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