Understanding Comparative Negligence in Kansas Personal Injury Law
In Kansas, the doctrine of comparative negligence (comparative fault) plays a critical role in personal injury cases. It governs how fault is apportioned when more than one party—including the injured plaintiff—may be responsible for an injury. This principle directly impacts whether a plaintiff may recover damages and how much they may recover.
The Kansas Comparative Fault Statute
Kansas legislature clarified comparative negligence in K.S.A. § 60-258a, which provides a modified comparative fault rule. Under this statute, a plaintiff’s recovery is reduced in proportion to their percentage of fault. Furthermore, an injured plaintiff is barred from any recovery if their fault equals or exceeds the combined fault of all other parties. In other words, an injured party in Kansas has to prove that they were less than 50% negligent for the injury. The statute reads:
“In all actions involving fault as a basis for liability… any contributory fault chargeable to the claimant shall not bar a recovery by the claimant… but the amount of damages otherwise recoverable by the claimant shall be diminished in proportion to the amount of fault attributable to the claimant.” — K.S.A. 60-258a(a)
The statute goes on to say that:
“If the claimant’s fault is equal to or greater than the fault of the party or parties against whom the claim is made, the claimant shall not recover.” — K.S.A. 60-258a(b)
This is known as the “50% Bar Rule.” If a jury determines that the plaintiff was 50% or more at fault, the plaintiff cannot recover any damages.
This Kansas rule is more stringent on injured plaintiffs than the straight comparative negligence that Missouri utilizes. In Missouri, (as well as Kansas) your damages award is reduced by the percentage of negligence the plaintiff contributed. However, unlike Kansas, the Plaintiff isn’t totally barred just because they were at 50% or greater fault themselves.
The Kansas rule is much more advantageous to injured plaintiffs than the pure contributory negligence standard, which is not utilized by most states. Under that rule, the injured party is barred from any recovery if they were contributorily negligent at all at any percentage. That’s strict and harsh and loved by the insurance defense companies.
How is Comparative Negligence Applied in Trial in Kansas?
During trial, the jury is asked to assess the percentage of fault attributable to each party, including the plaintiff. If the plaintiff’s share of fault is less than 50%, any damage award is reduced accordingly. For example, if the total damages are $1,000,000 and the plaintiff is found to be 25% at fault, the award is reduced by $250,000, down from $1,000,000 to $750,000. If, instead of 25%, the Plaintiff was said to have attributed to 50% or greater to the negligence, then then Plaintiff would get nothing.
To assist the jury with this, at the end of closing arguments, Kansas juries are provided Pattern Jury Instruction: PIK Civ. 4th 105.01. This jury instruction guides juries in applying comparative fault principles to the facts presented to them during trial. It directs the jury as follows:
“If you find more than one party at fault, you will determine the percentage of fault attributable to each. The total of these percentages must be 100%. You will then determine the total amount of damages sustained by the plaintiff. The court will reduce the amount of damages in proportion to the amount of fault charged to the plaintiff.”
This instruction is meant to ensures that jurors apply the statutory rule accurately and uniformly. It underscores that fault must be apportioned between all parties whose actions contributed to the harm, and that the plaintiff’s damages must be reduced accordingly.
Strategic Considerations for Injury Parties
For plaintiffs and their experienced injury attorney, minimizing any allocation of fault is critical to preserve the right to recover. So, defendants and their insurance defense lawyers will often try to say that the plaintiff was equally or more at fault.
Also, the defense may try to utilize the Kansas “single action rule” under K.S.A. § 60-258a(c), requiring all parties potentially at fault to be considered in a single action, including those who have settled or were never sued. This may open the door to non-party fault apportionment and third-party claims. Such an apportionment could lower the amount the defendant would pay to the injured party.
