, become a bit more complicated, but its basic premise remains the same. Most of what the practitioner needs to know is spelled out in the statute. Thus, this article is designed to remind lawyers to consult the provisions of K.S.A. 12-105b(d) when dealing with a claim against a municipality.
I. Introduction
Some form of notice of claim provision applicable to municipalities has been on the books since the 19th century.(fn6) The earlier versions provided that no action could be maintained against a city for injury to person or property unless the party injured, within some period of months following the injury and prior to bringing suit, filed with the city clerk a written statement giving the time, place, and circumstances of the injury.(fn7) Until 1968, the notice provision was wholly contained within K.S.A. 12-105.
In 1968, the Kansas Legislature enacted K.S.A. 12-105a and 12-105b.(fn8) K.S.A. 12-105a(a) contained a broader definition of municipality, including not only cities but other political subdivisions and taxing units. K.S.A. 12-105b supplied the method for submitting various types of claims against a municipality. K.S.A. 12-105 was repealed in 1979.(fn9)
In 1987, the Kansas Legislature amended K.S.A. 12-105b to include the notice provision for tort claims repealed in K.S.A. 12-105.(fn10) At the same time, the Legislature also added language, which provided that "substantial compliance" with the requirements of the statute would suffice for the filing of a valid claim.(fn11) This amendment became what is now K.S.A. 12-105b(d).(fn12)
The Kansas Legislature recently amended K.S.A. 12-105b(d) to simplify the determination of how much time a claimant has to file suit after denial of a tort claim.(fn13) This change will be addressed in further detail below.
II. Scope of K.S.A. 12-105b(d)
A. The statute applies to municipalities.
K.S.A. 12-105b(d) requires that a notice of claim be filed before bringing a tort claim against a municipality.
Municipalities are defined in K.S.A. 12-105a(a) to mean and include a
"county, township, city, school district of whatever name or nature, community junior college, municipal university, drainage district, cemetery district, fire district, and other political subdivision or taxing unit, and including their boards, bureaus, commissions, committees and other agencies, such as, but not limited to, library board, park board, recreation commission, hospital board of trustees having power to create indebtedness and make payment of the same independently of the parent unit."
1. Municipalities
K.S.A. 12-105b(d) is most often applied to cities or counties. The notice of claims statute has also been applied to a cemetery district,(fn14) municipal hospital,(fn15) school district,(fn16) community college,(fn17) housing authority,(fn18) county hospital,(fn19) airport authority,(fn20) interlocal municipal agency responsible for gas supplies,(fn21) and a county emergency medical services organization,(fn22) among other entities.
Beware of filing a notice of claim against an entity that is not a municipality. In Rockers v. Kansas Turnpike Authority,(fn23) the court held that the Kansas Turnpike Authority (KTA) does not meet the definition of a municipality for purposes of K.S.A. 12-105b(d). The court observed that the KTA is an arm or agency of the state, and since the definition of municipality in K.S.A. 12-105a(a) does not include the state or its agencies, the notice of claims statute did not apply. Further, the KTA's ability to collect tolls did not make it a "taxing unit" because the tolls were voluntarily paid and could be avoided by taking an alternate route. Rockers' claim was lost because the statute of limitations ran while Rockers was awaiting a response to a notice of claim which need not have been filed.(fn24)
2. Municipal employees acting within the scope of employment
The definition of municipality in K.S.A. 12-105a(a) does not specifically mention municipal employees. However, Kansas courts have applied K.S.A. 12-105b(d) to claims against a municipality as well as its employees acting within the scope of employment. If plaintiff brings a claim against a municipal employee acting within the scope of employment, the municipality must receive notice of claim even if the municipality itself is not sued. Where plaintiff brings a claim against the municipality and its employees, written notice of claim to the municipality alone is sufficient.(fn25)
In King v. Pimentel,(fn26) plaintiff sent notice of his negligence claim to the city. He later sued the city and a variety of city employees acting within the scope of their employment. The employee defendants argued that the statute of limitations barred plaintiff's claims against them because they were filed beyond the statute of limitations. Plaintiff argued that his notice of claim extended the statute of limitations. The employee defendants countered that since the notice provisions did not apply to them, plaintiff's notice of claim to the city did not extend the statute of limitations as to the employees. The district court agreed.(fn27)
The Kansas Court of Appeals reversed. It observed that the district court mistakenly relied on the dated decision of Bradford v. Mahan,(fn28) where the court held an older version of the statute did not apply to municipal employees. The King court recognized that when Bradford was decided, a municipality was not liable for the negligence of its employees, even when they acted within the scope of their employment. With the advent of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., municipalities became liable for such acts. Further, municipalities must now provide a defense for and indemnify employees faced with such claims. These changes in the law, the King court reasoned, justified a change in the interpretation of K.S.A. 12-105b(d) from that outlined in Bradford.(fn29)
Since King, state and federal courts continue to apply K.S.A. 12-105b(d) to municipal employees acting within the scope of employment.(fn30)
Notice is not required for claims against independent contractors. K.S.A. 12-105b(d) notice need not be sent to a municipality where plaintiff's claim applies only to an independent contractor performing work for a municipality.(fn31) This is so because independent contractors who perform work for government bodies cannot be sued under the KTCA.(fn32)
B. K.S.A. 12-105b(d) applies to claims under the Kansas Tort Claims Act.
K.S.A. 12-105b sets forth a mandatory procedure for submitting claims against municipalities. Subsection (a) applies to all claims an individual may have against a municipality. It provides that all claims against a municipality must be submitted in writing, in the form of a statement of account or other document. Subsections (b),(fn33) (c),(fn34) (e),(fn35) (f),(fn36) (g),(fn37) (h),(fn38) and (i)(fn39) deal with other types or aspects of claims against municipalities that are beyond the scope of this article.
Subsection (d) applies to claims that may be brought under the KTCA. The subsection applies to tort claims, not contract claims.(fn40) The subsection does not apply to federal claims under 42 U.S.C. § 1983.(fn41) It applies to claims by minors, as well as adults.(fn42) It applies to the claims of otherwise incompetent plaintiffs.(fn43)
III. Notice of claim
A. The content of the notice must address five elements.
K.S.A. 12-105b(d) dictates the content of a notice of tort claim submitted under this section. The...
To continue reading
Request your trial