concurring in part and dissenting in part:
I concur in the judgment of the court that the defendant was entitled to summary judgment insofar as plaintiff based her claim on allegations of willful and malicious misconduct.
I respectfully dissent from the decision that the alleged public restrictions in the weir area deprived the defendants of the protection provided by the Kansas Recre*985ational Use Statute (KRUS), Kan.Stat.Aun. §§ 58-3201 to 58-3207 (1983 & Supp.1992), for the reasons set forth in the Memorandum and Order of the district court as follows:
It is uncontroverted that pursuant to the Easement Agreement, La Cygne Lake was opened to the public for recreational use in 1978. Moreover, the discharge canal/weir area in which Mr. Bingaman’s boat was found constitutes a part of Easement Area II, as defined in Schedule D of the Easement Agreement, which pursuant to the terms of the Easement Agreement was intended to be open to the public for recreational use. Easement Agreement paragraph 1. The fact that, when viewing the facts in the light most favorable to the plaintiff, the public was ultimately excluded from fishing and boating in the weir area because of safety reasons does not deprive defendants of the protection from liability provided by the Kansas RUS. See Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 508 A.2d 58, 61 (1986) (holding that the fact that defendant posted signs restricting the use of the lake in dangerous areas did not controvert the fact that the lake was open to the public).
In view of the stated purpose of the Kansas RUS to encourage landowners to make their lands available to the public for recreational uses, the court finds that restricting certain uses of an area does not constitute a “closing” of that area such that the Kansas RUS would not apply. There is no evidence in this case that the public was discouraged from using the weir area for viewing and scenic enjoyment, only that they were excluded from potentially hazardous activities such as boating and fishing. While the Kansas RUS states that landowners have no duty to warn of a dangerous condition, it would run counter to the purpose of the statute to discourage landowners from attempting to protect the public from hazardous activities by refusing to provide immunity to a landowner who attempts to restrict the potential uses of certain areas. Similarly, in Klepper v. City of Milford, Kansas, 825 F.2d 1440 (10th Cir.1987), the Tenth Circuit held that the defendant did not waive its immunity under the Kansas RUS because it made quarterly inspections of the park area and took steps to safeguard park users.
In the present case, the district court noted that sound public policy would encourage safety inspections and warnings by owners of recreational areas and that liability under the RUS for negligent undertakings could well have the effect of discouraging warnings and inspections altogether.
Id. at 1450. The court therefore concludes that the Kansas RUS applies to this case.
Bingaman v. Kansas City Power & Light Co., No. 88-2349-V, Op. at 9-10, 1992 WL 81981 (D.Kan. March 13, 1993).