Legal Memorandum: Liability of Governmental Entities

Issue: If a management company that was hired by a county to run a county-owned nursing home is considered a governmental entity, would claims against the management for the sexual assault, hiring, retention and supervision fall within Kansas Tort Claims Act ("KTCA") coverage?

           The KTCA provides in part: "Subject to the limitations of this Act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment."  A "governmental entity" is defined as "state" or "municipality."  Kan. Stat. § 75-6102(c) (2000).  "State" means the State of Kansas and any department or branch of state government, or any agency, authority, institution or other instrumentality thereof.  Id. § 75-6102(a).  "Municipality" means any county, township, city, school district or other political or taxing subdivision of the state, or any agency, authority, institution or other instrumentality thereof.  Id. § 75-6102(b).

A nursing home resident claiming damages based on the conduct of a management company’s employees, assuming they are government employees, must establish the employee(s) was acting within the scope of his or her employment in order to hold the management company liable.  See Kan. Stat. § 75-6103.  For employees’ wrongful acts to fall within the scope of governmental employment, several alternative factors are taken into account:

(SEQ 4_0 * Arabic r 11)        Was the employee’s wrongful act done in furtherance of the state’s business or for the employee’s personal benefit?

(2)        Did the governmental employee have express or implied authority to perform the act in question?

(3)        Was the employee’s wrongful act reasonably […]