Filing an Injury Claim Under the Kansas Tort Claims Act

You were injured in Kansas, maybe by a state employee or a county worker, and you're considering a personal injury lawsuit. But you have questions about Kansas law. Can I sue the State? Don't government workers get special protection from injury claims? Do I have to follow special rules to bring a claim against the city? How much can I collect if I win?

We answer those questions and more. Before focusing on the specifics of Kansas law, though, let's begin with an overview of the issues you're likely to confront when making an injury claim against the government.

Common Issues in Injury Claims Against the Government

Suing the government isn't like suing your neighbor or a local business. For starters, special rules called governmental immunities shield states, localities, and their workers from many kinds of legal claims. And immunities are just the beginning of the story. Make it past those and you're likely to face a slew of procedures and deadlines specially crafted to protect the government's interests at your expense.

As you move ahead with your injury claim against the government, be on the lookout for these issues—and perhaps others, too.

Governmental Immunities

Governmental immunities are rules crafted by courts and state legislatures. They go by different names, and each one works a little differently than the rest. But all immunities serve a common purpose: To make sure the government, its officers, and its employees aren't legally responsible for the consequences of their misconduct.

When an immunity applies, it's a claim killer. No matter how serious or disabling your injuries might be, an immunity ends your claim. The good news is that all states have waived their immunities, at least for some kinds of claims. The bad news is that in every state, a number of immunities remain.

Deadlines and Statutes of Limitations

When you've been hurt by the government and want to bring a claim for compensation (damages), be ready to act quickly. Special deadlines, including lawsuit filing deadlines called statutes of limitations, often require that you act within a matter of months—maybe even before you've had enough time to gather all the facts.

Why the need for such speed? Does this mean you'll get paid more quickly than with other kinds of claims? Unfortunately, no. These deadlines aren't meant to make sure you get paid faster—the government doesn't want to pay you at all. Like government immunities, these quick deadlines are claim killers. Miss an arbitrary deadline and, in most states, your claim comes to an end.

Special Processes and Procedures

Chances are you'll have to follow special processes and procedures that don't apply in other kinds of cases. Here's the most common example. In almost every state, before you can sue the government or its workers, you first must send the government written notice of your injury or your intent to file a lawsuit.

Odds are the government already knows about your claim—an employee filed an incident report or a police officer made an accident report, for example. So why insist on you filing a notice of claim? If you're thinking "claim killer," you're paying attention. Some claimants, unaware that notice is required, fail to file it. Typically, that spells the death of their claim.

Limits on Damages You Can Collect

When all else fails—you've navigated through the immunities, jumped through the special procedure hoops, and met all the artificially short deadlines—the government still has one card left to play: Damage limits, also known as "caps." These laws, as the name suggests, arbitrarily limit the damages you can recover if you win your case.

In some states, the caps are so low as to add insult to injury—just tens of thousands or a few hundred thousand dollars. That amount probably covers routine fender benders and other minor or moderate claims. But if your injuries are serious or catastrophic, it won't come close to meeting your needs.

Where to Start? Your State Tort Claims Act

When you're analyzing a possible injury claim against the government, the starting point should be your state's "tort claims act" or similar law. A "tort" is just a wrongful act that causes personal injury or property damage. A "tort claim" is an insurance claim or a civil lawsuit to collect damages for tort injuries.

The term "tort claims act" is a bit misleading. State tort claims laws don't regulate all tort claims generally. Instead, they lay down the basic rules—immunities, deadlines, and special procedures—for tort claims against the state. In some states, the tort claims act also covers local governments. State courts usually fill in the blanks with case decisions that explain and interpret the law.

The Kansas Tort Claims Act

You'll find the Kansas Tort Claims Act (the Act) at Chapter 75, Article 61 of the Kansas Statutes. The Act also applies to claims against Kansas municipalities—counties, townships, cities, school districts, and the like. Additional rules specific to municipalities are at Chapter 12, Article 1.

What Does the Act Do?

The Act makes Kansas and its municipal governments "liable for damages caused by the negligent or wrongful act or omission of any of [their] employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." (Kan. Stat. § 75-6103(a) (2024).)

What does this mean? It means that the government is liable and must pay damages when:

• a government employee
• while doing their job
• negligently (carelessly) or wrongfully acts or fails to act, and
• causes you to suffer an injury or loss.

So, has Kansas waived (given up) all government immunities and exposed itself and its municipalities to liability the same as a private citizen or business? Not exactly.

What You Can't Sue for Under the Act

The Act includes a laundry list of claims that remain off limits. Most are related to the business of government. It makes sense that the government shouldn't be sued just for doing what it's organized to do—governing. Kan. Stat. § 75-6104(a) (2024) bars lawsuits involving 24 kinds of claims, including these.

• Legislative activities. You can't sue because the government adopted (or failed to adopt) a statute, ordinance, regulation, rule, or policy.
• Judicial activities. Upset because the judge ruled against you on a speeding ticket? You can't sue the county or the state to weasel out of it.
• Enforcing or not enforcing a law. The judge is off limits, so how about a suit against the cop who wrote you for speeding, while letting others go? No luck there, either.
• Exercising discretion. Discretionary activities usually relate to the formulation, review, and revision of policy, but can include many functions involving the exercise of judgment based on the facts and circumstances.
• Assessment or collection of taxes. The two certainties in life are death and taxes. Sometimes, you can sue for death. Taxes? Not so much. Pay up.
• Inspections. The county inspector missed some code violations while inspecting your property for a certificate of occupancy? You can't collect damages for that.
• Weather-related hazards. The government can do lots of things, but it can't control natural accumulations of snow and ice. Unless the government negligently caused the condition that led to your fall or other mishap, it's off the hook for damages.
• Emergency services. The police won't arrest your ex-spouse for violating a personal protection order? That's a discretionary call, and courts won't step in to help.
• Natural conditions. The government doesn't have enough people or lawn mowers to maintain all the property it owns. It isn't responsible for injuries related to natural conditions on the land.

What Can You Sue for Under the Act?

The Act makes Kansas and its political subdivisions liable for injuries caused by government officers and employees while acting within the scope of their duties. As with personal injury claims generally, most injury claims against the government result from an employee's negligence.

Here's a partial list of personal injury claims commonly filed against Kansas and its political subdivisions:

• premises liability claims involving dangerous conditions in public buildings
• slip and fall claims involving public sidewalks and other walkways
• car wrecks that happen because of a government employee's negligent driving
• motor vehicle accidents caused by dangerous road conditions, and
• medical malpractice claims over care and treatment at government-operated medical facilities.

This listing isn't meant to be complete. According to the Kansas Legislative Research Department, claims have been made for injuries resulting from defamation, malicious prosecution, trespass, false arrest, and more. Your lawyer can tell you whether your claim is covered by the Act.

Different Rules for Some Medical Malpractice Providers

Special rules sometimes apply to medical malpractice claims. Specifically, the Act only applies to certain health care providers, such as charitable medical facilities, municipal hospitals, local health departments, and community mental health centers. (Kan. Stat. § 75-6115(a) (2024).) Medical malpractice claims against other providers are subject to the same rules as those against non-governmental doctors and hospitals. (Kan. Stat. § 75-6115(b) (2024).)

Limits on Damages

Like most states, Kansas limits the damages you can collect from the government. An aggregate cap of $500,000 per occurrence applies—regardless of the number of injured claimants or how serious their injuries. If ten people are injured in the same accident and their total damages exceed $5 million, they must split $500,000. Punitive damages aren't allowed. (Kan. Stat. § 75-6105 (2024).)

The cap is waived if the government has liability insurance with limits greater than $500,000, but the waiver is only good for the amount of excess coverage. Finally, the cap doesn't apply to cases involving childhood sexual abuse.

Injury Claims Against Kansas Municipalities

Before you can sue a Kansas municipality—as defined in Kan. Stat. § 12-105a(a) (2024)—you must provide the municipality with notice of your claim. (Kan. Stat. § 12-105b(d)(1) (2024).) Your notice must be written and should be sent to the municipality's clerk or its governing body. It should:

• provide your name and address and the name and address of your attorney
• state the facts of the claim, including the date, time, and place you were hurt and the circumstances that caused your injuries
• include the name and address of any public employee or officer who was involved, if you have that information
• describe the nature and extent of your injuries, and
• state the amount of personal injury damages you're claiming.

You can't sue unless your claim is denied, in whole or in part. Once you provide the required notice, the government has up to 120 days to consider your claim. If your claim isn't denied before then, it's deemed denied when 120 days have passed.

When your claim is denied, you can sue in court. You must file your lawsuit within the personal injury statute of limitations. In most cases, the limitation period is two years from the date you were injured. Different filing deadlines apply to intentional tort claims (one year) and car wreck injuries (18 months). If the municipality denies your claim within 90 days before the expiration of the statute of limitations, you have 90 days from the date of denial to file your lawsuit.

Note, importantly, that providing this notice is jurisdictional. Without it, no court has authority to hear your claim. If you file a lawsuit without first giving timely notice, the court must dismiss your case.

(Learn more about Kansas' personal injury laws, including its statutes of limitations.)

Injury Claims Against the State of Kansas

The notice of claim requirement applicable to claims against municipalities doesn't apply to claims against the State of Kansas. As long as your claim is one that's allowed under the Act, you can file a lawsuit in court without first notifying the state government of your claim.

Be sure to file suit before the statute of limitations, discussed above, runs out. If you're unsure about how much time you have to sue, speak to a Kansas attorney right away.

Get Help With Your Kansas Government Injury Claim

We've covered many of the basic rules concerning injury claims against Kansas and its municipalities. If you've been injured by the carelessness of a state or local government worker, there's much more you need to know. A Kansas government claims lawyer understands the law and gives you the best chance of a successful outcome for your case.

When you're ready to move forward, here's how to find an attorney who's right for you.