Statutes of Limitations (KANSAS)
Personal Injury - 2 yrs.* [K.S.A. 60-513]
Wrongful Death - 2 yrs.* [K.S.A. 60-513]
Trespass On Real Estate - 2 yrs.* [K.S.A. 60-513]
Property Damage - 2 yrs.* [K.S.A. 60-513]
Product Liability Actions involving Death, Personal Injury or Property Damage - 2 yrs. [K.S.A. 60-513; Grey v. Bradford-White Corp., 581 F.Supp. 725 (D. Kan. 1984)]
Written Contracts - 5 yrs. [K.S.A. 60-511]
Oral Contracts - 3 yrs. [K.S.A. 60-512]
Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [K.S.A 84-2-725]
*From the time the fact of injury becomes reasonably ascertainable to the injured party, but 10-yr. statue of repose applies [K.S.A. 60-513].
Statute of Repose (Products) (KANSAS)
Personal Injury, Property Damage, Wrongful Death - 10 yrs. [K.S.A. 60-513]
Products – No liability if Defendant proves by preponderance of evidence that harm was caused after product’s “useful safe life” had expired. In claims that involve harm caused more than 10 yrs. after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence [K.S.A. 60-3303].
Admissibility of Expert Testimony (KANSAS)
The language of K.S.A. 60-456(b) mirrors that of Rule 702, making it consistent with Daubert. K.S.A. 60-456(b) states: If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case.
Causes of Action (KANSAS)
The Kansas Product Liability Act (“Act”) states that “Product liability claim” includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or nondisclosure, whether negligent or innocent, or under any other substantive legal theory. [K.S.A. § 60-3302]. The Act consolidates all product liability actions, regardless of theory, into one basis for liability [David v. Hett, 270 P.3d 1102 (Kan. 2011)].
Strict Liability – Plaintiff must prove three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left Defendant’s control [Jenkins v. Amchem Prods., 886 P.2d 869 (Kan. 1994)].
Negligence – The characteristic that distinguishes strict liability from negligence is proof of actual or constructive knowledge of risk. In a negligence action a court will focus on Defendant’s conduct and require Plaintiff to show Defendant acted unreasonably in light of a known or constructively known risk [Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. Kan. 1999)].
Breach of Warranty – Actions based on breach of warranty are also controlled by the Act (see definition above).
Definition of “Defect” (KANSAS)
A defective condition is unreasonably dangerous if it is dangerous when used in the way it is ordinarily used considering the product's characteristics and common usage, and is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it [PIK Civ. 4th 128.17].
Kansas recognizes three ways in which a product may be defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design defect [Hiner v. Deere & Co., 161 F. Supp. 2d 1279 (D. Kan. 2001)].
Also, see discussion below re: "design defects."
Liability of Sellers (KANSAS)
Under the Act, “Product seller” means any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor or retailer [K.S.A. § 60-3302].
A product seller is not subject to liability if he establishes that: (1) he had no knowledge of the defect; (2) he, in the performance of any duties he performed (or was required to perform), could not have discovered the defect while exercising reasonable care; (3) he was not a manufacturer of the defective product or component; (4) the manufacturer of the defective product or component is subject to service of process in Kansas or Plaintiff’s domicile; and (5) any judgment against the manufacturer obtained by Plaintiff would be reasonably certain of being satisfied [K.S.A. § 60-3306].
Comparative Negligence – Kansas follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [K.S.A. 60-258a]. Applies to strict liability cases and implied warranty cases [Kennedy v. Sawyer, 618 P.2d 788 (Kan. 1980)].
Assumption of Risk – Included in the comparative fault analysis [Emig v. American Tobacco Co., Inc., 184 F.R.D. 379 (D. Kan. 1998)].
Product Misuse – Included in the comparative fault analysis [Emig v. American Tobacco Co., Inc., 184 F.R.D. 379 (D. Kan. 1998)]. Foreseeable misuse of a product can give rise to a defective design claim [Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. Kan. 1999)].
Product Alteration/Modification – Product modification may relieve a manufacturer of liability for a defective design if the manufacturer could not have reasonably foreseen the modification that is alleged to have occurred [Mason v. E.L. Murphy Trucking Co., 769 F. Supp. 341 (D. Kan. 1991)].
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (KANSAS)
ELD applies to both consumer and commercial buyers of defective products [Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 31 P.3d 982 (Kan. App. 2001)]. Damage by a defective component of an integrated system to either the system as a whole or other system components is not damage to “other property” [Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 31 P.3d 982 (Kan. App. 2001)].
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (KANSAS)
The elements of a strict liability case may be proven inferentially, by either direct or circumstantial evidence. For circumstantial evidence to make out a prima facie case, it must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective. The circumstances shown must justify an inference of probability as distinguished from mere possibility [Mays v. Ciba-Geigy Corp., 661 P.2d 348 (Kan. 1983)].
Design Defects (KANSAS)
One way in which a product may be defective is a design defect [Hiner v. Deere & Co., 161 F. Supp. 2d 1279 (D. Kan. 2001)].
Kansas law does not mandate evidence of a feasible alternative design as a prerequisite to recovery in a defective design product liability case. A feasible alternative design is merely one factor a jury may consider in determining whether a product is defective. Evaluation of a defective design negligence claim entails a risk-utility analysis in which the inherent risks associated with the product are balanced against the product's utility and the burden necessary to eliminate or reduce the risk. One of the most significant factors in determining whether a manufacturer has exercised due care in the design of its product is whether others in the field are using the same design, or a safer design [Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. Kan. July 27, 1999)].
While evidence of a safer alternative design is not required in all cases, there must be a specific claim concerning what aspect of the design was defective for a plaintiff to prevail on a strict liability design defect claim [Jenkins v. Amchem Prods., 886 P.2d 869 (Kan. 1994)].
If the product is in compliance with regulatory/safety standards the product is deemed not defective by reason of design or performance, unless Plaintiff proves (by a preponderance of the evidence) that a reasonably prudent product seller could and would have taken additional precautions. If the product is not in compliance, the product is deemed defective unless the product seller proves (by a preponderance of the evidence) that its failure to comply was a reasonably prudent course of conduct under the circumstances [K.S.A. § 60-3304].
Foreseeable misuse of a product can give rise to a defective design claim. [Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. Kan. 1999)].
Failure to Warn (KANSAS)
One way in which a product may be defective is a warning defect [Hiner v. Deere & Co., 161 F. Supp. 2d 1279 (D. Kan. 2001)].
A manufacturer/seller of a product which he knows (or by the exercise of ordinary care should know) is potentially dangerous to users, has a duty to give adequate warnings of such danger where injury to a user can be reasonably anticipated if an adequate warning is not given. The duty to warn includes a duty to provide a warning to dangers inherent in use and the duty to provide adequate instructions for safe use [PIK Civ. 4th 128.05].
The imposition of liability upon a manufacturer for inadequately warning a user regarding the dangers associated with its product is dependent upon the manufacturer’s actual or constructive knowledge of the risk. The adequacy of a warning is judged under a reasonableness standard even if the claim is made under the rubric of a strict products liability defect [Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir. Kan. 1988)].
If the product is in compliance with regulatory/safety standards regarding warnings/instructions, the product is deemed not defective by reason of warnings or instructions, unless Plaintiff proves (by a preponderance of the evidence) that a reasonably prudent product seller could and would have taken additional precautions. If the product is not in compliance, the product is deemed defective unless the product seller proves (by a preponderance of the evidence) that its failure to comply was a reasonably prudent course of conduct under the circumstances [K.S.A. § 60-3304].
Kansas recognizes a rebuttable presumption that an adequate warning will be heeded [Arnold v. Riddell, Inc., 882 F. Supp. 979 (D. Kan. 1995)].
Independent Cause of Action for Evidence Spoliation (KANSAS)
Absent an independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the tort of intentional spoliation would not be recognized [Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177 (Ks. 1987)]. Tort of spoliation would be recognized under Kansas law under some circumstances [Foster v. Lawrence Memorial Hosp., 809 F.Supp. 831 (D. Ks. 1992)]