A Kansas statute provides the right to file a wrongful death action in specific situations. In our Salina, Kansas personal injury practice, clients often ask who can file a wrongful death action. The answer differs somewhat depending on the circumstances, but there are some general rules that apply.
The Kansas Wrongful Death statute, found at KS Stat § 60-1901(a), creates a civil cause of action in the following circumstances:
If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had such person lived, in accordance with the provisions of this article, against the wrongdoer, or such wrongdoer's personal representative if such wrongdoer is deceased.
The right to file a lawsuit action exists when someone negligently or recklessly causes the death of another person, if the decedent could have filed an action had he or she survived the injuries. If the wrongdoer also died in the accident (which sometimes happens in a car accident case), the cause of action exists against the wrongdoer’s estate.
The next section of the law, KS Stat § 60-1902, states that: The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss because of the death.
The phrase “heirs at law” refers to those persons entitled to inherit from the deceased person under Kansas laws of intestate succession. Those laws establish inheritance rights when someone dies without leaving a will or other documents distributing the estate to specific individuals.
Under the statute, any one of the heirs may file the action. Other heirs may intervene in the action if they also sustained a loss on account of the death.
When a wrongful death lawsuit is filed, any recovery benefits all the heirs of the deceased person who suffered a loss, regardless of whether each heir joins in the action. The statute provides for apportionment of the amount recovered in a wrongful death action among those entitled to recover. Either the judge or the jury determines the allocation of damages among the heirs.
Persons with the right to file and recover in a Kansas wrongful death lawsuit include only heirs who sustained losses by virtue of the death. Generally, under the law on intestate succession, the following family members are among the surviving heirs who can recover if they can show a loss on account of the death:
Usually, one of these family members files the wrongful death action.
If other family members shared a close relationship with the deceased person, it may be possible for them to recover as well. Each case will be dependent on the specific circumstances and relationships of the decedent.
For an heir or family member to recover in a wrongful death action, that person must demonstrate specific losses relating to the death. Since person shared a different relationship with the deceased person, damages for individual plaintiffs are different.
The wrongful death statute (KS Stat § 60-1904) allows recovery for the following types of damages:
(1) Mental anguish, suffering or bereavement;
(2) loss of society, companionship, comfort or protection;
(3) loss of marital care, attention, advice or counsel;
(4) loss of filial care or attention;
(5) loss of parental care, training, guidance or education; and
(6) reasonable funeral expenses for the deceased.
However, potential damages are not limited to those categories. If one of the heirs can demonstrate a different type of damage, the statute may allow it. In addition, an heir who paid (or is liable for) expenses relating to care of the deceased person prior to death may recover those expenses, if probate administration for the deceased person’s estate has not been initiated. Punitive damages are not available in Kansas wrongful death cases.
Importantly, there is a statutory limit on the amount of non-pecuniary damages in a wrongful death action. The limit is $250,000. If a jury awards damages in excess of that amount, the judge reduces the amount accordingly.
The statutory limit applies to the aggregate amount of damages awarded. The limit does not apply to financial (or pecuniary) losses that a party to the action incurred.
Often, two different types of civil claims result from a wrongful death in Kansas. One type is the wrongful death action asserted by the heirs. The second type is a survival action, which is a type of personal injury action.
A different Kansas statute covers the survival action, which asserts a claim for losses suffered by the deceased person prior to his or her death. The personal representative of the deceased person’s estate files the survival action.
The two types of actions compensate for different losses. The wrongful death action compensates heirs (family members) for their losses caused by the death. The survival action compensates the estate for losses suffered by the decedent.
If you lost a family member because of another person’s negligent or reckless act, you may be able to recover in a wrongful death action under Kansas law. Our trusted Salina, Kansas lawyers at Hampton & Royce, L.C. are here to help. We serve clients throughout the state. Contact us to schedule a consultation.