Brown v. Wichita State University

• Citation: 219 Kan. 2,547 P.2d 1015
• Decision Date: 06 March 1976
• Docket Number: No. 47363,47363
• 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 et al., Appellees.
• Court: Kansas Supreme Court

Page 1015

547 P.2d 1015

219 Kan. 2

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 et al., Appellees.

No. 47363.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. The legislature has constitutional authority to reimpose governmental immunity. Absent violation of constitutional rights, the legislature may control governmental immunity.

2. The separation of powers doctrine is designed to avoid a dangerous concentration of power, and to allow the respective powers to be assigned to the department best fitted to exercise them. It must be conceded the legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity.

3. Long-standing and well established rules of the court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

4. Section 18 of the Kansas Bill of Rights guaranteeing to every person a remedy by due course of law for injury done him in person, reputation or property does not create any new rights, but merely recognizes long established systems of laws established prior to the adoption of the constitution. Since governmental immunity was part of the common law at the time the Kansas Constitution was adopted, Section 18 does not require the court to hold K.S.A. 46-901, et seq., unconstitutional.

5. In social and economic legislation, a statutory classification does not violate the equal protection clause merely because its classifications are imperfect. Nor does the equal protection clause require a state to choose between attacking every aspect of a problem or not attacking the problem at all. As such K.S.A. 46-901, et seq., does not violate the equal protection clause.

6. If K.S.A. 46-901, et seq., does create a discriminatory classification, that classification is reasonable and thus not violative of the equal protection clause. In the absence of a suspect classification or a violation of a fundamental right, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

7. In order for constitutional due process to be violated, the legislation before the court must bear no reasonable relation to a permissive legislative objective. Retaining some immunity is a permissive legislative objective.

8. The record in an action sounding both in tort and contract commenced by multiple plaintiffs against Wichita State University to recover damages for wrongful death and personal injuries is examined, and, as more fully set forth in the opinion, and in the first thirteen syllabi in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, it is held: (1) The doctrine of governmental immunity as declared in K.S.A. 46-901, et seq., does not offend constitutional guarantees in Sections 1, 2 and 18 of the Kansas Bill of Rights, the Fourteenth Amendment to the Constitution of the United States or any other constitutional provision; (2) the Physical Education Corporation is the agent of Wichita State University, and its athletic director, as an officer of the corporate agent, had the implied power and authority to bind the principal, Wichita State University, when he executed the Aviation Services Agreement: (3) the Aviation Service Agreement as executed was a contract between Golden Eagle Aviation and Wichita State University and the plaintiffs may avail themselves of a promise made by the University to Golden Eagle to procure passenger liability insurance for their benefit and the benefit of their decedents, and the failure of the University to procure such insurance through the fault or neglect of its officers or agents will render it liable for any damages resulting therefrom; and (4) the district court erred in sustaining the defendants-appellees' motion for summary judgment.

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

Wayne Coulson, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellee Wichita State University Physical Education Corp., Inc.

Paul B. Swartz, of Martin, Pringle, Schell & Fair, Wichita, argued the cause, and J. Taylor Neuschwander, Wichita, was with him on the brief for appellee Wichita State University.

Curt T. Schneider, Atty. Gen., and Philip A. Harley, Asst. Atty. Gen., were on the brief amici curiae, for the Atty. Gen. of Kansas.

Robert A. Coldsnow, Topeka, was on the brief amicus curiae, for the Kansas Senate, Kansas House of Representatives and Kansas. Legislative Coordinating Council.

Keith Eales, and Jerry Richard Palmer, Topeka, were on the brief amici curiae, for The Kansas Trial Lawyers Association.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, and Robert N. Partridge, Wichita, were on the brief amici curiae, for the Kansas Association of Defense Counsel.

Barkley Clark, Lawrence, and Frank A. Bien, Topeka, were on the brief amici curiae, for the League of Kansas Municipalities.

SCHROEDER, Justice:

Pursuant to post-decision motions to modify and to supplement the decisions in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, and Brown v. Wichita State University, P. E. C., Inc., 217 Kan. 661, 538 P.2d 713, this court, considering the motions as motions for rehearing, consolidated those matters and granted a rehearing. The order granting a rehearing requested counsel to brief four questions, two of which are pertinent to the court's opinion on rehearing:

'1. Where the court abrogates judicially imposed governmental immunity does the Legislature have the constitutional authority to reimpose governmental immunity?

'2. Assuming the answer to the foregoing question is in the affirmatives, does Chapter 200, Laws of 1970, (K.S.A. 46-901 et seq.) offend constitutional guarantees in Sections 1, 2 and 18 of the Kansas Bill of Rights, the Fourteenth Amendment to the Constitution of the United States or any other constitutional provisions?'

Pursuant to request the Attorney General of Kansas; the Kansas Legislative Counsel for the Kansas Senate, Kansas House of Representatives and Kansas Legislative Coordinating Council; the Kansas Trial Lawyers Association; the Kansas Association of Defense Counsel; and the League of Kansas Municipalities all filed briefs amicus curiae on these questions materially aiding the court in resolving these questions.

The court reaffirms its decision holding that the trial court erroneously granted summary judgment, and it reaffirms the first thirteen syllabi and the corresponding portions of the opinion in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, pertaining to third party beneficiaries, agency relationships and contractual obligations.

After due consideration, however, the portion of the opinion declaring K.S.A. 46-901, et seq., unconstitutional is vacated.

The facts surrounding this controversy are fully reported in the court's previous opinions and need not be expanded.

In view of the legislature's statutory imposition of governmental immunity, the history of governmental immunity is important in three respects. First, the governmental immunity doctrine was judicially created. Second, it was part of the common law at the time the Kansas Constitution was adopted. (See, Maffei v. Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808 (1959).) Third, on March 26, 1970, the Kansas Legislature explicitly enacted a comprehensive governmental immunity statute, K.S.A. 46-901, et seq., (L.1970, ch. 200, §§ 1-13, March 26).

Prior to March 26, 1970, the governmental immunity doctrine was of judicial origin in Kansas. This was recognized in Carroll v. Kittle, 203 Kan. 841, 847, 457 P.2d 21. There it was said our constitution does not touch on the subject and the legislative enactments were characterized as 'a series of sporadic statutes,' and not 'a comprehensive legislative enactment designed to cover the field.' (Carroll v. Kittle, supra at 847-848, 457 P.2d at 27.) In Carroll the court further recognized courts throughout the country were widely split on questions of governmental immunity and the governmental or proprietary character of a state hospital operation. The court there stated:

'After careful consideration a majority of the court is now of the opinion that it is appropriate for this court to abolish governmental immunity for negligence, when the state or its governmental agencies are engaged in proprietary activities, in the absence of the legislature's failure to adopt corrective measures.' (p. 848, 457 P.2d p. 27.)

Carroll, as indicated by the quotation from Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934, and the dissenting opinions, was based on matters of public policy and not based on constitutional grounds.

Carroll's judicial abolition of governmental immunity which was judicially, not statutorily, created finds support in many other states. It must be recognized that many states have judicially abrogated to varying degrees their judicially created doctrine of governmental immunity. (See, City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962), overruled in part, Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963); Stone v. Arizona...