Woods v. Kansas Turnpike Authority

• Decision Date: 17 July 1970
• Docket Number: No. 45785,45785
• Citation: 205 Kan. 770,472 P.2d 219
• Parties: Leon E. WOODS, Jr., Appellant, v. KANSAS TURNPIKE AUTHORITY, Appellee.
• Court: Kansas Supreme Court

Page 219

472 P.2d 219

205 Kan. 770

Leon E. WOODS, Jr., Appellant, v. KANSAS TURNPIKE AUTHORITY, Appellee.

No. 45785.

Supreme Court of Kansas.

July 17, 1970.

Syllabus by the Court

The Kansas turnpike authority is immune from liability for tort, including the creation or maintenance of a nuisance, except to the extent that immunity is waived by the special statutory right of action created by K.S.A. 68-2015, and it is held, the district court did not err in sustaining a motion to dismiss plaintiff's petition seeking recovery of damages for personal injuries alleged to have been sustained from the authority's creation or maintenance of a nuisance.

Phillip Mellor, of Holmes, Darrah, Dekker, Mellor & Compton, Wichita, argued the cause, and was on the brief for appellant.

Richard R. Rock, Arkansas City, argued the cause, and William P. Timmerman, Wichita, was with him on the brief for appellee.

O'CONNOR, Justice:

The question presented in this appeal is whether or not the Kansas turnpike authority is immune from liability for personal injuries resulting from the creation or maintenance of a nuisance.

The petition alleged plaintiff suffered personal injuries as a result of an accident on July 20, 1968, when the automobile in which he was a passenger came upon an area of the turnpike where defendant had caused to be deposited a layer of loose gravel, thus creating such a hazardous conition and trap for the unwary as to constitute a nuisance. The lower court sustained defendant's motion to dismiss the petition on the basis it failed to state a claim upon which relief could be granted. Plaintiff has appealed.

The parties agree the lower court's ruling was grounded solely on the immunity question, rather than on whether he facts alleged constituted a nuisance.

Since inception of the Kansas turnpike authority in 1953, we have consistently said the authority is an arm or agency of the state created by the legislature to perform an essential governmental function. (K.S.A. 68-2003; Miller v. Kansas Turnpike Authority, 193 Kan. 18, 392 P.2d 89; Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, 331 P.2d 323; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P.2d 849; State ex rel. Fatzer v. Kansas Turnpike Authority, 176 Kan. 683, 273 P.2d 198.) As such, the authority enjoys the cloak of immunity from tort liability except to the extent expressly waived by statute.

At this juncture we should emphasize that the authorities generally agree a nuisance is also a tort, or at least involves conduct which is tortious because it falls into the usual categories of tort liability. (66 C.J.S. Nuisances §§ 6, 8; Prosser on Torts (3rd Ed.), ch. 17; Harper on Torts, §§ 179, 180.) Therefore, discussion of the doctrine of governmental immunity as applied to torts is deemed appropriate.

At the time the authority was created, the Kansas turnpike act specifically waived immunity from suit for actions growing out of damage or destruction to private property in carrying out its powers granted by the act. (G.S.1953 Supp. 68-2015; Anderson Cattle Co. v. Kansas Turnpike Authority, supra; Pennington v. Kansas Turnpike Authority, supra; Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 317 P.2d 843.) Consequently, in Hosterman v. Kansas Turnpike Authority, supra, an adjacent landowner was denied the right to recover for injuries of a personal nature alleged to have resulted from defendant's operation of a hot asphalt plant which processed paving material used in the construction of the turnpike. The thrust of our decision is expressed in the following language:

'* * * While, under G.S.1955 Supp. 68-2004(d), (the authority) is authorized to sue and to be sued in its own name, it does not follow, however, that the state has waived its immunity from tort liability, and its immunity is waived only to the extent of the special statutory right of action created by G.S.1955 Supp. 68-2015, * * *.' (Syl. 1.)

In 1957 the legislature saw fit to amend the statute and restrict the waiver of immunity granted by the 1955 legislature. (K.S.A.1957 Supp. 68-2015.) Since that time the statute limits recovery for private property 'damaged or destroyed in laying out and constructing said turnpike project.' (K.S.A. 68-2015). In Miller v. Kansas Turnpike Authority, supra, the plaintiff, in one count of his petition, sought to recover for personal injuries and damage to his automobile, and in a second count predicated his right to recover on the theory of implied contract. We held that a demurrer should have been sustained to the entire petition because neither count came within the statutory cause of action. (G.S.1957 Supp. 68-2015.)

While plaintiff acknowledges the impact of our prior cases, he urges the Kansas turnpike authority, as a state agency, is engaged in a proprietay function and comes within the ambit of our recent decision in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21, wherein we abolished the judicially established doctrine of governmental immunity for torts when the state or any of its agencies are engaged in proprietary activities.

An extended discussion on what constitutes governmental or proprietary functions of an agency such as the Kansas turnpike authority would serve no useful purpose. Assuming, for the sake of argument, that plaintiff's contention is sound, we believe Carroll offers little solace to him as precedent. There, we specifically said that except for that particular case the effective date of the abolition of the rule of governmental immunity as applied to proprietary activities would be August 30, 1969. Thus, the new rule would not apply in this case since the injury complained of occurred more than a year earlier.

A more serious question is posed by plaintiff's argument that his petition states a claim against the authority under the nuisance exception to the doctrine of immunity from tort liability granted a governmental instrumentality when performing a governmental function. Thus far in this jurisdiction the exception has been applied only to cities (Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256, and cases cited therein) and school boards (Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652; Neiman v. Common School District, 171 Kan. 237, 232 P.2d 422), but the point has never been reached with respect to counties (se...