As Amended by House Committee
[As Amended by Senate on Final
Action]
As Amended by Senate Committee
Session of 1998
SENATE BILL No. 640
By Senator Schraad
2-11
14
AN ACT concerning liability; relating to wrongful
death; enacting
15 the Kansas drug dealer
liability act; amending K.S.A. 60-308 and
60-
16 1903 and
repealing the existing
section sections.
17
18 Be it enacted by the Legislature of the
State of Kansas:
19 New
Section 1. This act shall be known and may be cited as
the
20 Kansas drug dealer liability act.
21 Sec. 2. The
purpose of this act is to provide a civil remedy for
dam-
22 ages to persons in a community
injured as a result of illegal drug use.
23 These persons include parents,
employers, insurers, governmental enti-
24 ties and others who pay for drug
treatment or employee assistance pro-
25 grams, as well as infants injured
as a result of exposure to drugs in utero.
26 The act will enable such injured
persons to recover damages from those
27 persons in the community who have
joined the illegal drug market. A
28 further purpose of the act is to
shift, to the extent possible, the cost of
29 the damage caused by the existence
of the illegal drug market in a com-
30 munity to those who illegally
profit from that market. The further purpose
31 of the act is to establish the
prospect of substantial monetary loss as a
32 deterrent to those who have not yet
entered into the illegal drug distri-
33 bution market and to establish an
incentive for drug users to identify and
34 seek payment for their own drug
treatment from those dealers who have
35 sold drugs to the user in the
past.
36 Sec. 3. The
legislature finds and declares all of the following:
(a)
37 Every community in the country is
affected by the marketing and distri-
38 bution of illegal drugs. A vast
amount of state and local resources are
39 expended in coping with the
financial, physical and emotional toll that
40 results from the existence of the
illegal drug market. Families, employers,
41 insurers and society in general
bear the substantial costs of coping with
42 the marketing of illegal drugs.
Drug babies and parents, particularly those
43 of adolescent illegal drug users,
suffer significant noneconomic injury as
SB 640--Am. by H
2
1 well;
2
(b) although the criminal justice system is an important
weapon
3 against the illegal drug
market, the civil justice system can and must also
4 be used. The civil justice
system can provide an avenue of compensation
5 for those who have suffered
harm as a result of the marketing and dis-
6 tribution of illegal drugs.
The persons who have joined the illegal drug
7 market should bear the cost
of the harm caused by that market in the
8 community;
9 (c) the
threat of liability under this act serves as an additional
deter-
10 rent to a recognizable segment of
the illegal drug network. A person who
11 has nondrug related assets, who
markets illegal drugs at the workplace,
12 who encourages friends to become
users, among others, is likely to decide
13 that the added cost of entering the
market is not worth the benefit. This
14 is particularly true for a
first-time, casual dealer who has not yet made
15 substantial profits. This act
provided a mechanism for the cost of the
16 injury caused by illegal drug use
to be borne by those who benefit from
17 illegal drug dealing;
18 (d) this act
imposes liability against all participants in the illegal
drug
19 market, including small dealers,
particularly those in the workplace, who
20 are not usually the focus of
criminal investigations. The small dealers
21 increase the number of users and
are the people who become large deal-
22 ers. These small dealers are most
likely to be deterred by the threat of
23 liability;
24 (e) a parent of
an adolescent illegal drug user often expends consid-
25 erable financial resources,
typically in the tens of thousands of dollars, for
26 the child's drug treatment. Local
and state governments provide drug
27 treatment and related medical
services made necessary by the distribution
28 of illegal drugs. The treatment of
drug babies is a considerable cost to
29 local and state governments.
Insurers pay large sums for medical treat-
30 ment relating to drug addiction and
use. Employers suffer losses as a
31 result of illegal drug use by
employees due to lost productivity, employee
32 drug-related workplace accidents,
employer contributions to medical
33 plans and the need to establish and
maintain employee assistance pro-
34 grams. Large employers, insurers
and local and state governments have
35 existing legal staffs that can
bring civil suits against those involved in the
36 illegal drug market, in appropriate
cases, if a clear legal mechanism for
37 liability and recovery is
established;
38 (f) drug babies,
who are clearly the most innocent and vulnerable of
39 those affected by illegal drug use,
are often the most physically and men-
40 tally damaged due to the existence
of an illegal drug market in a com-
41 munity. For many of these babies,
the only hope is extensive medical and
42 psychological treatment, physical
therapy and special education. All of
43 these potential remedies are
expensive. These babies, through their legal
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3
1 guardians and through court
appointed guardians ad litem, should be able
2 to recover damages from those
in the community who have entered and
3 participated in the marketing
of the types of illegal drugs that have caused
4 their injuries;
5 (g) in
theory, civil actions for damages for distribution of illegal
drugs
6 can be brought under existing
law, but they are not. Several barriers
7 account for this. Under
existing tort law, only those dealers in the actual
8 chain of distribution to a
particular user can be sued. Drug babies, parents
9 of adolescent illegal drug
users and insurers are not likely to be able to
10 identify the chain of distribution
to a particular user. Futhermore, drug
11 treatment experts largely agree
that users are unlikely to identify and
12 bring suit against their own
dealers, even after they have recovered, given
13 the present requirements for a
civil action. Recovered users are similarly
14 unlikely to bring suit against
others in the chain of distribution, even if
15 the distributors are known to the
user. A user is unlikely to know other
16 dealers in the chain of
distribution. Unlike the chain of distribution for
17 legal products, in which records
identifying the parties to each transaction
18 in the chain are made and shared
among the parties, the distribution of
19 illegal drugs is clandestine. Its
participants expend considerable effort to
20 keep the chain of distribution
secret;
21 (h) those
involved in the illegal drug market in a community are
nec-
22 essarily interrelated and
interdependent, even if their identity is unknown
23 to one another. Each new dealer
obtains the benefit of the existing illegal
24 drug distribution system to make
illegal drugs available to drug users. In
25 addition, the existing market aids
a new entrant by the prior development
26 of people as users. Many experts on
the illegal drug market agree that all
27 participants are ultimately likely
to be indirectly related. That is, begin-
28 ning with any one dealer, given the
theoretical ability to identify every
29 person known by that dealer to be
involved in illegal drug trafficking, and
30 in turn each of such others known
to them, and so on, the illegal drug
31 market in a community would
ultimately be fully revealed;
32 (i) market
liability has been created with respect to legitimate
prod-
33 ucts by judicial decision in some
states. It provides for civil recovery by
34 plaintiffs who are unable to
identify the particular manufacturer of the
35 product that is claimed to have
caused them harm, allowing recovery from
36 all manufacturers of the product
who participated in that particular mar-
37 ket. The market liability theory
has been shown to be destructive of mar-
38 ket initiative and product
development when applied to legitimate mar-
39 kets. Because of its potential for
undermining markets, this act expressly
40 adopts a legislatively crafted form
of liability for those who intentionally
41 join the illegal drug market. The
liability established by this act grows out
42 of but is distinct from existing
judicially crafted market liability;
43 (j) the prospect
of a future suit for the costs of drug treatment may
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4
1 drive a wedge between
prospective dealers and their customers by en-
2 couraging users to turn on
their dealers. Therefore, liability for those
3 costs, even to the user, is
imposed under this act as long as the user
4 identifies and brings suit
against the user's own dealers;
5
(k) allowing dealers who face a civil judgment for their
illegal drug
6 marketing to bring suit
against their own sources for contribution may
7 also drive a wedge into the
relationships among some participants in the
8 illegal drug distribution
network; and
9 (l) while
not all persons who have suffered losses as a result of
the
10 marketing of illegal drugs will
pursue an action for damages, at least some
11 individuals, guardians of drug
babies, government agencies that provide
12 treatment, insurance companies and
employers will find such an action
13 worthwhile. These persons deserve
the opportunity to recover their
14 losses. Some new entrants to retail
illegal drug dealing are likely to be
15 deterred even if only a few of
these suits are actually brought.
16 New
Sec. 4 2. As used in this
act: (a) ``Illegal drug'' means a drug
17 whose distribution is a violation of
state law the controlled
substances
18 act, K.S.A. 65-4101 et
seq. and amendments thereto or a comparable
19 law in another state or the
comprehensive drug abuse prevention
20 and control act of 1970, public law
91-513, 84 Stat. 1236, codified
21 at 21 U.S.C. 801 et
seq.;
22 (b) ``illegal
drug market'' means the support system of illegal
drug
23 related operations, from
production to retail sales, through which an il-
24 legal drug reaches the
user;
25
(b) ``Illegal drug
violation'' means a violation of K.S.A. 65-4159,
26 65-4161 or 65-4163, and amendments
thereto, or a comparable
27 law in another state or a comparable law
in the comprehensive
28 drug abuse prevention and control act of
1970, public law 91-513,
29 84 Stat. 1236, codified at 21 U.S.C.
801 et seq., in which the sub-
30 stances involved were equal to the
amount for such substance as
31 specified in this subsection;
32 (c) ``illegal drug
market target community'' is the area described un-
33 der section 9
7 [6];
34 (d) ``individual drug
user'' means the individual whose illegal drug
35 use is the basis of an action
brough brought under this act;
36 (e) ``level 1
offense'' means possession of 1/4 ounce or more, but
less
37 than four ounces, or
distribution of less than one ounce of a specified
38 illegal drug or possession of
one pound or 25 plants or more, but less
39 than four pounds or 50 plants,
or distribution of less than one pound of
40 marijuana;
41 (f)
(e) ``level 2 1
offense'' means possession of four ounces or more,
42 but less than eight ounces, or distribution
of one ounce or more, but less
43 than two ounces, of a specified illegal
drug or possession of four pounds
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5
1 or more or 50 plants or more, but
less than eight pounds or 75 plants, or
2 distribution of more than one pound,
but less than five pounds, of ma-
3 rijuana;
4
(g) (f) ``level
3 2 offense'' means possession of
eight ounces or more,
5 but less than 16 ounces, or
distribution of two ounces or more, but less
6 than four ounces, of a specified
illegal drug or possession of eight pounds
7 or more or 75 plants or more, but
less than 16 pounds or 100 plants, or
8 distribution of more than 5 pounds,
but less than 10 pounds, of marijuana;
9
(h) (g) ``level
4 3 offense'' means possession of 16
ounces or more or
10 distribution of four ounces or more of a
specified illegal drug or posses-
11 sion of 16 pounds or more or 100 plants or
more or distribution of 10
12 pounds or more of marijuana;
13
(i) ``participate in the illegal drug market''
means to distribute, possess
14 with an intent to distribute,
commit an act intended to facilitate the mar-
15 keting or distribution of, or
agree to distribute, possess with an intent to
16 distribute, or commit an act
intended to facilitate the marketing and dis-
17 tribution of an illegal drug.
``Participate in the illegal drug market'' does
18 not include the purchase or
receipt of an illegal drug for personal use
19 only;
20 (j)
(h) ``person'' means an individual, governmental
entity, corpora-
21 tion, firm, trust, partnership or
incorporated or unincorporated associa-
22 tion, existing under or authorized by the
laws of this state, another state
23 or a foreign country;
24 (k)
(i) ``period of illegal drug use'' means, in relation
to the individual
25 drug user, the time of the individual's
first use of an illegal drug to the
26 accrual of the cause of action. The period
of illegal drug use is presumed
27 to commence two years before the cause of
action accrues unless the
28 defendant proves otherwise by clear and
convincing evidence;
29 (l)
(j) ``place of illegal drug activity'' means, in
relation to the individ-
30 ual drug user, each Kansas house
of representatives legislative judicial
31 district in which the individual possesses
or uses an illegal drug or in which
32 the individual resides, attends school, or
is employed during the period
33 of the individual's illegal drug use,
unless the defendant proves otherwise
34 by clear and convincing evidence;
35 (m)
(k) ``place of participation'' means, in relation to a
defendant in
36 an action brought under this act, each
Kansas house of representatives
37 legislative
judicial district in which the person
participates in the illegal
38 drug market or in which the
person resides, attends school or is employed
39 during the period of the
person's participation in the illegal drug market
40 is convicted of an illegal drug
violation; and
41 (n)
(l) ``specified illegal drug'' means cocaine, heroin or
metham-
42 phetamine and any other drug the
distribution of which is a violation of
43 state law the
controlled substances act, K.S.A. 65-4101 et seq.
and
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6
1 amendments thereto or a
comparable law in another state or the
2 comprehensive drug abuse
prevention and control act of 1970, pub-
3 lic law 91-513, 84 Stat. 1236,
codified at 21 U.S.C. 801 et seq..
4 New
Sec. 5 3. (a) A person who
knowingly participates in the illegal
5 drug market within this
state is convicted of an illegal drug
violation
6 is liable for civil damages as
provided in this act. A person may recover
7 damages under this act for injury
resulting from an individual's use of an
8 illegal drug.
9 (b) A
law enforcement officer or agency, the state or a person
acting
10 at the direction of a law
enforcement officer or agency or the state is not
11 liable for participating in the
illegal drug market, if the participation is in
12 furtherance of an official
investigation.
13
[(c) A person
who manufactures, distributes or dispenses
any
14 controlled substance and
is registered or exempt from registration
15 pursuant to K.S.A. 65-4116
and amendments thereto or a compa-
16 rable law in another state
or the comprehensive drug abuse pre-
17 vention and control act of
1970, public law 91-513, 84 Stat. 1236,
18 codified at 21 U.S.C.
§ 801, et
seq., is not liable under this
act unless
19 convicted of a criminal
violation of the controlled substances
act,
20 K.S.A.
65-4101 et seq.
and amendments thereto or a comparable
law
21 in another state or the
comprehensive drug abuse prevention and
22 control act of 1970,
public law 91-513, 84 Stat. 1236, codified
at
23 21 U.S.C. §
801 et seq.
Such a conviction is prima facie evidence
of
24 the person's participation
in the illegal drug market during the two
25 years preceding the date
of an act giving rise to a conviction.
26 [(d) A
person who manufactures, distributes or dispenses
drugs
27 which are not controlled
substances and is registered or exempt
28 from registration pursuant
to K.S.A. 65-1643 and amendments
29 thereto or a comparable
law in another state or a comparable fed-
30 eral law is not liable
under this act unless convicted of a
criminal
31 violation of the
controlled substances act, K.S.A. 65-4101
et seq.
and
32 amendments thereto or a
comparable law in another state or the
33 comprehensive drug abuse
prevention and control act of 1970, pub-
34 lic law 91-513, 84 Stat.
1236, codified at 21 U.S.C § 801
et seq.
Such
35 a conviction is prima
facie evidence of the person's participation
in
36 the illegal drug market
during the two years preceding the date of
37 an act giving rise to a
conviction.
38
[(e) (b) A claim or judgment
under the provisions of this act
39 shall not constitute an obligation or
liability against any insurer or
40 third-party payor.]
41 New
Sec. 6
4. (a) One or more of the following persons may
bring
42 an action for damages caused by an
individual's use of an illegal drug: (1)
43 A parent, legal guardian, child, spouse or
sibling of the individual drug
SB 640--Am. by H
7
1 user;
2 (2) an individual
who was exposed to an illegal drug in utero;
3 (3) an employer of
the individual drug user;
4 (4) a medical
facility, insurer, governmental entity, employer or other
5 entity that funds a drug treatment
program or employee assistance pro-
6 gram for the individual drug user or
that otherwise expended money on
7 behalf of the individual drug user;
or
8 (5) a person
injured as a result of the willful, reckless or negligent
9 actions of an individual drug
user.
10 (b) A person entitled to
bring an action under this section may seek
11 damages from one or more of the following:
(1) A person who knowingly
12 distributed, or knowingly
participated in the chain of distribution of,
was
13 convicted of an illegal drug violation
and actually sold or offered
14 for sale an illegal drug that was
actually used by the individual drug user;
15 and
16 (2) a person who
knowingly participated in the illegal drug
market
17 was convicted of an illegal drug
violation if: (A) The place of illegal
18 drug activity by the individual drug user
is within the illegal drug market
19 target community of the defendant; and
20 (B) the defendant's
participation in the illegal drug market
convic-
21 tion of an illegal drug violation
was connected with the same type of
22 illegal drug used by the individual drug
user; and
23 (C) the defendant
participated in the illegal drug market
was con-
24 victed of an illegal drug violation
at any time during the individual
25 drug user's period of illegal drug use.
26
(c) (1) A person entitled to
bring an action under this section may
27 recover all of the following damages:
(1) (A)
[(1)] Economic damages,
28 including, but not limited to, the cost of
treatment and rehabilitation,
29 medical expenses, loss of economic or
educational potential, loss of pro-
30 ductivity, absenteeism, support expenses,
accidents or injury and any
31 other pecuniary loss proximately caused by
the illegal drug use;
32 (2)
(B)
[(2)] noneconomic damages, including, but not
limited to,
33 physical and emotional pain, suffering,
physical impairment, emotional
34 distress, medical anguish, disfigurement,
loss of enjoyment, loss of com-
35 panionship, services and consortium and
other nonpecuniary losses prox-
36 imately caused by an individual's
use individual's use of an illegal drug;
37 (3)
(C)
[(3)] exemplary damages[, except that
notwithstanding the
38 provisions of K.S.A. 60-3702 and
amendments thereto, exemplary
39 damages recovered pursuant to this
act shall not exceed
40 $10,000,000];
41
(4) (D)
[(4)] reasonable attorney fees; and
42 (5)
(E) [(5)] costs
of suit, including, but not limited to, reasonable
43 expenses for expert testimony.
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1 (2) Any
provision of law which prescribes a limit or cap on
re-
2 covery of noneconomic
or punitive damages or recovery in a wrong-
3 ful death action shall
not apply to any action brought pursuant to
4 the provisions of this
act.
5 (d) A
defendant shall not be allowed to make a defense or
claim
6 of preexisting condition to
diminish damages pursuant to this sec-
7 tion.
8 New
Sec. 7 5. (a) Except as
otherwise provided in this subsection,
9 an individual drug user shall not
bring an action for damages caused by
10 the use of an illegal drug. An individual
drug user may bring an action
11 for damages caused by the use of an illegal
drug only if all of the following
12 conditions are met: (1) The individual
personally discloses to narcotics
13 enforcement authorities, more than six
months before filing the action,
14 all of the information known to the
individual regarding all that individ-
15 ual's sources of illegal drug;
16 (2) the individual has
not used an illegal drug within the six months
17 before filing the action; and
18 (3) the individual
continues to remain free of the use of an illegal
19 drug throughout the pendency of the
action.
20 (b) A person entitled to
bring an action under this section may seek
21 damages only from a person who
distributed, or is in the chain of
distri-
22 bution of, was
convicted of distributing an illegal drug that was actually
23 used by the individual drug user.
24 (c) A person entitled to
bring an action under this section may recover
25 only the following damages: (1) Economic
damages, including, but not
26 limited to, the cost of treatment,
rehabilitation and medical expenses, loss
27 of economic or educational potential, loss
of productivity, absenteeism,
28 accidents or injury and any other pecuniary
loss proximately caused by
29 the person's illegal drug use;
30 (2) reasonable attorney
fees; and
31 (3) costs of suit,
including, but not limited to, reasonable expenses
32 for expert testimony.
33
Sec. 8
6. A third party shall
not pay damages awarded under this act,
34 or provide a defense or money for a
defense, on behalf of an insured
35 under a contract of insurance or
indemnification.
36 New
Sec. 9 7
[6]. A person whose participation in
the illegal drug
37 market
conviction of an illegal drug violation constitutes the
following
38 level offense shall be considered to have
the following illegal drug market
39 target community: (a) For a level 1
offense, the Kansas house of repre-
40 sentatives
legislative judicial district in which the
defendant's place of
41 participation is
situated;
42 (b) for a
level 2 offense, the target community described in
subsection
43 (1) plus all
Kansas house of representatives legislative
judicial districts
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9
1 with a border contiguous to that
target community;
2
(c) (b) for a level
3 2 offense, the target community
described in
3 subsections
subsection (1) and (2) plus all
Kansas house of representa-
4 tives
legislative judicial districts with a border
contiguous to that target
5 community; or
6
(d) (c) for a level
4 3 offense, the state.
7 New
Sec. 10 8
[7]. (a) Two or more persons may join in one
action
8 under this act as plaintiffs if such
person's respective actions have at least
9 one place of illegal drug activity in
common and if any portion of the
10 period of illegal drug use overlaps with
the period of illegal drug use for
11 every other plaintiff.
12 (b) Two or more persons
may be joined in one action under this act
13 as defendants if such persons are liable to
at least one plaintiff.
14 (c) A plaintiff need not
be interested in obtaining and a defendant
15 need not be interested in defending against
all the relief demanded. Judg-
16 ment may be given for one or more
plaintiffs according to such plaintiffs'
17 respective rights to relief and against one
or more defendants according
18 to such defendants' respective
liabilities.
19 New
Sec. 11 9
[8]. (a) An action by an individual drug user is
gov-
20 erned by the principles of comparative
responsibility. Comparative re-
21 sponsibility attributed to the plaintiff
does not bar recovery but diminishes
22 the award of compensatory damages
proportionally, according to the
23 measure of responsibility attributed to the
plaintiff.
24 (b) The burden of
proving the comparative responsibility of the plain-
25 tiff is on the defendant, which shall be
shown by clear and convincing
26 evidence.
27 (c) Comparative
responsibility shall not be attributed to a plaintiff
28 who is not an individual drug user.
The liability of defendants other
29 than individual drug users shall be
joint and several liability.
30 New
Sec. 12 10
[9]. A person subject to liability under this
act has
31 a right of action for contribution against
another person subject to liability
32 under this act. Contribution may be
enforced either in the original action
33 or by a separate action action brought for
that purpose. A plaintiff may
34 seek recovery in accordance with this act
and existing law against a person
35 whom a defendant has asserted a right of
contribution.
36 New
Sec. 13 11
[10]. (a) Proof of participation in the
illegal drug
37 market in an action
brought under this act shall be shown by clear
and
38 convincing evidence. Except as
otherwise provided in this act, other el-
39 ements of the cause of action shall
be shown by a preponderance of the
40 evidence.
41 (b) A person
against whom recovery is sought who has a
criminal
42 conviction pursuant to a
violation of the controlled substances act, K.S.A.
43 65-4101
et seq. and amendments
thereto or a comparable law in another
SB 640--Am. by H
10
1 state or the comprehensive
drug abuse prevention and control act of 1970,
2 public law 91-513, 84
Stat. 1236, codified at 21 U.S.C. § 801
et seq.,
who
3 is convicted of an illegal drug
violation is estopped from denying
4 participation in the illegal drug
market. Such a conviction is also
prima
5 facie
evidence of the person's participation in the illegal
drug market
6 during the two years
preceding the date of an act giving rise to a
convic-
7 tion.
8 (c) The
absence of a criminal drug conviction of a person
against
9 whom recovery is sought
does not bar an action against that person.
10
New Sec. 14
12 [11]. (a) A
plaintiff under this act, subject to the
11 provisions of subsection (c), may request
an ex parte prejudgment at-
12 tachment order from the court against all
assets of a defendant sufficient
13 to satisfy a potential award. If attachment
is instituted, a defendant is
14 entitled to an immediate hearing.
Attachment may be lifted if the de-
15 fendant demonstrates that the assets will
be available for a potential award
16 or if the defendant posts a bond sufficient
to cover a potential award.
17 (b) A person against
whom a judgment has been rendered under this
18 act is not eligible to exempt any property,
of whatever kind, from process
19 to levy or process to execute on the
judgment.
20 (c) Any assets sought to
satisfy a judgment under this act that are
21 named in a forfeiture action or have been
seized for forfeiture by any
22 state or federal agency may not be used to
satisfy a judgment unless and
23 until the assets have been released
following the conclusion of the for-
24 feiture action or released by the agency
that seized the assets.
25 New
Sec. 15 13
[12]. (a) Except as otherwise provided in this
sec-
26 tion, a claim under this act shall not be
brought more than two years after
27 the cause of action accrues. A cause of
action accrues under this act when
28 a person who may recover has reason to know
of the harm from illegal
29 drug use that is the basis for the cause of
action and has reason to know
30 that the illegal drug use is the cause of
the harm.
31 (b) For a plaintiff, the
statute of limitations under this section is tolled
32 while the individual potential plaintiff is
incapacitated by the use of an
33 illegal drug to the extent that the
individual cannot reasonably be ex-
34 pected to seek recovery under this act or
as otherwise provided by law.
35 For a defendant, the statute of limitations
under this section is tolled until
36 six months after the individual potential
defendant is convicted of a crim-
37 inal drug offense or as otherwise provided
by law.
38 (c) The statute of
limitations under this act for a claim based on
par-
39 ticipation in the illegal drug
market a conviction that occurred prior to
40 the effective date of this act does not
begin to run until the effective date
41 of this act.
42 New
Sec. 16 14
[13]. (a) A prosecuting attorney may represent
the
43 state or a political subdivision of the
state in an action brought under this
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1 act.
2 (b) On motion by a
governmental agency involved in a drug investi-
3 gation or prosecution, an action
brought under this act shall be stayed
4 until the completion of the criminal
investigation or prosecution that gave
5 rise to the motion for a stay of the
action.
6 New
Sec. 17 15
[14]. The provisions of this act are not
intended to
7 alter the law regarding intra-family
tort immunity.
8 New
Sec. 18 16
[15]. If any provision of this act or the
application
9 of any provision to any person or
circumstance is held invalid, the re-
10 mainder of this act and the application of
such provision to any other
11 person or circumstance shall not be
affected by that invalidation.
12 New
Sec. 17
[16]. K.S.A. 60-308 is hereby amended to read
as
13 follows: 60-308. (a) Proof
and effect. (1) Service of process may be
14 made upon any party outside the
state. If upon a person domiciled
15 in this state or upon a person who
has submitted to the jurisdiction
16 of the courts of this state, it shall
have the force and effect of service
17 of process within this state;
otherwise it shall have the force and
18 effect of service by
publication.
19 (2) The service of
process shall be made (A) in the same manner
20 as service within this state, by any
officer authorized to make serv-
21 ice of process in this state or in
the state where the defendant is
22 served or (B) by sending a copy of
the process and of the petition
23 or other document to the person to be
served in the manner provided
24 in subsection (e). No order of a
court is required. An affidavit, or
25 any other competent proofs, of the
server shall be filed stating the
26 time, manner and place of service.
The court may consider the af-
27 fidavit, or any other competent
proofs, in determining whether serv-
28 ice has been properly
made.
29 (3) No default
shall be entered until the expiration of at least
30 30 days after service. A default
judgment rendered on service out-
31 side this state may be set aside only
on a showing which would be
32 timely and sufficient to set aside a
default judgment under subsec-
33 tion (b) of K.S.A. 60-260, and
amendments thereto.
34
(b) Submitting to jurisdiction -- process.
Any person, whether or
35 not a citizen or resident of this
state, who in person or through an
36 agent or instrumentality does any of
the acts hereinafter enumer-
37 ated, thereby submits the person and,
if an individual, the individ-
38 ual's personal representative, to the
jurisdiction of the courts of this
39 state as to any cause of action
arising from the doing of any of these
40 acts:
41 (1) Transaction of
any business within this state;
42 (2) commission of
a tortious act within this state;
43 (3) ownership, use
or possession of any real estate situated in
SB 640--Am. by H
12
1 this state;
2
(4) contracting to insure any person, property or risk
located
3 within this state at the time
of contracting;
4 (5) entering
into an express or implied contract, by mail or oth-
5 erwise, with a resident of this
state to be performed in whole or in
6 part by either party in this
state;
7 (6) acting
within this state as director, manager, trustee or
other
8 officer of any corporation
organized under the laws of or having a
9 place of business within this
state or acting as executor or admin-
10 istrator of any estate within this
state;
11 (7) causing to
persons or property within this state any injury
12 arising out of an act or omission
outside of this state by the defend-
13 ant if, at the time of the injury
either (A) the defendant was engaged
14 in solicitation or service activities
within this state; or (B) products,
15 materials or things processed,
serviced or manufactured by the de-
16 fendant anywhere were used or
consumed within this state in the
17 ordinary course of trade or
use;
18 (8) living in the
marital relationship within the state notwith-
19 standing subsequent departure from
the state, as to all obligations
20 arising for maintenance, child
support or property settlement under
21 article 16 of this chapter, if the
other party to the marital relation-
22 ship continues to reside in the
state;
23 (9) serving as the
insurer of any person at the time of any act
24 by the person which is the subject of
an action in a court of com-
25 petent jurisdiction within the state
of Kansas which results in judg-
26 ment being taken against the
person;
27 (10) performing an
act of sexual intercourse within the state, as
28 to an action against a person seeking
to adjudge the person to be a
29 parent of a child and as to an action
to require the person to provide
30 support for a child as provided by
law, if (A) the conception of the
31 child results from the act and (B)
the other party to the act or the
32 child continues to reside in the
state; or
33 (11) entering into
an express or implied arrangement, whether
34 by contract, tariff or otherwise,
with a corporation or partnership,
35 either general or limited, residing
or doing business in this state
36 under which such corporation or
partnership has supplied trans-
37 portation services, or communication
services or equipment, in-
38 cluding, without limitation,
telephonic communication services, for
39 a business or commercial user where
the services supplied to such
40 user are managed, operated or
monitored within the state of Kansas,
41 provided that such person is put on
reasonable notice that arrang-
42 ing or continuing such transportation
services or telecommunica-
43 tion services may result in the
extension of jurisdiction pursuant to
SB 640--Am. by H
13
1 this
section.; or
2
(12) participating in the illegal drug market as described in
section 1
3 et seq. and amendments
thereto.
4 (c) Service
of process upon any person who is subject to the
5 jurisdiction of the courts of
this state, as provided in subsection (b),
6 may be made by serving the
process upon the defendant outside this
7 state, as provided in
subsection (a)(2), with the same force and effect
8 as though process had been
served within this state, but only causes
9 of action arising from acts
enumerated in subsection (b) may be
10 asserted against a defendant in an
action in which jurisdiction over
11 the defendant is based upon this
subsection.
12 (d) Nothing
contained in this section limits or affects the right
13 to serve any process in any other
manner provided by law.
14
(e) Service by certified mail. Service of
any out-of-state process
15 may be by certified mail, evidenced
by return receipt signed by any
16 person or by restricted delivery. The
attorney for the party seeking
17 service or the party, if the party is
not represented by an attorney,
18 shall cause a copy of the process and
petition or other document to
19 be placed in an envelope addressed to
the person to be served in
20 accordance with K.S.A. 60-304, and
amendments thereto, adequate
21 postage to be affixed and the sealed
envelope to be placed in the
22 United States mail as certified mail
return receipt requested with
23 instructions to the delivering postal
employee to show to whom de-
24 livered, date of delivery, and
address where delivered. The party's
25 attorney or the party, if the party
is not represented by an attorney,
26 shall execute a return on service
stating the nature of the process,
27 the date on which the process was
mailed, and the name and address
28 on the envelope containing the
process mailed as certified mail re-
29 turn receipt requested. The party or
the party's attorney shall file
30 the return on service and the return
receipt or return envelope in
31 the records of the action. Service of
process shall be considered
32 obtained under K.S.A. 60-203, and
amendments thereto, upon the
33 delivery of the certified mail
envelope. If the certified mail envelope
34 is returned with an endorsement
showing refusal of delivery, the
35 serving party or the party's attorney
may send a copy of the process
36 and petition or other document to be
served to the defendant by
37 ordinary, first-class mail. The
mailing shall be evidenced by a cer-
38 tificate of mailing which shall be
filed with the clerk. Service shall
39 be considered obtained upon the
mailing by ordinary, first-class
40 mail. Failure to claim certified mail
service is not refusal of service
41 within the meaning of this
subsection.
42
Sec. 17. K.S.A. 60-1903 is hereby
amended to read as follows:
43 60-1903. (a) In any wrongful death
action, the court or jury may
SB 640--Am. by H
14
1 award such damages as are found to
be fair and just under all the
2 facts and circumstances, but the
damages, other than pecuniary
3 loss sustained by an heir at law,
cannot exceed in the aggregate
4 the sum of
$100,000 $350,000 and costs.
5 (b) If a
wrongful death action is to a jury, the court shall not
6 instruct the jury on the monetary
limitation imposed by subsection
7 (a) upon recovery of damages for
nonpecuniary loss. If the jury
8 verdict results in an award of
damages for nonpecuniary loss
9 which, after deduction of any
amounts pursuant to K.S.A. 60-258a
10 and amendments thereto, exceeds the
limitation of subsection (a),
11 the court shall enter judgment for
damages of $100,000 $350,000
12 for nonpecuniary loss.
13 (c) In any wrongful
death action, the verdict shall be itemized
14 by the trier of fact to reflect the
amounts, if any, awarded for:
15 (1) Nonpecuniary
damages;
16 (2) expenses for the
care of the deceased caused by the injury;
17 and
18 (3) pecuniary damages
other than those itemized under sub-
19 section (c)(2).
20 (d) Where applicable,
the amounts required to be itemized
21 pursuant to subsections (c)(1) and
(c)(3) shall be further itemized
22 by the trier of fact to reflect those
amounts awarded for injuries
23 and losses sustained to date and those
awarded for injuries and
24 losses reasonably expected to be
sustained in the future.
25 (e) In any wrongful
death action, the trial court shall instruct
26 the jury only on those items of damage
upon which there is some
27 evidence to base an award.
28
Sec. 18
[17] 18. K.S.A.
60-308 is and 60-1903
are hereby re-
29 pealed.
30 Sec. 19
[18] 19. This act
shall take effect and be in force from and
31 after its publication in the statute
book.
32