Jackson v. USD 259

• Decision Date: 28 January 2000
• Docket Number: No. 79,524.,79,524.
• Parties: 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.
• Court: Kansas Supreme Court

268 Kan. 319

995 P.2d 844

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.

Opinion filed January 28, 2000.

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) K.S.A. 75-6101 et seq., pursuant to K.S.A. 75-6104(o). The plaintiffs contend the district court erred in granting summary judgment because (1) there were unresolved issues of fact before the court, and (2) the defendant had a "duty" to the school children which prevents it from raising immunity as a defense.

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 when he was injured, but it is immaterial to this opinion.) When the plaintiff attempted this act, he lost control of his body and fell to the floor, causing compound fractures of both bones in his right forearm.

The plaintiffs filed suit against the defendant, alleging that the defendant's negligent conduct caused the plaintiffs 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. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998). That part of the appeal involving the interpretation of a statute receives unlimited review. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). See also Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991) (appellate courts have unlimited review when examining a district court's conclusions 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 K.S.A. 75-6104. Barber v. Williams, 244 Kan. 318, 320, 767 P.2d 1284 (1989). The KTCA is applicable to school districts and their employees. K.S.A. 75-6102(b), (c), (d); Greider v. Shawnee Mission Unified School Dist. 512, 710 F. Supp. 296, 298 (D. Kan. 1989).

K.S.A. 75-6104(o) provides a governmental entity with immunity for

"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 K.S.A. 75-6104[o]); Bonewell v. City of Derby, 236 Kan. 589, 592, 693 P.2d 1179 (1984) (baseball field is "public" for the purposes of K.S.A. 75-6104[o] even though at times the general "public is excluded from the field while games are in progress"); and Gruhin v. City of Overland Park, 17 Kan. App 2d 388, 390-91, 836 P.2d 1222 (1992) (restrictions such as a user's fee do not prevent a governmental entity from asserting immunity pursuant to K.S.A. 75-6104[o]). We hold that the school gymnasium is "public property" for the purposes of K.S.A. 75-6104(o).

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 K.S.A. 75-6104(o) provides immunity from injuries which have occurred outdoors on a football practice field or a school track.

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 K.S.A. 76-6104(o). School districts are not liable for injuries which are the result of ordinary negligence and which occur on or near a football playing field.

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 plaintiffs 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 K.S.A. 75-6104(o) did not apply to the case and that the plaintiff should not have been limited to arguing gross and wanton negligence. The Court of Appeals held, inter alia, that K.S.A. 75-6104(o) applies to injuries which occur on a school playground. 22 Kan. App.2d at 484-85. In Boaldin v. University of Kansas, 242 Kan. 288, 747 P.2d 811 (1987), the plaintiff was injured while sledding down a hill on the campus of the University of Kansas. The defendant filed a motion for summary judgment, arguing that the recreational use provision of the KTCA provided them with immunity, which the district court granted. This court held that the sledding area on the campus was an area that was covered by the recreational use provision of the KTCA. 242 Kan. at 292.

It defies common sense to hold that K.S.A. 75-6104(o) provides immunity from injuries which occur on a football field, a baseball field, a track and field area, and a sledding area, but not on an indoor basketball court solely because it is indoors.

The plaintiffs do not provide any committee meeting notes or any other legislative documents which would support such an...