How to Present a Kansas Tort Claims Act (KTCA) Injury Claim

What happens when an injury to a private citizen is caused by a city, county, or state employee? Or if an injury is caused by a defect present on public property, such as a road construction hazard? Filing a claim against a Kansas municipality comes with far more stringent requirements than a typical personal injury claim. For instance, these claims are subject to the Kansas Tort Claims Act (KTCA).

In this article we will primarily focus on the notice requirements articulated under Kansas Statutes Annotated (K.S.A.) 12-105b(d). 

Please be aware that this article only addresses those claims against employees and departments located within Kansas municipalities. Claims against Federal employees and departments are governed by the Federal Tort Claims Act, and claims against employees or departments of municipalities in other states will be governed by the laws of those states. 

K.S.A. 12-105b(d) Defined

While the Kansas Tort Claims Act has many sections that must be accounted for after an injury is caused by a government worker, K.S.A. 12-105b(d) contains the requirements to present a claim against a Kansas governing body. 

This section articulates the notice requirements and steps that must be taken before any lawsuit may be filed. Before an action can be filed in State court, a claimant must first provide written notice of the claim. 

K.S.A. 12-105b(d) outlines: 

• With whom the Notice of Claim must be filed
• What must be included in the Notice of Claim 
• Time limitations once a claim is filed

With Whom Must the Notice of Claim Be Filed?

Before getting into the details of what must be included in the notice, you must first make sure you know to whom the notice must be sent. K.S.A. 12-105b(d) states that, “The notice shall be filed with the clerk or governing body of the municipality.” Many governing bodies throughout Kansas will provide a claim form that they prefer you fill out and file with a claims handler within the particular department of the municipality. 

However, do not be fooled into thinking that just because you have submitted this form to their suggested claims handler that you have presented your claim to the appropriate individual under K.S.A. 12-105b(d). 

While these claims handlers can be helpful in beginning the process of evaluating your claim, and may well be who the municipality forwards your claim to, you have not satisfied this requirement of K.S.A. 12-105b(d) by presenting your claim to just the claims handler. 

You must also send a copy of your claim notice to either the clerk of the municipality or the municipality’s governing body. If you do not do so and attempt to file a lawsuit, your suit will be kicked out of court for failure to comply with K.S.A. 12-105b(d). For a county, this will typically be the county clerk or board of directors; for a city, it will be the city clerk or city council. If a claim is against a particular school district, the claim should be presented to the school district’s board.  

What Should Be Included in the Notice of Claim?   

Now that you know who the Notice of Claim should be sent to, you need to know what must be included in that Notice of Claim itself. The Notice of Claim is very similar to a standard demand that is sent out on most other claims.

Substantial Compliance Under the Kansas Tort Claims Act

While it is important to be as particular as possible when including the required information in the Notice of Claim, K.S.A. 12-105b(d) does allow for some leeway in the information provided. The statute states that, “In the filing of a Notice of Claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.” 

What this means is that if a particular piece of information is not available to you and was left out of the Notice of Claim, the claim may not be invalid on that basis alone. 

Note, though, that substantial compliance only applies to the information provided in the Notice of Claim itself, not in the filing of the claim with the proper clerk or governing body. Courts have ruled time and again that if the Notice of Claim was filed with the wrong individual, even if the claim was ultimately turned over to the clerk or governing body, substantial compliance was not met. 

For example: If a claim against a county was filed with the county’s General Counsel and the General Counsel turned the claim over to the County Clerk, substantial compliance would not be met even though the claim ultimately wound up in the County Clerk’s hands. The claim must be filed with the appropriate individual or governing body at the outset or it will be kicked out of court once a lawsuit is filed. 

Statute of Limitations for Lawsuits Against Kansas Municipalities

Oftentimes when a demand is presented to an at-fault party or their insurance company, a time limit will be given by the injured party’s attorney that the at fault party must respond to lest a lawsuit be filed. This is often done to keep insurance companies honest and prevent them from dragging their feet at the risk of being found liable for a bad faith claim. 

Unfortunately, claims against Kansas municipalities do not allow for such tactics to reach a swift and equitable resolution for a claimant. 

Under K.S.A. 12-105b(d), a claimant may not file a lawsuit against a municipality until the claim has either been denied or until 120 days passes from the date that the municipality received the claim. It is not uncommon for the municipality to use all of that period to evaluate a claim before issuing a denial, if one is issued at all. A municipality may elect to just let the 120 days run, upon which time the claim is deemed denied, and at which point a claimant may proceed with filing a lawsuit. 

For instance: Incidents resulting in injury that occur between private individuals or on private property—such as an automobile accident, a slip and fall, or any other negligent act bringing harm to an individual—are settled or a lawsuit is filed within the two-year statute of limitations following the injury. 

Fortunately, K.S.A. 12-105b(d) does allow for some additional time for claimants whose claim was filed near the two-year mark. 

The statute states that:

“Any action brought pursuant to the Kansas Tort Claims Act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred except that a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.” 

Examples of Kansas Tort Claims Act Time Limits

Let’s look at 3 examples for how these time periods impact the filing of a lawsuit:

Example 1:  Claimant was injured on July 1, 2021, by a County employee. On May 1, 2023, a proper Notice of Claim was filed with the appropriate County Clerk. Two years from the date of the accident would be July 1, 2023. However, no formal denial of the claim was issued prior to that time, and on August 29, 2023, 120 days from the date of the filing of the Notice of Claim ran.

Claimants would not have been allowed to file within two years of July 1, 2023, because no denial was made by the county within that time period. Fortunately, because the claim was deemed denied on August 29, 2023, 120 days after the Notice of Claim was filed, Claimant would have until November 27, 2023, 90 days after the claim was deemed denied by the County due to their lack of response, to file the claim without being impacted by the 2-year statute of limitations. 

Example 2: Claimant was injured on July 1, 2021, by a County employee. On May 1, 2023, a proper Notice of Claim was filed with the appropriate County Clerk. This time, the County issued a denial of the claim on June 15, 2021, prior to the 2-year anniversary of the accident on July 1, 2023. Again, though, the Claimant would have 90 days from the date of the denial before a lawsuit would have to be filed. They could elect to file suit before July 1, 2023, or they could wait to file prior to September 13, 2023, 90 days after the June 15, 2021, denial. 

Example 3: Claimant was injured by the County employee on July 1, 2021. On September 1, 2022, a proper Notice of Claim was filed with the appropriate County Clerk. The County does not respond and on December 30, 2022, 120 days runs from the date of the filing and the claim is deemed denied. In this instance, the 90-day grace period would exhaust prior to the standard 2-year statute of limitations, and Claimant would have up to July 1, 2023, to file a lawsuit or forever be barred from commencing any action. 

Contact Our Kansas Municipality Injury Claim Law Firm Today 

Every claim against a Kansas municipality is different and should be handled by a highly skilled legal team that understands the requirements of the Kansas Tort Claims Act. 

At  Patterson Legal Group, our lawyers have decades of combined experience representing injury victims against negligent government entities and winning fair settlements. Contact us today to schedule a free consultation by phone, LiveChat, or through a convenient online form. You’ll also pay nothing until we win compensation on your behalf.  

The information on this blog is for informational purposes only. It is not meant to serve as legal advice for an individual case or situation. This information is not intended to create an attorney-client relationship nor does viewing this material constitute an attorney-client relationship.