Purely a Creature of Statute
| Jurisdiction | Kansas,United States |
| Citation | Vol. 91 No. 2 Pg. 43 |
| Pages | 43 |
| Publication year | 2022 |
March 2022.
By Cameron Grant
Kansas courts have long recognized the "inviolable" right to a jury trial codified in Section 5 of Kansas' Bill of Rights. But as confirmed by the Kansas Supreme Court in Hilburn v. Enerpipe Ltd. that right extends only to those causes of action that existed at common law when Kansas' Constitution became effective in 1861.[1]
Having confirmed Kansas' Bill of Rights preserves the right to a jury trial only for those actions that existed in common law in 1861, the Hilburn Court ruled K.S.A. § 60-19a02, which capped non-economic damages at $250,000 in personal injury actions, violated that right and was unconstitutional.[2]
Similar to K.S.A. § 60-19a02, K.S.A. § 60-1903 limits nonpecuniary damages in wrongful death actions to $250,000 - virtually the only difference between K.S.A. § 60-19a02 and K.S.A. § 60-1903 is that the former applied to personal injury actions but the latter applies to wrongful death actions.
Upon what basis then could K.S.A. § 60-1903 be constitutional if K.S.A. § 60-19a02 is not? K.S.A. § 60-1903 remains constitutional following Hilburn because unlike a personal injury cause of action, a wrongful death cause of action is "purely a creature of statute."[3]
The origin of Kansas law is English common law. In 1808, an English court recognized in Baker v. Bolton that no wrongful death cause of action existed under English common law.[4] In response to that ruling, England enacted Lord Campbell's Act, also known as the Fatal Accidents Act in 1846, establishing a statutory wrongful death cause of action for the first time. U.S. States and Territories soon followed suit, and the equivalent of the Fatal Accidents Act has existed in Kansas since the first iteration of the statute was enacted in the Kansas Territory effective June 1, 1859.
What the legislature giveth, the legislature may take away. In the 1989 case Leiker v. Gafford, the Kansas Supreme Court rejected a constitutional challenge to K.S.A. § 601903 on the grounds that Kansas common law did not recognize a wrongful death cause of action when Kansas' Constitution was ratified in 1861. The Supreme Court in Leiker was correct, and Leiker remains good law following Hilburn. While a wrongful death cause of action has existed in Kansas virtually since its inception, the cause of action is purely a creature of statute, did not exist at common law, and therefore, the Kansas legislature may limit nonpecuniary damages in wrongful death actions as it did at K.S.A. § 601903, notwithstanding the "inviolable" right to jury trial established by Section 5 of Kansas' Bill of Rights.
I. The History of Wrongful Death Actions Under English Law
"Among the most elementary of our legal concepts is that of the adoption of the English common law as the basis of American jurisprudence."[5]
The English common law relating to wrongful death was not, as it turns out, all that complicated. As stated by Wex S. Malone in The Genesis of Wrongful Death:
The effect to be given to the death of a person connected with a tort rests almost entirely upon statutory foundations. The common law limitations that eventually led to legislative reform were twofold. First was the rule that personal tort actions die with the person of either U the plaintiff or the defendant. . . . The second limitation was that the death of a human being was not regarded as giving rise to any cause of action at common law on behalf of a living person who was injured by reason of the death. . . .[6]
As the Restatement (Second) of Torts puts it: "The measure of damages for causing the death of another depends upon the wording of the statute creating the right of action and its interpretation."[7]
A. Baker v. Bolton established no wrongful death cause of action existed under English common law.
In 1808, Lord Ellenborough of the English Nisi Prius court (i.e., a trial court) issued a straightforward decision in a wrongful death case that would impact legislation on both sides of the Atlantic - including in the State of Kansas and the Kansas Territory - for years to come.[8]
Baker v. Bolton involved unremarkable facts. The case was an action by a widowed husband against the proprietors of a stagecoach that had overturned during travel from Portsmouth to London, resulting in the death of the plaintiff's wife one month later.[9] The husband-plaintiff alleged that "by means of the premises, the plaintiff had wholly lost, and been deprived of the comfort, fellowship and assistance of his said wife, and had from thence hitherto suffered and undergone great grief, vexation and anguish of the mind."[10] The wife had also been "of great use" to the plaintiff in conducting his business.[11]
Lord Ellenborough concluded the plaintiff could recover for bruises he himself had sustained, for loss of his wife's society and the "distress of mind he had suffered on her account," from the time of the accident " till the moment of her dissolution ."[12] However, "In a civil Court, the death of a human being could not be complained of as an injury; and in this case, the damages, as to the plaintiff's wife must stop with the period of her existence."[13]
As noted by the Virginia Law Register in describing the case in 1896: "His Lordship doubtless went home to dinner without feeling any unusual sense of responsibility; he seems to have thought that he was deciding settled law. He cited no authority . . ."[14]
B. In response to Baker v. Bolton, England enacted the Fatal Accidents Act of 1846.
"In 1846 Parliament modified the rule in Baker v. Bolton by enacting a statute for the compensation of families of persons wrongfully killed. This is Lord Campbell's Act or the Fatal Accidents Act. Its effect was to inhibit the development of any common law right to damages for wrongful death."[15]
Press coverage from the mid-1800s, England reveals a "general concern about fatal accidents," particularly on railways and steamboats.[16] The "clamour for a legislative response to the problem of fatal accidents" was answered on February 18, 1845, when Lord Lyttleton introduced a bill to the House of Lords "giving the families of wrongful death victims a claim for damages against the wrongdoer."[17] "The essence of the original Fatal Accidents Bill was that in cases of wrongful death, liability should be imposed on a person who would have been liable to the deceased if death had not ensued and that the action should be brought by the executor or administrator for the sole benefit of such person or persons as are entitled to the personal effects of the deceased . . ."[18]
During a brief debate on the second reading of the Fatal Accidents Bill on April 21, 1845, Lord Lyttleton pointed out "that as things stood a person injured by another's negligence might obtain compensation if he recovered from his injury, but that if he died the right of action died with him, and that this Bill would rectify this anomaly."[19] The bill passed the House of Lords on June 17, 1845, but then failed in the Commons for unclear reasons.[20]
When the Bill was reintroduced in April 1846, the rationale was again put forth that "it was irrational that as the law stood a wrongdoer had to pay damages if he maimed someone, but that if the negligence were still grosser, and a life destroyed there was no remedy whatever."[21] The House voted 51- 6 in favor of passing the Bill on August 11, 1846, and on August 26, 1846, the Fatal Accidents Act received the "Royal Assent."[22]
II. Early Kansas Jurisprudence - Kansas Enacts Its Versions of the Fatal Accidents Act as Kansas Courts Recognize There is No Common Law Cause of Action for Wrongful Death
A. Kansas adopts English Common law and its version of the Fatal Accidents Act.
On May 30, 1854, the United States Congress enacted An Act to Organize the Territories of Nebraska and Kansas, also called the Kansas -Nebraska Act.[23]
At the First Session of the Legislative Assembly of 1855, English common law was made the law of the Kansas territory: "The common law of England . . . shall be the rule of action and decision in this territory, any law, custom or usage to the contrary notwithstanding."[24] In 1859, the same provision was re-adopted verbatim.[25]
Not long after, at the Fifth Session of the Legislative Assembly on January 1, 1859, the Territory of...
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