State ex rel. Schneider v. McAfee
| Decision Date | 05 May 1978 |
| Docket Number | No. 49257,49257 |
| Citation | 2 Kan.App.2d 274,578 P.2d 281 |
| Parties | STATE of Kansas ex rel. Curt T. SCHNEIDER, Attorney General, Appellant, v. Charles M. McAFEE, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Causes of action arising out of governmental functions are omitted from the text of K.S.A. 60-521, thus it is to be construed as excluding those actions which are not specified.
2. Statutes of limitations do not run against the state unless specifically provided by statute.
3. In an action to recover damages for alleged deficient drawings and specifications, it is held : (1) The procuring of the architect's services was incidental to and a part of the state's overall duty to provide education for the citizens of the state, and (2) the hiring of an associate architect pursuant to K.S.A. 75-5401, et seq., is a governmental function of the state. Accordingly, the trial court erred in holding that the cause of action was barred by the two-year statute of limitations for tort set forth in K.S.A. 60-513(a)(4).
Donald Hoffman and Philip A. Harley, Asst. Attys. Gen., and Curt T. Schneider, Atty. Gen., for appellant.
H. E. Jones of Hershberger, Patterson, Jones & Roth, Wichita, for appellee.
Before FOTH, C. J., and ABBOTT and PARKS, JJ.
This appeal stems from a controversy over the submission of deficient drawings and specifications for the McKnight Fine Arts Center at Wichita State University.
By the terms of a Memorandum of Appointment executed on January 6, 1971, the defendant, Charles McAfee, as associate architect, was to prepare plans, drawings and specifications to be used in the construction of the center.
In making its claim for damages, the state alleged that during the summer of 1972, the defendant delivered drawings and specifications which were inadequate and faulty. It is also alleged that he failed to correct the drawings after the deficiencies were brought to his attention. In order to correct the resulting constructional deficiencies, it was necessary to cut tunnels through poured concrete, install additional piping, re-route existing piping and reconstruct a penthouse structure which was to contain a multi-zone air handler.
The attorney general, as relator on behalf of the state of Kansas, filed this action in January, 1976, three and one-half years after the discovery of deficiencies in defendant's work product.
The trial court dismissed this action on the grounds that the activity of hiring an architect is proprietary in nature, the gravamen of the action sounded in tort, and the action was barred by the two-year statute of limitations. The state appeals.
At the outset we will consider whether statutes of limitation run against the state.
K.S.A. 60-521 deals with the applicability of the limitations of actions to public bodies:
"As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in (1) actions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his or her own wrongdoing or default in the performance of his or her duties."
In State Highway Commission v. Steele, 215 Kan. 837, 528 P.2d 1242 (1974), an action was brought by the State Highway Commission to recover damages to a bridge which was struck by an automobile owned by defendant Ethel E. Steele and driven by defendant Ronald W. Steele. The sole question was whether the action was barred by the two-year statute of limitations for tort set forth in K.S.A. 60-513(a)(4).
The Steele court made the following observations: K.S.A. 60-521 clearly makes a distinction between actions arising out of proprietary functions of public bodies and actions arising out of their governmental functions or activities with respect to the applicability of limitations (p. 838, 528 P.2d 1242). Causes of action arising out of governmental functions are omitted from the text of K.S.A. 60-521, thus it is to be construed as excluding those actions which are not specified (p. 839, 528 P.2d 1242).
The Steele court also pointed out that it has consistently held that statutes of limitation do not run...
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Kansas Public Employees Retirement System v. Reimer & Koger Associates, Inc.
...state unless specifically provided by statute." 215 Kan. at 839, 528 P.2d 1242. The appellate courts again stated in State ex rel. Schneider v. McAfee, 2 Kan.App.2d 274, Syl. p 2, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), that "[s]tatutes of limitations do not run against the state unl......
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Newman Memorial Hosp. v. Walton Const. Co., 94,473.
...for the profit, benefit, or advantage of the governmental unit conducting the activity. [State ex rel. Schneider v.] McAfee, 2 Kan.App.2d [274] at 276 [578 P.2d 281 (1978)]. See also International Ass'n of Firefighters v. City of Lawrence, 14 Kan.App.2d 788, Syl. ¶ 3, 798 P.2d 960 rev. deni......
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First American Bank and Trust Co. of Purcell v. Oklahoma Indus. Finance Authority, 87070
...functions are those which are performed for the "general public with respect to the general welfare"); State ex rel. Schneider v. McAfee, 2 Kan.App.2d 274, 578 P.2d 281, 283 (1978); State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan.App.2d 57, 649 P.2d 419, 422-23 (1982); People......
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Unified School Dist. No. 490, Butler County v. Celotex Corp.
...do not run against the state when the action arises out of the performance of a governmental function. State ex rel. Schneider v. McAfee, 2 Kan.App.2d 274, 275, 578 P.2d 281, rev. denied 225 Kan. 845 (1978); K.S.A. 60-521. The construction of a school building is incidental to and a part of......