concurring and dissenting: I agree with the majority’s determination that an injury occurring to a student in a school gymnasium during a required physical education class is within the purview of K.S.A. 75-6104(o), which provides a governmental entity with immunity for 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 injuiy.
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.
In a case in which the defendant is immune from ordinary negligence under K.S.A. 75-6104(o), a governmental entity has no duty and is not liable for a breach of duty unless the plaintiff alleges gross and wanton negligence. Under K.S.A. 75-6104(o), if a school gymnasium is used for recess, extracurricular events, or other recreational, noncompulsory activities, K.S.A. 75-6104(o) applies, provided that the recreational use was more than incidental.
For support of this determination the majority cites several Illinois cases. In Hanover insurance Co. v. Bd. of Education, 240 Ill. App. 3d 173, 608 N.E.2d 183 (1992), the plaintiff was injured while performing masonry work while on an elementary school playground. The plaintiff argued that the recreational use exception to liability should not apply as he was not engaged in a recreational *334activity when he was injured. The Illinois Court of Appeals disagreed and held that the plaintiff s specific use of the property at the time of the injury is not a factor. The court noted that the plain wording of the statute only requires that the property be intended for recreational use, not that the injury occur as the result of a recreational activity.
In Lewis v. Jasper Co. Comm. Unit Sch. Dist., 258 Ill. App. 3d 419, 629 N.E.2d 1227 (1994), the plaintiff was injured when he fell against a pumphouse which was located on the playground of a school. The plaintiff argued that the school district was not immune from liability because he was not engaged in a recreational activity at the time of the accident. The court held that the playground was intended to be used as a recreational facility and, therefore, the school district was immune pursuant to the Illinois Tort Claims Act.
See also Sylvester v. Chicago Park District, 179 Ill. 2d 500, 689 N.E.2d 1119 (1997) (noting that application of the recreational use exception to the Illinois Tort Claims Act does not depend on the plaintiff s activities at the time of the injury); Wallace v. Metropolitan Pier and Expo. Auth., 302 Ill. App. 3d 573, 707 N.E.2d 140 (1998) (noting that a determination of immunity should be decided on a case-by-case basis and that the court should consider the character of the property and not how it was being used at the time of the accident); Batson v. Pinckneyville Elem. Sch. Dist., 294 Ill. App. 3d 832, 690 N.E.2d 1077 (1998) (noting that the court should consider whether recreational activities have taken place at the property in the past and not consider what type of activity the plaintiff was engaged in at the time of the accident); and Dinelli v. County of Lake, 294 Ill. App. 3d 876, 691 N.E.2d 394 (1998) (noting that immunity under the recreational use exception is not solely dependent on what activity the plaintiff is engaged in at the time of the injury).
After referring to three Illinois cases for support of this determination, the majority states that the issue is whether the property was intended or permitted to be used for recreational purposes. If so, the defendant is immune from liability for plaintiff s injuries.
*335The majority then observes that Illinois, like Kansas, has several applicable general principles of law. It states that the purpose of the immunity statute is to encourage the development and maintenance of parks, playgrounds, and other recreational areas. It concludes that the type of activity performed on the property when the injury occurs is not significant. Immunity depends on the character of the property in question, i.e., whether the property was “intended or permitted to be used for recreational purposes” Bubb v. Springfield School District, 167 Ill. 2d 372, 379, 657 N.E.2d 887 (1995). That determination is made by considering whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.
I disagree with the majority’s-determination that immunity under K.S.A. 75- 6104(o) depends solely on the character of the property in question and not on the activity performed at any given time and the majority’s conclusion that tire plain wording of K.S.A. 75-6104(o) requires only that the property be intended or permitted to be used for recreational purposes, not that the injury occur as the result of a recreational activity.
Under the majority’s reasoning, the Kansas Legislature intended that an electrician injured in a school gymnasium during repair of faulty wiring and an electrician injured during repair work in a classroom would subject the school to separate theories of liability. When repairing faulty wiring in an empty gym, the majority would apply the immunity stated in K.S.A. 75-6104(o). While repairing faulty wiring in an empty classroom, K.S.A. 75-6104(o) would not apply. Like the hypothetical electrician, individuals attending graduations, school plays, and pancake suppers held in the school gymnasium would be subject to the recreational activity exception of K.S.A. 75-6104(o).
I believe that the immunity under K.S.A. 75-6104(o) depends upon the character of the property and the activity performed at the given time.
Allegrucci, J., joins in the foregoing concurring and dissenting opinion.