Johnson County, Kansas Wrongful Death & Serious  Personal Injury Law

Recreational Use Exception ("RUS") to the Kansas Tort Claims Act ("KCTA")

Under the KTCA, unless an exception applies, a 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." K.S.A. 2007 Supp. 75-6103(a). 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. 2007 Supp. 75-6104. See Jackson v. U.S.D. 259, 268 Kan. 319, 331, 995 P.2d 844 (2000) (Jackson I); Hesse and Burger, Recreational Use Immunity: Play at Your Own Risk, 77 J.K.B.A. 28 (February 2008); Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-Five Years, 52 Kan. L. Rev. 939 (June 2004).

Among the exceptions to liability is the so-called recreational use exception, which this court has determined is to be broadly applied to accomplish the legislative purpose of the exception. Lane, 283 Kan. at 444; Wilson, 273 Kan. at 592. The policy underlying the exception and its purpose was explained in Jackson I:

"The purpose of K.S.A. 75-6104(o) is to provide immunity to a governmental entity when it might normally be liable for damages which are the result of ordinary negligence. This encourages governmental entities to build recreational facilities for the benefit of the public without fear that they will be unable to fund them because of the high cost of litigation. The benefit to the public is enormous. The public benefits from having facilities in which to play such recreational activities as basketball, softball, or football, often at a minimal cost and sometimes at no cost. The public benefits from having a place to meet with others in its community." 268 Kan. at 331.

This legislative purpose, to be applied broadly here, governs our application of the exception. The statute provides:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:

. . . .

"(o) 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." K.S.A. 2007 Supp. 75-6104.

Thus, to establish that the exception applies, a plaintiff must establish that (1) Poston claims ordinary negligence only; (2) Poston claims the negligence was the proximate cause of the alleged injuries; and (3) Poston's injuries resulted from the use of a qualifying property. The summary judgment motion and Poston's response accepted that there were allegations of ordinary negligence only and that the negligence was the proximate cause of Poston's alleged injuries. The only dispute was whether the commons was a qualifying property.

To be a qualifying property, the property must be (a) public and (b) intended or permitted to be used as a park, playground, or open area for recreational purposes. Here, the public nature of the property is not in issue. K.S.A. 2007 Supp. 75-6104, which contains the exceptions to liability, applies to governmental entities, and the KTCA is applicable to school districts and their employees. K.S.A. 2007 Supp. 75-6102(b),(c) and (d); Jackson I, 268 Kan. at 322-23.