*1 45,408 No.
Wayne D., W. C. M. Appellant, v. C. Kittle, Carroll, Frederick Henry Bubb, Ashcraft, Cromb, O’Fallon, K. A. Arthur H. Ray N.C. Clement H. Cushing, Eberhardt, Evans, F. John Dwight Larry Hall, Morgan, D. Klinger, Sloan and Eldon Bickford, Max Members of the Board Appellees. Kansas, State of 21)
(457 P. 2d *2 July Opinion 1969. filed cause, City, argued Charles S. Shamberg, the and of Kansas E. John Elliott, City, May, Jr., of Kansas and Schnider, and Gerald T. all F. Jacob Liberal, Greenleaf, were with him on K. both of
Eugene and Harold L. Smith appellant. for the the brief cause, General, argued Foth, Attorney Kent the and Assistant Richard J. Attorney General, General, Artzer, Attorney E. Assistant Frizzell, and Paul appellees. the the brief for on with him were the was delivered court of against is an action the This members of the Board Hatcher, C.: Kansas, and others the State of not in this involved injuries sustained personal for damages plaintiff appeal, of Kansas University at the Medical Center. hospitalized while was dismissed as the members of the State petition As the motion, for on their failure to state claim on facts granted, gleaned must could be relief which plaintiff’s deposition petition allegations John Feldman, provost, assistant the administrative Howard officer Center. the Medical Plaintiff, year Bend, old oil field Kansas, worker of Great his arm in drilling rig left on caught November severely injuring University it. He was rushed to of Kansas Medical Center a team of replanted where doctors the partially severed' arm which remained plaintiff’s recovery viable pro- gressing post satisfactorily operatively. 27, 1964, the early morning November after eighth day
surgery, still plaintiff was Due to hospitalized. the effects medicine, drugs given other treatment as a result plaintiff of a mental condition changed caused effects his injury therefrom, the natural resulting effects appellant was rendered confused, mentally disoriented and out of contact with his sur- roundings. While in this confused state he off ripped the heavy bandages and splints the injured arm. The night resident surgeon duty the arm and rewrapped replaced the splints.
The above incident was known to the defendants since it was. officiallyrecorded and noted in the hospital record chart of plaintiff. *3 Nevertheless, the defendants took action or no precaution and did' to a nothing watch over the place him, plaintiff to protect or prevent him from reinjuring himself. Approximately hours later 12:45 at a. on m. November the patient was discovered sitting on edge the of his bed having again off all of ripped the bandages and this time tearing the open repaired arm causing the wound to be- The damage done was reopened. so extensive that the arm had to- be amputated.
It is that the self-inflicted alleged injury in the resulting loss of arm was and directly plaintiff’s proximately caused the negli- servants; defendants, and of the gence carelessness their agents, and who and employees joined concurred to cause his injuries. a patient was a private occupying single
Plaintiff room and paying; day in per $22.00 the full 1964. His employer’s insurance- rate — carrier, Globe Insurance Royal Company, the paid University $1,567.25 Medical Kansas Center for his hospitalization for the- did the This not include doctors’ period. bills. University of Kansas Medical Center a general hospital specially a and
offering highly trained service to the includ- public, ing private, semi-private, charity semi-charity patients. The- Kittle, doctor, was not plaintiff’s only defendant a staff physician- University at the of Kansas Medical Center but conducted a private- All treating private patients. there practice facilities,, hospital nurses, residents, interns, medical personnel, students other- his; made to Dr. staff were available Kittle in personnel performing Medical a staff member as and as private practitioner duties of his private patients. in the and treatment Center care the acting as defendant Kittle At all times mentioned the Medical of Kansas University the agent, employee servant he, aid his the his with authority, within scope Center and handled assistants, plaintiff of the care of was in charge his arm. injured repair treatment for of Regents the Board a resolution passed Pursuant the staff 9, 1956, up compensating was set method November doctor, them to doctors, permitted engage which including plaintiff’s of Kansas University practice medicine private private from the that the fees plan provided Center. The Medical the individual doctor. of medicine would collected practice $2,500.00 of his fees over seven percent He would remit addition, and, he would use general budget Medical Center for ato department percent contribution” eleven “voluntary make fund. development 27, 1961, the clinical compensating method of
On April the amendment is not but slightly was amended faculty members material here. Feldman, and assistant to the administrative head controller John He testified deposed by plaintiff. Center was
of the Medical substance: Center, to the Medical provided doctors by paid
The sums minutes, represented compensation Regents’ and certain personnel. Certain space use University secretarial, clinical and clerical perform would personnel in their as teachers and in con- capacity both doctors work for the *4 practitioners. For the most private their activities nection with clerical were the personnel paid by these state. the salaries of (cid:127)part, 20, 1965, year of the fiscal which the close included As of June Center, at Medical which was the the plaintiff during the period Medical Center reflects that the facilities plant of the "balance sheet n represented $30,706,732.90. of fiscal During an investment the year 30, 1965, hospitalization of care accounted patients -ending June $5,444,733.30 $528,228.02, and other produced services of -for income than from sources other appropriations, grants total revenue for a $6,000,000.00. addition, In by making of approximately :and gifts facilities available to the its doctors for private the professors of 97 doctor were services obtained for the -patients, $3,600.00 nominal sum does not include per year. figure of This or interns resident physicians. 18,674 the Of this Medical Center admitted patients. 9,700
number paying were private patients. negligence. Count one of the was based on Count two petition of the an petition was in the nature of an action on contract. implied indicated,
As the Board of previously the members of Regents stating filed motion to dismiss as their grounds the court jurisdiction lacked of subject the matter and persons, that the state a petition fails to claim on relief which could be defendants, the of granted against the members the Board of Re- The motion stated: gents. support immunity “In of this motion defendants show that the of the State McCoy of
Board
established
v.
Perhaps
give some attention to the basic theory
and its
sovereign immunity
present
controversy.
do not
to make the
propose
common error of
attempting
write
treatise on the troublesome problem of sovereign we
subject
but
should delve into the
far
enough
disclose governed
basic
which has
philosophy
thinking
the majority
*5
us.
before
question
of the court in
deciding
the members
immunity
sovereign
not
that
theory
We do
subscribe to the
states,
States,
and in the
traceable
the United
individual
forefathers
that “the
can do no
Our
king
wrong.”
medieval concept
that
were of
they
did not
War because
fight
Revolutionary
It is difficult
contrary.
Their
was
reasoning
quite
opinion.
common law
carry
for us to
would
over into their
they
believe
City
so
to their basic
Wendler v.
opposed
(See
belief.
principle
Bend,
We have other states. It will suffice to that in the say ava- authorities cases can be found supporting authorities absolute immu- lanche of and all abrogation immunity possible degrees absolute nity, the absolutes. The cases com- between be found restrictions legal sovereign governmental in most treatise immu- any piled many. and there are nity, years to determine what the term “govern- back go
We must law, it was first introduced when into our encompassed mental” law was being the Kansas molded. At when those years or 100 governmental agencies and their devoted their the states times government engages Now in many things to governing. energies At time the rule of governmental governmental. not that are the courts could not have come adopted close to immunity functions in which the government all of the imagining However, failed, engaged. are now courts agencies and its state, to draw a in this line demarcation did limiting we least governmental functions. immunity that the decision to argue abrogate the doctrine appellees is that of legislature. recognize *6 that our previous opinions have stated that. v. exactly (McCoy Board Regents, 506, However, 196 Kan. P. 2d 73.) 413 we have not been in consistent the rule to applying governmental agencies. Note Bend, what we said Wendler v. Great City supra, page 759: “Regardless origin development governmental principle immunity, it beginning is clear that our courts almost have from the denied immunity municipal governments tort performing ‘proprietary’ ‘permissive’ to [Citations functions. omitted.] usually regardless “The State is it deemed immune of the kind function performing. justifies is municipal What State and between the difference baffling. subdivisions is The to accident rather decisions seem result than reason, question tend make one entire rationale of the principle. (Emphasis supplied.) . . .” have that a damages
We held is for for county negli not liable gence in any expressly imposed by unless such capacity liability is or necessarily statute v. Board (Caywood therefrom. implied Commissioners, County 419, 194 399 have held 561.) Kan. P. 2d We that a is in a city negligent acting for its when liable acts v. capacity, particularly City cases. Arkansas hospital (Stolp City, 197, 303 180 Kan. P. 2d 123.)
Both counties and municipalities are agencies of the state for governmental purposes. (Harling Wyandotte v. Kan. County, 110 763; Lawrence, 204 Pac. State v. 485.) Kan. 100 Pac. The Board of a governmental is also agency created legislature. (Murray v. State P. 898.) 2d It is difficult for the of the court to majority why see one governmental g., agency performing precisely same acts—e. operating profit negligence be liable —should others should not. court majority The are of that the responsibility governmental agencies of the various should be equalized of all governmental elimination immunity from negligence when the its agencies engaged state or are in a private or proprietary function. governmental immunity doctrine has judicial origin in this does not state. Our constitution touch on the subject and the legis- general lature no rules but adopted rather left the matter to the a determination of policy. courts for While the legislature has touched isolated features of upon immunity, which has been stressed decisions, it has never considered the previous general policy our great the face of even economic and applied social enactment legislative comprehensive We do
changes. not have of sporadic us is series designed to cover What before the field. statutes, immunity. on a area of operating separate re- legislature has say would have us that because Appellees are powerless in these areas we governmental immunity moved meaning only what it in others. the statutes as remove We read be no that in the areas indicated there shall they say: it adhere to its to the court whether should immunity. They leave suggested areas. have rule of in other own subject on the written legislature practically every opinion within their to which the doctrine is to be applied the extent largely has been left but the of the doctrine province, of the courts. to the discretion *7 now of the court is of the majority
After careful consideration it this abolish governmental for court to opinion appropriate governmental the state or its for when immunity negligence, activities, in the engaged are absence of agencies proprietary corrective measures. legislature’s adopt failure However, governmental immunity extent abolishing understood that clearly recognize we want it we suggested, to control the entire field legislature of the authority including this would that the suggest legislature We part opinion. covered than this court to restrict the position is in a much better supplement doctrine it can the restriction because with insurance, etc., for provisions the form as legislation proper Review, Lawmaking, in 61 Columbia Law p. stated 839: Judicial however, judicial making law limitation of inherent in the “There nature upon adjust judicial rights and indeed function. can are called Courts changing public policy. with canons of and liabilities in accordance But case-by-case they they develop on a basis can not as the law can the because legal institution, a new ‘an legislature, undertake establishment elaborate investigation eventuating approval procedure and consideration of a ” particular form of words as law.’ violating are the rule of stare that we decisis. suggested It is discrimination between as we certain eliminating are insofar are We Although great respect we have rule agencies. certainty from the desirability standpoint and recognize are that we required perpetuate does not follow it stability, no because of changes that is economic longer applicable doctrine should conditions. The rule not be followed to such an and social grievous be or result. We wrongs that errors perpetuated extent exists, longer for a rule no are that when the reason compar- rule itself be abandoned. had a somewhat should Foundation, able in Noel v. Kan. problem Merminger 2d from charita- P. when this for torts immunity court removed ble institutions. It was held: may early response appeared “Fact that court have at an date in to what good wrongdoing policy as a is not a sound matter created legal basically continuing reason for all rule is rule when under theories longer unsound, especially upon no reasons which rule was built exist. when public policy longer no “When the reason the existence of a declared obtains, public policy courts should such no without hesitation declare that
longer (Syl. 6.) exists.” 5 and The immediate issue of govern- before the court is removal mental immunity for tort University from the at the however, Kansas Medical Center. This abrogation immunity, raises numerous questions as to the breadth of our determination.
We would state in the of clarification that simply way abrogation of the doctrine to all applies governmental bodies of the staté when engaged private or as proprietary distinguished activities governmental functions.
We now come to the most troublesome of what consti- problem tutes a proprietary function. We are mindful of what was said in 60 A. L. R. 2d at 1204: page general provided determining particu- the courts for “The tests whether a regarded municipal [governmental]
lar function adequate proved particular questions; for the have not resolution frequently questions and as a the courts have treated such on their indi- result *8 reaching superficially conflicting merits, at least results.” vidual often case elementary governed It should be stated as each must be However, we a rather broad may its own facts. reach by particular facts may to which a set of be understanding particular applied. itself, It said that when a or its through corporate be state creations, an which is commercial in character embarks on enterprise carried on individuals or usually private private or which in a engaged proprietary enterprise it is v. companies, (Stadler Inc., 6, Gas, 151 W. 2d 915). 182 Neb. N. Curtis determining also laid down rule for whether in operat-
We have in cities or towns are or engaged proprietary govern- ing hospital, 197, City v. Arkansas 180 Kan. Stolp City, functions. mental 123, 2d it is stated: 303 P. covering capacity general “It is also of cities included in the rule the dual private activity proprietary and towns or that when there is an or function in a capacity city benefit, advantage special profit, for or or immediate or town, large, it, public people compose or the than then who rather for the at city competition enterprise private town is and is accountable with employees the torts of any private corporation the same as or individual. other (p. . . .” 202.) We see no reason in the city why hospitals rule applied Stolp case should not now be given general application.
We have no hesitancy operation that in concluding hospital University Medical Board of Regents Center the in a engaged proprietary rather than function. operation of a hospital is individuals usually carried on private or private companies; private patients University hospital paid rates comparable to those charged private which were hospitals; the hospital was an receiving annual income of approxi- $6,000,000.00 mately a year from and obtained 97 private patients, doctors for the medical school’s faculty salary at a nominal $3,600.00 a year because of them facilities furnished for their private patients.
It is not necessary that an actual net profit result. v. (Wendler Bend, City Great supra.)
We are forced to conclude that the rule of immu- liability for torts nity committed while engaged functions is without rational today basis there logical hence is no it compulsion to extend because there is a voluntary mingling governmental and proprietary functions. that a suggests Reason who patient pays professional services to be ought entitled to the same protection the same redress for wrongs as if the negli- had gence occurred in a privately operated owned and hospital. government If the is to enter into businesses reserved to ordinarily the field of private it enterprise, should held to same responsi- bilities liabilities. our
The courts of sister states are not in accord on the question of a It hospital operation. the character would no useful serve of other purpose opinion. review decisions states this A. 2d wishing compare Those such cases should see 25 L. R. Service, L. R. and A. 2d Later Case volume 757. page McCoy v. Board P. 2d all cases that the state and its holding other liable agencies are not *9 function, tortious acts in committed while engaged are overruled.
It will be understood that we are not merits passing appellant’s case. He not be able to prove allegations but, his petition answers, after the defendant has right he to try. The Board of Regents is not an insurer of safety patients It is hospital. responsible only for hazards to be reasonably foreseen and only risks reasonably to be Neither is perceived. it responsible for an honest error of professional made judgment qualified and doctors competent them at employed by the hospital.
It will also be understood that we are not the Board criticizing of Regents for maintaining It is no operating hospital. doubt of great academic and financial benefit to the medical school. We are only if holding that it operates the hospital, receiving paying patients, it should be held to the same responsibility liabilities as privately owned hospitals.
There remains the consideration of the when time the abrogation of the immunity as herein shall stated take effect. We are of the reasonable time should be given the various public bodies to meet the new liabilities implicit this decision. We find ample authority for the proposition in departing from decisis, the rule of stare the court may restrict application of a newly established rule case, to the instant and cases arising in the future, where it is clear that the retrospective application of the new rule will result in a to hardship those who have relied upon prior decisions of the court. (See Molitor v. Kaneland Com. Unit Dist., 11, 89; 18 Ill. 2d 163 N. E. 2d Holytz v. Milwaukee, City of 26, Wis. (2d) N. W. 2d and cases cited therein.) case, for the instant
Except the effective date the abolition of rule of governmental applied proprietary enter- shall be prises August 1969. Except for the instant case the rule shall new not to torts apply occurring prior to August 1969. In applying the new rule instant case we are impressed with what was said Molitor v. Kaneland Dist., Com. Unit supra. quote: compelling “. . At least two (cid:127) applying reasons exist for the new rule limiting the instant case while otherwise arising cases First, merely future. if we were to announce the applying new rule without it
here, such announcement would Second, amount to mere dictum. and more important, apply deprive to refuse to appellant new rule here would any expense challenging benefit from his effort and the old rule which we now *10 upholding appeal to no incentive there would be declare erroneous. Thus any from a reversal benefit precedent appellant event could not since invalidating it. give to highest State power court of this as the “It is within our inherent offending constitu prospective retrospective without decision or Co., Refining Oil & Railway v. Sunburst principles. Co. tional Great Northern (p.28.) 287 U. S. 77 L. ed. 360.” The is reversed. judgment
APPROVED BY THE COURT. example is another This decision J., dissenting: C. Price, country this that sweeping has been wave of activism” “judicial years. recent v. McCoy held in court action—a unanimous 1966—in a like the rule applying 413 P. 2d functions of municipali- distinction governmental-proprietary the func- is irrelevant to negligence determining liability
ties as an agency of regents, board tions of a state agency; is liabilty imposed unless such state, negligence is not liable for with the liability such rests statute, to impose and that the power decision, and all others of like court. That and not this legislature to the winds. and thrown aside holding today swept —are cons” of the doctrine of “pros I do not to debate propose situations. this or other My applied —as this: point simply for bad—has good recognized or been The doctrine—for such, As it has become so imbedded deeply statehood. applied since If this public of this state. policy as to be the “public policy” accomplished by I think that it should changed state is to be duly their elected acting through legislature— of this state people enormous, of this court is The but power and not this court. of that power exercise our own check only upon about the sense of self-restraint. do I to rehash propose
And neither the doctrine of stare decisis. believe, however, that their lawyers I still should be able to advise and that trial courts should be able to decide cases—in re- clients decisions of this court rather than com- being liance settled upon what was yesterday whether held will be the speculate pelled tomorrow. law
I dissent. respectfully therefore
The should be affirmed. judgment J.,
Kaul, Fromme, dissent. join foregoing J. to venture have decided J., dissenting: majority Fromme, func- thicket boldly legislative governmental-proprietary into that govern- many tions of and counties. As a activities state result tort must be examined giving liability ment rise possible on a case basis case determined *11 the future. Hutchinson, 196 City In our in Parker v. Kan. recent of 347, for
148, city was a tortious brought against 410 P. 2d an action city jail. Liability against of in of the operation acts agents said: holding at this the court city arriving was denied. In above, response legislatures in as the states referred to well as “The immunity other courts have or eliminated in states where the eroded legislative municipal doctrine, preferable is if action us to believe that leads 153.) immunity (p. restricted or abolished.” is to be 73, 413 P. 2d which In v. Board 196 Kan. McCoy of overrulled, Kansas University in the of Medical being is a patient of an the State against Center action brought a We patient. while denied re- injuries Kansas for sustained was a govern- of the medical center held the covery operation and we In said: McCoy mental function. proposition prerogative in Kansas legislative-judicial be dis- “The judicial prerogative existing tinguished most states where has been from that case, legislature Kansas, pointed Parker in the as out has we exercised. legislature’s acknowledge the awareness of must been not indifferent. legislative by providing immunity principle action
sovereign evidenced as agencies political liability subdivisions tort instances for in a number of 510.) (p. of the state.” is McCoy declared legislature expressed The prerogative this a court well as prerogative case to be present legislature. which this court will in determining
The difficulties encounter activity government rise giving tort liabil- possible whether are myriad; In Grover v. City ity Manhattan, 424 P. a 2d ten old year boy had coyote which from a zoo. escaped city It was by attacked was a governmental zoo operation function. determined The city was to governmental entitled absent a statute expressly imposing It is liability. apparent reading the Grover case no test can clear devised differentiate between govern- mental and proprietary functions. The will determination have to be made this court on a case case basis. The uncertainty attendant will stretch many into the years future.
The majority opinion sweeps with broad broom when it over- rules McCoy the other which cases have remained the law of this state many years. When such change the law sweeping occurs and without abruptly warning the reasons the change should be clearly stated in the What reasons of opinion. public- policy dictate suddenly this change judicial decree? The answer is not apparent reading the majority opinion.
A new litigation field with far opened reaching consequences. This court should not undertake to change the law this state in this area without devoting more time to the study evaluation of attendant consequences.
Therefore, join with the other members of the court dissenting. I Price, Kaul, C. J., J., join in the foregoing dissent.