Cross v. City of Kansas City, 53238

• Decision Date: 15 January 1982
• Docket Number: No. 53238,53238
• Citation: 638 P.2d 933,230 Kan. 545
• Parties: Fred CROSS, Sr., et ux, Appellants, v. CITY OF KANSAS CITY, Kansas and Kansas City, Kansas Board of Public Utilities, Appellees.
• Court: Kansas Supreme Court

Page 933

638 P.2d 933

230 Kan. 545

Fred CROSS, Sr., et ux, Appellants, v. CITY OF KANSAS CITY, Kansas and Kansas City, Kansas Board of Public Utilities, Appellees.

No. 53238.

Supreme Court of Kansas.

Jan. 15, 1982.

Syllabus by the Court

1. The Board of Public Utilities of Kansas City, Kansas, is an agency of the city and its functions are subject to the provisions of K.S.A. 1978 Supp. 46-902.

2. A municipality or one of its agencies in the operation of a public waterworks, which also serves as the water supply for firefighting purposes, does so in a dual capacity and the furnishing of water for firefighting is a governmental function.

3. Under K.S.A. 60-212(h)(2) a defense of failure to state a claim upon which relief can be granted may be made at any time prior to or at the trial on the merits. It is better practice, however, to raise such a defense at the earliest possible opportunity.

4. K.S.A. 1978 Supp. 46-902 and 902a are constitutional and do not constitute a violation of the federal or Kansas constitutional rights to equal protection and due process of law.

Donald W. Vasos of Scott, Daily & Vasos, Kansas City, argued the cause and was on the brief for appellants.

Daniel B. Denk of McAnany, Van Cleave & Phillips, P. A., Kansas City, argued the cause, and Robert J. Watson, City Atty., and Annette Eslick, Asst. City Atty., were with him on the brief for appellees.

Neil R. Shortlidge, First Asst. City Atty., Overland Park, was on the brief for the amicus curiae, League of Kansas Municipalities.

HOLMES, Justice:

Plaintiffs Fred K. Cross and Zelma Cross, husband and wife, appeal from an order of the district court sustaining a motion for summary judgment by the defendants, City of Kansas City, Kansas (City), and the Kansas City, Kansas Board of Public Utilities (BPU).

Plaintiffs were the owners of a lumberyard business located in the Argentine industrial district of Kansas City. On June 9, 1978, the lumber warehouse and other property were destroyed by fire. Upon discovery of the fire, the Kansas City Fire Department was alerted and was on the scene within minutes. However, they were unable to extinguish the fire due to inadequate water pressure and water supply. Plaintiffs allege that the proximate cause of their loss was the inadequate water supply caused by the negligence of the defendants in failing to properly manage, repair, inspect and maintain the city water system, and for the purpose of this appeal these allegations are deemed to be true. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875 (1971). Plaintiffs also alleged breach of a contractual duty but that issue is not raised upon appeal.

Plaintiffs' action seeking to recover for the loss caused by the fire was filed against the City and the BPU on January 15, 1979. Defendants filed a joint answer on February 14, 1979, denying the allegations of negligence and breach of contract asserted by plaintiffs. Defendants also asserted the doctrines of comparative negligence and assumption of risk as defenses to plaintiffs' petition but made no reference to governmental immunity as a defense. Plaintiffs proceeded with extensive discovery including interrogatories to both defendants and five discovery depositions and finally, on February 3, 1981, after the case was set for trial, the defendants moved for summary judgment. The basis of the motion was that due to the doctrine of governmental immunity, as set forth in K.S.A. 1978 Supp. 46-902 and 46-902a, the plaintiffs had failed to state a claim upon which relief could be granted. The district court sustained the defendants' motion and plaintiffs have appealed.

Plaintiffs opposed the motion on the same grounds pressed in this appeal. Plaintiffs first contend that K.S.A. 1978 Supp. 46-902 and 46-902a are unconstitutional. Their second position is that, even if the statute is constitutional, the function of the defendants at issue in the case was proprietary in nature, and, therefore, not entitled to immunity. The final point is that regardless of the constitutionality of the statute, defendants waived or abandoned the defense of governmental immunity by failing to raise it at the proper time or in the proper manner.

At the outset we will address the last two points raised by the plaintiffs and in doing so presume for the purposes of such consideration that the statutes in question are constitutional.

K.S.A. 1978 Supp. 46-902(b) provided:

"Except as may be otherwise specifically provided by statute and except for causes of action based upon nuisance and, in the case of cities, actions based upon negligent failure to correct defects in streets, local units of government shall be immune from liability and suit for torts committed by officers or employees of such local unit of government when engaged in a governmental function. The provisions of this section shall not affect, change or diminish any procedural requirement necessary for recovery from any local unit of government, nor shall it grant any immunity to a local unit of government when engaged in a proprietary function."

The statute was enacted and became effective May 16, 1978, and by the provisions of K.S.A. 1978 Supp. 46-902a, expired July 1, 1979.

Plaintiffs contend that the functions of the defendants in furnishing water service are proprietary in nature, rather than governmental, and the immunity granted by the statute does not apply. Plaintiffs cite several authorities supporting their position, including Hall v. City of Youngstown, 15 Ohio St.2d 160, 239 N.E.2d 57 (1968), wherein it is stated:

"It is a rather elemental conclusion that the utility of a hydrant stems from its connection with a water supply system. Its primary use is to make immediately available a supply of water for the extinguishment of fires. That supply is accessible only because (it is) piped to the hydrant area through water mains. The problem in this case, as we see it, is the question of where water supply (proprietary in nature) ends, and fire fighting (governmental in nature) begins. We believe it to be at the hydrant nozzle." p. 165, 239 N.E.2d 57.

Other jurisdictions have held that where the water system is maintained for dual purposes, both proprietary and governmental in nature, the municipality is not entitled to immunity. See Malter, Aplnt. v. S. Pgh. Water Co., et al., 414 Pa. 231, 198 A.2d 850 (1964); Lober v. Kansas City, 74 S.W.2d 815 (Mo.1934), and City of Houston v. Bush, 566 S.W.2d 33 (Tex.Civ.App.1978).

However, our Kansas cases have held otherwise. In Perry v. City of Independence, 146 Kan. 177, 69 P.2d 706 (1937), the petition of the plaintiff alleged:

"(T)hat under the direction of the superintendent of the municipal waterworks system of the defendant city 'there was dug a ditch about 30 feet long and about 5 feet deep and four (4) feet wide, from near the north property line of East Locust street to the north curb line thereof, and that said ditch was located at a point about twelve (12) feet west of the west curb line of Fifteenth street. That at or near the north end of said ditch was a fire hydrant; that said ditch continued to remain open and unprotected from Monday, the 15th of July, 1934, until Saturday, the 21st day of July, 1934. That on the afternoon of Friday, the 20th day of July, 1934, at what hour plaintiffs do not know, city water from said fire hydrant or said pipes connected therewith was permitted to flow into said ditch to a depth of about 22 inches.' "

It was further alleged that the 20-month-old-daughter of the plaintiffs fell into the ditch and drowned and that such death was the result of the negligence of the defendant. The district court sustained a demurrer to the petition and in affirming the trial court on the basis that the city was immune from negligence in the performance of a governmental function, we said:

"It cannot be doubted that a city may maintain a municipal water plant and operate it in a dual capacity. While the city is maintaining the water system for the use of its fire department it is performing a public governmental function and is not liable for the negligence of its officers or servants in the establishment or maintenance of such water system for the benefit of the fire department." p. 179, 69 P.2d 706.

See also Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275 (1949). Charles S. Rhyne, in his recent comprehensive work on municipal law, The Law of Local Government Operations (1980), states:

"While there is authority to the contrary, the prevailing view is that there is no municipal liability for failure to supply water for fire protection." p. 1059.

The same author states at page 1055:

"A municipality also is not liable for a failure to provide adequate fire protection."

See also 57 Am.Jur.2d, Municipal, School and State Tort Liability, § 282-292; and Annot., 163 A.L.R. 348 (1946).

Plaintiffs, in an attempt to avoid the bar of governmental immunity, assert that the BPU is a separate entity from the City and attempt to make a distinction between the fire-fighting activities of the Kansas City Fire Department and the function of the BPU in furnishing water to the public and to the City for fire fighting, sewage disposal and other governmental functions. It is contended that the BPU, as a separate entity, is solely engaged in the proprietary function of furnishing water and electrical service to the City and the public and is not a local unit of government engaged in a governmental function. In Board of Public Utilities v. City of Kansas City, 227 Kan. 194, 605 P.2d 151 (1980), we said:

"The Board operates the water and electric plants in the name of the city to produce and supply the city and inhabitants with water and electric energy as an agency of the city ...." p. 198, 605 P.2d 151. (Emphasis supplied.)

Following that decision the Legislature, in 1980, amended K.S.A.1979 Supp. 13-1223, to add inter alia :

"The board may sue and be sued but...