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kansas distinctions

Terms in this set (253)

K Assent UCC - Both parties merchants
When merchant sends acceptance to another merchant & acceptance includes DIFFERENT nonmaterial terms --> K formed, gap-filling provisions of UCC apply to conflicting terms (if acceptance expressly conditioned on acceptance of additional or diff terms, acts as counteroffer, no K)
Consideration
Can be either a benefit to promisor or detriment to the promisee
Substitutes for consideration
1 - Not necessary if detrimental reliance or promissory estoppel applies; 2 - Kansas has abolished the seal: presumption that signed Ks supported by consideration (may be rebutted by pleading and proving lack of consideration as affimative defense)
Defenses to K formation
Covenant not to compete in EE K = enforceable to extent that reasonable, considering (a) whether C protects a legit biz interest of beneficiary of C (e.g. trade secrets, customer lists); (b) whether C places undue burden on obligor (unable to work?); (c) whether C injures the public welfare (limit # of people who can practice medicine); (time and geographical limitations on the C are reasonable (1 yr v. 10 yr limit; reaching beyond legit biz interest of beneficiary)
Ks of Infants (lack of capacity)
Minor < 18; Minor can't disaffirm a K if he isrepresented his age OR engaged in biz as an adult
Statute of Frauds (right to terminate w/in yr)
An option to cncel a K w/in a year takes the K out of the Statute of Frauds
Promissory estoppel & oral K (SoF)
Reliance may make enforceable an oral K that otherwise would be unenforceable under the SoF (justifiable reliance + knowledge that OR would rely reliance)
Transcript of Ct. Proceedings (SoF)
SoF does NOT preclude enforcement of oral agreements involving subject matter falling w/in the SoF that are placed on record by parties during ct proceeding
K made by Agent
General Equal Dignities Rule: agent's auth must be in writing if K that the agent will enter into on behalf of principal must be in writing
Unconscionability
Procedural (overreaching Ks b/c unequal bargaining position) & substantive (excessive limits on buyer's remedies) unconscionability BOTH recognized as DEFENSE (ct will usually only recognize in consumer cases and only in foavor of those susceptible b/c of deficit in education or low economic status). Factors: (i) adhesion K; (ii) significantly excessive price; (iii) basic denia of rts and remedies; (iv) penalty clause; (v) disadventageous clauses buried in fine print; (vi)K includes language incomprehensible to a layperson; (vii) overall imbalance in K rights & duties; (viii) exploitation of one of the parties
Intended v. incidental beneficiaries
Contracting parties are presumed to act for themselves and an intent to benefit a 3rd party must be clearly expressed in K
Duty of good faith & fair dealing
Duty of good faith & fair dealing is IMPLIED in every K except at-will employment Ks (mere EE handbook that mentions employment is at-will DOES NOT preclude a party from showing that there is an implied K to treat EEs fairly and to terminate them for just cause only -- ct will determine understanding & intent of parties from several factors, incl written or oral negotiaons, conduct, usages of biz, objective of parties in relationship, nature of employment -- makes clear intention of parties when employment commenced)
Certainty Rule - Profits from New Biz
To recover lost profit damages, must prove: (1) lost profits contemplated at time of K; (2) lost profict proximately result from breach or termination of K; & (3) lost profits must be shown w/reasonable degree of certainty (ex: ev of profits from similar biz and other biz owned by same owner )
Specific performance: Equitable Estoppel
D in suit for specific performance may be estopped from denying existence of a fact if P (1) shows that D induced him to believe that a fact existed (by acts, representations, admissions, or silence when duty to speak); (2) relied and acted on the fact; AND (3) would be prejudiced if D were allowed to deny the existence of the fact (BUT: P cannot make estoppel arg if fact on which it's based is AMBIGUOUS or subject to more than 1 construction)
Restitution
Restitution NOT available to subcontractor against an owner not in privity unless the owner accepts the benefts under such circumstaces and reasonably notifies him that the one performing the services reasonably expects to be compensated therefor by the one sought to be charged
No K involved (unjust enrichment)
P is allowed to recover for unjust enrichment where no K, but MUST show: (1) P conferred a benefit on the D; (2) an appreciation or knowledge of the benefit by the D; and (3) circumstances such that it would be unjust for the D to retain the benefit w/o paying P
Article 2 applies
Sometimes apply Article 2 rules to transactions not involving the sale of goods (K for sale of phone book advertising)
"Goods" defined
Computer software = goods (even though may come w/incidental services)
Farmers (merchants?)
Farmers = merchants for some purposes, but not others (merchant to make warranty of merchantability of goods; not for SoF)
Confirmatory Memo Rule (Merchants)
Famer held not to be a merchant for purpose of merchants' confimatory memo exception to the SoF (farmer not bound to memo confirming terms allegedly agreed to over the phone)
K Modification
Both parties must expressly agree to roposed amendments that materially alter the parties' original ageement (party does not expressly agree to an additional or dif term by simply continuing w/the K)
Impracticability (events sufficient for discharge)
Late September freeze = foreseeable, so it won't excuse a farmer's failure to deliver crops due under K
Buyer's Remedies (other req for revocation of acceptance)
In addition to req buyer to revoke an acceptance w/in a reasonable time after discovering a defect in goods & before any substantial change in goods occur, buyer must: (1) show that nonconformity IMPAIRS the VALUE of the goods to the buyer's particular needs; and (2) pay the seller for the FAIR VALUE of the BUYER's use of the goods after the buyer has revoked acceptance
Express Warranties
Dealer's affirmation did NOT become part of basis of the bargain where the dealer was inexperienced, the buyer was extremely knowledgeale, and the buyer was influenced mostly by the manufacturer's affirmations
Disclaimers by Sellers of Livestock
Sellers of livestock make NO IMPLIED warranties unless the sale is for immediate slaughter or the seller KNOWS that the livestock is diseased
Kansas Consumer Protection Act
Implied warranties may NOT be disclaimed in Kansas in any consumer case except for the AUTO disclaimer of section 2-316(3)(d)
Warranty & 3rd Parties
Alternative B to UCC 2-318: extends seller's liability for breach of express or implied warranty to ANY INDIVIDUAL who may reasonably be expected to use, consume, or be affected by the goods and who is injured by the breach (seller MAY NOT exclude or limit the operation of this section)
Felonies & Misdemeanors
When a crime is not statutorily specified as a misdemeanor or felony, a felony = "a crime punishable by death or by imprisonment" applies
Merger & Solicitation
Solicitation DOES NOT merge into the underlying offense (NOR on an aiding and abetting theory)
Unreasonable mistake of fact
Unreasonable mistake of fact is NOT a defense to specific intent crimes
Specific Intent Crimes
2nd degree murder = SI crime; Robbery is NOT a SI crime
Other levels of fault - specifications
If statute does not clearly establish a culpable state of mind, a purposefully or knowingly state of mind is required for every element of the crime (BUT recklessness is sufficient if the defining offence so provides, no intent req'd for regarding a minor's age)
Withdrawal or Renunciation as defense
Persuading the solicited person not to commit the crime or otherwise preventing its commission in such a manner as to manifest a complete and voluntary renunciation IS a defense except in crimes involving terrorism or weapons of mass destruction
Attempt
Merely an overt act going beyond mere preparation required for attempt
Insanity
Abolished the insanity defense (BUT, ev of mental disease or defect stil relevnt to show lack of requisite mental state)
Diminished capacity
Ev of diminished capacity regarding the specific intent of premeditation required by 1st degree murder (may also be considered in determining the existence of intent req'd by any specific intent offense)
Intoxication
Involuntary intoxication is a complete defense if it negates a req mental state or if it rendered a D "substantially incapable of knowing or understanding the wrongfulness of his conduct AND of conforming his conduct to the requirements of the law"
Self-defense (deadly force)
Ev of battered woman sydrome allowed to show the reasonableness of the woman's belief that she was threatened w/immediate death or great bodily harm (must first be evidence of an imminent threat before its admissible)
Imperfect self-defense
If D honestly, but unreasonably, believes the use of deadly force was necessary, Kansas permits the "imperfect" self-defense to REDUCE murder to voluntary manslaughter
No Reasonable Escape
Initial aggressor may use deadly force when he has exhausted all other reasonable means of escape from the danger, including retreat
Defense of a dwelling
Person may use deadly force to prevent or terminate unlawful entry into or an attack on any dwelling or occupied vehicle if she reasonably believes such force is necessary to prevent her or another's imminent death or grat bodily harm (NO duty to retreat)
Duress
D cannot be guilty of felony murder if he has a valid defense of duress to the underlying offense
Aggravated Battery
When a battery or aggravated battery (or assault) is committed against certain types of victims (police, child) a D must have only reason to know, NOT actual knowledge of the victim's status
Special Aggravated Assault
Special aggravated assault (or battery) offense based on victim's status as a law enforcement officer (if he had reason to know)
Voluntary Manslaughter - Imperfect Self-Defense
Imperfect self-defense recognized in voluntary manslaughter cases when the D commits an INTENTIONAL killing based on an unreasonable, but honest, belief that the circumstances justified the use of deadly force
Criminal Negligence (involuntary manslaughter)
Reckless killing = involuntary manslaughter. D must be subjectively aware of a substantial and unjustifiable risk and must grossly deviate from the reasonable person standard of care
Misdemeanor-Manslaughter Rule
Unlawful act of manslaughter limited to certain offenses, such as violations of public safety laws or acts that pose foreseeable dangers to human life (traffic offenses, except DUI & reckless driving, cannot support unlawful involuntary manslaughter)
Statutory Modifcaction of Common Law Classifications
Murder = 3 degrees: 1st Degree = premeditated killings and felony murder; 2nd Degree = intentional, but unpremeditated killings and killings that are done in a reckless manner manifesting extreme indifference to the value of human life
Premeditation
Premeditation can occur in an instant and can reasonably be inferred from surrounding circumstances (e.g., use of deadly weapon, lack of provocation)
First-Degree Felony Murder
Both 1st degree premeditated murder AND some types of 2nd degree murder are SI crimes (affects application of defenses)
Vehicular homicide
Vehicular homicide differs from reckless involuntary manslaughter in that it requires only gross negligence, not recklessness
Felony Murder - which felonies
In addition to included common law felonies, inherently dangerous crimes = kidnapping, voluntary manslaughter, aggravated criminal sodomy, felony theft, child abuse, various drug offenses, and criminal discharge of a firearm at an unoccupied dwelling
Kidnapping
Kidnapping accompanied w/infliction of bodily harm = aggravated kidnapping
Rape Requirement
Victim must be overcome by "force or fear" for rape, but fear need not be objectively reasonable
Woman incapable of consenting
D must know or have reason to know of the woman's incapacity to consent
Statutory rape
To be convicted of the crime of "rape," the child must be < age 14. If child is b/w ages of 14 & 16, crime is "aggravated indecent liberties with a child"
Crimes against Nature
Sodomy defined broadly, similar to common law, but do not include married persons
Criminal Sodomy
Misdemeanor of criminal sodomy prohibits the proscribed acts, involving persons >16 years, only b/w homosexuals & b/w humans & animals (unlikely that a prosecution based on homosexual act b/w 2 consenting adults would be successful.) All sodomy w/children b/w 14&16 is prohibited; consent is no defense. Aggravated criminal sodomy (FELONY) includes acts w/children <14; consent is no defense, although marriage is a defense. Aggravated sodomy also includes nonconsensual sodomy under the same conditions as with aggravated sexual battery
Sexual Battery & Aggravated Sexual Battery
Misdemeanor of sexual battery as the nonconsensual intentional touching of a person age 16 or over, who is not the D's spouse, w/the intent to arouse the sexual desires of the D or another. If the victim is overcome by force or fear, is unconscious or physically powerless, or is unconscious due to a mental deficiency or intoxication that was known or reasonably apparent to the D, the offense is aggravated sexual battery
Indecent liberties with a child
Felony of indecent liberties w/a child occurs when a person lewdy fondes himself or a child b/w the ages 14&16 or solicits the child to fondle another w/the intent to arouse or satisfy the sexual desires of the person, the child, or another. Marriage to teh child is a defense
Robbery elements
Taking of property from the person or presence of another by FORCE or by threat of bodily harm to any person. (NOT a SI crime, D may be convicted if he had the general intent to take the property by force or threat of force) Ownership of property by victim is not an element of the offense (Req = D has no bona fide claim to the property)
Aggravated Robbery
Aggravated robbery also occurs if bodily harm is inflicted on the victim
Theft
Theft = intentionally depriving the owner of possession, use, or benefit of her property by exerting control over the property w/o authorization, by deception, or by threat. Receiving stolen property, knowing that it was stolen, also = theft. Property < $1,000 = misedemeanor; felony = > $1,000
Single Larceny Doctrine
Value of items taken from the same owner at or about the same time may be aggregated if the takings resulted from "a single incriminating impulse."
Burglary - Modern Statutory Changes
Any means of conveyance (e.g.,a car, railroad car) as a "structure" that can be burglarized (no req for breaking, nighttime, and dwelling)
Aggravated Burglary
When a burglary is committed while a person is present in the structure or vehicle (D need not know of the person's presence)
Arson
Includes damaging a building or property by means of an explosion; no dwelling requirement (must be committed knowingly or accidentally during the manufacture of a controlled substance)
Aggravated Arson
Arson committed on a building or property in which a person is present, or arson that results in great bodily harm or disfigurement of a firefighter or law enforcement officer is aggravated arson
Expectation of privacy in DNA
Person has NO expectation of privacy in her DNA after it has been obtained lawfully by the police
Execution w/o Unreasonable Delay
Warrant is void if not executed w/in 96 hours of its issuance (may be executed any time day or night, and officers may use all reasonable force necessary to execute it)
"Automobile" Exception
w/o more, the smell of ether (chem used in making meth) does NOT justifiy warrantless search. - Odor of marijuana does provide probable cause
Testing for operating a vehicle under the influence of Drugs of Alcohol
If officer has REASONABLE GROUNDS to believe that a driver is oerating a vehicle under the influence of drugs or alcohol, he may cause to be administered a blood, breath, urine, or other test, even if driver is unconscious (driver has NO rt to consult atty to decide whether to submit the test, and driver MUST be warned that refusal to test CAN result in 1-yr license suspecion and that test may be used against the driver at trial. If the driver submits, she MUST be advised that she may consult w/an atty after the testing and may secure additional testing at her expense in order to contest results
Other Emergencies (no warrant req'd)
Police officer may conduct a public safety stop on a vehicle if SPECIFIC & ARTICULABLE facts support safety inquiry (open fuel filter door & "bouncy" tire)
Public Safety exception
In addition to PS exception to Miranda, also police safety exception for officer's own protection (may ask suspect a/b location of his weapon before giving suspect Miranda warnings)
Procedure for Challenging a Confession
Statutory req to challenge confession admissibility: (1) motion to suppress should be made in writing prior to the trial or a prelim hearing; (2) determination myst be made at a hearing outside jury's presence (admissibility must NOT be submitted to the jury, but circumstances may be for weighting); (3) prosecution has burden of showing that confession was voluntary; & (4) to preserve the issue for appeal, D must object when confession offered into ev
Bail
D should be released on bail (generally surety bond) that may be forfeited if fails to appear for trial (judges can impose add'l considerations on D to assure appearance and public safety)
Prelim hearing to deterimine probable cause
Unless D arrested on grand jury indictment (rare), any D charged w/felony or the State has rt to prelim hearing to determine whether there's probable cause to prosecute D (held w/in 10 days after arrest or initial appearance - time not mandatory/doesn't warrant dismissal if violated)
Grand Juries/Inquisitions
Most felony prosecutions pursuant to an Information filed by prosecution (plain, concise statement of the essential facts of the crime w/names of witnesses); to aid, county atty may conduct investigatory "inquisition," (1-person grand jury, testimony recorded but no findings made, no defense counsel present)
Speedy Trial Attaches
Generally, D in jail soley for charged crime must be brought to trial w/in 90 days after arraignment; Released D on bail tried w/in 180 days (both times may be extended if D causes delay, D not competent, full docket); period b/w dismissal of charges and refiling is not included in calclulating if adequate showing of necessity for dismissal and state not trying to manipulate speedy trial rules
Duty to disclose (relevancy)
Although prosecutor must turn over all material ev, D need only turn over ev that it actually intends to use at trial (note: both sdes must request material, not auto disclosed)
D must give notice
D must give notice of intent to use an alibi as defense (7 days pre-trial) & State has 7 days to disclose names of rebuttal witnesses (ct can prevent alibi ev if timely notice not given); D who intends to raise defense that mental illness or defect to negate element of offense charged must give notice w/in 30 days of arraignment
Exam of Victim
If D in criminal case presents COMPELLING reason to do so, ct has discretion to order crime victim to undergo mental/physical exam (possibility of discovering exculpatory ev weighed v. possible harm/trauma to V) -- abuse of discretion applies to overturn decision denying exam
Pretrial Publicity & Fair Trial Rts
Trial cts have discretion to grant a change of venue if aD cannot receive a fair trial b/c of pretrial publicity (publicity alone is not sufficient to req change); other remedies are jury sequestration or continuance granting
Right to Jury Trial
Jury trial only for "serious" offenses; misdeamaor cases tried by ct unless D demands jury trial
# and Unanimity of Jurors
Jury of 12 for all felonies unless ct consents to agreement of both parties for <12; misdemeanor cases = 6 jurors. Unanimity: if D accused of both premeditated & felony murder, sentencing ct must be able to clearly ascertain that jury unanimously found D guilty of both to give mandatory sentence (otherwise, sentence for premeditated cannot be imposed, only felony)
Child Witnesses
Child victim can testify by closed-circuit TV if ct finds by clear and convincing ev that testifying in open ct would traumatize child to the point that he would not be able to reasonably communicate w/the jury
Sufficiency of the Ev
Motion for judgment of acquittal addresses sufficiency of ev; Standard = whether after review of all the ev, viewed in a light most favorable to the prosecution, the court is conviced a rational factfinder could hav found the D guilty beyond a reasonable doubt (State may NOT appeal judgment of acquital)
Arrest of judgment
Generally, defects in complaint, information, or indictment must be raised before trial (may challenge sufficiency/whether elements charged & fully informs D of each charge, common sense rather than technical approach - tardily challenged charging instruments will be liberally construed in favor of validity... sliding scale for later challenges). If it doesn't charge a crime or if ct did not have jurisdiction & D convicted, D may move for ARREST OF JUDGMENT, or the ct may grant an AoJ on its own motion up to 10 days after verdict entered (only sufficiency of charging instrument determined)
Eyewitness Cautionary Instruction
In any crim action in which eyewitness ID is critical part of prosecution's case and there is a SERIOUS Q as to the RELIABILITY of the ID, cautionary instruction should be given advising jury about factors weighed in credibility of witness ID (1- witness opp to view accused at time of crime; 2- witness's detree of atn at time of crim; 3- accuracy of witness's prior descriptions of accused; 4- witness's level of certainty; and 5-length of time b/w crim and ID)
Lesser Incld Crimes
Ct must instruct jury concerning each and every element of offense charged and applicable theories of the prosecution and the defense. Gen, a ct also req'd to give full range of instruction on lesser-included offenses (but if murder commited during felony, rule does NOT apply if ev of underlying felony is strong b/c felonious conduct is being used to show deliberation and premeditation, otherwise req'd for 1st degree murder)
Preserving Issue for Appeal
If D disagrees w/jury charge, he should object; otherwise, issue generally is waived. If jury instruction is not challenged at trial, it will be upheld on appeal unless it was CLEARLY ERRONEOUS and, but for the reror, there is a real possibility that the jury would have returned a different verdict
Jurisdiction & Venue (Crim)
Venue lies in the county where the crime alleged was committed, if >1 county, venue lies in ANY county where committed (if stolen property taken from 1 county to another, venue proper in either county; & if person harbos criminal, venue proper where his acts occurred or where principal's acts occurred). If near border & cannot be determined which, either county has venue
Factual basis for guilty plea
Ct taking a plea or guilty or nolo contendere in a felony case is REQ'd to find a factual basis for the plea
Drunk Driving & Please
Prohibits plea bargain that would allow a drun driving D to avoid mandatory penalties
Improper remarks in closing args
Improper remarks by prosecutor in closing args only grounds for reveral if SO GROSS and FLAGRANT as to prejudice the jury against the D and deny him a fair trial (such comments will constitute reversible error only if D objects during closing)
Motion to Vacate (Habeas)
Statutory motion to vacate a judgment // federal habeas corpus, but it's filed w/the sentencing court while a habeas corpus petition is filed where moving party is detained. Motion asks sentencing ct to vacate based on: (1) violation of US Constitution, fed law, or KS Constitution; (2) Lack of jurisdiction; or (3) the fact that the sentence exceeds that authorized by statute (Generally, mere errors at trial affecting con law issues not subject to collateral attack, but resolved on direct appeal). Motion can be filed at any time after direct appeal time has run or after an unsuccessful direct
When Jeopardy Attaches
Subsequent prosecution barred if: (i) D formerly prosecuted for same crime, based upon same facts; (ii) former prosecution resulted in either a conviction or an acquittal; or (iii) prior trial resulted in a determination that the ev was insufficient to warrant a conviction
Separate Sovereigns
> Double jeopardy protection than US Constitution req: bars 2nd prosecution for same conduct for which D was prosecuted in a federal district court or sister state trial court (does NOT follow separate sovereign rule)
Land appraisal (when certain similar occurrences relevant)
Generally, an appraisal of land for tax assessment purposes is NOT admissible as evidence of the land's value for other purposes
Discretionary Exclusion of Relevant Evidence (pragmatic relevance)
Trial judge may also exclusde relevant evidence when its probative value is substantially outweighed by the danger of unfair or harmful SURPRISE
Settlement offers - Negotiations (admissibility)
KS: ONLY offer to compromise is excluded - express admissions of liability and statements of fact made during negotiations = ADMISSIBLE (fed rules exclude offer to compromise & conduct or statement made in course of negotiations)
Settlement Agreements w/<all Ds
When settlement agreement entered into b/w P & 1 or more, but not all Ds, ct & other parties MUST be advised of the terms of the agreement (if case tried before jury and a D who's a party to the settlement agreement remains in the case to prosecute cross-claims, the court MUST, upon motion of a party, disclose existence AND content of agreement to the jury
Disclosure Limitations
Disclosure NOT required if ct finds it will create substantial danger of unfair prejudice, confusing the issues, or misleading the jury (disclosure must be limited to those facts necessary to apprise jury of essential nature of agreement & possibility that the agreement may BIAS the testimony of the parties who entered into the agreement) (while jury must be advised in general terms of the financial interest in the outcome of the case of any D who is a party to the agreement, amount of settlement or specific contingencies NOT to be disclosed)
W/Drawn Guilty Pleas
Guilty pleas are admissible evidence if later w/drawn (contrary to Fed)
Payment of Medical Expenses
Any payment or offer made from HUMANITARIAN motives, not just those relating to medical expenses
Statements made during Dispute Resolution
All oral & writen communications b/w party to a dispute and a neutral person conducting the dispute resolution proceeding (mediator) = CONFIDENTIAL. Admissions, representations, or statements made in proceeding are NOT admissible as ev or subject to discovery. Any party & neutral person has privilege to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. Neutral personis NOT subject to process requiring disclosure of any matter duscussed during proceeding unless ALL parties consent to waiver. (Statute does NOT apply to (i) info that is reasonably necessary to allow investigation of the neutral person or for the defense of the neutral person in an action against neutral person; (ii) info that the neutral person is req'd to report by law or court order; (iii) info that is reasonably necessary to prevent the commission of a crime or fraud; or (iv) a report to the court that a party has threatened physical violence against another party or member of his family, the mediator, or an EE of the ct. if it is apparent that the party intencds on carrying out the threat.
Means of Proving Character
Prior convictions = ADMISSIBLE (v. fed rules that limit affirmative proof of character to opinion or rep ev)
Character Ev in Civil Cases
Character Ev = admissible in civil cases & crim cases to prove conduct in accord w/character, except when trait is for care or skill offered to prove that the person was not negligent on the occasion subject to litigation)
Character Ev of Victim
Prosecution may rebut D's bad character evidence of victim ony w/ev of Victim's good character for the same trait (may NOT rebut w/evidence of D's bad character for the same trait)
Rape Victim Past Behavior
Rape shield limited to sex-related criminal cases only (in civil cases, ev regarding sexual behavior of alleged victim offered by D is admissible only if its probative value substantially outweighs the harm or unfair prejudice to the victim
Specific Acts of Miscnconduct
Ev of prior bad acts = admissible if relevant to prove something other (broader) than just motive, opportunity, intent, plan, preparation, knowledge, identity, & absence of mistake/accident (Cts must give jury limiting instruction explaining the specific purpose for admission)
Prior Acts of Sexual Assault or Child Molestation
Ev of D's prior acts of sexual assault or child molestation is INADMISSIBLE to prove character and may be admitted ONLY to show some other material fact include motive, opportunity, intent, preparation, plan, knowledge, ID, absence of mistake, or accident
Conclusiveness of Judicial Notice
Judicial notice is CONCLUSIVE in all cases in KS, whether civil or criminal
Ancient Documents
Ancient doc is authenticated if at least 30 yrs old
Admissibility of Duplicates
Carbon copies and microfilmed biz records = admissible as originals, but otherwise, duplicates are secondary ev admissible ONLY when exception is established
Admissibility of Secondary Ev of Contents -Testimony or Written Admission of Party
No exception for party admissions in KS
Past Recollection Recorded
KS permits admission of past recollections recorded as an exhibit (v. fed rules, req only read to jury)
Expert Testimony Subject
Frye general acceptance test governs - expert opinion MUST be based on scientific principles or tests generally accepted as reliable w/in expert's particular field (Daubert test for admissibilityof expert opinion testimony does NOT apply)
Qualified Expert Witness
Experts must be qualified as an expert (rule applies only to experts in the strictest sense: drs, architecs, & skilled witnesses like bankers/landowners testifying to land values)
Expert Opinion Supported by Factual Basis
Expert opinion must be based on admissible evidence
Crime Involving Dishonesty (impeachment)
A crim D may NOT be impeached w/conviction involving dishonesty or false statement unless D first offers ev supporting her credibility (unlike fed rules)
Felony Not Involving Dishonesty (impeachment)
Felony convictions not involving dishonesty or false statement may NOT be used for impeachment
Juvenile Adjudication (impeachment)
Any juvenile adjudication involving dishonesty or false statement istreated as convition and admissible for impeachment purposes (but if witness is crim D, must first offer ev of credibility w/a juvenile adjudication)
Extrinsic Evidence & Bad Acts
KS allows specific instances of prior misconduct to be subject of cross-ex OR extrinsic ev (minority rule)
Atty-Client Priv - Nonapplicability of Privilege
Atty-client privilege does NOT exist when the legal service is sought to aid in commission or planning of a future crime or fraud, OR in any tort (unique to KS)
Psychotherapist/Social Worker - Client Privilege
No general psychotherapist-patient privilege, although limited physician-patient and broader psychologist-patient privileges DO exist
Spousal Immunity
Spouse of criminal D may be req'd to testify about matters NOT involving confidential communications
Privilege for Confidential Marital Communications
Privilege for confidential marital communications in civil and crim cases, but survives divorce ONLY in crim cases
Prior Inconsistent Statements by Witness (hearsay exception)
Prior inconsistent statements of current witnesses = admissible as SUBSTANTIVE ev (no req that statement had to be made under oath a prior proceeding as in fed rules)
Admissions by Party-Opponent
Admission by a party-opponent is an EXCEPTION to hearsay rule (fed rules treat as "nonhearsay")
Vicarious Admissions - Co-conspirators
Conspirator statements may be made while the plan was IN existence and before its complete execution or other termination and need only be relevant to the plan to be admissible (But, testimonial admissiions of a conspirator are admissible against co-conspirator only if there was an opportunity to cross-ex the hearsay declarant
Former testimony - ID of parties
Former testimony is admissible even against one who was not a party to the prior action if some prior party had a similar motive to examine the witness (declarant unavailable)
Statements Against Interest - Req of statement (hearsay exception)
Statement against interest exception does NOT require unavailability (statement may have been against declarant's SOCIAL interest, as well as pecuniary, proprietary, or penal interest)
Dying Declarations (hearsay exception)
Dying declarations are admissible in any case and need NOT relate to cause or circumstances of death (declarant must be unavailable b/c dead)
Past Bodily Conditioon (hearsay exception)
Medical history statements excluded from hearsay ONLY when made to a treating physician (contrary to fed rules); statements made to physicians consulted soley for trial testimony = inadmissible (availability immaterial)
Biz Activity - Hospital Records
Biz records exception extends only to records of acts, conditions, or events and not specifically to medical diagnosis or treatment
Official Records & other Official Writings
All official records MUST satisfy biz records exception or other special statutes like Vital Statistics Act (no KS counterpart to fed exception for "official records")
Prior Crim Convictions Admissibility
A guilty plea or conviction of a misdemeanor OR felony is admissible, also admissible to prove essential facts as party admission
Learned Treatises
Learned treatise MAY be admitted as an exhibit if judge finds, through judicial notice or expert testimony, that the work is a reliable authority (v. fed rules where only read to jury)
Catch-All Exception?
No catch-all exception, BUT statements of recent perception by an unavailable declarant are admissible, and there's a catch-all for RELIABLE statements of CHILD victims who are unavailable (but, crim D may challenge admissibility of statement based on being testimonial under Confrontation Clause)
Presumptions - burden
Presumptions shift burden of PRODUCTION & PERSUASION if presumption is grounded in logic rather than administrative convenience or public policy (facts have probative value as ev of the existence of the presumed fact)
Correlative FI in Grantor
If an instrument creats a fee simple subject to a condition subsequent ("to A on condition that liquor is not sold on premises"), and does not reserve rt of entry, ct WILL allow extrinsice ev to resolve ambiguity
Legal Life Estate (by marital rt)
KS has abolished common law marital esates of dower & curtesy
Life T w/Power of Disposal
If instrument gives life T power of disposal ("life T shall have the power to sell and dispose of the property during her lifetime"), estate STILL treated as life estate and the remainderperson is treateed as having a FEE SIMPLE SUBJECT to DEFEASANCe. (If life T sells property, she can convey a Fee Simple to purchaser & eliminate remainderperson's interest) --> power of disposal gives life T POWER to convey a fee, does not convert life estate into a fee
Liminations on Life Estate
Power to sell does NOT give life T power to INVADE the corpus; still entitled only to the INCOME derived from the property or derived from the proceeds of the sale of the property. Life T stands as quasi-trustee of the remainderpersons and owes them fiduciary duties. Cannot: (i) give the property away; (ii) devise the property by will, or (iii) sell the property for < adequate consideration
To A for life, and then to A's heirs
Creates life estate in A and remainder in A's heirs (KS abolished the Rule in Shelley's case)
To O for life and on A's death to my heirs"
Gives A a life estate, O's heirs a contingent remainder, and O a reversion (no doctrine of worthier title for testamentary transfers)
Construction of Remainders
In cases of ambiguity, remainder = vested (if condition is PRECEDENT, remainder = contingent; If condition is subsequent, remainder = subject to divestment)
RAP Reform
KS has adopted Uniform Statutory Rule Against Perpetuities (USRAP): Wait & see approach and invalidates an interest only if it does not ACTUALLY vest w/in 90 days after its creation; USRAP also gives invalid FIs a second chance (ct may reform an invalid interest in a manner that most closely approximates the trasnferor's plan of distribution by vesting interest w/in the 90-yr period)
Joint Tenancy - Creation
Person can convey t herself and another person as joint Ts w/o a strawman (presumption that a coneyance to 2+ persons, even husband and wife, creates a T in Common UNLESS clear intent to create joint T expressed
Effect of Lien/Mortgage on Joint T
Mortgage or Pledge of a Cert of Depoist held in joint T will sever a joint T (no precedent on whether severed by executory K to sell entered into by 1 joint T)
Bank Accounts & Joint T
K b/w a bank and depositor may give depositor power to create a joint T where he otherwise could not (H&W on joint account, H can add Son and Daughter w/o severance); Presumption that each joint T has an = interest so that creditor seeking to get more than half of the account must prove the debtor co-T's interest is more than 50% of account
Murder & Joint T
If one joint T is convicted of murdering another, creates a T in common
Tenancy by the Entirety
KS does NOT recognize T by entirety. Conveyance to H & W creates T-in-common absent clear intent to form joint T
Divorce
By operation of law, divorce of a joing T from another joing T creates a T in common
Remedy of Partition
Co-T who enters into an agreement not to partitionis bound by it. Agreement acts as an estoppel or waiver of the right to partition (agreement may be express or implied)
Repairs & Co-Ts
A Co-T can obtain contribution from her co-Ts if improvements were made w/their knowledge and they did not object
Notice of Termination (leasehold)
Absent notice requirements in lease, following apply: (a) termination of year-to-yr tenancy req written 30-day notice (only Ts entitled to notice); (b) termination of tenancy-at-will req written 30-day notice; (c) termination of a lease for failure to pay rent when the lease's term is >3 months requires a 10-day notice, and T may during during that period; and (d) termination of lease for failure to pay rent when lease is <3 months requires 3 days notice
Construing Leases
Leases are construed more strictly v. the preparer (LL). Prohibited clauses (from Kansas Residential LL and T Act "KRLTA"): (i) any waiver of statutory rights of remedies; (ii) confessions of judgment; (iii) agreements to pay atty's fees; (iv) exculpatory or indemnity clauses (KRLTA also gives cts authority to refuse enforcement, partially or entirely, of a lease on the ground of unconscionability)
Destruction of Premises w/o Fault
T can terminate lease if the habitability of leased premises has been substantially impaired by a fire or casualty (allowed by KRLTA); 5 days' notice requred, or T can occupy usable portion and pay proportional rent
T Abandons (LL Remedies)
Under KRLTA, if T has been in default in paying rent for at least 10 days and has removed a substantial portion of her belongings, she is presumed to have abandoned the premises
Duty to Mitigate (LL)
If a T breaches and fails to pay rent, LL has a duty to make reasonable efforts to mitigate damages - no rent recoverable for periods during which a good faith effort to mitigate damages was not made
Forfeiture or Reentry
Forfeiture clauses, auto terminating an agreement for breach of it, are DISFAVORED and must be carefully written to be enforceable. Reentry clause is an alternative to a forfeiture clause (rt of forfeiture is subject to judicial control and equitable discretion and can be lost by waiver, estoppel, or other inconsistent conduct)
T Duties
KRLTA req Ts to keep premises clean and safe; remove rubbish & gabage; use all systems reasonably; not disturb quiet enjoyment of other Ts; be responsible for damages caused by T or his guest; and permit LL to enter for inspection, repair, improvements, or to show the premises to prospective renters/buyers
LL Duty - Actual Possession
If LL breaches duty to deliver the premises at beginning of lease term, T may terminate w/5 days' notice, or he may perform (KRLTA)
Constructive Eviction
Upon constructive eviction or actual exclusion or removal by a LL, T may terminate immediately and recover either actual damages or 1.5 months' rent, whichever is larger
Retaliatory Eviction
KRLTA also forbids retaliation v. a T who organized or joined a Ts' organization, but does not apply when a T caused underlying code problem or is in default for rent, or when repair of the premises necessitates removal of the T
T remedies
If LL materially breaches leas, T can terminate after giving 30 days' notice, w/a 14-day time period to cure breach; if LL then commits a similar breach, cure period is waived
Assignment or Sublease Prohibition
Ts cannot (by statute) assign leases of <2 years w/o LL's written consent. Upon breach, LL has rt to terminate and repossess premises
LL's Liability - Public Use
Generally, LL has duty of reasonable care to invites and duty to refrain from willful or wanto conduct resulting in injuries to licenses & trespassers (but, KS cts have afforded licensees the same level of care as that required for invitees)
Common Areas
Duty to make common areas safe can extend to making Ts in common areas saef from CRIMINAL acts if the LL knew or should've known of a likelihood of personal harm in such areas
Farm Leases - Crop Share as Rent
When rent is paid as a share of the crop, and T refuses to tender, LL can enter the landn and take possession of his share (usual possessory lien remedies and can sell his share either before or after harvest)
Farm Leases - Cash Rent
When rent is paid in cash, LL's lien for unpaid rent extends to a subtenant's crop. No writing is necessary to create the lien, which attaches at the earlier of the start of the T or when the crop starts to grow (lien takes priority over MEE's or harvester's lien but can be enforced only if T REMOVES the crop). Remedies include attachment, replevin, damages, and injunction. LL can also recover rent arrears and damages from any purchaser w/notice of lien
Farm Leases - Termination
T who wishes to terminate lease of farm property must give written notice at least 30 days prior to March 1 (effective termination date, except for farm areas planted in fall-seeded crops, which req August 1 or day after harvest complete (whichever earlier)). T must remove her crops by termination day unless weather conditions cause the failure
Easement by Prescription
Statutory period for Prescriptive easement = 15 years; Not available for light or air (but yes for solar easements)
Equitable Servitude Termination
Equitable servitude continues to be enforceable even if there is a release, changed neighborhood conditions, or prescription as long as it retains ANY value to plaintiff
Adverse possession (requirements)
Title aquired by AP if possession is (i) Open (sufficient to put owner on notice); (ii) Continuous; (iii) Exclusive; (iv) under a claim knowingly Adverse or under a good faith belief of ownership; (v) for a period of 15 years
AP Notice
Acts constituting actual possession must be adapted to the particular land, its condition, locality, and appropriate use. Neither cultivation nor residence is necessary if the and is not suitable therefore.
AP & Boundary Lines
When parties mutually agree on a property line and thereafter occupy the land accordingly, that line becomes the true boundary for the parties and their successors (MUST be strong ev of agreement)
AP & Property Tax
Payment of property tax NOT required to establish a claim of adverse possession
AP & Disability
Disability need not have existed when the c/a accrued -- AP statute will be tolled even if it arises after the c/a accrues (Disability = minority, mental incapacity, & Imprisonment for <life)
Maximum tolling periods (AP)
Owners allowed 2 yrs additional time after a removal of a disability, but never >23 years
Land Sale Ks (SoF)
Payment of he purchase price = insufficient act of part performance to take a K out of the SoF unless circumstances exist that would result in "gross injustice" if the K were not enforced
Marketable Title - Encumbrances
Lease = an encumbrance to the extent of its terms
Deeds - Acknowledgment
All deeds and other instruments affecting real property must be acknowledged (attestion by witnesses generally unnecessary)
Deeds - Description of Land Conveyed
State owns the riverbed of a navigable river. When river changes course suddently (avulsive change), state must purchase the new riverbed from the person whose land was overtaken by the river (although state keeps title to abandoned riverbed). No payment req'd when river changes slowly over time ("accretion") or when land on 1 side of river slowly increases while other side slowly decreases --> landowner who gains land owns it outright, but landowner has no right to land gained through avulsion
Implied Warrants & Convenants
Use of warranty deed deemed to include all covenants of title except for C of further assurances
Notice Statute
KS has a notice statute for recording deeds (bona fide purchaser for value will have priority over a prior purchaser who did not record)
Merchantable Title Act
25-year cut-off date for defects in title
Inquiry Notice from Quitclaim Deed
One who takes under a quitclaim deed is put on inquiry notice and must make reasonable inquiries into the nature of the title
Title Search Index
Both grantor and gratee index jurisdiction
Recorder's Mistakes
Instrument that has been duly recorded but improperly indexed due to a recorder's mistake IMPARTS constructive notice
Lien theory Mortgage
KS is an Lien Theory Mortgage State. MEE NOT entitled to possession before foreclosure and cannot itself intercept the rents from the property (instead, ct would have to appoint a receiver to collect rents) But, KS recognizes assignment of rents as a valid lien on the property from the TIME of its filing. Upon MOR's default, MEE can enforce the assignment by applying to the ct for possession and control of the rents
Statutory Redemption (foreclosure)
Gen statutory redeption period = 1 yr. If <1/3 of principal has been paid, redemption period = 3 months from date of sale. Amount req'd to be paid = foreclosure price + costs, interest, and taxes. MOR has the exclusive right to redeem for 3 months, then any of her creditors w/a lien on property may redeem
Equity of Redemption
Even if a forfeiture term is unambiguous and should be enforced, KS have difficulting enforcing provision, often giving the buyer a rt to redeem
Water Rights
Prior Appropriation Doctrine applies: Based on appropriative grants since 1945
Zoning
Prereqs for zoning: (1) public hearing by a planing commission or zoning board followed by (2) rec to the governing authority, (3) public notice prior to a public meeting, and (4) adoption at an open hearing (STRICTLY construed)
Noncomforming Use
Exemption ends when nonconforming use ends or is abandoned (rebuilding allowed of destroyed use if it is <50% damaged)
Mechanic's Liens
Contractors, subcontractors, suppliers, etc. who work on real property may obtain security for work performed & materials furnished by perfecting statutory liens. Statutory schemes for creation and perfection of these types of liens must be STRICTLY followed
Materials' Use (mechanics liens)
Furnishing of labor, equipment, material, or supplies is lienable only if used to ENHANCE the VALUE of the property or adapt it for a new or further PURPOSE. (removal of hazardous waste not lienable b/c maintence necessary for normal biz)
Mechanic's Lien Attachment
ML attaches on date the contractor, etc. FURNISHES the labor, equip, material, or supplies used or consumed for the improvement of the property
Seniority of Liens
ML that has attached and remains unsatisfied has priority over a mortgage recorded AFTER the commencement of work by the earliest unsatisfied lien holder (priority of all MLs on SAME improvement relates back to the date of the earliest unsatisfied lien.
Lien Waivers
For a lender to ensure that its mortgage has priority over later MLs, it must obtain lien waivers from all who have provided labor or materials to the project prior to the date the mortgage is filed
Rights and Remedies (MLs)
After default and an necessary acceleration of the debt, a secured creditor may judicially foreclose on the real property (file lawsuit to obtain judgment foreclosing debtor's interest in the property). Secured creditor of any type may abandon the SI and sue on the underlying debt instead
Intentional Infliction of Emotional Distress
An action for IIED often referred to as the "tort of outrage"
Special Liability for Mishandling Corpses
For person to liable for emotional distress for interfering w/a dead body, act must be intentional or malicious (>negligent) interference w/P's right to the body, and the interference mst be the proximate cause of the P's mental anguish and/or physical illness
IIED - Damages
P's failure to seek medical or psychiatric help treated as a factor tending to show the absence of severe emotional distress (vomiting insufficient w/o medical attention)
Trespass to Land - Intent
Absent a purpose to enter or a substantial certainty that entry will result, mere knowledge that entry has occurred is not enough to establish a claim for trespass under a theory of constructive intent
Self-Defense (torts)
Duty to retreat before using self defense (only unusual circumstance like nonaggressor D being followed to and menaced on home ground, the D may be allowed to stand ground
Recapture of Chattels - Shopkeeper's Privilege
Special priviliege to a merchant (& EEs) who has probable cause to believe that a person has actual possession of and has wrongfully taken or is about to take merch from a store: merchant may detain person on the premises, or in immediate vicinity, for a reasonable period of time to investigate (e.g. 45 min)
Defamation - Damages to P's Reputation
(no diff b/w general & special damages) In all defamation actions, Ps must allege and prove actual damages, regardless of whether defamation is libel or slander, and regardless of the media or nonmedia nature of the D)
Matters of Purely Private Concern
Private Ps need to prove at least negligence in all defamation cases, whether the statement is a matter of public concern or purely private concern (punitive damages req malice); Public Ps still required to prove malice
Appropriation of P's Picture or Name
Noncommercial publication of matters of public interest by a newspaper is privileged and not subject to an invasion of privacy claim of misappropriation even though paper is published to make a profit
Publication of Facts Placing P in False Light
False statement must be given widespread publicity likely to reach the community at large (to be actionable)
Negligent Misrepresentation
C/A for negligent misrepresentation (real estate broker's statements relied on by purchasers
Privileges (interference w/biz relations)
Where allegation of interference w/biz relations is based on alleged defamatory statements, made by a former ER to a prospective ER, communication is subject to QUALIFIED privilege that req P to prove actual malice by D (actual evil-mindedness or specific intent to injure)
Retaliatory or Wrongful Discharge
Action for retaliatory or wrongful discharge exists when an ER discharges a terminable, at will EE for a reason that contravenes some strong public policy or in retaliation for the EE's exercise of a rt supported by strong public policy, like whistle-blowing (exception to gen rule: termination for any reason)
Prenatal Injuries
Wrongful death action may be maintained against a D whose negligence injured a viable fetus, causing a stillborn
"Wrongful Birth" & "Wrongful Pregnancy"
In a wrongful birth case, parents can recover damaes for the unwanted labor & for the additional medical and child-rearing expenses during minority caused by the child's impairment, but not emotional distress damages
Duty Owed Discovered Trespassers
No higher duty toward discovered trespassers, requiring possessor of land only to avoid injury by willful, wanton, or reckless conduct (minority)
"Attractive Nuisance" Doctrine
Child must be lured onto te land by the nuisance
Duty Owed to Licensee
Licensees & Invitees = merged: both receive full duty of reasonable care (same old law for trespassers)
Statutory Standards of Care
Negligence per se: P must shw that an individual C/A for injury arising out of the violation was intended by the drafters
NIED
To recover for NIED, P req'd to demonstrate that the D's conduct was accompanied by, or resulted in, immediate physical injury to the P
Affirmative Duties to Act
Duty of care to protect 3rd parties from dangers presented by release of an Involuntarily committed mental patient (general rule: NO duty)
Good Samaritan Statutes
Any health care provider rendering emergency care at the scene of an accident is liable only for gross negligence or willful or wanton conduct
Joint Causes - Substantial Factors Test
Substantial factor test allows a C/A for "loss of chance" in a wrongful death action. Patient w/a 50% or less chance of survival before medical treatment can recover if the Dr's malpractice substantially reduced the patient's chance of survival
Personal Injury Cap
Cap of $250K on damages for NONeconomic loss (pain & suffering)
Partial Comparative Negligence
49% system for comparative negligence: P may recover a % of his damages only if his fault was < D's fault
Punitive Damages
Award of only nominal compensatory damages is not sufficient to justify an award of punitive damages (generally may NOT exceed D's highest annual gross income during the past 5 yrs or $5 million, whichever is the lesser amount)
Implied Assumption of the Risk
Implied Assumption of the Risk as a complete defense is limited TO cases involving an ER-EE relationship (all others // to comparative negligence)
P's Failure to Use Seat Belt
Evidence of P's failure to use a seat belt is NOT admissible for the purpose of determining comparative negligence or mitigation of damages. Admissible for other purposes (causation: force on impact rather than stearing mechanism was cause of accident)
Trespassing Animals
Domestic animal trespass liability governed by negligence principles, NOT strict liability (fencing required for domest animals, but not dogs and cats)
Theories of Products Liability
Kansas Product Liability Act applies to actions based on strict liability in tort as well as negligence, breach of express or implied warranty, and breach of a duty to warn or to instruct
Inadequate Warnings
Manufacturer has a post sale duty to warn those ultimate consumers who can be readily ID'd when a defect, which originated at the time of manufacture and was unforseeable at the time of sale, is discovered to present a life-threatening hazard
Design Defects
Consumer Expectations Test: Supplier breaches if defect made product dangerous beyond expectation of ordinary consumer (evidence of reasonable alternative design may be presented but not req'd)
Effect of govt standards
Product Liability Act creates rebutable presumption of nondefectiveness when a product complies w/legislative or administrative safety standards; if medical devise complies w/the aplicable federal standards for premarket approval of that device, action constitutionally preempted
Commercial Suppliers Liability
Seller not liable in a product liability action if: (i) he is not the manufacturer; (ii) he had no knowledge of the defect and could not have discovered defect through exercise of reasonable care; (iii) manufacturer is subject to service of process in KS or in P's state of domicile; AND (iv) satisfaction of any judgment for the P v. the manufacturer is reasonably certain
Nature of Damages (products liability)
Damage to the product itself is a form of economic loss & NOT recoverable in either strict liability or negligence
Defenses
Comparative negligence statute applies to products liability actions based on strict liability
Implied Warranties of Merchantability & Fitness
Personal injury actions allowed by any natural person who may reasonably be expected to use, consume, or be affected by the goods and is injured in person by the breach of the warranty
Automobie Owner (vicarious liability)
No family car doctrine
Parent for child (vicarious liability)
Parents liable for up to $5K in actual damages for any willful and malicious personal injury or damage to property by their minor children (if injry or damage is result of parental neglect, limit does NOT apply); recovery for bodily injury limited to actual medical expenses
Tavernkeepers
No redress v. persons selling or furnishing intoxicating liquor when injuries or damages occur due to the acts of intoxicated persons (no dramshop liability); No c/a in civil case for violation of liquor laws
Statutory Limits: Joint & Several Liability
Comparative negligence statute abolished J&S liability for proportionate liability (J&S retained for INTENTIONAL tortfeasors)
Survival of Tort Actions
Torts for personal injury, injury to real or personal property, and fraud survive death of either P or D. (actions for libel, slander, malicious prosecution, & nuisance abate on death of either party)
Wrongful Death - Measure of Recovery
Wrongful death statute allows recovery of damages for economic loss w/o limitation & allows for noneconomic loss w/a cap of $250K per decendent, regardless of #; $250K limit applied deduction for decedent's comparative fault
Intra-Family Tort Immunities
Parents are immune from liability when child's claim relates to exercise of parental discretion or authority (no other immunities in families)
State Govt & Municipality Immunity -Scope
Kansas Tort Claims Act: applies to all state and govt entities, and municipalities cannot exempt themselves from the Act --> holds govt entity liable for all negligent and wrongful acts or omissions of its EE's in the course and scope of heir employment in the same manner that a private person is liable for the torts of his EE
Govt Immunity Retained
Immunity retained (exceptions to KS Tort Claims Act) for: (i) discretionary acts and policy decisions; (ii) assessment and collection of taxes; (iii) malfunction or removal of traffic signs or signals unless the agency had notice & failed to repair/replace sign w/in a reasonable time; (iv) failure to make a proper health or safety inspection of private property; (v) failure to provide, or the method of providing, polic or fire protection; and (vi) claims from injuries resulting from the use of public property intended or permitted for recreational purposes, unless entity or EE was grossly or wantonly negligent
Maximum Liability (govt torts)
Liability under the KS Tort Claims Act limited to $500K per occurrence except where there is excess insurance, in which case liability may exceed limit up to insurance coverage
Immunity of Public Officials
If judgment recovered against an EE who was acting in the scope of employment, govt entity must indemnify the EE, except for damages based on actual fraud or actual malice, punitive damages, and prejudgment interest
Charitable Immunity
NO immunity for charitable institutions
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