Larry Jackson, Jr., a minor by and through his Mother, Natural Guardian, and Next Friend Virgie Essien and Virgie Essien, Individually, Appellants, v. Unified School District 259, Sedgwick County, Kansas, Appellee.
No. 79,524
Supreme Court of Kansas
January 28, 2000
995 P.2d 844
Kelly W. Johnston, of Johnston Law Offices, P.A., of Wichita, argued the cause and was on the brief for appellants.
Robert G. Martin, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the briefs for appellee.
Steven Hornbaker, of Harper, Hornbaker, Altenhofen & Opat, of Junction City, was on the brief for amicus curiae Kansas Trial Lawyers Association.
David C. Cunningham, of Topeka, was on the brief for amicus curiae Kansas Association of School Boards.
The opinion of the court was delivered by
ABBOTT, J.: Larry Jackson, Jr., a minor, by and through his mother, natural guardian, and next friend Virgie Essien, and Virgie Essien, individually, (plaintiffs) appeal from a summary judgment entered against them and in favor of Unified School District 259, Sedgwick County, Kansas (defendant). The plaintiffs sought damages for a compound fracture of both bones in the right forearm. The injury occurred in a required physical education class when Jackson fell to the floor after attempting to dunk a basketball by launching himself from a springboard. The district court found the defendant immune from liability under the provisions of the Kansas Tort Claims Act (KTCA)
Jackson participated in a required physical education class at the Hamilton Middle School in Wichita, Kansas. During class, one of the students asked the instructors if the students could use a large wooden springboard to catapult the students into the air so that they could touch the rim of the basketball goal or dunk a basketball. (The record is confusing as to which act the plaintiff was doing
The plaintiffs filed suit against the defendant, alleging that the defendant‘s negligent conduct caused the plaintiff‘s injuries. The defendant moved for summary judgment, arguing that the “recreational use” provision of the KTCA provides qualified immunity for negligent acts of this nature, so long as there is no showing of gross or wanton conduct. The district court granted the defendant‘s motion for summary judgment. The plaintiffs appealed the district court‘s ruling. The Kansas Court of Appeals affirmed the decision of the district court in Jackson v. U.S.D. 259, 26 Kan. App. 2d 111, 979 P.2d 151 (1999). This court granted review.
The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Under the KTCA, governmental liability is the rule and immunity is the exception. Lanning v. Anderson, 22 Kan. App. 2d 474, 478, 921 P.2d 813, rev. denied 260 Kan. 994 (1996). In order to avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in
“any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
The plaintiffs do not contend the defendant was “guilty of gross and wanton negligence proximately causing such injury.”
The plaintiffs argue that the gymnasium is not “public property” because access to the gym is limited. Limited access to governmental property does not mean that the property is not “public.” The government can restrict the times in which public property is used. The government can restrict the way in which public property is used. Governmental entities often charge a fee for entry onto public property. Sometimes admission is altogether denied if another group has already reserved the use of the public property. Even though the government restricts property in these ways, it remains “public property.” See Gonzales v. Board of Shawnee County Comm‘rs, 247 Kan. 423, 429-30, 799 P.2d 491 (1990) (public swimming beach operators can charge admission fees yet the beach remains “public” for the purposes of
The plaintiffs argue that the gymnasium is not a “park” or a “playground” or an “open area.” The plaintiffs contend that an “open area” is limited to places which are out of doors. The plaintiffs assert that the legislature intended for “open area” to be limited to outdoor areas. The plaintiffs stated in their brief:
“[A] construction of ‘park, playground or open area’ that would apply only to outdoor areas would make sense from a public policy standpoint. In the original drafting of the KTCA, the legislature must have been concerned with protecting governmental entities from lawsuits arising out of the use of outdoor parks which contain large tracts of green space that can be used for all kinds of recreational activities.”
Kansas appellate courts have previously held that
In Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990), the plaintiff was a high school student who was injured running from the football practice field to the school locker room. The plaintiff brought suit against the school district, alleging that the football coach was negligent in requiring the players to run to the locker room in the dark. The district court granted summary judgment for the defendant. This court affirmed the decision of the district court and held that the defendant was immune pursuant to
In Lanning, 22 Kan. App. 2d 474, the plaintiff was injured when he was hit by a discus thrown by a member of the track and field team. The injury occurred near a baseball field and an outdoor basketball court. A jury found the school district and the track and field coach liable for the plaintiff‘s injuries. The defendants filed a motion for judgment notwithstanding the verdict, a motion for a new trial, and a motion for reconsideration, all of which were denied by the trial court. On appeal, the defendants argued that the trial court erred when it refused to grant the motion for a directed verdict and that there was insufficient evidence for a finding of gross and wanton negligence. The plaintiff cross-appealed and argued that the recreational use exception found at
It defies common sense to hold that
The plaintiffs do not provide any committee meeting notes or any other legislative documents which would support such an assumption. There is no indication that the legislature, in adopting
The plaintiffs worry that such a determination will broaden a school‘s immunity to the point that any injury that takes place in a library, lecture hall, or cafeteria will not be compensable because school districts will be able to use
Finally, the plaintiffs argue that because there have been no cases which have applied
The plaintiffs argue that the gymnasium is not “property intended or permitted to be used . . . for recreational purposes.” In support of this argument, the plaintiffs note that the injury occurred during a mandatory class during the course of the regular school day. The plaintiffs further assert that the gymnasium was “not constructed and maintained for any purpose other than for education.”
In order for a location to fall within the scope of
In Kayser v. Village of Warren, 303 Ill. App. 3d 198, 707 N.E.2d 285 (1999), the Illinois Court of Appeals addressed this issue. In Kayser, the plaintiff was injured inside a community center while selling T-shirts during the annual Stagecoach Trail Festival. While noting that the activity in which the plaintiff was engaged was not particularly “recreational,” the court held that the community center was intended to be used for recreational purposes and, therefore, the defendant was entitled to immunity under the Illinois Tort Claims Act. 303 Ill. App. 3d at 203-04.
The KTCA was introduced in the Senate as S.B. 76 on January 11, 1979, and referred to the Senate Judiciary Committee on January 15, 1979. S.B. 76 did not contain the current “recreational use” provision. A substitute for S.B. 76 was introduced on March 7, 1979. The substitute bill was the source of a significant amount of debate. The substitute for S.B. 76 did not contain the “recreational use” provision either. The Senate voted in favor of substitute for S.B. 76 on March 7, 1979, and the bill went to the House.
Substitute for S.B. 76 was introduced in the House on March 12, 1979 and was referred to the House Judiciary Committee on March 13, 1979. The House Judiciary Committee approved substitute for S.B. 76 on March 29, 1979, although amending the bill to include exceptions for “malfunction, destruction or unauthorized removal of any traffic or road sign” (now
On April 2, 1979, Representative Stites made a motion before the House to add the “recreational use” exception now found at
On April 2, 1979, the House passed the amended substitute for S.B. 76 (containing what is now
Only two other states have statutes similar to the “recreational use” exception found in Kansas: South Carolina and Illinois. The South Carolina Torts Claims Act states that the governmental entity is not liable for a loss resulting from:
“maintenance, security, or supervision of any public property, intended or permitted to be used as a park, playground, or open area for recreational purposes, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for maintenance, security, or supervision within a reasonable time after actual notice of the defect or condition.”
Code of Laws of S.C. 1976, § 15-78-60(16) (1999 Supp.).
The South Carolina exception is limited to defects in the condition of the property, but also covers security and supervision. The Kansas statute is not limited to injuries which are the result of a defective condition. The South Carolina statute is much more narrow than the one passed by the Kansas Legislature.
In 1965, the Illinois legislature passed a statute which was remarkably similar to the one which currently exists in Kansas, although the Illinois statute also limited the immunity to defective property conditions. The statute was amended in 1986 to its present form which reads:
“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” (Emphasis added.)
Ill. Comp. Stat. ch. 745, 10/3-106 (1998).
Illinois has considered a number of cases construing this statute. In Bubb v. Springfield School Dist., 167 Ill. 2d 372, 657 N.E.2d 887 (1995), the plaintiff was injured when her bicycle went off the sidewalk at her school. The plaintiff argued that the sidewalk was not being used for recreation when the injury occurred. The defendant argued, and the Illinois Supreme Court agreed, that the injury need not occur as the result of recreation but that the sidewalk merely be intended for recreational use. There was testimony that the school had painted “4-square” lines on the sidewalk, allowing students to play on the sidewalk during recess. The Bubb court stated that immunity “depends on the character of the property in question, not the activity performed at any given time” and affirmed the trial court‘s grant of the defendant‘s motion for summary judgment based on immunity under the Illinois Tort Claims Act.
In Hanover Insurance Co. v. Bd. of Education, 240 Ill. App. 3d 173, 608 N.E.2d 183 (1992), the plaintiff was injured while performing masonry work while on an elementary school playground. The plaintiff argued that the recreational use exception should not apply as he was not engaged in a recreational activity when he was injured. The Illinois Court of Appeals disagreed and held that the plaintiff‘s specific use of the property at the time of the injury is not a factor. The court noted that the plain wording of the statute only requires that the property be intended for recreational use, not that the injury occur as the result of a recreational activity.
In Lewis v. Jasper Co. Comm. Unit Sch. Dist., 258 Ill. App. 3d 419, 629 N.E.2d 1227 (1994), the plaintiff was injured when he fell against a pumphouse which was located on the playground of a school. The plaintiff argued that he was not engaged in a recreational activity at the time of his accident. The court held that the
See also Sylvester v. Chicago Park District, 179 Ill. 2d 500, 689 N.E.2d 1119 (1997) (noting that application of the recreational use exception to the Illinois Tort Claims Act does not depend on the plaintiff‘s activities at the time of the injury); Wallace v. Metropolitan Pier and Expo. Auth., 302 Ill. App. 3d 573, 707 N.E.2d 140 (1998) (noting that a determination of immunity should be decided on a case-by-case basis and that the court should consider the character of the property and not how it was being used at the time of the accident); Batson v. Pinckneyville Elem. Sch. Dist., 294 Ill. App. 3d 832, 690 N.E.2d 1077 (1998) (citing Bubb and noting that the court should consider whether recreational activities have taken place at the property in the past and not consider what type of activity the plaintiff was engaged in at the time of the accident); and Dinelli v. County of Lake, 294 Ill. App. 3d 876, 691 N.E.2d 394 (1998) (noting that immunity under the recreational use exception is not solely dependent on what activity the plaintiff is engaged in at the time of the injury).
Here, the issue is whether the property was intended or permitted to be used for recreational purposes. If so, the defendant is immune from liability for plaintiff‘s injuries. Illinois has a case that is instructive on that point.
In Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996), the plaintiff was a high school student who fell in a physical education class and was injured. The trial court dismissed the injured plaintiff‘s lawsuit based on the Illinois statute granting immunity. The Illinois Court of Appeals reviewed the case and remanded it to the trial court to determine the intended or permitted use of the school gymnasium. The Illinois statute is identical to the Kansas statute in all pertinent areas except it defined the area it applied to so as to include “buildings or other enclosed recreational facilities.” 281 Ill. App. 3d at 242.
The issue in Ozuk is the same as that before us, i.e., was the gymnasium “intended or permitted to be used for recreational purposes“?
In Ozuk, the Illinois Court of Appeals stated:
“Recreation is defined as ‘refreshment of the strength and spirits after toil: DIVERSION, PLAY.’ Webster‘s Third New International Dictionary 1899 (1986). Play ‘suggests an opposition to work; it implies activity, often strenuous, but emphasizes the absence of any aim other than amusement, diversion, or enjoyment.’ (Emphasis omitted.) Webster‘s Third New International Dictionary 1737 (1986). In contrast, physical education is defined as ‘education in methods designed to promote the development and care of the body and (usually) involving instruction in hygiene and systematic exercises and in various sports and games.’ Webster‘s Third New International Dictionary 1706 (1986). Thus, compulsory physical education and recreation have different aims: whereas the former seeks to instruct, the latter aspires merely to amuse. Accordingly, although some students may enjoy gym class, it cannot be said to be recreation. (Emphasis added.)
“Because public property may have more than one intended use (Bubb, 167 Ill. 2d at 383) however, the fact that the gymnasium was used for physical education is not dispositive of whether section 3-106 immunity applies. If the school gymnasium was encouraged, intended, or permitted to be used for recess, extracurricular events, or other recreational, noncompulsory activities, then section 3-106 would apply, provided that the recreational use was more than incidental. See Bubb, 167 Ill. 2d at 382. Because those facts were not developed in the circuit court, we would have to speculate to determine the issue. Accordingly, remand is appropriate for the limited purpose of developing facts related to the intended or permitted use of the gymnasium.” Ozuk, 281 Ill. App. 3d at 243-44.
We do not deem it significant that the planned activities had been completed when plaintiff was injured. The class was required and plaintiff was there for a designated period of time. Whether the instructors determined how the time would be used or permitted the students to suggest activities is of no significance. The significant factor is that it was a required educational class.
Finally, the plaintiffs argue that the immunity provisions of the KTCA do not apply in this case as the defendant had assumed a duty or had a duty under the common law to supervise school children in a non-negligent manner. The plaintiffs cite a number of cases in support of this argument; however, they all concern the “discretionary function” exception and do not address the “recreational use” exception.
The purpose of
There is no consideration of ordinary negligence in a case in which the defendant asserts that it is immune pursuant to
Amicus curiae for the Kansas Trial Lawyers Association contends that the recreational use provision was never intended by the legislature to apply to supervised recreational activities and, therefore,
In Nichols, this court stated:
“Nichols’ argument that governmental immunity applies only to an unsupervised activity is without merit. The plain language of the statute makes it clear that immunity exists for any claim for negligently caused injuries resulting from the use of public property intended for recreational purposes. Nowhere in the statute does the language distinguish between activities which are supervised or unsupervised. . . . Nichols’ attempt to defeat governmental immunity based upon the distinction between supervised and unsupervised activities is erroneous.”
. . . .
” . . . If the legislature had intended to limit immunity to those situations in which an injury on public property, used for recreational purposes, was caused by conditions on the premises, it would have expressly so stated.” 246 Kan. at 95-97.
Amicus curiae Kansas Trial Lawyer‘s Association‘s assertion that the legislature did not intend for the recreational use provision of the KTCA to apply to injuries which are the result of negligent supervision is unsupported. The amicus curiae does not provide any legislative research in support of its position. The clear and unambiguous language of
The decision of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed and the case is remanded to the district court for a factual determination of whether the school gymnasium is intended or permitted to be used for recreational purposes.
LOCKETT, J., concurring and dissenting: I agree with the majority‘s determination that an injury occurring to a student in a school gymnasium during a required physical education class is within the purview of
The purpose of
In a case in which the defendant is immune from ordinary negligence under
For support of this determination the majority cites several Illinois cases. In Hanover Insurance Co. v. Bd. of Education, 240 Ill. App. 3d 173, 608 N.E.2d 183 (1992), the plaintiff was injured while performing masonry work while on an elementary school playground. The plaintiff argued that the recreational use exception to liability should not apply as he was not engaged in a recreational
In Lewis v. Jasper Co. Comm. Unit Sch. Dist., 258 Ill. App. 3d 419, 629 N.E.2d 1227 (1994), the plaintiff was injured when he fell against a pumphouse which was located on the playground of a school. The plaintiff argued that the school district was not immune from liability because he was not engaged in a recreational activity at the time of the accident. The court held that the playground was intended to be used as a recreational facility and, therefore, the school district was immune pursuant to the Illinois Tort Claims Act.
See also Sylvester v. Chicago Park District, 179 Ill. 2d 500, 689 N.E.2d 1119 (1997) (noting that application of the recreational use exception to the Illinois Tort Claims Act does not depend on the plaintiff‘s activities at the time of the injury); Wallace v. Metropolitan Pier and Expo. Auth., 302 Ill. App. 3d 573, 707 N.E.2d 140 (1998) (noting that a determination of immunity should be decided on a case-by-case basis and that the court should consider the character of the property and not how it was being used at the time of the accident); Batson v. Pinckneyville Elem. Sch. Dist., 294 Ill. App. 3d 832, 690 N.E.2d 1077 (1998) (noting that the court should consider whether recreational activities have taken place at the property in the past and not consider what type of activity the plaintiff was engaged in at the time of the accident); and Dinelli v. County of Lake, 294 Ill. App. 3d 876, 691 N.E.2d 394 (1998) (noting that immunity under the recreational use exception is not solely dependent on what activity the plaintiff is engaged in at the time of the injury).
After referring to three Illinois cases for support of this determination, the majority states that the issue is whether the property was intended or permitted to be used for recreational purposes. If so, the defendant is immune from liability for plaintiff‘s injuries.
I disagree with the majority‘s determination that immunity under
Under the majority‘s reasoning, the Kansas Legislature intended that an electrician injured in a school gymnasium during repair of faulty wiring and an electrician injured during repair work in a classroom would subject the school to separate theories of liability. When repairing faulty wiring in an empty gym, the majority would apply the immunity stated in
I believe that the immunity under
ALLEGRUCCI, J., joins in the foregoing concurring and dissenting opinion.