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NICHOLS v. U.S.D. No. 400

January 19, 1990.

JEFFREY T. NICHOLS, Appellant,
v.
UNIFIED SCHOOL DISTRICT No. 400, Appellee.



The opinion of the court was delivered by

This is a personal injury case involving the Kansas Tort Claims Act. K.S.A. 75-6101 et seq.

The facts are undisputed. Jeffrey Nichols was practicing football with the Smoky Valley High School football team on the night he was injured. The head football coach directed the players to run to the locker room from the practice field after a nighttime practice on August 23, 1985. Between the football practice field

[246 Kan. 94]

      and locker room there was a grassy swale or waterway which provided drainage from the high school playground. As Nichols ran to the locker room, he passed through the waterway and stumbled forward, caught his balance, and continued on into the locker room. Nichols had crossed this area many times. After taking a shower, Nichols sat down and felt pain in his back. Nichols brought suit against Unified School District No. 400 (U.S.D. 400), alleging the football coach was negligent in requiring players to run to the locker room in darkness and negligent in failing to properly supervise the players.

  U.S.D. 400 is organized pursuant to the laws of the State with offices in Lindsborg. The football coach is an employee of U.S.D. 400. It is uncontroverted that the manner of conducting football practice was left to the coach's discretion. Finally, the parties also agree that the coach did not intentionally injure Nichols.

  The district court granted summary judgment in favor of the school district based upon the discretionary function and recreational use exceptions to the Kansas Tort Claims Act, K.S.A. 75-6104, and the Land and Water Recreational Areas Act, K.S.A. 58-3201 et seq. Nichols appealed.

  The Court of Appeals held the recreational use exception supplied immunity to the school district and the football coach as an employee acting within the scope of employment. The court reached this decision based upon the plain and unambiguous language of K.S.A. 75-6104(n). Because of the application of the recreational use exception, the court declined to discuss the discretionary function exception and the Land and Water Recreational Areas Act.

  The first issue is whether the district court erred in finding the recreational use exception of the Kansas Tort Claims Act applicable in this case. Nichols and amicus curiae Kansas Trial Lawyers Association contend the recreational use exception to the Tort Claims Act does not apply to injuries which occur during a supervised activity by the school district. In addition, amicus curiae urges the proposition that for the recreational use exception to apply injuries must have resulted from a condition of the premises.

  The Kansas Tort Claims Act is an open-ended act making governmental liability the rule and immunity the exception. Dougan

[246 Kan. 95]

      v. Rossville Drainage Dist., 243 Kan. 315, 318, 757 P.2d 272 (1988).

  K.S.A. 75-6103(a) states:
"Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."
Statutory exceptions to liability are found in K.S.A. 75-6104:
"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
. . . .
"(n) 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."
  At the time of Nichols' injury, the recreational use exception was found at K.S.A. 75-6104(n). The exception has since been moved to K.S.A. 1988 Supp. 75-6104(o). Because the language remains unchanged, we will refer to the exception as designated when Nichols was injured.

  Nichols' argument that governmental immunity applies only to an unsupervised activity is without merit. The plain language of the statute makes it clear that immunity exists for any claim for negligently caused injuries resulting from the use of public property intended for recreational purposes. Nowhere in the statute does the language distinguish between activities which are supervised or unsupervised. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Brinkmeyer v. City of Wichita, 223 Kan. 393, 397, 573 P.2d 1044 (1978). Furthermore, in Bonewell v. City of Derby, 236 Kan. 589, 693 P.2d 1179 (1985), we found governmental immunity applied to the Derby Jaycees, who administered and supervised the city softball leagues, ...


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