*1 47,363 No. Appellants, Wichita Brown, Sr., al.,
Mаrvin G. et State Uni- Appellees. Appellants, versity, al., Bruce, al., et Mike et Eugenia Appellees. al., Wichita University, State et Hallie Robinson, Individually and as Administratrix of Estate of Appellants, Robinson, al., University, Eugene et v. Wichita State Appellees. al., et 66) (540 P. 2d *3 Opinion filed 1975. June Norman,.of Lampkin, Abel, Norman, Wolfe, Burger, McCaffrey W. John & City, Oklahoma, argued cause, Heck, Oklahoma and Ronald D. McDonald, Tinker, Skaer, Quinn Wichita, Herrington, & and W. David Kennedy, Kennedy, Wichita, & Greene were with him on the brief for
appellants. argued Wichita, Fair, Martin, Swartz, Pringle, & Schell Paul him on the was with cause, Taylor same firm 'Neuschwander J. appellee. brief for by delivered of the court was opinion The of the district an order This is an from appeal C. J.: Fatzer, University’s State Wichita defendant-appellee sustaining court summary motion judgment. carrying a chartered aircraft the crash of
The arises out of appeal team, mem- football University State of the 1970 Wichita members plaintiffs The university supporters. faculty bers of the —the repre- personal either surviving passengers appellants —are events chronology killed in the crash. sentatives of those rise to this action follows: giving exceuted 21,1970, by was Agreement
On Aviation Services July Aviation, Inc., University for the and Wichita State Golden Eagle November ending commencing September period at- agreement, season. That 1970—the scheduled 1970 football executed Bruce A this was Appendix opinion, tached J. Katzenmeyer, Bert Danielson of Golden Eagle, on behalf on behalf of Director of Wiсhita State University Athletic Farmer, Secretary of Floyd It attested to W. institution. was Inc. Wichita State Education University Physical Corporation State Uni- the reader the defendant Wichita For convenience of Uni- to as the Wichita State appellee, hereafter referred versity State, the defendant versity, University; Wichita WSU or Inc., is Wichita State Education Physical Corporation, PEC. hereafter referred to as Physical Corporation Education pro- Golden was to Eagle the agreement, terms of Pursuant to the the air- services for ancillary other crew and qualified flight vide *4 of its the members State in transporting be used Wichita craft to by at other uni- scheduled games to team and other personnel football the aircraft described was to lease State versities. Wichita and to pro- a third DC-6B” from party “One Douglas as agreement regula- federal by as liability prescribed insurance passenger vide tions. foot- 2, 1970, the Wichita State members of
On October Friday, aircraft for Wichita, Kansas, in two Martin 404 departed ball party University State sched- Utah, with Utah game for football Logan, 3,1970. October Saturday, uled for Denver, N464M, from aircraft, took off
When the Martin 404 No. 2,900 Colorado, it was in excess of the stop, an intermediate pounds as aircraft taking-off weight prescribed by specifications allowable Bd., Natl. Trans. the Federal Aviation Administration. (1 Safety For those ended in plane, aboard [1971].) journey when the crashed into a mountainside near Silver plane tragedy Plume, miles Colorado. west Georgetown, owner of the that crashed Richards registered plane was Jack Inc. written Aircraft No had been executed Company, agreement the lease to to Wichita State for this respect plane flight. Written aircraft of Richards Wichita agreements leasing to Jack State for first two season away games 1970 football had been Mr. behalf of signed by Katzenmeyer on Those University. leases had been executed each prior flight. Aviation, Inc., Golden Eagle Richards Aircraft Com- Jack Inc.,
pany, were organized pursuant corporate laws of the state of Oklahoma. As a result of an investigation into operation crash, of Golden occasioned'by Eagle plane Eagle’s Golden air certificates operator by were revoked the Federal taxi/commercial Aviation Administration. That revocation was sustained on appeal the National Transportation Safety Board. Nat’l. Trans. (1 Bd., Safety 1028 [1971].) crash,
After the plane it was ascertained Wichita State had not purchased insurance passenger liability ás required its con- tract with Golden Eagle. Liability insurance requirements for air taxi operators engaged are set transportation by regulations of the Civil Aeronautics Board. (14 C. F. R. 298.41 et seq. Subpart D.) The minimum limits coverage thousand seventy-five dollars ($75,000) any one each passenger, occurrence an amount equal sum produced $75,000 by multiplying seventy-five percent of the total (75%) number of seats in passenger the aircraft. C. F. R. (14 298.42 [1].) [a]
On 29, 1972, September three separate lawsuits were filed. Each lawsuit involved multiple plaintiffs named defendants Wich- ita State University and the Wichita State Edu- University Physical cation Inc. Corporation, Prior taken into the being state educa- 1, 1964, tional system on Wichita State was a July municipally owned and operated educational institution known as the University 76-3a01, of Wichita. S. A. et (K. seq.) As state educational insti- tution, the of the state of agency S. (K. Kansas A. [a], 76-711 Supp hereafter cited and referred as K. S. A. 76-711 Supp. [a]) which is controlled under operated *5 76- A. 1971 Supp. S. (K. of Regents. of the Board supervision Supp. 76-712.) S. A. 1974 as K.
712, hereafter and referred to cited a non- nonprofit, is Corporation Education Physical Defendant of Kansas. the laws of the state under organized corporation stock conduct the busi- was formed corporation The record shows this athletic intercollegiate programs and transactions of the ness other advised oral we were argument University. During of Wichita State the channel- more palatable was to make corporation designed athletics. intercollegiate tax funds to ing support action which several causes of their plaintiffs alleged In petitions, based upon tort actions are and contract. The sound both tort and warranty of implied express breach theories of negligence, party the third action based The contract liability. strict the failure of Wichita State and relates to doctrine beneficiary Agree- by the Aviation Services required obtain insurance lawsuits The three regulations. aviation ment and federal pertinent the district court. were consolidated the dis- Wichita State moved defendant On December in its favor. The defendant summary trict court to enter judgment motion, not a to that nor party was Corporation Education Physical At- parties. this Briefs were filed appeal. is it a party to Clark D. depositions State’s brief were Dr. tached to Wichita Lowe, Mr. Bruce Assistant University, President Ahlberg, Wichita and the Business Manager Finance President motion, defendant’s the district court a on hearing State. Following statutes, K. A. 46-901 et S. held: (1) implied barred tort and plaintiffs’ were constitutional and seq., State, and warranty assuming pur- Wichita against (2) claims motion, Danielson, Mr. acting poses summary judgment Mr. Katzenmeyer of Golden believed Eagle, faith on behalf good and authorized enter into the of Wichita State agent to be the behalf, agreement on was an Agreement Aviation Services its could not maintain action plaintiffs unenforceable contract order, as third beneficiaries. From that party against We reverse. appeal. have plaintiffs perfected is an of contract law that a principle person may It established a made second to a third promise party party avail himself of first for the benefit of the first was not party although party no knowledge to the contract hаd of when made. (Keith Inc., Agency, Insurance Kan. 2d 498 P. Schiefen-Stockham Rexroad, valid and Anderson P. A *6 the of the bene- contract essential to third binding right party Troth, an v. to maintain such action. 223 ficiary (Cory P. the plaintiffs party 2d Wichita State concedes third the beneficiaries to contract between Golden and its “cus- Eagle However, it tomer.” the asserts is not the “customer” in University indicated, fact inor law. As hereafter the express hold terms the thereon, Aviation Services Agreement, and disclosures the is a contract agreement between Golden Aviation and Eagle contends, however, Wichita State Wichita State that as University. to applied University, is not a valid and agreement binding contract. In of that advances support proposition, several legal theories.
The first theory advanced Wichita State concerns its authority authority of Bert Katzenmeyer to enter into the agreement. Wichita State contends it did not have the of the Board approval as K. Regents 76-721, S. A. 1971 required by hereafter cited Supp. 76-721, referred to as K. A.S. 1974 Supp. to execute the agree- ment, nor did it Bert grant authority execute Katzenmeyer to agreement on its behalf. Wichita State maintains Mr. Katzenmeyer had to authority only execute contracts on behalf of PEC. In con- with this Wichita argument, State asserts mutual mistake junction was made in the true identifying contracting parties the agree- ment. According University, parties involved knew was agreement with PEC and not Wichita Stаte. not, it, also it did nor could ratify
Wichita State contends Here, Aviation Services it Mr. Agreement. points out Katzenmeyer PEC, was on behalf of that he contracting acting was as the State, of Wichita that all benefits under the agent agreement agreement inured to PEC ratification was impossible to because Wichita State lacked enter into the contract authority it with the of K. S. A. 1974 complied Supp. unless 76- provisions state, 721. Wichita State further contends that of the agency it cannot be estopped deny agreement. to validity appellants Agreement
The contend the Aviation Services was State, entered into Wichita that Mr. had Katzenmeyer ap- parent authority to on agreement execute the behalf of the Univer- and it sity should be from estopped asserting lack Katzenmeyer’s bind the authority University contractually. S. A. 1971 (K. 76-725, Supp. hereafter cited and referred as K. S. A. 1974 Supp. 76-725.) contend that if relation- appellants agency also no existed ship between the court parties, should “pierce
286 its Wichita State responsible and hold veil” PEC
corporate to follow Wichita State’s failure also contend acts. The appellants the Board approval by statutorily required regarding procedures where Regents performance should not render a contract invalid dis- there no indication of already begun, had and where existed until is con- Finally, of the contract after crash. approval the University tended ratified the contract. occasiоns, has, disregarded a corporate prior court on
While this in justice or obviate necessary promote it was entity when Bank, Kan. 48 Douglas Co. equitable (Kellogg results Co., 2d Cab, & P. 587; T. S. Avery Safeway Pac. 33; Bros., P. Inc. v. Kan. 1099; Kilpatrick Poynter, 205 Inc., P. 2d v. H. P. Corporation, Kirk G. *7 849; Inc., 353, P. 2d v. 211 Kan. 507 Enterprises, Adams Meehan Inc., 471, 532 we 1330), v. 216 Kan. P. Signal Companies, Farha alter here. unnecessary ego find it to the doctrine apply the regarding in this with two issues We confronted appeal First, Services determine the relation- Agreement. Aviation must PEC, the and Wichita parties, Katzenmeyer, between three ship State, between, and contract is in so determine who the doing, State, Golden and Wichita or Golden and PEC. Eagle Eagle Second, A. whether of K. S. noncompliance provisions the the 76-721 the For statute Supp. renders invalid. agreement it the to is that must a to apply, party Wichita State be elementary Aviation Services we shall consider first Agreement. Accordingly, the relationship question. actual, agencies types two distinct recognizes law —one and agency or What constitutes apparent.
and the ostensible other to reasonably tending evidence competent there is any whether Bruns, v. is a law. (Greep such a prove relationship question 803; Antrim, 70, v. 177 Kan. Shugar 159 P. 2d Co., Phillips Hendrix Petroleum P. 2d 486.) P. 2d an by agree- agency the record establishes
To determine whether
sought
it
examined to
if the
to be
party
ment must be
ascertain
alleged agent
authority
has
charged
principal
delegated
thе
to’
delegated
the
expressly
agent
words which
authorize
do
character, the
the
authority
act.
If there is evidence of that
found, then the evi-
is
If
authorization is
agent
express
no
express.
alleged agent
whether the
dence must
to
be considered
determine
to deter-
utilized
this court
possesses
powers.
The test
implied
whether,
is
agent possesses implied powers
alleged
mine if the
case,
it
and circumstances of
particular
appears
from the facts
event,
to create an
which
agency;
there was an
intention
implied
exist,
a denial
held
either
may
notwithstanding
the relation
be
to
or
understood it to be
alleged principal
parties
whether
an
Arapahoe Pipe
Line
agency.
(Rodgers
Co.,
S.,
is stated:
In 2A C.
it
Agency,
p.
§
J.
implied agency
principal
“An
must
based on facts for which the
is re-
be
sponsible.
must,
imply
estoppel,
These facts
absence
be such as to
agency,
implication
an intention to create the
a
and the
must arise from na-
strained,
reasonable,
forced,
distorted,
tural and
and not from a
or
construc-
They
tion of them.
must lead to the reasonable conclusion
assent
that mutual
exists,
naturally
rely
and be such as
lead another to believe in
on the
agency. The
existence
not
relation will
be assumed.
may
implied
single transaction,
“While the relation
be
from a
it is more
readily inferable from a series of transactions.
question
implied agency,
alleged
“On
is
it
the manifestation
principal
agent
decisive,
ap-
as between themselves that is
pearance
party
party
to a third
or what the third
should have
An
known.
agency
person
existed,
will not be inferred
because a third
assumed that
alleged agent
such,
because
to act as
assumed
because the conditions
agency
and circumstances
were such as
such an
make
seem natural and
probable
advantage
supposed principal,
and to the
or from facts which
alleged
instrumentality.
agent
show
was a mere
express
agent pre-
“The existence of
valid
contract for
as an
services
implication
covering
subject-matter,
cludes
a contract
the same
express provision
agency precludes
resort
any
contract relative
implied agency.”
determination that there was an
The doctrine of apparent or ostensible
authority
predicated
theory of
An
estoppel.
*8
or
ostensible
apparent agent
is
one whom the principal has
of
intentionally
by
or
want
ordinary
care induced and
third
permitted
to
persons
agent
believe to be his
even though no authority, either
or
has
express
implied,
been con-
ferred upon
Bruns,
him.
duPont,
v.
(Greep
Theis v.
supra;
Glore
Inc.,
Porgan
cited of facts act, be proved the and must shown the principal ratify that its therefrom. necessary existence is a inference his is
The of for acts of negligent agent the liability principal furtherance was the by agent engaged determined whether the of the principal’s business to such had degree that the principal right the to direct and (Hughes control the activities of the agent. Jones, is P. 2d the 588.) Liability principal grounded upon the doctrine respondeat superior. (Jacobson Parrill, to be con- P. 2d The factor primary agent. sidered the is control which the has over the principal PEC, is to conduct The function of as stated the by appellee, transactions associated and other related affairs the business The chair- Wichita State. athletic programs the intercollegiate president the by of PEC is appointed Board of Directors man the faculty. Several University’s the a member of Wichita State and is of, associated faculty on are either other board members by with, appointed members are also Wichita State. Those board University A member faculty University’s president. in athletic State when participated teams of Wichita accompanied the athletic was Mr. Katzenmeyer at other universities. events PEC, and was well as an executive University, director of University. was His salary paid president. appointed Mr. was authorized execute State admits Katzenmeyer Wichita Moreover, clearly record shows on behalf of PEC. contracts for trans- to award contracts Katzenmeyer directed president It is ap- bids. competitive its athletic teams means porting did, could, on several the facts the from parent natural, PEC. The occasions, control the activities direct and facts these and other when that arises implication reasonable relation- agency to create parties considered is intended State, Wichita Accordingly, agent we hold PEC be ship. agent, Katzenmeyer, corporate that Mr. as an officer of principal to bind the power authority the implied had —Wichita Hence, subject Wichita State University. State of its under the doctrine any corporate agent acts negligent respondeat superior. interested prohibit is not intended to foregoing conclusion effort,
alumni, assisting from an individual or through organized hold, We University. or in the name of by, conducted activities *9 a delegate to corporate cannot however, University purposely otherwise, conducting intercollegiate or its entity, responsibility activities, and then directly that corporate agent athletic control Moreover, 76-725.) S. A. liability. (K. Supp. disclaim any a close relation- facts maintained such disclose the a instrumen- with PEC so that it could considered mere be ship of tality University.
Wichita State contends of with the noncompliance provisions K. S. A. 1974 76-721 Supp. renders the Aviation Agreement Services invalid. doWe not K. S. agree. A. 1974 76-721 reads: Supp. regents, any university college approval “The of board or or with the of regents, may any party parties board into or enter contracts with in- cluding any agency any any United or or States state subdivision any any corporation purpose person, partnership state or if the such or operation contract is board or related or function such institution. corporation operations substantially If such is are con- contract with a whose by provide any college university, trolled board contract shall such public corporation records and the books and of such shall be records require independent public shall an annual audit certified accountant regents agency charge to be furnished to the board of filed and with the state post auditing expenditures.” state clear, Wichita State is argues mandatory statute and its concise language that a must requires university approval have contract, Board of before Regents any into entering Agree- the Board of Regents did the Aviation Services approve contends, ment. Absent such the contract is approval, appellee void unenforceable.
No absolute tests exist which may be determined whether statute directive or Each must mandatory. largely case stand facts, on its own to be determined on an of the par interpretation ticular language used. 438 P. 2d (Wilcox Billings, 200 Kan. Brown, State It 815.) can be said the Legislature does not intend any statutory provision totally be If disregarded. the consequences of not statute obeying particular are not prescribed by Legislature, then this court must decide the consequences. (City Kansas v. Board Com County missioners, 518 P.
The Legislature has delegated Board of the au- Regents control, thority operate, manage the universities supervise and colleges control, of this state. “For such management operation, or supervision, the board of regents may make contracts and adopt orders, policies rules and do or regulations such perform other acts as are authorized law or for such appropriate *10 A. of K. S. provisions The 76-712.) A. 1974 (K. Supp. S.
purposes.” to fix a of intended secure method Supp. procedure 76-721 with state educational order, contracting in system and dispatch such, im- as directive, require institutions. Its provisions No of Regents. policy, the Board regulations by rules or plementing or of Board of has been cited regulation Regents or rule matters, to court contract and none can regarding furnished this Wichita Regulations. in Administrative State be found the Kansas is to of have contracting procedure asserts first aby designated or goods approved person services contract by Department then of Adminis- University, approved at the 75-3701 et thereafter to have seq.) S. 1974 Supp. A. (K. tration that Nowhere in this department. attorney it by approved If Board is found. Regents Board of procedure approval matters contractual to Regents guidelines desires establish However, so. absent do may for state educational institutions the statute cannot use Wichita State regulations, such rules or any following Agreement Services to of the Aviation deny validity re- forbids honesty execution and performance. Common partial v. City Co. pudiation now. Power Transmission (Municipal Lyndon, 127 Pac. 158.) indicated, As points. final on these We make one observation Katzenmeyer Mr. Wichita State appeal has contended au- only but University, bind the did not have authority thority contractually obligate It maintains the Aviation PEC. is also Agreement Services between and PEC. It Eagle Golden contends absent the the Board statutorily required approval Regents, contract is void and unenforceable. control, is in its authority granted Regents
Broad the Board operation colleges. management of this state’s universities 686, 401 P. 2d Murray See State Regents, Board of Likewise, officer K. S. A. 1974 76-712. the chief executive Supp. au- broad administrative university given each is college institution, and extensive аffairs of his thority respect his authority any granted delegate any part power 76-725.) A. 1974 (K. Supp. his duties. S. entities separate corporate use athletics
Today, collegiate common, shadowy to be but indeed perhaps widespread, appears as to involvement and Whether such responsibility. arrangements is not a for this court. But the in- question should continue when case, in the instant volvement is such then it presented begs logic exist, no relations and that the to hold thereof do agency principles under Performance the contract had apply. begun and pay- made; tacit, ments this constituted effective approval aviation Fee, contract. agreement Taylor See 233 F. 2d 258 7th( Cir. 1956).
The extended to those who felt the sympathy of this impact tragedy is now but memory. now stand before appellants this court seeking injuries to redress their right due course of law. They have found in their that such quest is barred right Alone, K. S. A. 46-901. barrier, assail the they validity now of that *11 and to this present court multiple as to its constitution- challenges We ality. now resolve those and in so challenges hold the doing doctrine of governmental codified in K. S. A. immunity 46-901 to be constitutionally impermissible.
The historical origin of governmental immunity the. doctrine is found in the case of English Devon, Russell v. Men 2 T. R. of 100 359 Eng. Rep. From that (1788). decision there evolved three doctrines, distinct common-law two favoring entities the public other favoring public officials. The doctrines of governmental sovereign were immunity held to exempt entities governmental from privately instituted civil suits without the express consent of the Those sovereign. doctrines were founded the upon beliefs the courts, which derived their from the power sovereign, could not have been empowered to enforce such authority the sov against thereof; ereign extensions that the could do no tortious king wrong, nor could he authorize such conduct while acting in his sovereign capacity, for no man can by do his agents and officers that which he cannot do himself. In vicarious for liability denying torts, those doctrines represented a significant departure from the common-law doctrine respondeat of superior. (Borchard, Govern Tort, ment in [1924-25]; 34 Liability Borchard, Yale L. 1 Govern J. ment Tort, Responsibility [1927]; 36 Yale L. 1039 Suits Jaffe, J. Officers; Against Actions, Governments and Damage 77 Harv. L. Rev. 209 Under [1963].) the doctrine of immunity for govern officers, mental the common law the recognized necessity of per mitting officials to public their official perform duties free from the threat of personal liability. Atchison, v. (Kretchmar City 133 of 621; 299 Pac. v. Gresty 649; 146 Kan. Darby, Cunningham v. Blythe, 689, 127 155 Kan. P. 2d 489.)
Although court, Tuttle, decisions of early v. City Topeka of 550; 311]; City v. 9 Kan. King, Atchison City 5 Kan. [* of Washabaugh, 11 Challiss, v. Ottawa City v.
Atchison 191], White, 124]; [* City Wyandotte Kan. 102 [* recognized first government, related to were Bazaar, 22 Kan. v. Township Eikenberry doctrine in immunity was Eikenberry presented question The principal 556]. [* an unsafe or caused was liable township whether injuries corporation to be township quasi Finding defective highway. government thе general political existing only purposes suit. Chief state, immune from we held the township Justice court, said: for the opinion Horton wrote townships] powers intrusted [the are are the . with [A]ll “. . which charged state, they are powers of the duties which and all the duties, state; performance governmental the sov duties individuals, organizations ereign power amenable to and therefore these neglect, only are not liable at the common law for such can be made liable * (I. c. . statute. As the doctrine conferred absolute originally applied, except the state and its extensions in cases where consent had Thereafter, temper been harshness of given.
doctrine, we
restrict or
its
in certain
began
application
withdraw
areas, and in so
created
exceptions
immunity concept.
doing,
held municipalities
We
of this
in the performance
state immune
functions, but
liable for tortious actions
resulting
Iola,
from functions
in nature.
proprietary
(Hinze
*12
Wichita,
779,
256,
v.
947;
Kan.
142 Pac.
Water Co.
98 Kan.
City of
49;
al.,
Hutchinson,
449,
Krantz
Kan.
City
158 Pac.
v.
et
165
196
of
227,
Bend,
47;
5 A. L.
v.
181
P. 2d
R.
Wendler
Great
Kan.
City
2d
of
265;
Manhattan,
753,
307, 424
City
316 P. 2d
Grover v.
198 Kan.
of
were
the
P. 2d
held liable for
creation
also
Municipalities
Kansas
175
City
City,
and maintenance of a nuisance
v.
(Steifer
of
474;
794,
City,
P. 2d
Lehmkuhl v.
179
City
Kan.
267
Junction
of
389,
621,
295 P. 2d
1409;
Kan.
56 A. L. R. 2d
Galleher
City
v.
of
Wichita,
513,
1062;
Kan.
296 P.
City,
Adams v. Arkansas
391, 362 P. 2d
Kan.
and liable for
829)
streets
failing
keep
reason-
safe for
v.
ably
public
(City
Washabaugh,
Ottawa
purposes.
of
White,
Wyandotte
City
v.
supra;
v.
supra;
Kansas
Loftin
412,
378;
City, 164 Kan.
Emporia,
190 P. 2d
Smith v. City
Wichita,
219 P. 2d
Perry City
v.
174 Kan.
667; Grantham City Topeka,
P. 2d
Plaintiff was a at the medical center and all private patient paid for his He filed suit the self-in- charges hospitalization. alleging flicted left arm injury resulting directly loss his was prox- the defendant caused and carelessness of imately negligence Kansas, Kittle, state the members of the Board of of the Regents Kittle, doctor, and their servants and agents, employees. plaintiff’s was a staff who also conducted a medical private practice physician at the medical was only appeal center. issue on presented applicable. whether the doctrine of was sovereign immunity im- “sovereign from the term this court departed In the opinion “gov- term into concept applicable that merged munity” Moreover, acknowledged inequality we immunity.” ernmental re- held the it had been We applied. immunity of the doctrine equal- should be agencies governmental various sponsibility negli- from of all governmental the elimination ized in a agencies engaged private the state or its gence when function. proprietary authority had
In Carroll we recognized again Legislature such cannot immunity. recognition the field of But that the federal and Kansas Constitu- validate which contravenes There, tions. we said: suggested, abolishing governmental “. the extent [I]n clearly authority legisla recognize that
we want understood opinion. including part by this ture to control field that covered entire position suggest legislature than this is in a much better We would *13 supplement application court to restrict the because can doctrine of insurance, proper legislation provisions for restriction with in the form of (l. (Emphasis supplied.) etc. .” c. restrict invitation to court’s The this legislative response The 46-901, 902. in K. A. found in S. doctrine is immunity part statutes provide: contract, state; negligence immunity implied of “46-901. Governmental contracts, pro- hereby tort; (a) declared and or It is notice in state other implied liability suit on an following from and vided shall be immune that the tort, specifically negligence any except contract, otherwise as is or for other provided by statute: “(1) Kansas; The state of and agencies, “(2) boards, commissions, and institutions departments, burеaus Kansas; of the state of “(3) committees, assemblies, designation, groups, autho- all whatever rized of Kansas. constitution or statute act on the state of behalf “(b) apply to all The established this section shall immunities described, members of the are in on classes whether the same existence any effective date of this such class after act or become members effective date this act. commissions, agen- boards, departments, “(c) and all The state Kansas committees, groups cies, de- assemblies institutions and all bureaus and liability provisions of subsection under the immune from and suit clared to be contracts, oral, express shall, mem- (a) written or in all this section liability give [L. public, and suit. notice of such from bers 1; 200, 26.] ch. March § government, (a) Nothing Nonapplication to local units of “46-902. change apply local section shall to or the liabilities of [46-901] this act counties, (but including cities, government to) school units of not limited districts, community districts, districts, junior library hospital colleges, ceme- districts, districts, tery districts, districts, irrigation townships, fire water boards, committees, drainage districts, commissions, districts and sewer authorities, agencies government. departments local units “(b) provisions any [46-901] of section 1 act shall not create according law, effect, change not now nor existent or dimmish any procedural requirement necessary recovery any from local unit of government. 200, 2; [L. 26.]” ch. March § enactments,
By above of governmental the law Kansas reverted decision in Carroll. back to its status our prior Au Kansas Turnpike decisions of this court Subsequent (Woods 219; Kansas Highway Daniels v. 472 P. 2d thority, 205 Kan. Patrol, Ogden, Allen v. the immunity have accord with 499 P. been 527) law, codified, thereto under the common exceptions doctrine 68-419; 68-301; K. S. inroads. S. A. A. and the several legislative (K. 68-2015; 12-2601-2614; K. S. A. 72-8404- K. S. K. 1974 Supp. A. S. A. 72-8416, 8417; S. A. 74- S. A. K. Supp. as amended K. Authority, Turnpike v. Kansas For in Woods 4707-4713.) example,
295 the the whether question Turnpike confronted with we were supra, resulting personal injuries immune from was Authority sustaining nuisance. In that the creation or maintenance of a from we immunity, said: solely engraft plaintiff’s “. . We . . to the . . decline benefit immunity previously turnpike exception nuisance the accorded the Kansas (1. authority prior 774.) (Emphasis our law Carroll.” c. under as it existed
supplied.) immunity con- Prior decision in Carroll the common-law to our as constitutional violating was from time to time cept attacked 506, 413 2d 196 Kan. P. Regents, v. Board guarantees. (McCoy Commissioners, 419, 73; Kan. 399 194 Caywood County v. Board of doctrine immunity altered judicially P. 2d In Carroll we 561.) thereby to all uniformly government, so units applied immunity, as a court-made holding that nullified decisions prior rule, not violate con- which did exception was as permissible concepts. stitutional called again
We are not in the instant case to from except Woods, doctrine as in nor can we now consider judi- Here, as in we are cially terminating presented doctrine Carroll. the doctrine of constitutionality multiple challenges 46-901, A. set forth in K. S. 902. nor Neither the United Constitution the Kansas Consti States 19 Virginia, tution this state. v. immunity upon (Cohens confer 257; Kittle, [*264], 5 v. Roth supra.) U. S. 120 L. Ed. Carroll spheres. law their paramount separate are within Constitutions 325; Woodmansee, 640, 71, Pac. L. R. A. 68 Kan. 74 64 (Atkinson v. 123, 52 S. Ct. As 441.) Ex 209 U. S. L. Ed. 28 Young, Parte Constitutions, it in the of the embodied guardian principles determine con duty, inherent our power, is within our Hotel Co. v. (Tri-State question. stitutionality legislation Londerholm, background, P. With this 877.) arguments presented. turn A. equal
The contend K. S. 46-901 denies them appellants pro- law. clause the Fourteenth protection tection of the equal States finds its counterpart Amendment to United Constitution and 2 of Bill of of the Kansas Constitution. Rights in Sections 1 equal that “all are possessed Sections 1 and declare men life, are among liberty inalienable natural which rights, . and that “all free governments pursuit happiness,” v. and benefit.” (Manzanares their equal protection instituted for Bell, Bander, 214 Kan. Henry P. 2d 518 P. 2d Four- 362.) Neither the clause equal protection Rights teenth Amendment nor 1 and 2 Kansas Bill of Sections classifications of deny Legislature the to create distinct power distinction inherent in a persons ways. Any particular different classification must have a and reasonable basis for such proper Schwiethale, classification. (Pinkerton Presently the all state and of its agencies have absolute immunity *15 suit, contract, “from and liability on an or for implied negligence tort, or other any as is except otherwise specifically by provided statute." S. A. (K. A 46-901.) county, an auxiliary agency of state, is immune from liability unless such liability is expressly statute, imposed by or therefrom. necessarily implied (Caywood Commissioners, Board County supra; K. S. A. A city 46-902.) is liable for tortious conduct when engaged proprietary activi- ties, but enjoys immunity while engaged governmental activities for the creation and except maintenance of a nuisance and the failure streets safe. keep reasonably (Grantham City Topeka, supra; Grover Manhattan, v. City K. S. A. 46-902.)
Under foregoing, a persons injured by governmental entity classified, solely by the type of the in- governmental entity volved. Their right to redress and the available, remedies if any, to them are dependent solely upon this classification. Prior to the 46-901, enactment of K. S. A. we our concern expressed as to the reasonableness of so classifying persons injured by govern- mental units agencies. In Bend, Wendler v. Great supra, Mr. Schroeder expressed this court’s concern as follows: Justice usually regardless “The is State deemed immune of the kind of function performing. justifies it is What the difference between the State and its munici- pal baffling. subdivisions is The decisions seem to result from accident rather reason, question than from and tend to make one the entire rationale of the principle. example: city pedestrian injured For Consider the of a to a by negligence city employee operating pick-up of a a truck under supervision Department, of the Water nonliability city of a on the same facts supervision where the truck is under the Department.” of the Fire (l.c. 759.) In Carroll again emphasized our concern as to this irrational classification and sought equalize In the responsibility. opinion it was said: majority why govern- It is difficult the court to see one g., agency performing precisely operating hospital mental the same acts —e. profit (1. negligence be liable for and others should not.” c. —should
Wichita State contends that vigorously practical important 46-901, distinctions exist for the classifications made K. S. A. 902. canWe find none. A to redress due course of law person’s right does not less he she become because was worthy protection injured unit. Nor such particular person’s does governmental become the less because of the right compensation any worthy law, of a type unit involved. Under Kansas present no the facts and regard given injury or circumstances sur- the events which caused the is the rounding type gov- injury —it ernmental and the in which it is agency activity de- engaged termines whether the will find the doors of the court aggrieved party unreal, or closed. Such a open classification is forced and burdens are greater on some than others of the same imposed desert. We find 46-901, K. classifications contained in S. A. are not but only “baffling,” arbitrary, and unreason- discriminatory able.
The doctrine of governmental immunity is an historical anach- ronism which manifests an inefficient public policy works in- justice upon everyone concerned. The doctrine and the exceptions *16 thereto in operate such an illogical manner as to result in serious inequality. Liability is the rule for negligent conduct, tortious is the But exception. when the tortfeasor is a govern- mental agency immunized from liability, injured must person his forego right to redress unless a within specific exception. Equal- ity is not achieved artificial by exceptions which indiscriminately some grant persons recourse in the courts injured and arbitrarily such deny relief to others. v. (Winters Myers, 140 Pac. 1033.) The operative effect of such arbitrary distinctions is incompatible with the constitutional safeguards established both by the federal and Kansas Constitutions. we hold K. S. Accordingly, A. 46-901, 902 are unconstitutional and void as a denial of equal pro- tection of the law under the Fourteenth Amendment United States Constitution and Sections 1 of the Kansas Bill of Rights. next
Appellants 46-901, contend K. S. A. them deny due process of law under the Fourteenth Amendment to the United States Constitution and violate Section 18 of the Kansas Bill of We shall Rights. consider first the due process contention. 2 of the Kansas in Sections truths contained
The political court to have been held this quoted, previously Bill of Rights, Amendment Fourteenth effect as the clauses of have the same of the law. (Tri-State and equal protection due process relating Bauder, Londerholm, v. supra.) Henry v. supra; Hotel Co. is its of laws system of our cohesive society fundamental aspect A a of such By its members. virtue and duties of defining rights affairs in an their individual citizens аre able to govern our system, concept their differences. The manner, definitively settle orderly central in our necessity is a strategic due of law process embodied both concept, It is system jurisprudence. Constitutions, one will not that guarantees federal and Kansas liberty property. of his arbitrarily deprived rights, be subvert question statutes say To governmental obvious, that doc- of due is but to state the concept process redress our courts to those seeking trine blocks access to injuries In the entity. occasioned act of negligent case, the have been excluded from instant appellants summarily our courts—the forum to redress empowered by people only their due In this we must de- process law. grievances posture, termine whether the before this bears a reasonable court legislation Bell, relation to v. permissible legislative objective. (Manzanares Hurtt, Colby supra; upon theory governmental immunity rationale which doctrine, rests has been the of much debate. The subject bom of an expediency, represents expression of the Eighteenth Century that “it is better that an an philosophy individual should sustain than the injury shall suffer inconvenience.” public (Russell Devon, cit., Men In ari op. historical supra.) perspective, doctrine is said to rest “an of actions” and forestalling infinity the reluctance of the court to divert funds “out of which public satisfaction is to be made” for v. Men private (Russell injury. Devon, cit., op. supra.) Cаrroll,
We considered those and said: objectives theory sovereign immunity “We do subscribe to the that in the United States, states, concept and in the individual traceable to medieval *17 king wrong.’ fight Revolutionary ‘the can do no Our forefathers did not the they quite opinion. reasoning were War because of that Their was the con- trary. they carry It is difficult for to over us believe would into their com- (See principle opposed mon law a so to their basic belief. Wendler Bend, Great P. 2d today, past, “No and the dictators of doubt the absolute monarchs why charged wrong, refused but that is reason and still refuse to be no representative government our classified. democratic forms should be so sovereign adopted country We think a the rule was in this aas convenience to people. people, government sovereignty legal our the Under form of the is in states, people, governmental powér, through the the the their exercise of carrying did not wish to be sued out and harassed in their (1. 846.) functions. .” c. We do subscribe the belief that is a pervasive not convenience the access legislative totally sufficient to deprive appellants objective as a stan- courts. Convenience is unacceptable completely dard against which balance of an individual rights interest of state. an indi- Convenience should outweigh vidual’s to be for actual sustained and right compensated damages injuries Dist., Hospital suffered. C. Corning (Muskopf Cal. Rptr. 457.) Tо hold per- convenience missible objective, sufficient insulate legislative the government from is to negligence, engage reasoning, logic, incredulous void which undermines the very principles which this nation was founded.
Nor do we find the threat lawsuits a basis multiple tenable which the can be denied appellants access to courts of this state. The threat “an infinity of actions” is but monument of shallow utilized to reasoning thwart in the No necessary changes law. indi- vidual can match the state’s vast resources. there Undoubtedly will be those shall who seek to avail unnecessarily themselves of the access however, we now provide. That problem, can be resolved either demands of the law—demands which must be fulfilled before can recovery be secured —or by enactment by Legislature of an Tort adequate Claims Act. We find it impermissible to deny appellants access courts as a means of spurious forestalling actions.
In it is rationale, most probably last that of reality, diverting public funds to compensate private which injury, has kept doors of the courts closed for so long. error of this rationale lies in the speculation from which it is borne. We have in the past fear alleviated this by permitting exceptions limited to the doctrine of governmental Moreover, immunity. where act complained of was within a specific exception, requirements of the law elim- inated any such fear. It is law and its requirements, which must, will, insure the monies are not public diverted unneces- sarily. (See Martin v. Commission, State Highway P. 2d 437.)
300 265, entitled Blades, 16 Kan. L. Rev. E.
In an article Lawrence by Kansas” Immunity appears Tort in on Governmental “A Comment the following: inevitably would lead of The the removal “. . . fear government disruption has often been of and financial embarrassment thus government expressed. Federal is fanciful real. The But this fear more than operated or less com- adopted and more a of under and number states have any meaning- prehensive responsibility in tort without rules of So, too, symptom impending ruin. have
ful of or financial a num- resultant foreign (p.268.) ber of countries. . .” Note, Kansas, L. Immunity Tort 10 Washburn Governmental J. 59; Comment, for in Kansas: Immunity Prospects Governmental Enlightened 19 L. Van Govern Change, Alstyne, Rev. A U. Ill. L. F. 919. Change, mental Tort 1966 Liability: Decade much has occasioned concept the due elasticity process The and ab- debate, cryptic have about the raged “controversies and Hanover Tr. v. Central guarantee. (Mullane of that stract words” Co., 313, S. Ct. But if due 652.) U. S. 94 L. Ed. 70 secured, alike all and upon must operate be the law process exercise of governmental the few subject arbitrary not to' by a to be right protected citizen of this state has power. Every life, and government liberty in the of his enjoyment property. The found in the law. To that end are to' be elaborate safeguards in- it cannot take directly, life state not take liberty may and a by for is never be inter- directly, “grant power public Co., Railway District v. injure.” as preted privilege (Drainаge Pac. sum, 46-901, re- In A. a reasonable find K. S. 902 do bear lation to a permissible legislative objective. hold those We statutes due law provided transgress guarantee process United Constitution States Amendment to the in the Fourteenth Rights. Bill of and 2 of the Kansas Sections Kan- Section 18 of the regarding now consider the argument We section Rights. provides: sas Bill of That reputation property, injuries person, or shall persons, “All for suffered delay.” by law, justice remedy without administered due course have Foundation, 751, In P. Menninger Noel doctrine of charitable held the common-law court Mr. oft-quoted words was constitutionally impermissible. Section and stated rights by Wertz guaranteed as to Justice in Noel follow: every person a provision guaranteeing to . The constitutional property injury person by means remedy for done him due course of law by recognized of the land the court wrongs law such that are that for giving a open be remedy, or that shall enacted afford a laws' be shall law,’ wrongs. ‘Remedy remedy injuries due so course certain all having jurisdic- injury reparation tribunal used, ordered means duty primary hearing. It procedure is the course of after a tion in due fair right remedy guaranteed safeguard courts to declaration *19 (1. remedy injuries. provision insuring .” c. for constitutional all the Moreover, in Noel this to case: language we used appropriate exempt nonprofit corporations liability “To and from for their charitable (Bill plainly contrary guaranties Rights, 18). our constitutional of torts to § ones, gives arbitrarily, immunity equal to It certain favored selected from that wrongs sign equality for civil is a of between citizens. It un- which nonprofit organizations special privileges to and dertakes clothe charitable corporations, society. right to other denied and It takes from individuals the against tortiously person to assert the courts claims all who assail their and property judgment injuries prevents and persons to It recover for done. all having rights reparation wrongs from recourse to for law vindication of charitable, against privileged nonprofit organizations. the It frees one set corporations obligations competitors individuals, from to which and their short, subjected. equality special destroys privilege. In it [Cita- creates (l.c. 763.) tion].” reach the We same conclusion with to respect governmental im- observed, As munity. immunity the statute creates a class which this court has Here, said to without be a rational as the basis. case of charitable immunity, certain governmental favored units are selected to be arbitrarily immune from civil wrongs. (Wendler Bend, v. Great Kittle, Carroll v. supra; supra.) 46-901, S. A. K. 902 take from the to right individual the assert in a court of law claims against state -units which governmental all tortious conduct his injured They have person. prevent persons a claim having against agencies such from recourse at law having for vindication of the rights reparation wrongs. Those statutes, doctrine, like the the cоmmon-law deprive injured party from an action unless bringing remedy injury the insurance has See, been and the state’s purchased waived. immunity specifically Mott, Mitchell, Executor v. 74-4701-4716; K. S. A. Kan. Allen City Ogden, 139. pp. P. supra, case, instant In the had the insurance been prescribed purchased law and regula- as the contract federal required pertinent called constitutional tions would not be resolve the fact, the challenge con- presented. Notwithstanding appellee doctrine. Governmental tends is not liable under the deliberate failure the immunity was not established to condone sum, In doc- with the law. bodies to comply and creates immunity destroys equality trine of governmental special privileges. Noel case and similarity
We note another between also enacted Noel, the Legislature In the aftermath instant case. rendered the property which 17-1725) S. A. 1959 Supp. statute (K. aon non- hospitals operated (including of a class of corporations The effect that statute was process. immune from basis) profit acts some negligent doctrine to reinstate & Hospital Francis School In St. Neely institutions. charitable challenged, statute was Nursing, decision 18. Our Section sole issue was whether it violated duty attached this court Neely importance indicates -unconstitutional, this in Noel. the statute In holding articulated and remedies rights importance court re-emphasized all said: Section guaranteed foregoing [Noel] “Despite clarity contained in the admonition remedies protecting guaranties opinion, to the constitutional with reference *20 legislature, reputation doubt at injury person, property, no for to operate profit organized which request corporations of certain 17-1725, basis, hospitals, operated nonprofit adopted support one or more on supra.” (1. 720.) c. e., in Noel immunity In both instances the doctrines charitable (i. judicially in the case at were governmental bar) overturned tort. Both immunities were created to avoid liability in im- governmental this court Noel and by (charitable immunity Legislature. in were both munity Carroll) reimposed the Legis- that in this court refused to allow Neely We emphasize our result in view of prior lature to an unconstitutional accomplish in the necessarily result subject. The same ruling on follows to our response at Notwithstanding Legislature’s case bar. for its governmental in Carroll delineate invitation re- acts, in putting legislative are not restrained tortious we in Woods our conclusion test. Nor does constitutional sponse judicial that sound further inroads into the policy precludes Legis- comprehensive governmental immunity lature’s statement on bind this court since constitutional was not there validity the statute’s Hill, 403, 409, 410, 365, in issue. See State v. Kan. 369 P. A. L. 2d 750. R. Commission, in Sanders v. Finally,, State Highway 508 P. 2d .we were confronted with a claim of immunity by the highway commission in an inverse condemnation action. Histori cally, inverse condemnation actions have been categorizеd this Thus, court to be based contract. implied according to commission, the highway inverse condemnation actions were within the scope of K. S. A. 46-901 unless “otherwise specifically provided by statute.” We responded to this argument as follows: provisions “If the Supp. of K. seq. S. A. 1972 [K. 46-901 et S. A. 46-9011 legislature were intended place the cloak of around suits in the nature of duty inverse condemnation it becomes the safeguard right court remedy guaranteed declaration of the and the by the constitution and we must then declare the statute unconstitutional. (Noel Menninger Foundation, 934; Neely 175 Kan. 267 P. 2d v. St. Hospital Nursing, Francis ir School (l. 155.)” 391 P. 2d c. Section 18 protects as persons well Had property. the court been required Sanders to enforce the- of Section 18 guarantees as it relates to it is property, evident we would not hesitated have to do so. Are the of an rights individual of less worthy protection? think We not. they are
All of our powers government are derived from the Their people. source, indeed their reservoir of strength, is in the For this people. court to now hold that governmental immunity as declared in K. S. A. 46-901, 902 does not Section contravene 18 as applied rights of individuals be would tantamount to construing that section as affording greater protection to property than to an In individual. so doing, would imbed in our law the present evaluation of the individual and his which property prevailed early develop- ment of the common law. for, would unwise, This be as we sаid Latimer, 329, 332, Steele “the principle runs change deeply through history human and like a golden thread weaves new ‘people into the fabrics requirements’ of altered 46-901, social We patterns.” hold K. S. A. guaran- violate the *21 tees declared in Section 18 of Bill of Rights the of the Constitution of the state of Kansas.
Having declared the doctrine of governmental as codi- 46-901, fied in K. A. S. 902 void, to be constitutionally re- equality in regard turns of all responsibility levels of government in this state when engaged However, proprietary activities. equalizing responsibility we are confronted with the final question
304 players, of football transporting Is the appeal. in this
presented inter- a scheduled alumni to interested and university personnel func- proprietary or game governmental football collegiate away tion? Ap- simple. are quite of the parties
On the arguments this point, other and personnel the of athletes contend pellants transporting it function; govern- is a Wichita State contends is a proprietary State, and uni- colleges mental to Wichita According function. for the exclusively purpose state are created versities of this state system higher in which the educational facilities providing Hence, maintains that all au- is administered. public education governmental functions of the state universities thorized character. regarding purpose with the agree suggestion
While we universities, the syllogism prof- this state’s we find colleges broad, conclu- ovеrly generalized fered to be sion.
The is one of classic distinction governmental proprietary govern limitation of common law restrict doctrine of court, mental As immunity. initially applied govern municipalities. (State distinction related mental-proprietary only Co., Chanute, 547, 337; v. v. 63 Water 61 Kan. 60 Pac. Freeman 647; Iola, 779, 573, Kan. v. Kan. 142 Pac. City 66 Pac. Hinze 92 Co., 947; v. & Light 606, Wichita 152 Pac. City Railroad 768; 255, 471; v. 127 273 Mc City, McCormick Kansas Kan. Pac. 155, 377; v. P. Snook v. Ginley City 40 Cherryvale, City Winfield, Kan. basis 101.) permitting this distinction was municipalities exist proposition function in a dual capacity being governmental, —one Wichita, other proprietary. (Water Co. Kan. 158. Pac. v. City Rose Gypsum, Kan. Pac. Re holding in Board McCoy In we reversed our Carroll P. 2d that the function proprietary gents, 196 to either applicable to' the doctrine was exception all govern or state. held in Carroll that levels of counties We when engaged pri ment have same torts responsibility vate functions. proprietary either classifying particular activity pro- the task of
Today, far than it was when prietary is more difficult first ex- government distinction was As reach of has applied.
305 more difficult ascertain become more and it has panded, In a function. activity being proprietary whether an admits to al., 227, Hutchinson, 449, v. et 165 Kan. City Krantz 47, 5 A. L. R. 2d we reviewed several definitions of proprietary functions. In that per- case we held functions are governmental formed for the to the common welfare general public, respect exercise оf which it no or compensation partic- receives benefit, ular while functions are exercised for some proprietary specific benefit or or those advantage compris- to the corporation community. urban ing the local 256, Manhattan, P. 2d we
In Grover v. City of held the test to be as follows: applicable determining municipality governmental or whether activities of are “In activity proprietary, proper primarily it is for the to- consider whether the is advantage special state com- as a whole or for the local of the benefit munity involved, activity perform- and to further consider whether is duty imposed upon municipality sovereign power,
ance of a or is permissive privilege sovereign power; granted in the of a but exercise determining capacity city’s not such tests are conclusive in in which the (Citation.)” (Syl. ¶1.) activities are conducted. Thereafter, in Carroll we held a governmental agency engaged in a when it proprietary activity embarks on an which is enterprise commercial in character or is carried on indi- usually by private or viduals is for the profit, or advantage govern- benefit mental conducting unit the activity. (Syl. ¶
The above tests
illustrate the
clearly
problem inherent in
gov
ernmental-proprietary distinction—that of
defining
proprietary
function. The cases attempting to resolve this
problem
legion,
Moreover,
and are replete with conflicts and inconsistencies.
when
аn activity
partakes
both
char
governmental
proprietary
acteristics, the problem of categorizing
activity
that
becomes even
of such conflicts and uncertainties
more uncertain. The end result
between
functions
“shadowy
is that
distinctions
cases,
affairs
.
. have been used
decide
all
.
proprietary
without
or
.”
rhyme
(Wendler
much
reason.
Bend,
753, Great
S. Ct. the facts and circumstances 956.) Depending upon in the shoes of the distinction can serve either to place government tortfeasor, example, or to limit For private government liability. legis under the distinction the state is not as to exposed inaction, or action administrative action or in lative or judicial action of a cast. Nor is the state liable legislative judicial *23 matters the exercise official or discretion. of involving judgment Dev., 534, & Dept. et al. v. Cons. N. 264 A. 2d Ec. 55 (Willis, of J. Strickland, 214, v. 308, 34. See Wood U. 420 S. 43 L. Ed. 2d 95 S. Ct. 992 [1975].)
We believe the
problem applying
governmental-proprietary
distinction lies in
to set forth a
definition of
attempting
precise
terms. We have
stated that no
test
determina
previously
single
a
tive of whether
function is
particular
governmental or proprietary.
Manhattan,
v.
(Grover
City
In view the
supra.)
expanding
of
of
reach of government
it is time the
today,
liability exposure of gov
ernmentаl units be determined in
with the total facts
conjunction
and circumstances involved. Such a determination will have to be
made on a case
case basis. We do not
in this
attempt
opinion
express
ultimate doctrine. The law will be better served by
evolving
out of the
controlling principles
realities of
cases.
specific
In this
we note the
regard
decisions
abrogating
doctrine
judicial
of governmental
reflect
as when
varying approaches
liability attaches.
e.
v.
(See,
Scheele
g.,
City Anchorage,
P.
385
of
1963];
2d 582
v.
Commission,
Stone Arizona Highway
[Alaska
93
384, 381
107;
Pitts,
Ariz.
1239,
P. 2d
v.
Parish
244 Ark.
429 S. W. 2d
45;
Dist.,
v. Corning
Muskopf
Hospital
supra;
v. Sch.
Flournoy
Dist.
1,
110,
966;
174 Colo.
482 P.
Hargrove
Beach,
2d
v. Town Cocoa
of
130,
96
1957];
So. 2d
A. L.
State,
60
R. 2d 1193
Smith v.
93
[Fla.
795,
937;
Idaho
473
Dist.,
P. 2d
Molitor v. Kaneland Com. Unit
18
11,
89;
Ill. 2d
163
State,
N. E. 2d
Campbell; Knotts v.
55,
259 Ind.
[1972];
In the at case athletic which, intercollegiate program, in the furtherance its members, and in- faculty school its team transport undertook concerned We are not football game. to an away terested alumni (Rose school. public and maintenance with the operation do the facts Education, Nor Board of for children transportation furnishing concern the of this case Im- Schools-Torts-Sovereign school. (Anno: to and from public 72-8401 also, seq.; 72-8301 et 703; see, K. S. A. 33 A. R. 3d munity, L. 72-8416, 8417.) seq.; et K. S. A. 1974 Supp. indicated,
As district motion court sustained the appellee’s this litigation all the summary judgment, pertaining facts *24 notice judicial can fully through have not been We presented. Through judicial case. take of certain of this cognizance aspects notice, facts without act certain take and judges may properly S. 60-409.) know them. A. they already (K. because proof “big is intercollegiate football knowledge It is common that manner; that it is not a and is in businesslike operated business” universities, but also of the participating an athletic endeavor only alumni, as well students, faculty, entertainment for the school’s a commercial football Intercollegiate as general public. activity that derived from advantages The benefits and activity. conducting entity governmental university, inure Here, that secured University was Wichita State activity. alumni, the which this not the tragedy, occasioned transportation matter, It not be may players. or for student faculty, a governmental in intercollegiate any respect said that football is Inter- disregard is to the obvious. function —to contend otherwise a function. рroprietary as carried on is football collegiate presently away to a scheduled and others transporting players It follows that function a proprietaiy football is likewise intercollegiate game in court erred the district we hold Accordingly, the University. judgment. for summary motion Wichita State’s sustaining barriers which the procedural removed this opinion We have course from relief due seeking appellants have prevented the responsibility equalized 'again In so we have doing, of law. in engaged this for torts when government levels state all However, what- we intimate no evaluation function. proprietary warranty tort and implied as merits the appellants’ soever Municipal In University. Wichita State against claims Johnson 286, 288, it was Omaha, W. 2d 169 N. 184 Neb. University of said: complete liability are two issue of and the “The issue specified area governmental in a removal distinct issues. The immunity. place It impose absolute of tort actions does apply to non- entity subject which governmental to the same rules
only makes sovereign corporations have the shield persons who do not governmental (p. immunity. .” whether as an evaluation regarded this be opinion should Nor by proof. allegations their able to support will be appellants the Aviation concluding Likewise, court erred the district of Wichita on behalf Katzenmeyer Mr. signed by Agreement Services Eagle of Golden behalf on and Mr. Danielson University State University between contract unеnforceable was an Aviation not maintain could that the plaintiffs Eagle and Golden beneficiaries. third party against action remain as to fact which issues of material are genuine There the appellants. and tort claims of beneficiaries the third party both district remanded to the and the case is reversed judgment this opinion. not inconsistent proceedings for further court A APPENDIX AGREEMENT SERVICES AVIATION between Golden day July made Agreement, This referred as “Con- Aviation, hereinafter Inc., a corporation, Eagle referred to as tractor,” hereinafter University, and Wichita State “Customer”;
WITNESSETH: the commencement has to (or, prior Customer leased
Whereas, herein, a third leased), will have from the services for provided aircraft: following described party, Douglas DC-6B One Aircraft”;
hereinafter referred to as “the Whereas, Customer desires to have provide, Contractor Aircraft, below, the terms respect services specified forth, so willing set and Contractor and conditions hereinafter do; Now, Therefore, hereby agree Customer do and Contractor follows: services for following
1. Services: Contractor shall provide commencing of time on during September the Aircraft period 11,1970, 14,1970: ending on November the Aircraft to and A crew to fully flight fly
(a) qualified from such United States as Cus- within the Continental points hereto, fly tomer direct if an is attached may (or, itinerary the Aircraft in said crew itinerary), flight accordance with said to consist of:
Captain Officer First Engineer Flight Twо Attendants Cabin (b) The following services. See specified in-flight catering attached schedule and titled “1970—Football Travel itinerary Plans”. fuel, All
(c) oil and other fluids for the necessary operation Aircraft Agreement. to their pursuant Routine (d) on the maintenance Aircraft.
2. Compensation: As consideration for providing Contractor’s services, the above specified Customer shall to Contractor pay $24,388.60. total sum of $12,- Payment:
3. Customer shall the sum of to Contractor pay 194.30 upon signing this Aviation Service sum Agreement, this $24,388.30. constitute an against advance total of addition, shall to the Contractor on Oc- pay In the Customer sum in to the advance to constitute pay- tober 1970 the addition Agreement. ment in full of the Aviation Service 4. Contractor’s personnel engaged Contractors Personnel: all remain Agreement of this shall for performance purposes All crew shall be flight of Contractor. members of the employees the Aircraft. fully every respect operate licensed and qualified Delays responsible 5. Cancellations: Contractor shall be weather, or cancellations occasioned labor delays disputes, God, other factors beyond acts of mechanical failure or any control of Contractor. Customer, at shall provide pas-
6. Insurance: its expense, *26 limits satisfac- . . . insurance with . senger CAB regulations with the FAA and and in accordance tory to Contractor. shall furnish thereof proof Agreement, any Entire This schedules Agreement: 7. between hereto, agreement exhibits attached constitutes entire modified or amended Customer and Contractor and shall be both except by writing signed by parties. This in numerous Counterparts: may 8. Contract be executed each, such the same effect as
counterparts, counterpart having original contract. 9. Choice Law: This be in all re- Contract shall construed the State of
spects pursuant Laws of Oklahoma. hereto, In Witness executed this parties have Whereof, Agreement the first written. day year above Eagle Aviation,
Golden Inc. Danielson, By Bruce J. / s/ Vice President. Attest: Farmer, W. Floyd
/s/
Secretary
Wichita State Bert By Katzenmeyer. /s/ J., Kaul, I dissenting: agree cannot with about- complete face of the the constitutional of the concerning authority majority legislature to deal with immunity. governmental
Time does not nor permit is discussion of the and cons of pros governmental there immunity dissent. pertinent my Concededly, are valid arguments on my both sides of the issue. In view the critical question herein us whether this court confronting simply the ultimate and exclusive to deal with the power should assume decision the constitutional today’s authority Prior subject. has been recognized to deal with legislature v. St. Fran- (Neely times and never this court. many questioned <b cis School 391 P. 2d dealt Hospital Nursing, institutions, of charitable clearly distinguishable considerations.) doctrine based different Turnpike In Woods Kansas Authority, 219, this court enactment of accepted legislature’s unqualifiedly A. K. S. 46-901 and 46-902 in to our decision in Carroll rеsponse Kittle, P. re- complete 2d 21. In an abrupt versal of its the court has declared 46-901 previous position today and 46-902 to be void. constitutionally
My and the status of the in this position previous jurisdiction law *27 are well-expressed by O’Connor for a unanimous speaking Justice court, in to the response enactment K. S. A. 46-901 legislature’s 46-902, and in Woods. In the it is opinion stated: practically every opinion subject governmental “In immunity on the suggested legisldture have to the that the extent to the doctrine which is to be applied province. Carroll, court, through open lies within its This issued an give govern- invitation to the lawmakers consideration to the whole area of immunity satisfying themselves, past, mental instead of in the series as sporadic operating separate, activity. statutes areas isolated At the unequivocally recognized authority legislature same time we the the governmental immunity, including control the entire covered matters field of by judicial decision, suggested body position and that in a better than this was legislature promptly accepted challenge court to do so. The 1970 responded (L. 1970, with the [now enactment Senate Bill No. 465 ch. 200 46-902]). K. S. A. 46-901 and . . . “By legislature, wisdom, expressed enactment the public its has policy of governmental this state in immunity the field of pertaining to the agencies. state (p. 773.) and its various (Emphasis supplied.) . . .” Further in the it is opinion stated: “Certainty stability always long in the law are desirable and in the run bench,
best serve the legis- the bar and the citizens of thе state. Now that the spoken comprehensive lature has subject immunity in a manner on the for agencies something lacking the state and its at time of Carroll —we be- — judicial policy lieve sound dictates that further inroads this tribunal into doctrine itas relates to of the state neither warranted justified. (p.774.) nor . . .” Subsequent Woods case Chief Price for a speaking Justice Patrol, unanimous court in Daniels v. Highway Kansas 46, 482 P. 2d referred again Kittle, our decision in Carroll v. aftermath supra, thereof in these words: did, however, . . (syl. 4) “. The decision recognize authority of the legislature governmental to control the entire immunity including field of — by judicial matters covered broad-sweeping decisions. The effect of the decision duration, however, for, pointed was of short as out in Woods v. Kansas Turn pike Authority, 770, 773, legis 472 P. 2d the next session of the promptly accepted challenge by lature enacting Chapter 200, Laws of appearing Supp. 46-901, now seq., at K. S. A. 1970 et effective March 26, 1970." (p.713.) Allen v. Although Ogden, did not deal with the directly constitutionality of the statutes in Fatzer, Chief a unanimous question, again speaking Justice court, referred to the Carroll decision in these words: recognized authority Legislature . . Carroll of the to control the governmental immunity, including by judicial entire field of matters covered (p. 138.) decision. Obviously, constitutional of the to control authority legislature the entire field of matter governmental immunity public policy was, decision, prior today’s settled law in this state. major- ity opinion limits, оbliterate, severely if it not totally legislative does prerogative. As indicated in the Woods opinion, previous po- sition of this court was based upon proposition govern- mental was a matter of basic public policy encompassing far-reaching that the consequences legis- and otherwise —and —fiscal lature was in a better than this court to position express policy people the state the same. concerning Implicit prior that, decisions is the of tort principle purposes liability, state, its agencies other entities because may, *28 differences, multivarious be classified reasonably differently from private persons constitutional satisfying prerequisites equal —thus protection and due I process. know of no reasons of public policy which dictate or this sudden about-face in attitude justify judicial a matter concerning of such consequences. far-reaching Moreover, I that cannot the record before that agree us shows State of transportation, by Wichita students engaged university athletics, to be a proprietary function within the boundaries of delineated decisions of this court. concept prior I therefore dissent. respectfully trial court should be judgment affirmed.
Fromme, in the joins dissent. foregoing J., I Fontron, my wish to record dissenting: agreement with J., views so Mr. clearly Kaul with expressed respect to Justice court’s dramatic abrupt and turn-about-face in down striking K. S. A. 46-901 and 46-902 as being constitutionally invalid.
Fromme, joins in the dissent. foregoing J., REPORTER’S NOTE: 47,363 47,706
Case No. No. case consolidated and rehearing granted.