Brown v. Wichita State University

• Decision Date: 17 July 1975
• Docket Number: No. 47706,47706
• Citation: 538 P.2d 713,217 Kan. 661
• Parties: Marvin G. BROWN, Sr., et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees. Mike BRUCE et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees. Hallie Eugenia ROBINSON, Individually and as the Administratrix of the Estate of Eugene Robinson, et al., Appellants, v. WICHITA STATE UNIVERSITY, PHYSICAL EDUCATION CORPORATION, INC., Appellee.
• Court: Kansas Supreme Court

Page 713

538 P.2d 713

217 Kan. 661

Marvin G. BROWN, Sr., et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees.

Mike BRUCE et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees.

Hallie Eugenia ROBINSON, Individually and as the Administratrix of the Estate of Eugene Robinson, et al., Appellants, v. WICHITA STATE UNIVERSITY, PHYSICAL EDUCATION CORPORATION, INC., Appellee.

No. 47706.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

In an action sounding both in tort and contract the record is examined, and it is held there remain genuine issues of material fact and the district court erred in granting summary judgment.

John W. Norman, of Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Oklahoma, argued the cause, and Ronald D. Heck, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, and David W. Kennedy, of Greene & Kennedy, Wichita, were with him on the brief for appellants.

Wayne Coulson, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

FATZER, Chief Justice:

This is an appeal from an order of the district court sustaining a motion for summary judgment.

The controversy arises from the crash of a chartered aircraft carrying members of the 1970 Wichita State University football team, members of the faculty and university supporters. The plaintiff-appellants are either surviving passengers or personal representatives of those killed in the crash. Defendant-appellee, Wichita State University Physical Education Corporation, is a nonprofit, nonstock corporation organized under the laws of the state of Kansas. This corporation was formed to conduct the business and other transactions of the intercollegiate athletic programs of Wichita State University. The chronology of events giving rise to this action follows:

On July 21, 1970, an Aviation Service Agreement was executed by Golden Eagle Aviation, Inc., and Wichita State University for the period commencing September 11, 1970, and ending November 14, 1970-the scheduled 1970 football season. The agreement was executed by Bruce J. Danielson on behalf of Golden Eagle, and by Bert Katzenmeyer, Athletic Director of Wichita State University, on behalf of that institution. It was attested to by Floyd W. Farmer, Secretary of Wichita State University Physical Education Corporation, Inc. The agreement was attached to the opinion in a companion case, Brown v. Wichita State University, (No. 47,363), 217 Kan. 279, 538 P.2d 713.

Under the terms of the agreement, Golden Eagle was to provide a qualified flight crew and other ancillary services for the aircraft to be used by Wichita State University in transporting the members of its football team and other personnel to scheduled games at other universities. Wichita State University was to lease the aircraft described in the agreement as 'One Douglas DC-6B' from a third party and to provide passenger liability insurance as prescribed by federal regulations.

On Friday, October 2, 1970, members of the Wichita State University football party departed Wichita, Kansas, in two Martin 404 aircraft for Logan, Utah, for a football game with Utah State University scheduled for Saturday, October 3, 1970.

When the Martin 404 aircraft, No. N464M, took off from Denver, Colorado, an intermediate stop, it was 2,900 pounds in excess of the allowable taking-off weight as prescribed by aircraft specifications of the Federal Aviation Administration. (1 Nat'l. Trans. Safety Bd., 1028 (1971).) The plane crashed into a mountainside near Silver Plume, 16 miles west of Georgetown, Colorado.

The registered owner of the plane that crashed was Jack Richards Aircraft Company, Inc. No written agreement had been executed with respect to the lease of the plane to Wichita State University for this flight. Written agreements leasing aircraft of Jack Richards to Wichita State University for the first two away games of the 1970 football season had been signed by Mr. Katzenmeyer on behalf of the University. Those leases had been executed prior to each flight.

Golden Eagle Aviation, Inc., and Jack Richards Aircraft Company, Inc., were organized pursuant to the corporate laws of the state of Oklahoma. The record indicates that as a result of an investigation into the operation of Golden Eagle occasioned by the plane crash, Golden Eagle's air taxi/commercial operator certificate was revoked by the Federal Aviation Administration. That revocation was sustained on appeal by the National Transportation Safety Board. (1 Nat'l. Trans. Safety Bd., 1028 (1971).)

After the plane crash, it was ascertained Wichita State University had not purchased the passenger liability insurance as required in its contract with Golden Eagle. Liability insurance requirements for air taxi operators engaged in transportation are set by regulations of the Civil Aeronautics Board. (14 C.F.R. 298.41 et seq. Subpart D.) The minimum limits of liability coverage are seventy-five thousand dollars ($75,000) for any one passenger, and for each occurrence an amount equal to the sum produced by multiplying $75,000 by seventy-five percent (75%) of the total number of passenger seats in the aircraft. (14 C.F.R. 298.42(a)(1).)

Three separate lawsuits were filed. Each lawsuit involved multiple plaintiffs and named as defendants Wichita State University and the Wichita State University Physical Education Corporation, Inc. The plaintiffs alleged several causes of action sounding in both tort and contract. The three lawsuits were consolidated by the district court.

On December 26, 1972, defendant Wichita State University filed a motion for summary judgment which was granted by the district court. On appeal to this court, in Brown v. Wichita State University, supra, we reversed and remanded. In so doing, K.S.A. 46-901, 902 were struck down as unconstitutional because they granted immunity to state governmental entities for both governmental and proprietary acts. As a result, Wichita State University, a state institution, could be liable for its proprietary acts. This court took judicial notice that intercollegiate football, as presently carried on, is big business-a commercial activity which is a principal source of athletic income at many universities-and is a proprietary function. Likewise, that the transporting of football players to an away intercollegiate football game is also a proprietary function. The governmental immunity protecting Wichita State University from plaintiffs' tort claims was thereby removed. This court further held that Wichita State University Physical Education Corporation was a mere instrumentality of the University, and the acts of the corporation were, therefore, the acts of the University. We held the provisions of K.S.A. 1974 Supp. 76-721 requiring Board of Regents' approval of university contracts did not render the executed and partially performed Aviation Service Agreement invalid.

On May 4, 1974, prior to our decision in Brown v. Wichita State University, supra, defendant Wichita State University Physical Education Corporation moved for summary judgment, and the district court sustained the motion. Plaintiffs perfected an appeal, and the propriety of the district court's action is now before us.

The district court in its journal entry, after introducing the parties and their counsel, simply stated:

'The Court, having heard the arguments of counsel and being duly advised in the premises, it is

'ORDERED that the motion be sustained and that the action be dismissed at the cost of the plaintiffs.'

In reviewing the case, this court is handicapped by the lack of any indication by the district court as to what were the genuine issues upon which the case was decided.

The appellants suggest:

'While defendant raised several points in its motion for summary judgment, plaintiffs are unable to tell this Court on what basis the trial court ruled in defendant's favor. The only comment made by the trial court at the time of the ruling was that he 'just personally' didn't think the University or the appellee could be held liable in this case. Because of the trial court's lack of specificity in sustaining the motion, plaintiffs will discuss each of the points raised below. . . ..'

This does not leave an appellate court much to work on when the validity of a summary judgment is challenged on the basis that genuine issues of material fact exist. In Scott v. Day and Zimmerman, Inc., 216 Kan. 458, 532 P.2d 1111, it was said:

'. . . By its own terms 60-252(a) exempts summary judgment from its requirement that the trial judge state the controlling facts, this, of course, for the reason rendition of summary judgment is improper if the controlling facts are in dispute (it has been said that findings may well be helpful in making clear the basis for the trial court's decision and in indicating what that court understood to be the undisputed facts on which summary judgment was granted (9 Wright & Miller, Federal Practice and Procedure: Civil § 2575, pp. 692-693)). . . .' (l. c. 459, 532 P.2d at 1112.)

Rule 116 of this court relating to appellate practice is broader than Section 60-252(a) in that it requires in all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by 60-252, briefly state the legal principles controlling his decision. (Duffin v. Patrick, 212 Kan. 772, 512 P.2d 442.) It may be said that the entering of summary judgment is also a contested matter and that when considered with Section 60-256(d) the district court should state what it considers to be the controlling facts and the legal principles upon which summary judgment was granted. Otherwise, this court upon appellate review will be required to explore and consider every possible legal theory which may be said to be involved in the summary judgment. Judges of a court of record, unlike a...