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Copyright (c) 2001 Kansas Law Review, Inc.
Kansas Law Review

ARTICLE: Survey of Kansas Tort Law: Part I

June, 2001

49 Kan. L. Rev. 1037


William E. Westerbeke*, Stephen R. McAllister**



The Kansas Law Review last published a survey of Kansas tort law twelve years ago. 1 In the intervening years, the Kansas Supreme Court and Kansas Court of Appeals have published nearly four hundred opinions relating to some aspect of tort law. Some topics received considerable attention from the courts, such as medical malpractice, the failure to act doctrine, comparative fault, retaliatory discharge, damages, governmental immunity, and statutes of limitation and repose. Other topics have received less frequent attention, but are nevertheless noteworthy. This survey cannot discuss all these opinions. Rather, it will concentrate on those individual opinions and trends in Kansas tort law that the authors consider most significant. Part I of the survey will discuss negligence cases and Part II will discuss intentional torts and other tort causes of action.


A. Standard of Care

The first element in a negligence action is the existence of a duty of care owed by the defendant to the plaintiff. Whether a duty exists is generally a question of law for the court, 2 while whether the defendant has breached that duty in a specific situation is generally a question of fact for the jury. 3 In most negligence cases, the duty of care is to exercise reasonable care under all the circumstances, and courts usually use a risk-benefit analysis to determine whether conduct poses an unreasonable risk. 4 Failure to take appropriate steps to eliminate or reduce the danger of an ...
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