Flax v. Kansas Turnpike Authority

• Decision Date: 09 June 1979
• Docket Number: No. 49140,49140
• Citation: 226 Kan. 1,596 P.2d 446
• Parties: Jeanette FLAX, Appellant, v. The KANSAS TURNPIKE AUTHORITY, Appellee.
• Court: Kansas Supreme Court

Page 446

596 P.2d 446

226 Kan. 1

Jeanette FLAX, Appellant, v. The KANSAS TURNPIKE AUTHORITY, Appellee.

No. 49140.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. Dictum which goes beyond the points decided in a particular case may be respected but should not control a subsequent case when the precise point is presented, argued and considered by the court.

2. The court is not bound by dictum when the subject matter thereof becomes a question squarely presented for decision.

3. The Kansas turnpike authority is an arm or agency of the state created by the legislature to perform an essential governmental function.

4. K.S.A. 46-901(A )(2) and (3) are sufficiently broad to include a state authority even though the term "authority" or "authorities" is not specifically used in the statute.

5. Long-standing and well established rules of this 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.

6. A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.

7. K.S.A. 46-901 is unconstitutional when applied to the Kansas turnpike authority for highway defects as creating a class of motorists who are subjected to invidious discrimination in violation of the equal protection clauses of the federal and state constitutions.

8. The designation of the Kansas turnpike as an "Interstate" highway does not, as a matter of law, constitute an express warranty that the turnpike meets all federal standards for interstate highways.

9. As the legislature has not established any specific procedure for claims against the Kansas turnpike authority for highway defects an action to enforce such a claim shall proceed as any other civil action.

Jerry R. Palmer, of Stumbo, Stumbo, Palmer, McCallister & Buening, Topeka, argued the cause and was on the brief for appellant.

Donald R. Hoffman, Chief Asst. Atty. Gen., and Bob W. Storey, Gen. Counsel, Topeka, argued the cause, and Curt T. Schneider, Atty. Gen., and Richard R. Rock, Arkansas City, were on the brief for appellee.

HOLMES, Justice:

Once again the attack upon governmental immunity comes before this court. This time the application of K.S.A. 46-901 to highway defects upon the Kansas turnpike is in question.

Plaintiff filed an action in the district court against the Kansas turnpike authority (KTA) for the wrongful death of her husband and three children as a result of a one car collision on the Kansas turnpike. Plaintiff was driving the family automobile southbound west of the Cassoday exit when her automobile left the road and struck a guardrail. Her husband and three of their children who were passengers were killed. Plaintiff alleged certain defects in the turnpike roadway were the proximate cause of the collision and also alleged the breach of an express warranty that the turnpike met all the federal standards for an interstate highway. The allegation of a breach of warranty was based upon the designation of that portion of the turnpike as being a section of "Interstate 35."

The trial court sustained a motion, pursuant to K.S.A. 60-212(B )(6), by the KTA to dismiss the action. The trial court ruled that K.S.A. 46-901 granted immunity to the KTA and further ruled as a matter of law that the claimed express warranty could not be established. This appeal followed.

K.S.A. 46-901 provides:

"(A ) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:

(1) The state of Kansas; and

(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and

(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.

(B ) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.

(C ) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (A ) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit."

At the outset we should consider one of appellee's arguments. Appellee contends, and the trial court held, that the issues in this case have been determined adversely to plaintiff's position and are controlled by Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970). In Woods the plaintiff brought an action for personal injury resulting from an automobile accident allegedly caused by a nuisance created by the KTA. The Woods accident occurred July 20, 1968, at a time when judicially established governmental immunity existed. In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), we abolished, effective August 30, 1969, the previously existing governmental immunity as applied to proprietary functions. The legislature, at its next session, reacted to Carroll by passing K.S.A. 46-901 and 902 effective March 26, 1970. (L.1970, ch. 200, Sec. 1 and 2.) The decision in Woods was filed July 17, 1970. The court quoted K.S.A. 46-901 and then stated:

"By this enactment the legislature, in its wisdom, has expressed the public policy of this state in the field of governmental immunity pertaining to the state and its various agencies. The legislature in clear and unambiguous language has declared the Kansas turnpike authority immune from liability on implied contract or for negligence or any other tort, which would include nuisance, except as provided by statute. The law as it now stands remains in harmony with our earlier turnpike cases, namely, that the authority is immune from tort liability except to the extent such immunity is waived by statute. (K.S.A. 68-2015.)

"Certainty and stability in the law are always desirable and in the long run best serve the bench, the bar and the citizens of the state. Now that the legislature has spoken in a comprehensive manner on the subject of immunity for the state and its agencies something lacking at the time of Carroll we believe sound judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. We therefore decline to engraft solely for plaintiff's benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll." 205 Kan. pp. 773-774, 472 P.2d p. 222.

While it has been argued that Woods stands for the proposition that the KTA is immune from suit by reason of the statute, it is clear from the time sequence involved that the reference to the statute was dictum and not controlling of the actual decision. The decision of the court was that the nuisance exception would not be engrafted upon the judicially imposed immunity which existed prior to Carroll. The reference to the new statute by the court was in support of its determination not to recognize the nuisance exception to the doctrine.

In Medford v. Board of Trustees of Park College, 162 Kan. 169, 175 P.2d 95 (1946), this court stated:

"Dictum often develops in opinions from comments upon arguments advanced by counsel for the respective parties. Dicta and Obiter dicta which go beyond the case may be respected but should not control a judgment in a subsequent case when the precise point is presented, argued and considered by the entire court. . . . Nobody is bound by Dictum . . . 'not even . . . the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.' (Putnam v. City of Salina, 137 Kan. 731, at 733, 22 P.2d 957)." P. 173, 175 P.2d p. 97.

The opinion in Woods reflected the court's thoughts on the effect of the new statute but the application of the statute was not an issue in the case and as the statements were dictum they were not determinative of the issues in Woods and, being dictum, are not determinative of the issue before us.

Appellant initially argues that as the term "authority" is not included in the statute, the immunity established does not apply to the KTA. She argues further that if the KTA is included within 46-901, then the statute creates an unconstitutional classification resulting in invidious discrimination in violation of the equal protection clauses of both the federal and Kansas constitutions.

In support of her first argument, appellant points out that K.S.A. 46-902, enacted as a part of the same bill as 46-901, specifically includes "authorities" in the statute which provides that the immunity granted in 46-901 will not apply to local units of government. The statute as originally enacted provided:

"46-902. Nonapplication to local units of government. (a) Nothing in Section 1 (46-901) of this act shall apply to or change the liabilities of local units of government, including (but not limited to) counties, cities, school districts, community junior colleges, library districts, hospital districts, cemetery districts, fire districts, townships, water districts, irrigation districts, drainage districts and sewer districts, and boards, commissions, committees, authorities,...