Legal Memorandum: Exceptions to Governmental Liability

Issue: Under Kansas law, assuming a management company that was hired to run a county-owned nursing home is a governmental entity, will any of the immunities in the Kansas Tort Claims Act ("KTCA") apply to the management company?

The KTCA is an open-ended act making governmental liability the rule and immunity the exception.  Kansas State Bank, 249 Kan. at 364, 819 P.2d at 599.  The burden is on the governmental entity to establish immunity under the KTCA.  Id. 

The KTCA states in pertinent part:

A governmental entity or employee acting within the scope of the employment shall not be liable for damages resulting from . . . [a]ny claim based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the party of a governmental entity or employee whether or not the discretion is abused and regardless of the level of discretion involved.

Kan. Stat. § 75-6104(e).  The discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or statute, which the government entity is required to follow.  Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272, 279 (1988).  The Kansas courts have been inconsistent in defining the discretionary function exception.  Cases involving decisions made by police officers and child protection workers seem to fall within this exception because of the variety of situations that arise for which there is no absolute employer directive.  See Mills v. City of Overland Park, 251 Kan. 434, 443,