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75-6101. Citation of act; claims to which act applicable; act applicable to municipalities. (a) K.S.A. 75-6101 to 75-6115, inclusive, shall be known and may be cited as the Kansas tort claims act.

(b) The Kansas tort claims act shall be applicable to claims arising from acts or omissions occurring on and after the effective date of this act.

(c) Municipalities may not exempt themselves from the provisions of the Kansas tort claims act by charter ordinance, charter resolution or other action.

History: L. 1979, ch. 186, § 1; July 1.

Law Review and Bar Journal References:

"A Practitioner's Guide to the Kansas Tort Claims Act," Jerry R. Palmer, 48 J.B.A.K. 299 (1979).

"Comparative Fault and Strict Products Liability in Kansas: Reflections on the Distinction Between Initial Liability and Ultimate Loss Allocation," William Edward Westerbeke and Hal D. Meltzer, 28 K.L.R. 25, 44 (1979).

"Governmental Liability: The Kansas Tort Claims Act [or the King Can Do Wrong]," John A. Hageman and Lee A. Johnson, 19 W.L.J. 260 (1980).

"Constitutional Law: Governmental Immunity Statute Violates Equal Protection as Applied to Kansas Turnpike Authority," Robert G. Martin, 19 W.L.J. 581 (1980).

"The Kansas Tort Claims Act and School Districts," Susan C. Jacobson, 28 K.L.R. 619, 624 (1980).

"School Liability for Athletic Injuries: Duty, Causation and Defense," James D. Harty, 21 W.L.J. 315, 334, 338, 339 (1982).

"From Mobs to Moderation," Judge Wayne H. Phillips, 54 J.K.B.A. 27 (1985).

"Hunting Liability in Kansas: Premises Liability and the Kansas Recreational Use Statute," John G. Pike and S. Charles Neill, 38 W.L.J. 831 (1999).

"Governmental Immunity: Recent Developments Concerning the Eleventh Amendment and the Kansas Tort Claims Act," Kevin J. Breer and Justin D. Pullikan, 70 J.K.B.A. No. 7, 24 (2001).

"The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years," William E. Westerbeke, 52 K.L.R. 939 (2004).

Attorney General's Opinions:

Liability of state and courts for acts of probationers. 81-98

Immunity for disaster emergency activities under Kansas tort claims act. 81-193.

Exemptions from liability under tort claims act. 81-232.

Conveyance of unsafe bridges on vacated county road by county. 81-256.

Kansas real estate commission; publication of disciplinary actions; immunity from liability. 81-272.

Liability of governmental entities for employee acts or omissions; exceptions. 81-280.

Community service performed by person under sentence or diversion is covered by Kansas tort claims act. 82-157.

Personal liability of directors of watershed districts. 82-173.

Liability of city for volunteer reserve police officers. 82-215.

UCC; immunity of public officials concerning filed security transactions. 83-5.

Definition of municipality; rural water districts. 86-31.

Application to Kansas boiler advisory board. 86-61.

Joint water district; city of Lansing and Delaware township; nature of the joint board. 86-103.

Members of continuing legal education commission are covered by act. 86-109.

Eight-hour day on public work; enforcement of K.S.A. 44-201 et seq. 86-129.

Directors of Kansas technology enterprise corporation are covered by act. 86-155.

Liability of counties for providing or selling certain chemicals. 86-173.

Municipal energy agencies are covered by act. 86-177.

District attorneys and their agents are state employees for purposes of tort claims act. 87-13.

Board of state fair managers are state employees for purposes of Kansas tort claims act. 87-97.

County fair associations; tort claims act; board of directors; open meetings act. 88-48.

State operated information network; tort claims act. 88-62.

Liability of governmental entities; county zoning administrator. 88-141.

Volunteers working for state long-term care ombudsman. 90-21.

Central interstate low-level radioactivity waste compact; state liability. 90-34.

Maintenance of township road; agreement with county; termination, duties and liabilities; Kansas tort claims act. 90-113.

Legislative post audit; performance audit; acceptance or approval of audit reports. 91-92.

Expenditure of county funds for legal defense of county employee indicted on criminal charges. 92-130.

Tort claims fund for payment of claims and defense expenses; charitable health care providers. 92-153.

Application of Kansas tort claims act to Kansas healthy kids corporation and corporation for change. 93-62.

Unified school district, authority to contract; incurring liability; securing payment of obligations. 96-36.

Kansas Health Insurance Association is a "governmental entity" under the Kansas tort claims act. 97-81.

Ground water management district is subject to Kansas tort claims act. 99-41.

Contract appraisal reviewers not covered by Kansas tort claims act. 99-54.

Kansas Dairy Commission is an agency of the state for purposes of act. 2000-12.

Application of Kansas Tort Claims Act to members of Behavioral Sciences Regulatory Board's Advisory members. 2000-58.

Topeka Housing Authority is liable for negligence of its employees; city not liable under theory of respondeat superior. 2001-25.

Assistance by state officials on federal property; coverage under Kansas Tort Claims Act. 2002-7.

Clinic employees covered by act if municipal or state employees or contractual relation between state and employer. 2003-25.

At-large members of a regional homeland security council are considered employees as defined in the Kansas tort claims act, while an individual who acts as proxy for a council member is not considered an employee of the council. 2011-13.

CASE ANNOTATIONS

1. Legislation passed to cover area of governmental tort liability. Thome v. City of Newton, 229 Kan. 375, 381, 624 P.2d 454.

2. Cited in discussion of interspousal tort immunity and trend toward abolition of tort immunities (dissenting opinion). Guffy v. Guffy, 230 Kan. 89, 99, 631 P.2d 646 (1981).

3. Claim of wrongful conversion for collection of unconstitutional assessments barred under K.S.A. 75-6104(e). Wheat v. Finney, 230 Kan. 217, 219, 630 P.2d 1160 (1981).

4. Act applicable prospectively only; no unconstitutional classification created; wrongful death action dismissed. Hendrix v. City of Topeka, 231 Kan. 113, 114, 115, 116, 117, 643 P.2d 129 (1982).

5. Action of police officers in failure to remove person from plaintiff's property found discretionary and exempt from liability under Kansas tort claims act. Robertson v. City of Topeka, 231 Kan. 358, 359, 644 P.2d 458 (1982).

6. Act does not as a matter of law exempt government from liability for failure to provide a highway sign. Carpenter v. Johnson, 231 Kan. 783, 784, 785, 790, 649 P.2d 400 (1982).

7. City had common-law duty to keep its streets reasonably safe. Schmeck v. City of Shawnee, 232 Kan. 11, 17, 651 P.2d 585 (1982).

8. In personal injury action accruing prior to effective date hereof, trial court erred in applying clear and convincing evidence standard to burden of proof that police officer acted unreasonably. Dauffenbach v. City of Wichita, 8 Kan. App. 2d 303, 307, 657 P.2d 582 (1983).

9. Recovery may be made for mental suffering and pain in absence of physical injury, if claim not barred by statute; proof required. Lantz v. City of Lawrence, 232 Kan. 492, 494, 657 P.2d 539 (1983).

10. Recovery against city by person injured during mob violence disallowed; not street defect for which city liable. Warden v. City of Wichita, 232 Kan. 838, 839, 658 P.2d 1043 (1983).

11. Defendant city acting pursuant to K.S.A. 12-1756 immune from suit under K.S.A. 75-6104(j) and (m). Busch v. City of Augusta, 9 Kan. App. 2d 119, 125, 126, 674 P.2d 1054 (1984).

12. Mentioned in holding maintenance of courthouse grounds governmental function; county immune from liability under K.S.A. 46-902. Griggs v. City of Goddard, 233 Kan. 915, 916, 666 P.2d 695 (1983).

13. Where cause of action accrued prior to tort claims act, question is not immunity but where tort committed. Dauffenbach v. City of Wichita, 233, Kan. 1028, 1032, 667 P.2d 380 (1983).

14. Staff doctors at state institution had no legal immunity from civil liability for negligent release of patient in 1974. Durflinger v. Artiles, 234 Kan. 484, 500, 506, 673 P.2d 86 (1983).

15. Repeal of sovereign immunity statute (K.S.A. 46-901; L. 1979, ch. 186, § 33) applies only to claims arising thereafter. Hefley v. Textron, Inc., 713 F.2d 1487, 1494 (1983).

16. Act not sufficient evidence of waiver from 11 th Amendment immunity; waiver of sovereign immunity limited to state courts. Billings v. Wichita State University, 557 F. Supp. 1348, 1351 (1983).

17. Use of unreasonable force by police officers not protected by Kansas tort claims act. Caplinger v. Carter, 9 Kan. App. 2d 287, 294, 676 P.2d 1300 (1984).

18. State, under Restatement (Second), Torts § 319 (1965) has duty to notify area residents and law enforcement of major prison escape. Cansler v. State, 234 Kan. 554, 558, 675 P.2d 57 (1984).

19. Individual precluded under K.S.A. 75-6104 (j) from recovering damages for inadequate or negligent inspection; inspection defined. Siple v. City of Topeka, 235 Kan. 167, 172, 679 P.2d 190 (1984).

20. Maximum limit for all claims under act is $500,000. Jackson v. City of Kansas City, 235 Kan. 278, 315, 320, 680 P.2d 877 (1984).

21. Staff doctors of state institution not immune from civil liability for negligent release of patient prior to tort claims act. Durflinger v. Artiles, 727 F.2d 888, 907, 911 (1984).

22. Federal civil rights claims not subject to state law limitations of act. Lee v. Wyandotte County, Kan., 586 F. Supp. 236, 239 (1984).

23. Where plaintiff failed to show gross and wanton negligence in installing fence on public property, summary judgment proper. Willard v. City of Kansas City, 235 Kan. 655, 660, 681 P.2d 1067 (1984).

24. Rule of law freeing governmental entity from liability to one injured by street defect while illegally operating vehicle abolished. Eli v. Board of Sedgwick County Comm'rs, 235 Kan. 684, 686, 681 P.2d 673 (1984).

25. Officers making warrantless arrest with probable cause immune from liability under K.S.A. 75-6104(d). Mendoza v. Reno County, 235 Kan. 692, 693, 681 P.2d 676 (1984).

26. Regardless of statutory immunity where, on appeal, city not negligent as matter of law, negligence of remaining parties must be redetermined. Turnbull v. Byram, 235 Kan. 891, 897, 899, 684 P.2d 429 (1984).

27. Government exempt from liability for damages from legislative functions, but not from equitable or extraordinary relief. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 47, 48, 687 P.2d 622 (1984).

28. Duty of county to place warning signs at rural intersection and clear away brush considered. Toumberlin v. Haas, 236 Kan. 138, 140, 689 P.2d 808 (1984).

29. Discussed; governmental entity or employee liable under K.S.A. 75-6104 for acts or omissions involving more than lack of ordinary care and diligence. Hopkins v. State, 237 Kan. 601, 609, 611, 702 P.2d 311 (1985).

30. Cited; purpose of competitive bidding statute (K.S.A. 13-1017) stated; trial court's judgment upheld although based on wrong grounds. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).

31. Absent statutory exceptions, KDOT owes public same duty under act in doing highway maintenance as private individual. Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 456, 458, 711 P.2d 1330 (1985).

32. Cited; duties of counties and townships to provide road warning signs examined. Finkbiner v. Clay County, 238 Kan. 856, 857, 714 P.2d 1380 (1986).

33. Enactment of act not evidence state waived immunity from suit under 11 th amendment. Barger v. State of Kan., 620 F. Supp. 1432, 1434 (1985).

34. Cited; where police are subject to guidelines or owe specific duty to individual, public duty doctrine inapplicable. Fudge v. City of Kansas City, 239 Kan. 369, 371, 372, 720 P.2d 1093 (1986).

35. Cited; duty imposed by KTCA, permissible scope of delegation of duty by state on highway projects, jury instructions examined. Trout v. Koss Constr. Co., 240 Kan. 86, 87, 727 P.2d 450 (1986).

36. Cited; action for failing to disclose prior security interest (K.S.A. 84-9-101 et seq.), statute of limitations examined. Borg Warner Acceptance Corp. v. Kansas Secretary of State, 240 Kan. 598, 602, 731 P.2d 301 (1987).

37. Cited; liability for negligent performance of ministerial task of janitorial work undertaken following discretionary decision under K.S.A. 75-6104(d) examined. Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987).

38. Summary judgment in favor of defendants proper; no tortious conduct. Stremski v. Owens, 241 Kan. 160, 163, 734 P.2d 1152 (1987).

39. District court held custodian immune under tort claims act for negligent loss of corporate assets; issue not considered on appeal. Valley View State Bank v. Owen, 241 Kan. 343, 346, 737 P.2d 35 (1987).

40. Kansas tort claims act case barred for plaintiff's failure to bring action within one year of reaching age 18. Hayes through Hayes v. Unified School Dist. 377, 669 F. Supp. 1519, 1531 (1987).

41. Cited; absence of protection for private schools examined in area of disability insurance for student athletes. Wicina v. Strecker, 242 Kan. 278, 282, 747 P.2d 167 (1987).

42. Cited; sovereignty of state within own boundaries, judicial comity examined. Head v. Platte County, Mo., 242 Kan. 442, 447, 747 P.2d 6 (1988).

43. Cited; arbitration proceeding (K.S.A. 5-401 et seq.) involving port authority as not subject to act examined. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 688, 751 P.2d 122 (1988).

44. Cited; absence of employer's duty to third party for tortious acts of off-duty employee examined. Meyers v. Grubaugh, 242 Kan. 716, 717, 750 P.2d 1031 (1988).

45. Cited; city's acts resulting in icy street conditions from broken water main as creating actionable negligence (K.S.A. 75-6104) examined. Draskowich v. City of Kansas City, 242 Kan. 734, 738, 750 P.2d 411 (1988).

46. City manager's decisions on handling female police officer's complaints of sexual harassment entailed formulation of government policy. Haehn v. City of Hoisington, 702. F. Supp. 1526, 1532 (D. Kan. 1988).

47. Exceptions in K.S.A. 75-6104(d) inapplicable where legal duty exists; no discretionary right to violate legal duty. Dougan v. Rossville Drainage Dist., 243 Kan. 315, 325, 757 P.2d 272 (1988).

48. Immunity from liability for negligent enforcement of city ordinance (K.S.A. 75-6104) examined. Barber v. Williams, 244 Kan. 318, 320, 757 P.2d 1284 (1989).

49. Unconstitutional taking of property examined where court disallowed damages for unreasonable denial of rezoning request. Jack v. City of Olathe, 245 Kan. 458, 467, 781 P.2d 1069 (1989).

50. Board of county commissioners as exempt from liability (K.S.A. 75-6104) for negligence in issuing permit for septic system examined. Collins v. Heavener Properties, Inc., 245 Kan. 623, 626, 783 P.2d 883 (1989).

51. Act applicable to case of permanent state employee denied due process hearing following demotion in 1971. Kansas Dept. of SRS v. Goertzen, 245 Kan. 767, 779, 783 P.2d 1300 (1989).

52. Immunity from liability to high school athlete injured following practice based on recreational use (K.S.A. 75-6104) examined. Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990).

53. Written notice required by K.S.A. 12-105b(d) before filing action against municipality under tort claims act. Tucking v. Board of Jefferson County Comm'rs, 14 Kan. App. 2d 442, 443, 796 P.2d 1055 (1990).

54. Burden rests on governmental entity to prove immunity under one or more of act's exceptions. Huseby v. Bd. of Cty. Com'rs of Cowley Cty., 754 F. Supp. 844, 846 (1990).

55. School district's responsibility in failing to follow established procedure involving child abuse allegations against third party's employee/bus driver examined. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 363, 819 P.2d 587 (1991).

56. County treasurer and state department of revenue lack immunity for negligent examination of motor vehicle title application. Mid American Credit Union v. Board of Sedgwick County Comm'rs, 15 Kan. App. 2d 216, 219, 806 P.2d 479 (1991).

57. State employee's acceptance of bribe as not within scope of employment and does not further state's business. Commerce Bank of St. Joseph, N.A. v. State, 251 Kan. 207, 214, 833 P.2d 996 (1992).

58. Cited in holding police owed no special duty to intoxicated bar patron permitted to leave and later found frozen to death nearby. Mills v. City of Overland Park, 251 Kan. 434, 448, 837 P.2d 370 (1992).

59. Department of transportation and city immune from liability under act for nonplacement of protected left-turn signal on connecting link highway. Force v. City of Lawrence, 17 Kan. App. 2d 90, 91, 838 P.2d 896 (1992).

60. Public golf course noted as recreational use exception (K.S.A. 75-6104(o)); nature of employee's negligence generally question for trier of fact. Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 389, 836 P.2d 1222 (1992).

61. Liability of state noted where law enforcement employee breaches specific duty owed to individual rather than general public (K.S.A. 75-6109(n)). Washington v. State, 17 Kan. App. 2d 518, 519, 839 P.2d 555 (1992).

62. Action under act properly appealed pursuant to K.S.A. 12-105b. Larson v. Ruskowitz, 252 Kan. 963, 965, 850 P.2d 253 (1993).

63. Discretionary function exception (K.S.A. 75-6104(e)), duty city owed in owning/operating electric plant and distribution system examined. Lamb v. City of Elsmore, 18 Kan. App. 2d 641, 643, 857 P.2d 1380 (1993).

64. Whether defendants were immune from liability under 42 U.S.C.A. 1983 because defendants may have been immune under KTCA (K.S.A. 75-6101 et seq.) examined. Reidenbach v. U.S.D. #437, 878 F. Supp. 178, 181 (1995).

65. No trial court error in finding defendant not immune under discretionary exception to K.T.C.A. for defamatory statements. Moran v. State, 267 Kan. 583, 597, 985 P.2d 127 (1999).

66. No special duty owed to plaintiff; defendants are immune from liability under act. Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 100, 981 P.2d 266 (1999).

67. Disciplinary hearing officer at correctional facility entitled to immunity under Kansas Tort Claims Act in performance of judicial functions. Garrett v. Sawyer, 27 Kan. App. 2d 594, 3 P.3d 94 (2000).

68. Trial court correctly dismissed action for damages under Kansas tort claims act. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 20 P.3d 39 (2001).

69. State has not waived its sovereign immunity from suits seeking damages under 42 U.S.C. § 1983. Wendt v. University of Kansas Med. Center, 274 Kan. 966, 59 P.3d 325 (2002).

70. Burden is on government to establish immunity under K.T.C.A.; exception from liability for design caused accident is limited to design caused accidents, not negligence independent of design. Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 40 P.3d 315 (2002).

71. Cited in discussion of recreational use exception involving school commons area. Poston v. U.S.D. No. 387, 286 Kan. 809, 810, 189 P.3d 517 (2008).

72. Subsections (d) and (e) of K.S.A. 75-6104 held to shield governmental entities from liability. Potts v. Board of Leavenworth County Comm'rs, 39 Kan. App. 2d 71, 78, 179 P.3d 988 (2008).

73. Mentioned; city found not negligent in roundabout construction; no "taking" under K.S.A. 26-513 found. Estate of Kirkpatrick v. City of Olathe, 39 Kan. App. 2d 162, 164, 178 P.3d 667 (2008).

74. Cited; there is no authority for damages against county officials for invalid determination under recall act. Collins v. Hoeme, 40 Kan. App. 2d 93, 96, 189 P.3d 566 (2008).

75. Cited; subsections (d) and (e) of K.S.A. 75-6104 not applicable where government owes duty of reasonable care to injured party. Thomas v. Board of Shawnee County Comm'rs, 40 Kan. App. 2d 946, 964, 198 P.3d 182 (2008).

76. Action against county and township; claims dismissed based on K.S.A. 12-105b, 60-258a. Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 205 P.3d 1265 (2009).

77. Having determined that mental health center did not owe duty to persons injured by patient, tort claims act not considered. Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 214 P.3d 1173 (2009).

78. A fraud claim against school district would have to be brought under Kansas tort claims act. Knop v. Gardner Edgerton U.S.D. No. 231, 41 Kan. App. 2d 698, 205 P.3d 755 (2009).


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