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Hallam v. Mercy Health Center of Manhattan9/17/2004
K.S.A. 2003 Supp. 60-513(a)(4) and this court's decision in Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976).
In turn, defendant argues that the statute of limitations is 1 year, relying primarily upon K.S.A. 60-514(b) and the Court of Appeals' decision in Curts v. Dillard's, Inc., 30 Kan. App. 2d 814, 48 P.3d 681 (2002).
K.S.A. 2003 Supp. 60-513(a), relied upon by plaintiffs, is the general statute of limitations for tort actions and provides for a 2-year statute of limitation period from the time the cause of action accrues. See v. Hartley, 257 Kan. 813, 820, 896 P.2d 1049 (1995). K.S.A. 2003 Supp. 60-513(a) lists the actions limited to 2 years, stating:
"(a) The following actions shall be brought within two years:
(1) An action for trespass upon real property.
(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.
(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
(5) An action for wrongful death.
(6) An action to recover for an ionizing radiation injury as provided in K.S.A. 60-513a, 60-513b and 60-513c, and amendments thereto.
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract." (Emphasis added.)
Plaintiffs assert that subsection 4, as italicized above, applies to the tort in the instant case.
On the other hand, K.S.A. 60-514, relied upon by defendant, lists the actions limited to one year, stating:
"The following actions shall be brought within one year:
(a) An action for libel or slander.
(b) An action for assault, battery, malicious prosecution, or false imprisonment.
(c) An action upon statutory penalty or forfeiture.
(d) An action brought pursuant to K.S.A. 43-173. Such action shall be brought within one year from the date of discharge or threat of discharge from employment."
Among other things, defendant argues that outrageous conduct is similar in nature to the common-law tort of assault, an intentional tort, which is subject to a 1-year limitation pursuant to subparagraph (b). Plaintiffs respond that some other types of intentional conduct are nevertheless subject to the 2-year limitation pursuant to K.S.A. 2003 Supp. 60-513(a)(4)(injury to the rights of another, not arising on contract, and not herein enumerated). See Resolution Trust Corp. v. Scaletty, 257 Kan. 348, 353, 891 P.2d 1110 (1995)(breach of fiduciary duty); Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 111, 991 P.2d 889 (1999)(retaliatory discharge).
The parties also clash on the applicability of Johnston v. Farmers Alliance Mut. Ins. Co., 218 Kan. 543, where the plaintiff brought suit based upon employment termination. There we considered whether his causes of action against defendants for retaliatory discharge, outrage, and tortious interference with employment contract sounded in tort or contract. As the plaintiffs point out, this court held that all the causes of action sounded in tort, and that the trial court correctly granted defendants' motions for summary judgment because the plaintiff failed to bring the action within the 2-year statute of limitations K.S.A. 1975 Supp. 60-513(a)(4). 218 Kan. at 548.
Defendant in the instant case responds that Johnston is not persuasive
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