By Brooks Severson

When a person dies as the result of someone else’s negligence, the decedent’s legal heirs, as well as the personal representative (executor or administrator) of the decedent’s estate, may be able to sue for damages.

The first step in determining whether a claim is available is to analyze liability. In other words, who was at fault for what happened. It is important to understand that Kansas is a “modified comparative fault” state. (K.S.A. 60-258a). This means a party can only recover damages if the other party (commonly referred to as the “tortfeasor”) is found to be more than 50% at fault. If the party seeking to recover damages it found to be 50% or more at fault, then there is a complete bar to recovery. In the event the party seeking to recover damages is found to be partially, but less than 50% , at fault, then the party can still recover damages, but they are reduced by that percentage of fault. For example, a person sustaining damages of $100,000 who is found to be 25% at fault may recover $75,000. Thus, each percent of fault that can be attributed to the tortfeasor results in a larger recovery for the injured party or the deceased party’s heirs.

If it is determined that a valid claim exists, there are two potential avenues for recovery under Kansas law. The first is called a wrongful death claim. (K.S.A. 60-1901, et seq.). This is a claim brought by the deceased’s heirs-at-law for the damages they have suffered as a result of their loved one’s death. The damages available can be broken down into two separate categories: economic and non-economic. Economic damages may include damages for lost income, loss of services, loss of marital and/or parental care, and loss of advice and protection. There is no cap on the amount of economic damages a jury may award. Non-economic damages are comprised of mental anguish, suffering, bereavement, loss of society, loss of comfort and loss of companionship. Non-economic damages are capped at $250,000 under Kansas law.

The second type of claim that may be available is a personal injury claim, commonly referred to as a survival action. (K.S.A. 60-1801, et seq.). This claim is brought by the personal representative of the decedent’s estate to recover damages the decedent incurred between the time of injury and death. In other words, this claim allows the personal representative to recover medical expenses and damages for the conscious pain and suffering sustained by the decedent prior to death. Whether or not this particular claim is available requires a careful analysis of the facts at hand. Under Kansas law, noneconomic damages for personal injury are capped at $300,000. (K.S.A. 60-19a02).

Under Kansas law, a wrongful death or survival action must be brought within two years. It is therefore important for those affected by the death of a loved one to seek legal counsel as soon as possible. Fleeson Gooing has a team of litigators who have significant experience in navigating death claims under Kansas law. If you have recently lost a loved one and want to find out if you may have a claim for damages, contact Brooks Severson, Ron Campbell, Bill Townsley or Sylvia Penner to arrange a free consultation.