[donarb]

The really tragic thing is that the father of the killed 10 year old was a Kansas legislator who voted for a cap on damages (max $300K) when someone is killed due to negligence. A quirk in Kansas law allows for Kansans injured by out-of-state parties to apply the laws of the state where the other party is located. So Scott Schwab parlayed the payout for his son's death from $300,000 to $20 million, all while denying the same to his constituents injured by Kansas companies.

https://www.injuryrelief.com/blog/how-is-representative-scot...

[tzs]

Any of his constituents injured by out of state parties can do exactly the same thing he did. Any injury he suffers at the hands of a Kansas company will be subject to the same damage limits that such injuries suffered by his constituents are.

I don't see how this is either hypocrisy (as alleged in the article you link to) or denying his constituents some benefit that is allowed to him (as you claim).

I am curious why Kansas law allows in the case of an out-of-state tortfeasor applying the laws of the tortfeasor's state for damage limits. (I assume that it is still Kansas law determines whether or not a tort was committed?)

If the tort occurred in another state, and the Kansas victim elected to sue in Kansas, then I believe that normal choice of law rules would have the Kansas court apply the laws of the state where the tort occurred, both for determining whether there is liability, and determining the damages (Kansas law, though, for rules of procedure and rules of evidence).

But here the tort occurred in Kansas, so I'm confused. The only theory that comes to mind is that this is meant to make Kansas more attractive as a home state to companies.

For instance, suppose you are going to set up a company that primarily serves customers in Kansas and Texas. If you make Texas your home, you will be subject to Texas damage limits on your torts in Texas against Texans, and because of the Kansas tort quirk you will also be subject to Texas damage limits on your torts against Kansans in Kansas.

If, on the other hand, you make Kansas your home, you will will be subject to Texas damages on your torts against Texans in Texas, but on your torts against Kansans in Kansas the damages will be limited by the $300k Kansas limit on Kansas companies.

If this is the reason, I wonder if it could be challenged on interstate commerce grounds? Making the damage limit on torts committed in Kansas lower for Kansas companies than for companies in states with higher damage limits advantages Kansas businesses.

[hn_throwaway_99]

> I don't see how this is either hypocrisy

Seriously, you don't? It's all "over burdensome regulation" and "tort lawyers looking for a huge payday" until it's YOUR child that is hurt or killed. Legislator is damn lucky the tortfeasor was from out of state.

[tzs]

> Seriously, you don't?

No, I don't. The definition of hypocrisy is "the practice of claiming to have moral standards or beliefs to which one's own behavior does not conform".

He voted for a law that resulted in reduced damages for torts committed in Kansas by Kansas companies but did not reduce damages for torts committed in Kansas by non-Kansas companies, at least in some circumstances [1].

This suggests that his moral standards or beliefs at the time he voted for the law were that out-of-state companies should be subject to higher damages than Kansas companies [2]. (That's a crappy moral standard and belief, but that's not relevant from a hypocrisy perspective).

He later was a plaintiff in a tort case against a non-Kansas company, and asked for higher damages than he would be able to get from a Kansas company. This is not acting in a way that does not conform to moral standards or beliefs that his vote suggests he holds.

The essence of hypocrisy is telling everyone to act one way and then acting in a different way yourself. Here he is acting in the same way the law he voted for allows all Kansans to act, so we cannot infer hypocrisy.

That doesn't mean he should not be criticized strongly. The law he voted for is very bad on two counts. First, by severely limiting damages on torts committed by Kansas companies, it harms those company's Kansas victims.

Second, by having different limits depending on whether it is a Kansas company or not, it means that different Kansas plaintiffs who suffer similar injuries from a tortfeasor in Kansas can face vastly different damage limits depending on where the tortfeasor happens to be incorporated. That's fundamentally unfair.

[1] The injury lawyer blog that was cited just says there is "apparently" a "quirk" in Kansas law, and the cite is just a newspaper article that just says it may have something to do with choice of law, so it is not clear exactly how this thing came about.

[2] I'm assuming that there is some basic competence on the part of the Kansas legislature and their staff that actually prepare legislation, so that when they decided to lower damage limits on torts they knew about this mysterious quirk and knew that they were writing their legislation in a way that would not eliminate it.

[untog]

I can't help but feel like the OP's post is an example of getting carried away in legalese. It isn't hypocritical in the legal sense, but absolutely is in the moral sense.