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Damages available in Kansas personal injury cases

Kansas personal injury damages recoverable by our Johnson County law firm's serious injury lawyers

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When determining the amount of damages owed to the plaintiff A Kansas jury must consider plaintiff’s age and condition of health before and after the occurrence which led to the personal injuries. Also, a jury must consider the nature, extent and duration of the plaintiff’s injuries. There is no unit value and no mathematical formula a Kansas District Court can give a jury for determining items such as pain, suffering, disability, and mental anguish. You must establish an amount that will fairly and adequately compensate the plaintiff. This amount rests within your sound discretion.  A Kansas jury must itemize the amounts of damages awarded in this case on the verdict form that is given to them by the judge before they begin deliberations. (see Pattern Instruction for Kansas 171.02)

Economic damages include the cost of medical care, past and future, and related benefits, i.e. lost wages, loss of earning capacity and other losses.  noneconomic losses include claims for pain and suffering, mental anguidsh, injury, disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.  McKissick v. Frye, 255 Kan. 566, 588, 876 P.2d 1371 (1994).


Medical expenses include the reasonable expenses of necessary medical care, hospitalization and treatment received as a result of plaintiff’s injuries to date (and the medical expenses plaintiff is reasonably expected to incur in the future) [reduced to present value].  A defendant in any action is allowed to have amounts allowed for future damages reduced to present worth where there are reasonable grounds to expect that the amount awarded may be safely and profitably invested.  Evidence demonstrating how to compute present worth, either by way of expert testimony or appropriate mathematical tables or formulae, is admissible in any action in which substantial future damages are claimed. Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978).

In Shirley v. Smith, 261 Kan. 685, 933 P.2d 651 (1997), a medical malpractice case arising from an unsuccessful bone marrow operation, the court allowed the plaintiff to claim economic damages for loss of time spent by the plaintiff in self-catheterization. The court determined that loss of time was compensable as measured by the amount an employer would have paid plaintiff for the time spent on the procedure. The amount awarded was not subject to the cap for noneconomic damages.

In Martinez v. Milburn Enterprises, Inc., 290 Kan 572, 233 P.3d 205 (2010), the court held that the collateral source rule did not bar evidence of the amount originally billed by the health care provider for plaintiff’s medical treatment or the reduced amount accepted by the provider in full satisfaction of the amount billed. Evidence of the amount billed and the reduced amount accepted are relevant to prove the reasonable value of medical treatment. If such evidence is admitted, a limiting instruction must be given. See PIK 4th 102.40, Limited Admissibility of Evidence as to One Party or Purpose.



Economic loss includes loss of time or income and losses other than medical expenses incurred as a result of plaintiff’s injuries to date (and the economic loss plaintiff is reasonably expected to incur in the future) [reduced to present value]. Impairment of an injured party’s capacity to earn is relevant in calculating that party’s loss of income.

The amount of damages to be awarded is determined by “comparing what the injured party was capable of earning at or before the time of the injury with what the party is capable of earning after the injury.” The injured party’s health and physical ability before and after the injury should also be considered. Morris v. Francisco, 238 Kan. 71, 79, 708 P.2d 498 (1985). See also Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 837 P.2d 330 (1992).

Loss of enjoyment of life is not a separate category of nonpecuniary damages in a personal injury action and it is error to submit a separate instruction, or provide a separate verdict form entry, on loss of enjoyment of life. However, in a proper case loss of enjoyment of life is a valid subcomponent or element of pain and suffering and/or disability. Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989). Under the rationale of Leiker, the trial court properly allowed plaintiff to argue loss of enjoyment of life and instructed the jury that such a loss is an element of disability, pain, and suffering. Gregory v. Carey, 246 Kan. 504, 514, 791 P.2d 1329 (1990).  


Noneconomic loss includes pain, suffering, disabilities, disfigurement, and any accompanying mental anguish suffered as a result of plaintiff’s injuries to date (and the noneconomic loss plaintiff is reasonably expected to suffer in the future).Disfigurement has been defined as that which impairs or injures the beauty, summetry, or appearance of a person or thing, that which renders unsightly, misshapen or imperfect, or deforms in some manners.of a person or thing, that which renders unsightly, misshapen or imperfect, or deforms in some manner. Smith v. Marshall, 225 Kan. 70, 587 P.2d 320 (1978). Evidence of a locking elbow which occurred frequently and without warning meets definition of disfigurement.  Ratterree v. Bartlett, 238 Kan. 11, 21, 707 P.2d 1063 (1985), citing with approval this instruction.

K.S.A. 60-19a01 and K.S.A. 60-19a02 limit the maximum allowable recovery for noneconomic loss to $250,000 in any action for personal injuries. In Samsel v. Wheeler Transport Services, Inc., 244 Kan. 726, 771 P.2d 71 (1989), these limits were held constitutional. The jury is not to be told about the statutory limit, but is required to itemize the amount awarded for pain and suffering. Although it is proper for counsel to tell the jury that the plaintiff is only asking for $250,000 for noneconomic loss or that plaintiff’s claim for such loss is limited to $250,000, the jury is not to be told that this is a statutory limitation. Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 311, 836 P.2d 1102 (1992).

A disability may be a noneconomic loss or an economic loss. If damages are awarded for pain and suffering based upon a disability, the disability is a noneconomic loss subject to a damages cap. If the damages award is for diminished earning capacity based on that disability, the loss is economic and not subject to a damages cap. Extent of diminished earning capacity is arrived at by comparing what the injured party was capable of earning at or before time of injury with what party is capable of earning after injury. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 471, 856 P.2d 906 (1993).

In Wilson v. Williams, 261 Kan. 703, 710, 933 P.2d 757 (1997), the court allowed a per diem or mathematical formula argument by counsel in order for a jury to place value on pain and suffering. This decision overruled Caylor v. Atchison, T. & S. F. Rly. Co., 190 Kan. 261, 374 P.2d 53 (1962). Even though counsel is now allowed to argue a mathematical formula for the jury to compute pain and suffering, the trial court should not provide a mathematical formula to the jury.





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