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10  AN ACT concerning civil damages; relating to recovery for certain
11    acts of children from parents; amending K.S.A. 1996 Supp. 38-
12    120 and repealing the existing section. actions; relating to shoplift-
13    ing; parents or guardians of minors; amending K.S.A. 60-3331 and
14    repealing the existing section.
15  
16  Be it enacted by the Legislature of the State of Kansas:
17    Section 1.  K.S.A. 1996 Supp. 38-120 is hereby amended to read
18  as follows: 38-120. Any person receiving bodily injury or any per-
19  son, partnership, corporation, political subdivision or other entity
20  whose property has been damaged or, destroyed or stolen shall be
21  entitled to recover damages in an appropriate action at law in a
22  court of competent jurisdiction from the parents of any child, living
23  with the parents, who maliciously or willfully injured such person
24  or damaged or, destroyed or stole such property while under the age
25  of 18 years. Such recovery shall be limited to the actual damages
26  in an amount not to exceed $5,000, in addition to taxable court
27  costs, unless the court or jury finds that the malicious or willful act
28  of such minor causing such injury, damage or, destruction or theft
29  is the result of parental neglect, in which event the $5,000 limitation
30  does not apply. Recovery under this section for bodily injury shall
31  be limited to actual medical expenses.
32    Section 1.  K.S.A. 60-3331 is hereby amended to read as follows: 60-
33  3331. (a) Except as otherwise provided, a merchant may file a civil action
34  to receive a civil penalty against any adult or emancipated minor who
35  shoplifts from that merchant. If the merchant does not recover the mer-
36  chandise in merchantable condition, the merchant shall be entitled to a
37  civil penalty for an amount equal to twice the retail cost of the merchan-
38  dise, or $50, whichever is greater, but in no case shall such civil penalty
39  be more than $500. If the merchant recovers the merchandise in mer-
40  chantable condition, the merchant shall be entitled to a civil penalty of
41  $50 or 50% of the retail cost of the merchandise, whichever is greater,
42  but in no case shall such civil penalty be more than $350.
43    (b)  If an unemancipated minor shoplifts, the parent or guardian of
SB 156--Am.
                                     

 1  such minor, shall be civilly liable in an amount of the civil penalty as
 2  prescribed in subsection (a), except that the provisions of this subsection
 3  shall not apply in cases where the guardian is a state agency.
 4    (c)  Unless the action is brought pursuant to the Kansas small claims
 5  act and a final judgment is rendered in small claims court, the prevailing
 6  party in such action brought pursuant to this section shall be entitled to
 7  reasonable attorney fees and costs. If the action is brought in small claims
 8  court and the judgment is appealed to district court pursuant to chapter
 9  60 of the Kansas Statutes Annotated or K.S.A. 61-2709 and amendments
10  thereto, the prevailing party on appeal shall be entitled to reasonable
11  attorney fees and costs.
12    (c)(d)  A conviction or a plea of guilty to the offense of theft of the
13  merchandise is not a prerequisite to the filing of a civil action under this
14  section.
15    (d)(e)  Prior to filing a civil action under this section, a merchant dam-
16  aged by shoplifting may demand that an individual alleged to be civilly
17  liable under this act reimburse such merchant in an amount of the civil
18  penalty as prescribed in subsection (a). Such demand, if made, shall be
19  in writing and may be offered in consideration for the merchant's agree-
20  ment not to commence a civil action under this section. Such demand
21  shall not contain a threat of criminal prosecution against such individual.
22  Any merchant who makes a demand with a threat of criminal prosecution
23  against such individual shall be precluded from filing a civil action under
24  this section and pursuing any other remedy at law or equity. A demand
25  pursuant to this subsection is not a prerequisite to filing a civil action
26  under this section, but no demand may be made which does not comply
27  with this subsection.
28    (e)(f)  Nothing contained in this act shall be construed to preclude a
29  merchant from pursuing any other remedy at law or equity prior to filing
30  an action under this act.
31    (f)(g)  For purposes of this act, ``shoplift'' means any one or more of
32  the following acts committed by a person without the consent of the
33  merchant and with the intent of appropriating merchandise to that per-
34  son's or another's own use without payment, obtaining merchandise at
35  less than its stated sales price or otherwise depriving a merchant of all or
36  any part of the value or use of merchandise:
37    (1)  Removing any merchandise from the premises of the merchant's
38  establishment;
39    (2)  concealing any merchandise with intent to leave the premises with
40  the merchandise;
41    (3)  substituting, altering, removing or disfiguring any label or price
42  tag;
43    (4)  transferring any merchandise from a container in which that mer-
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 1  chandise is displayed or packaged to any other container; or
 2    (5)  disarming any alarm tag attached to any merchandise.
 3    Sec. 2.  K.S.A. 60-3331 is hereby repealed.
 4    Sec. 2. K.S.A. 1996 Supp. 38-120 is hereby repealed.
 5    Sec. 3.  This act shall take effect and be in force from and after its
 6  publication in the statute book.