STATE OF KANSAS COMPENDIUM OF LAW

Transcription

1 STATE OF KANSAS COMPENDIUM OF LAW Prepared by Robert P. Numrich Brandon L. Corl Baty, Holm & Numrich, P.C Madison Avenue, Suite 210 Kansas City, MO (816)

2 PRE-SUIT AND INITIAL CONSIDERATIONS Pre-Suit Notice Requirements/Prerequisites to Suit A) Municipality. The pre-suit notice requirement for claims against a municipality is governed by KAN. STAT. ANN b. In accordance with this section, once notice of the claim has filed, an action cannot be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. Additionally, if a party is to bring such a suit under the Kansas Tort Claims Act, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action, even if this exceeds the statute of limitations under the Code of Civil Procedure. KAN. STAT. ANN b(d). B) Sale of goods. The pre-suit notice requirement for a claimed breach arising out of a sale of goods is governed by KAN. STAT. ANN (3). This section states, [w]here a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and (b) if the claim is one for infringement or the like (subsection (3) of section ) and the buyer is sued as a result of such a breach he must so notify the seller within a reasonable time after he receives notice of the litigation or be barred from any remedy over for liability established by the litigation. C) Mechanic s lien. The pre-suit notice requirement for a mechanic s lien is governed by KAN. STAT. ANN (c). This states, [n]o action to foreclose any lien may proceed or be entered against residential real property in this state unless the holder of a recorded equitable interest was served with notice in accordance with the provisions of this subsection. D) Health care stabilization fund. Kansas law has created a health care stabilization fund, which provides payment for any amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable nonresident health care providers or nonresident self-insurers for any such injury or death arising out of the rendering or the failure to render professional services within this state. In order to collect from this fund upon a judgment against defendant, a plaintiff must serve a copy of the petition upon the health care stabilization fund board of governors by registered mail within 10 days from filing of the petition. KAN. STAT. ANN Relationship to the Federal Rules of Civil Procedure Kansas has its own Code of Civil Procedure. KAN. STAT. ANN 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. Wood v. Groh, 7 P.3d 1163, 1171 (Kan. 2000). 2

3 Description of the Organization of the State Court System A) Judicial selection. Kansas District Court (state) Judges are elected by the voters in partisan elections after being nominated at primary elections; however, an exception exists in Johnson County, Kansas, where District Court Judges are appointed by the governor after being nominated by a district nominating commission. The appointed District Court Judges must receive a majority of the vote to retain office. See KAN. STAT. ANN et seq. B) Structure. 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. See KAN. CONST. art. 3, 2, 6. C) Alternative dispute resolution. Kansas does not have a comprehensive statewide statute for all methods of alternative dispute resolution. 1) Pursuant to KAN. STAT. ANN (a), [A] judge may order the parties to the case to participate in a settlement conference or a non-binding dispute resolution process. Service of Summons A) Person. In-state service of summons upon a person is governed by KAN. STAT. ANN Service on a person includes: (1) personal service; and (2) residence service, which is leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. Also, service may be achieved upon a person by mail/commercial courier with a return receipt showing to whom delivered, date of delivery, address where delivered, and person or entity effecting delivery. After its delivery, the sheriff, party, or party s attorney shall execute a return on service specifying the delivery information. If, however, the sealed envelope is returned with an endorsement showing refusal to accept delivery, the sheriff, party or the party's attorney may send a copy of the process and petition or other document by first-class mail addressed to the party to be served, or may elect other methods of service. 1) Dwelling. However, [i]f service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the defendant's dwelling house or usual place of abode and mailing a notice that such copy has been left at such house or place of abode to the individual by first-class mail. KAN. STAT. ANN (d). 3

4 B) Corporation. Service of summons upon a corporation is governed by KAN. STAT. ANN Under section (e) of this statute, a corporation, domestic or foreign limited liability company, domestic or foreign limited partnership, domestic or foreign limited liability partnership, or partnership can be served by: (1) by serving an officer, manager, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process, and if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant. Service by return receipt delivery on an officer, partner or agent shall be addressed to such person at the person's usual place of business. If such an entity (other than a partnership) fails to designate or maintain a resident agent in this state, or such a resident agent cannot with reasonable diligence be found at the registered office in this state, the secretary of state shall be irrevocably authorized as the agent and representative of [such entity]. KAN. STAT. ANN (f). C) Waiver. Waiver of service is governed by KAN. STAT. ANN (e), which states, [a]n acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance. D) Jurisdiction. KAN. STAT. ANN (b)(1) lists 11 specific acts that will subject a person to jurisdiction in Kansas with respect to causes of action arising from the doing of any of those acts. Additionally, a catch-all provision provides: Statutes of Limitations [a] person may be considered to have submitted to the jurisdiction of the courts of this state for a cause of action which did not arise in this state if substantial, continuous and systematic contact with this state is established that would support jurisdiction consistent with the constitutions of the United States and of this state. A) Personal injury. The statute of limitations for personal injury and/or wrongful death actions are governed by KAN. STAT. ANN (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 (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 (b). 4

5 2) Statute of repose. However, in no event shall an action [in (a)] be commenced more than 10 years beyond the time of the act giving rise to the cause of action. KAN. STAT. ANN (b). Latent disease exceptions to (b) are found in (d)(1), including disease or injury caused by exposure to asbestos and other listed substances. B) Trespass. The statute of limitations for an action for trespass upon real property and [a]n action for taking, detaining or injuring personal property, including actions for the specific recovery thereof must be commenced within two (2) years of when the cause of action accrued. KAN. STAT. ANN (a). C) Oral contracts. Actions upon oral contracts must be brought within three (3) years after the cause of action accrued. KAN. STAT. ANN D) Written contracts. Actions upon a written contract, agreement, or promise shall be brought within five (5) years after the cause of action accrued. KAN. STAT. ANN E) Health care. Actions arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract must be brought within two (2) years after the cause of action accrued. KAN. STAT. ANN Such an action shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless 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, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action. Id. F) Fraud. Actions for relief on the ground of fraud shall be brought within two (2) years after the cause of action accrued. KAN. STAT. ANN However, the cause of action shall not be deemed to have accrued until the fraud is discovered. Id. G) Statutory liability. Actions upon a liability created by a statute other than a penalty or forfeiture shall be brought within three (3) years after the cause of action accrued. KAN. STAT. ANN H) 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. KAN. STAT. ANN

6 I) Others. An action for relief, other than the recovery of real property, not specifically addressed by statute, shall be brought within five (5) years after the cause of action accrued. KAN. STAT. ANN Venue Rules A) Venue in Kansas is governed by KAN. STAT. ANN et seq. B) Actions against Kansas residents. Venue in an action against residents of Kansas is governed by KAN. STAT. ANN 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. STAT. ANN. ] at the time of the filing of the action. C) 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 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. STAT. ANN. ] 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. D) Forum non conveniens. 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 6

7 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 P.2d 193, 199 (1962). Comparative Negligence NEGLIGENCE A) When more than one party is responsible for an accident, comparative negligence allocates responsibility for an accident among the parties, determining who will receive compensation for any losses suffered and the amount of compensation. B) Contributory negligence. Contributory negligence is conduct [of plaintiff] which falls short of the standard to which a reasonable man should conform in order to protect himself from harm. Guerra v. Jaeger, 461 P.2d 737, 741 (Kan. 1969). C) Modified comparative fault. Kansas follows a modified comparative fault system in which the court compares the relative fault of all the parties in assessing damages. A plaintiff will be barred from recovery if he is more than fifty percent at fault. The plaintiff will not be barred from recovery if he is fifty percent or less at fault, but his recovery will be reduced in proportion to his degree of fault. KAN. STAT. ANN a. A plaintiff s comparative fault may assess with respect to the conduct of all who contributed to the injury, whether or not they are parties to the suit. However, a party to the suit must request a comparing of the relative fault of non-parties. Glenn v. Fleming, 732 P.2d 750, 755 (Kan. 1987). D) Affirmative defense. The plaintiff s contributory negligence must be pleaded as an affirmative defense, and the defendant has the burden of proving comparative negligence. KAN. STAT. ANN (c); Horton v. Atchison, T. & S.F. Ry. Co., 168 P.2d 928, 939 (Kan. 1946). Negligence is required to be prove[n] by substantial competent evidence. Yount v. Deibert, 147 P.3d 1065, 1070 (Kan. 2006). 1) Strict liability. Comparative negligence is applicable in strict liability cases. Forsythe v. Coats Co., Inc., 639 P.2d 43, 44 (Kan. 1982). E) Kansas Courts have also held that the common-law assumption of risk doctrine is restricted to cases involving employer-employee relationships. Tuley v. Kansas City Power & Light Co., 843 P.2d 248, 252 (Kan. 1992). 7

8 Exclusive Remedy --Workers Compensation Protections A) In Kansas, workers compensation protections are governed by KAN. STAT. ANN et seq. B) Arising out of and in the course of. For the workers compensation protections to apply, there must be personal injury by accident arising out of and in the course of employment is caused to an employee. KAN. STAT. ANN The two phrases, arising out of and in the course of employment, as used in the workmen's compensation act, have separate and distinct meanings; they are conjunctive and each condition must exist before compensation is allowable. Martin v. Unified School Dist. No. 233, 615 P.2d 168, 169 (Kan. Ct. App. 1980) (citations omitted). 1) Arising out of. An injury aris[es] out of employment if it arises out of the nature, conditions, obligations and incidents of the employment. Id. (quoting Siebert v. Hoch, 428 P.2d 825, 830 (Kan. 1967)). 2) In the course of. In the course of employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer's service. Hormann v. New Hampshire Ins. Co., 689 P.2d 837, 843 (Kan. 1984). 3) Causal connection. As for the necessary causal connection in a worker s compensation case: the phrase out of the employment... points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment; that an injury raises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury; that an injury arises out of the employment if it arises out of the nature, conditions, obligations and incidents of the employment. Brannum v. Spring Lakes Country Club, Inc., 455 P.2d 546, (Kan. 1969) (citations omitted). C) Liberal construction. It is the intent of the legislature that the Workers Compensation Act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the Workers Compensation Act to both. KAN. STAT. ANN (g). D) Exclusivity. Kansas Courts have held that if a workman can recover compensation under the Workmen's Compensation Act[] for an injury the remedy is exclusive and he cannot maintain a common law action for damages founded on negligence against a party 8

9 from whom he could have recovered compensation under the act. Lessley v. Kansas Power & Light Co., 231 P.2d 239, 244 (Kan. 1951) (citation omitted). 1) Burden. If a party asserts in a civil action that the Workers Compensation Act is the exclusive remedy, the burden of proving employment falls upon the employer as an affirmative defense. Orr v. Holiday Inns, Inc., 627 P.2d 1193, (Kan. Ct. App. 1981). 2) Exception. Despite the exclusive remedy provision, an employee may bring a common law cause of action against the employer by the employee on the basis of [a]n intentional assault by the employer on the employee, when the employer acts in person as distinguished from constructively through an agent. Stapp v. Overnite Transp. Co., 995 F.Supp. 1207, 1216 (D.Kan. 1998) (citing 6 ARTHUR LARSON, WORKERS' COMPENSATION LAW (1997)). E) Dual capacity doctrine. Under the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become liable to his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer. It is in this second capacity that liability to an employee may be imposed. Kimzey v. Interpace Corp., Inc., 694 P.2d 907, 910 (Kan. Ct. App. 1985). Under Kansas law, this doctrine provides an exception to the exclusivity doctrine as follows: [w]hen properly applied, it will be limited to those exceptional situations where the employer-employee relationship is not involved because the employer is acting as a second persona unrelated to his status as an employer, that confers upon him obligations independent of those imposed upon him as an employer. Id. at 912. F) Lien. However, if a injured employee has successfully pursued a workers compensation claim against his or her employer, and also has a right to bring suit based on the same circumstances against some person other than the employer or any person in the same employ, any recovery against the non-employer is subject to a lien for the amount of the compensation and medical aid provided by the employer (excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse). KAN. STAT. ANN Indemnification A) At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. KAN. STAT. ANN (a). When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this section would entitle a defendant to do so. KAN. STAT. ANN (b). 9

10 B) Comparative implied indemnity. It has been held that the right of a [defendant] to seek contribution or comparative implied indemnity,... from a third party tortfeasor does not depend upon whether a claim is asserted against the third party by the injured [plaintiff]. In order to assert its right against a third party, a [defendant] must bring the third party into the lawsuit, by means of KAN. STAT. ANN a(c) or otherwise (if the third party is not already in the lawsuit), and must assert a claim for contribution or comparative implied indemnity against the third party before the running of the statute of limitations, so that the third party will be aware that he or she may be subjected to monetary liability and can appear and defend against such claim. Mere joinder of a third party under [KAN. STAT. ANN. ] a(c) is not enough, as pointed out in Ellis; in addition to joinder, a claim must be asserted against the third party. In the case at hand, the third party, James, was a defendant, and claims were asserted against him in timely fashion by both plaintiff and the carrier. Gaulden v. Burlington Northern, Inc., 654 P.2d 383, 391 (Kan. 1982). 1) Comparative implied indemnity occurs [w]hen as here a settlement for plaintiffs' entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.... This court concludes that in comparative negligence cases when full settlement of all liability to an injured party has been accomplished and a release obtained, proportionate causal responsibility among the tortfeasors should be determined and indemnity should be decreed based on degree of causation of the respective tortfeasors. Kennedy v. City of Sawyer, 618 P.2d 788, 803 (Kan. 1980). Joint and Several Liability A) Kansas does not recognize the concept of joint and several liability among joint tortfeasors. Each defendant is responsible only for that defendant s assessed percentage of fault under Kansas comparative fault doctrine. See KAN. STAT. ANN a(d). B) Upon request of a non-settling defendant, the comparative fault of settling defendant(s) may be determined regarding the occurrence which gave rise to the injuries and damages. McCart v. Muir, 641 P.2d 384, 388 (Kan. 1982). Strict Liability A) Products liability. The Kansas Product Liability Act is contained in KAN. STAT. ANN et seq. B) Kansas courts recognize strict liability under the following theories: 10

11 1) Unreasonably dangerous products, Jenkins v. Amchem Products, Inc., 886 P.2d 869, 886 (Kan. 1994); and 2) Ultra hazardous activities or abnormally dangerous activities, Pullen v. West, 92 P.3d 584, 591 (Kan. 2004). Kansas has adopted Sections 519 and 520 of the RESTATEMENT (SECOND) OF TORTS to determine strict liability in tort for abnormally dangerous activities. Williams v. Amoco Production Co., 734 P.2d 1113 (Kan. 1987). C) Abnormally dangerous. In determining whether an activity is abnormally dangerous, the following factors are to be considered: 1) Existence of a high degree of risk of some harm to the person, land or chattels of others; 2) Likelihood that the harm that results from it will be great; 3) Inability to eliminate the risk by the exercise of reasonable care; 4) Extent to which the activity is not a matter of common usage; 5) Inappropriateness of the activity to the place where it is carried on; and 6) Extent to which its value to the community is outweighed by its dangerous attributes. Williams, 241 Kan. at 114. D) Defects. KAN. STAT. ANN states: [a] product seller shall not be subject to liability in a product liability claim arising from an alleged defect in a product, if the product seller establishes that: 1) Such seller had no knowledge of the defect; 2) Such seller in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care; 3) The seller was not a manufacturer of the defective product or product component; 4) The manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or the domicile of the person making the product liability claim; and 5) Any judgment against the manufacturer obtained by the person making the product liability claim would be reasonably certain of being satisfied. E) Participation in abnormally dangerous activity. Under Kansas law, strict liability is not an available remedy for a person who participated in an abnormally dangerous activity. Pullen v. West, 92 P.3d 584, 593 (Kan. 2004) ( [w]hile [plaintiff] is not completely barred from recovery based on his participation in an abnormally dangerous activity, he is unable to obtain the benefit of the doctrine of strict liability because he participated in the abnormally dangerous activity ). F) Unavoidably unsafe products. Kansas follows the RESTATEMENT (SECOND) OF TORTS 402A view regarding unavoidably unsafe products in that an unavoidably unsafe product, when properly prepared [] and accompanied by proper directions and warning, 11

12 is not defective, nor is it unreasonably dangerous. This must be raised as an affirmative defense. Jenkins v. Amchem Products, Inc., 886 P.2d 869, 887 (Kan. 1994). G) Learned intermediary doctrine. The learned intermediary doctrine is followed in Kansas, specifically that [t]he ethical drug manufacturer is... subject to a duty to warn the medical profession[al] of untoward effects which the manufacturer knows, or has reason to know, are inherent in the use of its drug. Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038 (Kan. 1984). Thus, drug manufacturers have no duty to directly warn consumers of these effects or risks. Willful and Wanton Conduct Kansas law recognizes willful and wanton conduct as [o]ne who with knowledge of existing conditions and aware from such knowledge that injury or death will likely or probably result from his or her conduct, and with reckless indifference to the consequences, consciously does some act or omits to discharge some duty, which produces the injurious result. Reeves v. Carlson, 969 P.2d 252, (Kan. 1998). Electronic Discovery Rules DISCOVERY Kansas has no specific rules regarding electronic discovery, except that a document request under KAN. STAT. ANN may specify the form in which electronically-stored information is to be produced. The responding party must object to the requested form if it intends to use a different form than that requested, and state the reason for the objection. If there is no such request, electronic documents are to be produced in the form in which they are ordinarily maintained, or in a form that is reasonably useable. A party need not produce the same electronic information in more than one form. Expert Witnesses A) Expert witnesses are governed by KAN. STAT. ANN through Under (b), testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. B) Disclosures. Under KAN. STAT. ANN (b)(6), each side shall disclose the identity of any expert witnesses who may be used at trial to present expert testimony. This disclosure should include (unless otherwise directed by the Court) the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which 12

13 the expert is expected to testify and a summary of the grounds for each opinion. KAN. STAT. ANN (b)(6)(B). Non-Party Discovery A) Subpoenas are governed by KAN. STAT. ANN : [u]pon request of a party to a suit, the clerk shall issue a blank subpoena, to be filled in by the party, with the seal of the court, the title and file number of the action and the clerk's signature or a facsimile of the clerk's signature. B) Deposition. A subpoena for attendance at a deposition shall issue from the district court in which the action is pending or the officer before whom the deposition is to be taken or, if the deposition is to be taken outside the state, from an officer authorized by the law of the other state to issue the subpoena. KAN. STAT. ANN (a)(2). C) Service. Service of a subpoena within the state of Kansas shall be made in accordance with KAN. STAT. ANN , which regulates standards for service of process. If the person s appearance is commanded, the subpoena shall be served with fees for one day's attendance and the mileage allowed by law. KAN. STAT. ANN (b). D) Time and geographical restrictions. Upon a timely motion by a person upon whom a subpoena has been served, the Court shall quash or modify a subpoena if it fails to allow reasonable time for compliance, or if it causes a person to travel over 100 miles. KAN. STAT. ANN (c)(3)(A)(ii). 1) Exception. However, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. KAN. STAT. ANN (c)(3)(B)(iii). E) Depositions for use in foreign jurisdictions. KAN. STAT. ANN (d) states: [w]henever the deposition of any person is to be taken in this state pursuant to the laws of another state or of the United States or of another country for use in proceedings there, the district court in the county where the deponent resides or is employed or transacts his or her business in person may, upon ex parte petition, make an order directing issuance of subpoena as provided in [KAN. STAT. ANN. ] , and amendments thereto, in aid of the taking of the deposition. It is necessary to consult the Local Rules of the District in which the person to be subpoenaed resides and is to be served. Some Districts have notification requirements 13

14 Privileges and a waiting period from the date of the issuance of the subpoena to the date of the deposition to allow opposing parties to file any motions regarding the deposition. A) Attorney-client privilege. This privilege is governed by KAN. STAT. ANN : Communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it, and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated by the client, or (iii) as a result of a breach of the lawyer-client relationship. The privilege may be claimed by the client in person or by his or her lawyer, or if an incapacitated person, by either his or her guardian or conservator, or if deceased, by his or her personal representative. 1) Exceptions. Five exceptions to the rule are listed in KAN. STAT. ANN (b). B) Work product doctrine. KAN. STAT. ANN : [A] party shall not require a deponent to produce, or submit for inspection, any writing prepared by, or under the supervision of, an attorney in preparation for trial. However, the work product rule is not an absolute privilege but rather is a limitation on discovery. Alseike v. Miller, 412 P.2d 1007 (Kan. 1966). The work product limitation on discovery may be overcome by a showing of undue hardship under KAN. STAT. ANN (b)(1). Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 84 (Kan. 2002). 1) Insurance. The initial investigation of a potential claim made by an insurance company prior to the commencement of litigation, and not requested by or made under the guidance of counsel, is made in the ordinary course of business of the insurance company, and not in anticipation of litigation or for trial is discoverable. See Independent Mfg. Co. V. McGraw-Edison Co., 637 P.2d 431 (Kan. Ct. App. 1987), Henry v. Nibblelink, 932 P.2d 1046 (Kan. Ct. App. 1997). C) Self-critical analysis. Also known as the Self-Critical Analysis Privilege. On this topic, the Kansas Supreme Court has held as follows: [i]n Berst, we stated four conditions necessary to establish a qualified privilege against disclosure of confidential communications: 1) the communications must originate in a confidence they will not be disclosed; (2) the element of confidentiality must be essential to the maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury caused by disclosure must be greater than the benefit gained for the correct disposal of litigation. 14

15 Kansas Gas & Elec. v. Eye, 789 P.2d 1161, 1167 (Kan. 1990) (internal quotations omitted). D) Other privileges. Kansas statutes provide for several other forms of privileged communications, including: Requests to Admit 1) KAN. STAT. ANN : physician-patient privilege; 2) KAN. STAT. ANN : marital privilege, confidential communications; 3) KAN. STAT. ANN : penitential communication privilege; 4) KAN. STAT. ANN : religious belief; 5) KAN. STAT. ANN : political vote; 6) KAN. STAT. ANN : trade secret; 7) KAN. STAT. ANN : secret of state; 8) KAN. STAT. ANN : official information; 9) KAN. STAT. ANN : communication to grand jury; 10) KAN. STAT. ANN : identity of informer. KAN. STAT. ANN governs requests to admit. A party may propound requests to admit upon a party for purposes of the pending action only. Id. A matter is admitted unless an answer or objection is served upon the propounding party within thirty days of the service of the requests. Id. Unique State Issues A) An action is commenced for purposes of the statute of limitations when a defendant is served. Kansas provides for sixty (60) days in which to obtain service, and an additionally thirty (30) days if the application for this additional time is made before the expiration of the original sixty (60) days. See KAN. STAT. ANN B) Punitive damages may only be added by leave of court an in an amended petition. See Punitive Damages Section. C) Kansas allows the jury to assess fault against non-parties. See Comparative Negligence Section. D) An insurance or company claim file is discoverable unless it is prepared at the direction of counsel in anticipation of the commencement of a lawsuit. See Privileges Section. Accident Reconstruction EVIDENCE, PROOF & TRIAL ISSUES 15

16 A) An accident reconstruction is often done by expert witnesses who testify to the details of an incident, usually automobile or airplane accidents. B) Such expert opinions must be based upon reasonably accurate data available at the scene. Spraker v. Lankin, 545 P.2d 352, 357 (Kan. 1976). It has also been held Appeal Id. at 613. that where a proper foundation is laid, a witness qualified as an expert may give his opinion based upon the length of skid marks, location of wrecked vehicles, damage to vehicles and independent tests, as to the speed of an automobile involved in an accident, the weight to be given such evidence, of course, being a matter for the jury to determine. A) Appeal as of right. Kansas law provides for four instances where appeal may be had to the appellate court as a matter of right: 1) An order that discharges, vacates or modifies a provisional remedy. 2) An order that grants, continues, modifies, refuses or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus. 3) An order that appoints a receiver or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or an order involving the tax or revenue laws, the title to real estate, the constitution of this state or the constitution, laws or treaties of the United States. 4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable. KAN. STAT. ANN (a). B) Supreme Court jurisdiction as of right. The Supreme Court s jurisdiction may be invoked as of right in the following circumstances: 1) A preliminary or final decision in which a statute of this state has been held unconstitutional as a violation of Article 6 of the Kansas Constitution pursuant to [KAN. STAT. ANN. ] 72-64b03, and amendments thereto. Any appeal filed pursuant to this subsection (b)(1) shall be filed within 30 days of the date the preliminary or final decision is filed. KAN. STAT. ANN (b). C) Permissive appeals. If a District Court is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so 16

17 state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order under such terms and conditions as the supreme court fixes by rule. KAN. STAT. ANN (c). D) Notice of Appeal. A Notice of Appeal must be filed with the clerk of the district court within thirty days after the entry of the final judgment appealed from, or within thirty days of the court s ruling upon the several types of motions described in KAN. STAT. ANN (a). Biomechanical Testimony See Expert Witnesses Section. Collateral Source Rule Zak v. Riffel, 115 P.3d 165, 174 (Kan. Ct. App. 2005) (internal citations and quotations omitted): Convictions The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. The purpose of the collateral source rule is to prevent the tortfeasor from escaping full liability resulting from his or her actions by requiring the tortfeasor to compensate the injured party for all of the harm, not just the net loss. A) KAN. STAT. ANN states: any party including the party calling [a] witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility. However, this section is subject to exceptions set forth in and B) KAN. STAT. ANN deals with prior criminal convictions: [e]vidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. C) KAN. STAT. ANN : As affecting the credibility of a witness (a) in examining the witness as to a statement made by him or her in writing inconsistent with any part of his or her testimony it shall not be necessary to show or read to the witness any part of the writing provided that if the judge deems it feasible the time and place of the writing and the name of the person addressed, if any, shall be indicated to the witness; (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statement; (c) evidence of traits of his or her character other than honesty or veracity or their opposites, 17

18 Day in the Life Videos shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible. The admissibility of a videotape of a day in the life of a plaintiff is discretionary with the trial court. If its probative value outweighs the prejudice to defendant it will be admitted. Dead Man s Statute The Kansas Dead Man s Statute was repealed when the Rules of Evidence were codified. Medical Bills A) Zak v. Riffel, 115 P.3d 165, 174 (Kan. Ct. App. 2005) (internal citations omitted): The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. The purpose of the collateral source rule is to prevent the tortfeasor from escaping full liability resulting from his or her actions by requiring the tortfeasor to compensate the injured party for all of the harm, not just the net loss. B) Medicare. Under the facts of Rose v. Via Christi Health System, Inc./St. Francis Campus, specifically where the Medicare provider, Via Christi, is the defendant and also the health care provider of the services which form the basis of the economic damages claim, the trial court should have allowed a setoff or credit against the portion of the economic loss from medical expenses. 113 P.3d 241, 248 (Kan. 2005). C) Medicaid. In Bates v. Hogg, the Court held the collateral source rule inapplicable to medical bills paid by Medicaid. 921 P.2d 249 (Kan. Ct. App. 1996). It would be unconscionable to permit the taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tort-feasor and pocket the windfall. Id. (quoting Gordon v. Forsyth County Hospital Authority, Inc., 409 F.Supp. 708, 719 (M.D.N.C. 1976). 18

19 Offers of Judgment KAN. STAT. ANN (b) provides that at any time more than 15 days before trial, a party defending may make an offer of money or property with costs accrued to date of offer. The party to whom the offer is made has ten days to accept or the offer is deemed withdrawn. The fact an offer is made but not accepted is not admissible, but does not preclude a subsequent offer. In the case of separate proceedings determining liability and damages, an offer can be made if served within a reasonable time before the damages proceeding. Prior Accidents Evidence of prior similar accidents is admissible to prove foreseeability in negligence actions as long as prior accidents involve substantially similar circumstances, and admission of prior accidents is in the sound discretion of the trial judge. Folks v. Kansas Power and Light Co., 755 P.2d 1319 (Kan. 1988). Also, the non-occurrence of prior accidents is admissible on the issue of safety, Schlobohn v. United Parcel Service, Inc., 804 P.2d 978 (Kan. 1991). Relationship to the Federal Rules of Evidence Kansas Rules of Evidence are codified in KAN. STAT. ANN et seq. Seat Belt and Helmet Use Admissibility A) Seat belts. Pursuant to KAN. STAT. ANN (c), [e]vidence of failure of any person to use a safety belt shall not be admissible in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages. B) Helmets. There is no Kansas law requiring persons over the age of 18 to wear a helmet when riding a motorcycle. Spoliation Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party. Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1179 (Kan. 1987). Subsequent Remedial Measures A) KAN. STAT. ANN states, [w]hen after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. 19

20 C) Products liability. In products liability actions, subsequent remedial measures shall be excluded from evidence except where offered to impeach a witness for the manufacturer or seller of a product who has expressly denied the feasibility of such a measure. KAN. STAT. ANN (discussed in Griffin ex rel. Green v. Suzuki Motor Corp., 124 P.3d 57 (Kan. 2005)). Use of Photographs A) Howard v. Stoughton, 433 P.2d 567, 570 (Kan. 1967): Still photographs and motion pictures, if shown to be a likeness of what they purport to represent, are, in the discretion of the trial court, admissible in evidence as aids to the jury in arriving at an understanding of the evidence, the location or condition of an object, or the circumstances of an accident when any such matter is relevant. B) Distorted images. Ellis v. City of Kansas City, 589 P.2d 552 (Kan. 1979): Caps on Damages That photographs accurately portraying what they purport to show are admissible in evidence is universally recognized and needs no further discussion. It is only when photographs are distorted, inaccurate, or are otherwise unfair, that they are objectionable. Ordinarily the admissibility of photographs rests within the sound discretion of the trial court. DAMAGES A) Personal injury. There are certain statutory caps on damages in Kansas that limit the recovery available in particular causes of action. Pursuant to KAN. STAT. ANN a02(b), [i]n any personal injury action, the total amount recoverable by each party from all defendants for all claims for non-economic loss shall not exceed a sum total of $250,000. Section contains a similar limitation for wrongful death actions, limiting a plaintiff s non-pecuniary losses to $250, Calculation of Damages A) Personal injury. In an action for personal injury, the measure of damages are medical expenses, economic loss, and non-economic loss to plaintiff. These are broken down as follows: 1) Medical expenses. Medical expenses are the reasonable expenses of necessary medical care, hospitalization and treatment received by reason of plaintiff s injuries to date, and those which plaintiff is reasonably expected to receive in the future (reduced to present value). KANSAS PATTERN INSTRUCTIONS, 4TH ) Economic damages. Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and 20

21 other such losses. Samsel v. Wheeler Transport Services, Inc., 789 P.2d 541, 552 (Kan. 1990). 3) Non-economic damages. Non-economic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. Id. 4) Factors. Additionally, the finder of fact should consider plaintiff s age, condition of health before and after, and the nature, extent and duration of the injuries. KANSAS PATTERN INSTRUCTIONS, 4TH B) Wrongful death. In an action for wrongful death of spouse, there are three potential types of damages: the expenses for the care of the deceased, and economic and noneconomic damages. 1) Economic damages. Economic damages include: a) Loss of marital care, attention, advice, counsel, or protection; b) Loss of earnings the finder of fact finds the deceased would have provided; c) Expenses for the care of the deceased caused by the injury; and d) Reasonable funeral expenses. 2) Non-economic damages include: a) Mental anguish, suffering, or bereavement; and b) Loss of society, loss of comfort, or loss of companionship. KANSAS PATTERN INSTRUCTIONS, 4TH ) Additionally, [i]f no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became liable for them. KAN. STAT. ANN Available Items of Personal Injury Damages A) A plaintiff bringing a cause of action for personal injuries may recover damages which are generally divided into medical expenses, and economic and non-economic losses. B) Medical expenses. Medical expenses are the reasonable expenses of necessary medical care, hospitalization and treatment received by reason of plaintiff s injuries to date, and those which plaintiff is reasonably expected to receive in the future (reduced to present value). KANSAS PATTERN INSTRUCTIONS, 4th