Jackson Ex Rel. Essien v. Unified School District 259

995 P.2d 844, 268 Kan. 319, 2000 Kan. LEXIS 1
CourtSupreme Court of Kansas
DecidedJanuary 28, 2000
Docket79,524
StatusPublished
Cited by45 cases

This text of 995 P.2d 844 (Jackson Ex Rel. Essien v. Unified School District 259) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson Ex Rel. Essien v. Unified School District 259, 995 P.2d 844, 268 Kan. 319, 2000 Kan. LEXIS 1 (kan 2000).

Opinions

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 [322]*322when 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 [323]*323employees. 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).

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Bluebook (online)
995 P.2d 844, 268 Kan. 319, 2000 Kan. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-ex-rel-essien-v-unified-school-district-259-kan-2000.