Thome v. City of Newton, 52406

• Decision Date: 28 February 1981
• Docket Number: No. 52406,52406
• Citation: 624 P.2d 454,229 Kan. 375
• Parties: Mary Lynn THOME, a minor; Linus Thome and Mary Ann Thome, Appellants, v. The CITY OF NEWTON, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 454

624 P.2d 454

229 Kan. 375

Mary Lynn THOME, a minor; Linus Thome and Mary Ann Thome, Appellants, v. The CITY OF NEWTON, Kansas, Appellee.

No. 52406.

Supreme Court of Kansas.

Feb. 28, 1981.

Syllabus by the Court

1. Generally as a matter of constitutional law, retroactive operation of an overruling decision is neither required nor prohibited.

2. Among the rules and options this court may consider with regard to the extent of the application of overruling decisions are: (1) purely prospective application where the law declared will not even apply to the parties to the overruling case; (2) limited retroactive effect where the law declared will govern the rights of the parties to the overruling case but in all other cases will be applied prospectively; (3) general retroactive effect governing the rights of the parties to the overruling case and to all pending and future cases unless further litigation is barred by statutes of limitation or jurisdictional rules of appellate procedure; and (4) retroactive effect governing the rights of the parties to the overruling case and to other cases pending when the overruling case was decided and all future cases, but limited so the new law will not govern the rights of parties to cases terminated by a final judgment or verdict before the overruling decision was announced.

3. Under the factual circumstances of this case, the court is free to adopt any of the alternatives set forth in syllabus 2, any combination thereof or any other rule to establish an effective date of an overruling decision which is fair, just and equitable and which will do justice to the greater number of people affected thereby.

4. Among the factors courts may consider in determining the application of overruling decisions to other cases are: (1) justifiable reliance on the earlier law; (2) the nature and purpose of the overruling decision; (3) res judicata; (4) vested rights, if any, which may have accrued by reason of the earlier law; and (5) the effect retroactive application may have on the administration of justice in the courts.

5. The law as declared in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), which abolished governmental immunity of municipalities for the negligent acts of its officers and employees when engaged in the performance of a governmental function, applies to all similar cases filed before or after April 1, 1978, regardless of when the causes of action accrued except where a final judgment or verdict has been entered. The rule of law adopted herein shall not constitute a bar to any other appropriate defense such as the statute of limitations and is subject to valid legislation adopted by the legislature to limit, modify or expand the municipal liability recognized by Gorrell.

6. A statute does not operate retroactively, but operates prospectively, unless the intention of the legislature is clearly expressed by the statute that its provisions are to be applied retrospectively. Following American State Bank v. White, 217 Kan. 78, Syl. P 5, 535 P.2d 424 (1975).

7. K.S.A.1978 Supp. 46-902(b ), assuming its validity, would operate prospectively and only apply to causes of action arising after May 16, 1978, the effective date of the amendment.

Thomas A. Bush, Wichita, was on brief, for appellants.

Arthur N. Turner, Newton, was on brief, for appellee.

HOLMES, Justice:

Plaintiffs appeal from an order of the Harvey County district court dismissing an action filed against the City of Newton. Dismissal of the case by the district court was based upon K.S.A.1978 Supp. 46-902(b) and the doctrine of governmental immunity as it existed prior to our decision in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978).

The relevant facts are brief. This action for damages and medical expenses arose out of injuries sustained on the 18th day of June, 1977, by plaintiff, Mary Lynn Thome, a minor, while playing softball in the City Park of the City of Newton, Kansas. While chasing a fly ball, Mary Lynn ran into an iron pipe railing rupturing her spleen. Medical expenses were incurred by her parents, the plaintiffs Linus and Mary Ann Thome. Suit was filed against the City of Newton on the 16th day of October, 1978, alleging it was negligent in its design and maintenance of the softball playing field. The City filed a motion to dismiss on the 16th day of November, 1978, contending the ownership and operation of a public park and playgrounds thereon constituted a governmental function and that by reason of the doctrine of governmental immunity the City was immune from liability. On July 1, 1980, the district court sustained the City's motion and dismissed plaintiffs' case. Plaintiffs appeal from that order of dismissal.

The principal issue is whether the law established in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616, which abolished governmental immunity of a municipality for the negligent acts of its officers or employees in the performance of a governmental function, applies to this case. Gorrell overruled prior case law on governmental immunity of municipalities and was silent as to its applicability to any other set of facts and whether the decision would operate retrospectively or prospectively.

Following our decision in Gorrell, the legislature amended K.S.A. 46-902 to include:

"(b) 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 amendment, effective May 16, 1978, further provided that the provisions of the statute would expire July 1, 1979.

The relevant sequence of events occurred as follows:

Jan. 22, 1975, facts occurred in Gorrell v. City of Parsons.

June 18, 1977, Mary Lynn Thome was injured in Newton.

Dec. 16, 1977, Thomes filed a claim against Newton.

Dec. 21, 1977, Thomes' claim was denied by Newton.

April 1, 1978, Gorrell opinion filed by this court.

May 16, 1978, the amendments to K.S.A. 46-902 became effective.

Oct. 16, 1978, this case was filed in district court.

Appellants rely principally upon Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974), while appellee relies upon Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). At the outset we point out:

"As a matter of constitutional law, it can safely be said, retroactive operation of an overruling decision is neither required nor prohibited." Vaughn v. Murray, 214 Kan. 456, Syl. P 6 (521 P.2d 262).

See also, Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

In Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), the Kansas guest statute (K.S.A. 8-122b (Corrick, 1964)), was found to be unconstitutional but the court made no finding as to the effect of such determination on other cases. Our opinion in Bauder was filed January 26, 1974, and grew out of personal injuries suffered by the plaintiff on October 16, 1971. We held the guest statute unconstitutional and found plaintiff could pursue her cause of action against the defendant who was the driver of an automobile in which plaintiff was a guest passenger.

In Vaughn v. Murray, a guest passenger brought an action against his driver of an automobile which was involved in a collision with a cow. The accident occurred October 8, 1971, and the case was pending on appeal at the time of our decision in Bauder. It therefore became necessary for the court to determine the retroactive effect, if any, of the Bauder decision. In a well-reasoned opinion, Justice Fromme extensively reviewed the law as it applies to the effective date of an overruling decision and the court adopted the rule that:

"The law as declared in the overruling decision of Henry v. Bauder, supra, (holding Kansas guest statute unconstitutional) shall be given retroactive application to all similar cases pending in the courts of this state on January 26, 1974, and to cases filed thereafter regardless of when the causes of action accrued with the following exception: When a judgment or a verdict has been entered in a district court prior to January 26, 1974, and the same is free of reversible error under the law then existing, the law as declared in Henry v. Bauder, supra, shall not apply unless the constitutional question decided in the overruling decision has been timely presented to the trial court." 214 Kan. p. 467, 521 P.2d 262.

Appellants ask that we adopt a similar holding in this case. Appellee, on the other hand, asks that we adopt the rule laid down in Carroll v. Kittle.

In Carroll the plaintiff sued Kittle, a physician, and the Board of Regents of the State of Kansas for negligence. His complaint arose from what he contended was negligence on the part of employees of the University of Kansas Medical Center while plaintiff was a patient there. After discussing the origins of governmental immunity, this court abolished governmental immunity for torts when the state or its governmental agencies were engaged in proprietary activities. After reaching this decision, the court went on to determine its applicability to other existing factual situations or those that might arise in the future. This court, in the opinion filed July 17, 1969, applied the new rule established by the decision to the case before it, but provided an effective date of August 30, 1969, as to all other cases. In reaching this decision, the court found:

"(A)mple authority for the proposition that in departing from the rule of stare decisis, the...