Appeal from Atchison district court, PHILIP C. LACEY, judge.
1. The question whether the recreational use exception to the Kansas Tort Claims Act (KTCA), K.S.A. 2006 Supp. 75-6104(o), renders public property immune from liability involves a question of statutory interpretation, over which an appellate court exercises unlimited review.
2. The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.
3. Immunity from liability under the recreational use exception to the KTCA does not depend upon the "primary use" of the property but rather depends on the character of the property in question.
4. The recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes. The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.
The opinion of the court was delivered by: Davis, J.
Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 838, 134 P.3d 683 (2006).
Judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed.
Howard Lane was injured when he slipped and fell on ice at the loading dock of the Atchison Heritage Conference Center (AHCC) on December 31, 2002. He later brought this negligence action against the AHCC to recover for his injuries. The AHCC moved for summary judgment on the basis that it was immune from liability under the recreational use exception to the Kansas Tort Claims Act (KTCA). The district court granted its motion and entered final judgment in favor of the AHCC.
The Court of Appeals reversed in Lane v. Atchison Heritage Conf. Center, Inc., 35 Kan. App. 2d 838, 134 P.3d 683 (2006), concluding that the recreational use exception of the KTCA, K.S.A. 2006 Supp. 75-6104(o), did not apply where the facility's recreational use was only incidental to its primary function. Because the AHCC's "primary function" was not recreational, the court held that the AHCC had not met its burden of establishing immunity from the KTCA. We granted AHCC's petition for review, reverse the Court of Appeals, and affirm the decision of the district court.
Initially, Lane's appeal to the Kansas Court of Appeals involved three arguments: (1) that the AHCC was not an instrumentality of a municipality for purposes of the KTCA; (2) that the conference center was not public property; and (3) that the recreational use exception under K.S.A. 2006 Supp. 75-6104(o) should not apply. The Court of Appeals affirmed the district court's holding with regard to the first two issues, and Lane's petition for review does not raise those issues again. Thus, the sole issue before this court is whether the recreational use exception applies under the facts of this case.
In 1999, the City of Atchison (the City) purchased land and buildings with federal block grant funds in order to establish a city conference center. The motivation behind the new conference center was to attract events to the area, provide conference and event planning services, create jobs, and stimulate the local economy. Later that year, the City formed the Atchison Heritage Conference Center (AHCC) to maintain the center and administer the center's programs. The AHCC is a for-profit Kansas corporation and a wholly owned subsidiary of the Atchison Area Economic Development Corporation (AAEDC), though it has not yet turned a profit in the years since it began operation.
The City owns the conference center and leases it to the AHCC on a yearly basis. The lease states that the conference center will provide "meeting, catering and banquet facilities." The AHCC states in its brief that since its opening, the center has been used for "many activities," including:
"Rotary and Kiwanis meetings, which feature special guest speakers and informative presentations; local bridge club card games; public school dances; Quilter's Guild retreats and other meetings, which feature sewing practice and demonstrations; Theater Atchison events; Atchison Area Chamber of Commerce meetings; local bar association meetings; beauty pageants; Society for Creative Anachronism activities, which include the practice and demonstration of outdoor cooking, Renaissance-era crafts, and sewing; and Heart of America Chorus retreats and other meetings, which feature singing and musical practice."
The Court of Appeals panel below summarized the activity at the conference center from October 1999 through September 2004 as being used "to host meetings on 428 different dates, retreats on 113 different dates, parties or reunions on 82 different dates, and weddings or wedding receptions on 70 different dates." 35 Kan. App. 2d at 840.
The AHCC hosted a New Years' Eve dance on December 31, 2002. The dance, which was open to the public, included a buffet dinner and musical entertainment; price of admission was $50 for an individual or $80 per couple. The AHCC hired "The Ranch Hands," a musical group led and managed by Lane, to provide the music.
During the course of the evening, a bartender at the party drained ice and water from a portable beverage cart onto the conference center's loading dock. Later on, when Lane used the dock to load the band equipment into his van, he slipped and fell on the ice, causing him to break his right femur and hip.
Lane brought suit in September 2003 against the AHCC, alleging that the center's negligence in the maintenance of the loading dock caused his injuries. Among the defenses raised in its answer, the AHCC claimed immunity from liability under the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o).
After some discovery, the AHCC filed a motion for summary judgment, claiming that it was immune from liability for ordinary negligence under the recreational use exception to the KTCA and that Lane had only alleged ordinary negligence in his petition. Lane moved to amend his petition to allege gross and wanton negligence, and challenged the application of the KTCA exception. The court granted his motion to amend.
At the hearing on the AHCC's summary judgment motion, the district court found that the recreational use exception to tort liability under the KTCA was applicable and thus granted the motion with respect to Lane's claim for ordinary negligence. The court denied the AHCC's motion with respect to Lane's claim for gross and ...