Schrag on Law

Recent developments in Kansas tort law influence employment litigation, particularly in the realm of wrongful discharge claims. This article examines the current state of damage caps in Kansas and explores their potential applicability to employment-related torts.

Overview of Kansas Tort Law and Damage Caps

Historical Context: For decades, Kansas imposed statutory caps on noneconomic damages in personal injury cases. K.S.A. 60-19a02 limited such damages to $250,000 for causes of action accruing between July 1, 1988, and July 1, 2014, with incremental increases thereafter. The Kansas Supreme Court initially upheld these caps in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), based on a “quid pro quo” analysis.

Hilburn Decision: In 2019, the landscape shifted dramatically with Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 442 P.3d 509 (2019). The court overturned Miller, holding that the noneconomic damages cap in K.S.A. 60-19a02 violated the right to trial by jury under Section 5 of the Kansas Constitution Bill of Rights. This decision effectively invalidated the statutory cap on noneconomic damages in personal injury cases.

Tillman Framework: Subsequently, in Tillman v. Goodpasture, 313 Kan. 278, 485 P.3d 656 (2021), the Kansas Supreme Court arguably (emphasis on arguably) established a framework for analyzing whether newer causes of action are subject to statutory damage caps. The opinion is not exactly a beacon of clarity, but the court considered factors such as

1. Whether the cause of action existed at common law when the Kansas Constitution was adopted in 1859.
2. The creation of new legal rights distinct from common law antecedents.
3. Unique elements and injury recognition.
4. Policy considerations.
5. Special rules for damages.
6. Legislative action and impact on traditional legal principles.

How to weigh and consider these factors is not addressed by the Tillman court.

Application to Wrongful Discharge Claims

Evolution of Wrongful Discharge in Kansas: Kansas has long recognized the doctrine of employment-at-will, but courts have carved out exceptions, including the tort of retaliatory discharge. This cause of action was first recognized in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), allowing employees to bring tort actions against employers for terminations that violate clear public policy.

Analyzing Wrongful Discharge Under the Tillman Framework: The framework established in Tillman v. Goodpasture falls short of offering a clear and unambiguous test for determining the applicability of damage caps. The Tillman decision was a 4-3 opinion, highlighting the contentious nature of this issue even among the justices. The resulting framework, far from being a beacon of clarity, provides no bright-line tests and instead requires a tortuous analysis of multiple factors.

To determine whether damage caps might apply to wrongful discharge claims, I attempt to navigate through the following Tillman factors, each of which introduces its own set of interpretative challenges:

1. Existence at common law: Retaliatory discharge did not exist at common law in 1859. It was first recognized in Kansas in 1981.
2. Creation of new legal rights: The tort creates new protections for employees that were not available under traditional common law principles.
3. Unique elements and injury recognition: Wrongful discharge claims involve distinct elements, such as the employer’s retaliatory motive and identification of clear public policies.
4. Policy considerations: These claims address unique societal and ethical issues, balancing employee protections with employer interests.
5. Special rules for damages: Difficult to assess, wrongful discharge claims often involve special rules for recoverable damages (i.e., lost wages, future pay) but also incorporates traditional mental anguish damages present in other tort claims.
6. Legislative action and impact: While judicially created, the tort is influenced by legislative enactments establishing public policies protecting employees, e.g., worker’s compensation.

The lack of clear guidance on how to weigh these factors against one another leaves considerable room for judicial discretion and potentially inconsistent outcomes. This ambiguity challenges employers and legal counsel trying to assess potential liability and make informed decisions.

Implications for Employers and Employees

Schrag on Law thinks that a Kansas court applying the Tillman framework would conclude that wrongful discharge claims are distinct enough from common law antecedents to be subject to the damages cap in K.S.A. 60-19a02.  The creation of new legal rights, the unique elements and injuries involved, the specific policy considerations, the special rules for damages, and the effect of legislative actions on traditional legal principles all suggest that these claims are distinguishable from common law tort actions. Section 5 rights should not apply to wrongful discharge torts.  Kansas courts have reached similar conclusions in different situations.  See Yaple v. Jakel Trucking LLC, No. 2:21-CV-02045-JAR, 2023 U.S. Dist. LEXIS 130363, at *12 (D. Kan. July 27, 2023) (wrongful death still capped); Ashley Clinic, LLC v. Coates, 545 P.3d 1020, 1026 (Kan. Ct. App. 2024) (“The Kansas Tort Claims Act’s damages limitations, including K.S.A. 75-6105(a)’s cap on total damages and K.S.A. 75-6105(c)’s prohibition of punitive damages, do not violate the right to a jury trial enshrined in section 5 of the Kansas Constitution Bill of Rights.”).