STATE OF KANSAS RETAIL COMPENDIUM OF LAW

1 2014 USLAW RETAIL COMPENDIUM of Law STATE OF KANSAS RETAIL COMPENDIUM OF LAW Prepared by Kenneth M. Alweis Danielle R. Schilling Goldberg Segalla LLP Email: RETAIL , Restaurant, and Hospitality Guide to KANSAS Premises Liability Guide to KANSAS Premises Liability 1 A. The KANSAS STATE Judicial System 1 B. Statute of Limitations 2 1. Inception 2 2. Incapacitation 2 C. Venue 2 1. Venue 2 2. Actions Against KANSAS Residents 2 3. Domestic Corporation 3 4. Actions against Non-Residents or Non-qualified Corporations 3 5. Forum Non Conveniens 4 Negligence 4 A. General Overview 4 B. KANSAS Tort Claims Act 75-6101 5 C. Comparative Negligence 6 D. Contributory Negligence 6 E. Modified Comparative Fault 6 1. Statute 60-258a: Comparative Negligence 6 F. Joint and Several Liability 7 G.

2 Indemnification 7 A. Third Party Practice 7 B. Comparative Implied Indemnity 8 Examples of KANSAS Negligence law 9 A. Products Liability 9 1. Abnormally Dangerous 9 2. Defects 9 3. Strict Products 9 4. Drug Manufacturers 10 B. Leased Premises 10 C. Mode of Operation 11 D. Dog Bite 12 Damages in a Premises Liability Case 12 A. Caps on Damages 12 B. Calculations on Damages 13 C. Available items of Personal Injury Damages 14 D. Lost Opportunity Doctrine 14 E. Mitigation 15 F. Punitive Damages 15 G. Recovery of Pre and Post Judgment Interest 17 H. Recovery of Attorney Fees 17 I. Settlement Involving Minors 17 J. Taxation of Costs 18 K. Unique Damages Issues 18 1 A. The KANSAS STATE Judicial System KANSAS has its own Code of Civil Procedure. Kan. STATE . Ann.. 60-201 et seq. KANSAS courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the KANSAS rules of civil procedure were patterned after the federal rules.

3 Wood v. Groh,7 1163, 1171 (Kan. 2000) KANSAS District Court, otherwise known as STATE court judges are elected by voters after obtaining the nomination from the primary election. But, in Johnson County, KANSAS all judges are appointed by the Governor after being nominated by a district nominating commission. Such Judge must receive a majority of the vote to retain office. See, Kan. Stat. Ann.. 20-301 et. seq. The KANSAS court system consists of three courts: the Supreme Court, the appellate Court, and the District Court. There is one appellate Court. The District Court is divided into 31 judicial circuits, each of which is comprised of one or more counties. Each District includes probate court, civil court, domestic court, criminal court, and juvenile court.

4 See KAN. CONST. art. 3, 2, 6. Judges of the district court must be lawyers. Some counties have district magistrate judges, who may or may not be lawyers, and whose jurisdiction is limited. By STATE law, there is at least one resident judge in each county. The STATE Supreme Court appoints a district judge as chief judge for each judicial district. The chief judge, in addition to his or her judicial responsibilities, has general control over the assignment of cases within the district and general supervisory authority over the clerical and administrative functions of the court. Appeals may be taken from the district courts to the Court of Appeals and in some cases to the Supreme Court. 2 B. Statue of limitations. The statute of limitations for personal injury and/or wrongful death actions are governed by KAN.

5 STAT. ANN. 60-513(a). Actions for damages for an injury to the person must be commenced within two (2) years after the cause of action accrued. 1) Inception. The causes of action referred to in 60-513 (with slight exceptions mentioned in (c) and (d)) are not deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party. KAN. STAT. ANN. 60-513(b). 2) Incapacitation. If a person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, is less than 18 years of age, incapacitated, or imprisoned for a term less than such person's natural life at the time the cause of action accrued or at any time during the period the statute of limitations is running, such person shall be entitled to bring such action within one year after the person's disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.

6 KAN. STAT. ANN. 60-515. C. Venue 1) Venue in KANSAS is governed by KAN. STAT. ANN. 60-601 et seq. 2) Actions against KANSAS residents. Venue in an action against residents of KANSAS is governed by KAN. STAT. ANN. 60-603. Unless venue is otherwise specifically prescribed by law, an action may be brought in the county: 1) In which the defendant resides, or 2) In which the plaintiff resides if the defendant is served therein, or 3) In which the cause of action arose, or 4) In which the defendant has a place of business or of employment if said defendant is served therein, or 5) In which the estate of a deceased person is being probated if such deceased person was jointly liable with the defendant and a demand to enforce such liability has been duly exhibited in the probate proceedings, or 6) In which there is located tangible personal property which is the subject of an action for the possession thereof if immediate possession is sought in accordance with [KAN.]

7 STAT. ANN. ] 60-1005 at the time of the filing of the action. 3 3) Domestic corporation. Venue in an action against a domestic corporation, or against a foreign corporation which is qualified to do business in this STATE is prescribed in KAN. STAT. ANN. 60-604. Unless venue is otherwise specifically prescribed by law, an action may be brought in the county in which: 1) Its registered office is located; 2) The cause of action arose; 3) The defendant is transacting business at the time of the filing of the petition, if the plaintiff is a resident of such county at the time the cause of action arose; 4) There is located tangible personal property which is the subject of an action for the possession thereof if immediate possession is sought in accordance with [KAN.

8 STAT. ANN. ] 60-1005 and amendments thereto at the time of the filing of the action; or 5) Equipment or facilities for use in the supply of transportation services, or communication services, including, without limitation, telephonic communication services, are located, where the subject of such action relates to transportation services or communication services supplied or rendered, in whole or in part, using such equipment or facilities. 4) Actions against Non-residents or Non-qualified Corporations. KAN. STAT. ANN. action against a nonresident of this STATE , or against a corporation which is not qualified to do business in this STATE , other than an action for which venue is otherwise specifically prescribed by law, may be brought in the county in which: 1) The plaintiff resides; or if the plaintiff is a corporation, in the county of its registered office or in which it maintains a place of business; or if the plaintiff is a partnership, either general or limited, in the county of the residence of a partner, in the county of the registered office of a corporate partner or in the county in which the partnership maintains a place of business.

9 2) the defendant is served;. 3) the cause of action arose;. 4) the defendant is transacting business at the time of the filing of the petition; 5) there is property of the defendant, or debts owing to the defendant; 6) there is located tangible personal property which is the subject of an action for the possession thereof if immediate possession is sought 4 in accordance with 60-1005 and amendments thereto at the time of the filing of the action; or. 7) equipment or facilities for use in the supply of transportation services, or communication services, including, without limitation, telephonic communication services, are located where the subject of such action relates to transportation services or communication services supplied or rendered, in whole or in part, using such equipment or facilities 5) Forum non conveniens.

10 In KANSAS , forum non conveniens allows a court to decline jurisdiction even though it has jurisdiction over the subject matter and parties involved in the case. The KANSAS Supreme Court, in Gonzales v. Atchison T. & S. F. Ry. Co. held that the courts of this STATE have the inherent power to dismiss a transitory cause of action under the doctrine of forum non conveniens. This is a discretionary power which should be exercised only in exceptional circumstances and when an adequate showing has been made that the interests of justice require a trial in a more convenient forum. 371 193, 199 (1962). Negligence A. General Overview: Under KANSAS law negligence is the failure to use ordinary care to avoid a foreseeable harm to person or property.