Poston v. Unified School District No. 387

McAnany, P.J.,

dissenting: I must respectfully dissent. Accountability for one’s torts is the rule, not the exception. The District had the burden to establish an exception under the Kansas Tort Claims Act that immunized it from liability for Poston’s claim. I would find that it has failed to do so.

The purpose of the immunity provisions of the Act is to encourage the development of recreational areas. Immunity depends upon the character of the property. The issue is “whether the prop*698erty was ‘intended or permitted to be used for recreational purposes.’ ” Jackson v. U.S.D. 259, 268 Kan. 319, 330, 995 P.2d 844 (2000). Further, the recreational use must be more than merely incidental.

The door where Poston was injured led from outside the school building into the commons area. The primary function of the commons area is to serve as the lunch room for students. It is used for other school education functions, but its recreational use is purely incidental. As pointed out in oral argument, once in the commons area, one can go in different directions to the principal’s office, the school classrooms, and the gymnasium. There is no doubt about the recreational nature of the gymnasium and the tort immunity that attaches to it. I would not conclude that the gymnasium’s immunity extends to the adjoining commons area simply because they are contiguous.

The majority relies on cases which expand the scope of the exception under circumstances which, I submit, do not apply here. Wilson v. Kansas State University, 273 Kan. 584, 44 P.3d 454 (2002), immunized the university for injuries sustained in a restroom located in the football stadium. The door where Poston was injured led from the commons area to the outside of the building. It was not located in the gymnasium, and did not connect the commons area to the gymnasium. Relying on Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990), this court found in Robinson v. State, 30 Kan. App. 2d 476, 43 P.3d 821 (2002), that the State was immune from suit for an injury in a slippery hallway between a swimming pool and the locker room. Nichols dealt with a player’s injury that occurred while he was running from the football practice field to the locker room. It seems to me that the use of a locker room by a swimmer or a football player and traveling thence to the pool or the football field is so integrated into the recreational activity as to justify extending immunity to injuries occurring along the path leading from one to the other. Clearly, that analysis does not apply here.

As the court stated in Barrett v. U.S.D. No. 259, 272 Kan. 250, 260, 32 P.3d 1156 (2001):

*699“It is true that a student in a gym is arguably similarly situated as one in a classroom. However, distinguishing between a student injured in the gym and one who is injured in the classroom is rationally related to the purpose of the statute. The school district needs little incentive to create classrooms; however, the same cannot be said of recreational facilities such as gyms and football fields. While these facilities undoubtedly enhance the educational process, they also provide value to the public as places for recreational activities. The statute encourages their development by a grant of limited governmental immunity.”

I respectfully contend that an injury in the school lunch room (the essential use of the commons area) should be treated no differently from an injury in a classroom. The fact that a classroom is next to the gymnasium does not immunize conduct in the classroom. The same rule should apply here to the commons area.