Flax v. Kansas Turnpike Authority , 226 Kan. 1 ( 1979 )

The opinion of the court was delivered by

Holmes, J.:

Once again the attack upon governmental immunity comes before this court. This time the application of K.S.A. 46-901 to highway defects upon the Kansas turnpike is in question.

Plaintiff filed an action in the district court against the Kansas turnpike authority (KTA) for the wrongful death of her husband and three children as a result of a one car collision on the Kansas turnpike. Plaintiff was driving the family automobile southbound west of the Cassoday exit when her automobile left the road and struck a guardrail. Her husband and three of their children who were passengers were killed. Plaintiff alleged certain defects in the turnpike roadway were the proximate cause of the collision and also alleged the breach of an express warranty that the turnpike met all the federal standards for an interstate highway. The allegation of a breach of warranty was based upon the designation of that portion of the turnpike as being a section of “Interstate 35.”

The trial court sustained a motion, pursuant to K.S.A. 60-212(h)(6), by the KTA to dismiss the action. The trial court ruled that K.S.A. 46-901 granted immunity to the KTA and further ruled as a matter of law that the claimed express warranty could not be established. This appeal followed.

K.S.A. 46-901 provides:

“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:

(1) The state of Kansas; and

(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and

(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.

(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.

(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”

At the outset we should consider one of appellee’s arguments. Appellee contends, and the trial court held, that the issues in this case have been determined adversely to plaintiff’s position and are controlled by Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970). In Woods the plaintiff brought an action for personal injury resulting from an automobile accident allegedly caused by a nuisance created by the KTA. The Woods accident occurred July 20, 1968, at a time when judicially established governmental immunity existed. In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), we abolished, effective August 30, 1969, the previously existing governmental immunity as applied to proprietary functions. The legislature, at its next session, reacted to Carroll by passing K.S.A. 46-901 and 902 effective March 26, 1970. (L. 1970, ch. 200, Sec. 1 and 2.) The decision in Woods was filed July 17, 1970. The court quoted K.S.A. 46-901 and then stated:

“By this enactment the legislature, in its wisdom, has expressed the public policy of this state in the field of governmental immunity pertaining to the state and its various agencies. The legislature in clear and unambiguous language has declared the Kansas turnpike authority immune from liability on implied contract or for negligence or any other tort, which would include nuisance, except as provided by statute. The law as it now stands remains in harmony with our earlier turnpike cases, namely, that the authority is immune from tort liability except to the extent such immunity is waived by statute. (K.S.A. 68-2015.)

“Certainty and stability in the law are always desirable and in the long run best serve the bench, the bar and the citizens of the state. Now that the legislature has spoken in a comprehensive manner on the subject of immunity for the state and its agencies - something lacking at the time of Carroll - we believe sound judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. We therefore decline to engraft solely for plaintiff’s benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll.” pp. 773-774.

While it has been argued that Woods stands for the proposition that the KTA is immune from suit by reason of the statute, it is clear from the time sequence involved that the reference to the statute was dictum and not controlling of the actual decision. The decision of the court was that the nuisance exception would not be engrafted upon the judicially imposed immunity which existed prior to Carroll. The reference to the new statute by the court was in support of its determination not to recognize the nuisance exception to the doctrine.

In Medford v. Board of Trustees of Park College, 162 Kan. 169, 175 P.2d 95 (1946), this court stated:

“Dictum often develops in opinions from comments upon arguments advanced by counsel for the respective parties. Dicta and obiter dicta which go beyond the case may be respectedbut should not control a judgment in a subsequent case when the precise point is presented, argued and considered by the entire court. . . . Nobody is bound by dictum . . . ‘not even . . . the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.’ (Putnam v. City of Salina, 137 Kan. 731, at 733, 22 P.2d 957).” p. 173.

The opinion in Woods reflected the court’s thoughts on the effect of the new statute but the application of the statute was not an issue in the case and as the statements were dictum they were not determinative of the issues in Woods and, being dictum, are not determinative of the issue before us.

Appellant initially argues that as the term “authority”is not included in the statute, the immunity established does not apply to the KTA. She argues further that if the KTA is included within 46-901, then the statute creates an unconstitutional classification resulting in invidious discrimination in violation of the equal protection clauses of both the federal and Kansas constitutions.

In support of her first argument, appellant points out that K.S.A. 46-902, enacted as a part of the same bill as 46-901, specifically includes “authorities” in the statute which provides that the immunity granted in 46-901 will not apply to local units of government. The statute as originally enacted provided:

“46-902. Nonapplication to local units of government, (a) Nothing in Section 1 [46-901] of this act shall apply to or change the liabilities of local units of government, including (but not limited to) counties, cities, school districts, community junior colleges, library districts, hospital districts, cemetery districts, fire districts, townships, water districts, irrigation districts, drainage districts and sewer districts, and boards, commissions, committees, authorities, departments and agencies of local units of government.” (1970.)

Appellant further points out that the same legislature enacted K.S.A. 74-4714 dealing with liability insurance wherein “state” was defined as:

“[A]ny agency, board, commission, institution, bureau, authority or department of the state of Kansas.”

The classifications in 74-4714 are the same as those in 46-901(a)(2) except the word “authority” is specifically includéd. Appellant argues that the 1970 legislature was obviously concerned with the use of the word “authority” when referring to an arm of the state and consequently the exclusion of the term from 46-901 shows an intent that the KTA was not included in the statute.

This court has consistently held that the Kansas turnpike authority is an arm or agency of the state, created by the legislature to perform an essential governmental function. Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970); Miller v. Kansas Turnpike Authority, 193 Kan. 18, 392 P.2d 89 (1964); Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, 331 P.2d 323 (1958); Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172 (1957); Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P.2d 849 (1957); State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P.2d 198 (1954). This determination of status is wholly in harmony with K.S.A. 1978 Supp. 68-2003, wherein the authority is designated as follows:

“There is hereby created a body politic and corporate to be known as the ‘Kansas turnpike authority.’ The authority is hereby constituted a public instrumentality and the exercise by the authority of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be the performance of an essential governmental function.”

Although “authorities” are not specifically included in 46-901, subsections (2) and (3) of section (a) are sufficiently broad to include the Kansas turnpike authority. Appellant’s first point is without merit.

Appellant’s second argument is that the application of 46-901 to highway defects upon the turnpike creates an unconstitutional classification violative of the equal protection clauses of the federal and state constitutions. It would serve no useful purpose to again review the history of governmental immunity in Kansas. For those who may be interested, Brown v. Wichita State University (Brown I), 217 Kan. 279, 540 P.2d 66 (1975), and Brown v. Wichita State University (Brown II), 219 Kan. 2, 547 P.2d 1015 (1976), provide excellent dissertations upon the doctrine, its history and the constitutional questions involved.

When statutes are challenged as unconstitutional, certain principles guide this court’s consideration.

“Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State, ex rel., v. Fadely, 180 Kan. 652, 658, 659, 308 P.2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506; and 16 Am. Jur. 2d, Constitutional Law, § 175, pp. 399-401.)” Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975).

With these principles in mind, we must first determine whether a statute apparently valid upon its face may be unconstitutional and invalid as to a specific set of facts, circumstances or classifications.

“It is well settled that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 289, 42 S.Ct. 106, 66 L.Ed. 239; Kansas City Southern R. Co. v. Anderson, 233 U.S. 325, 34 S.Ct. 599, 58 L.Ed. 983.” Mintz v. Baldwin, 2 F. Supp. 700, 705 (N.D.N.Y. 1933).

The determination of whether the broad general language of 46-901 is valid when applied to defects in the turnpike requires an examination of the overall legislative and judicial action pertaining to highway defects. Any motorist traveling on any state highway (K.S.A. 1978 Supp. 68-419), county or township road (K.S.A. 68-301), or city street (Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 [1966]) has recourse for property damage, personal injury or death sustained by reason of the failure of the state, county, township or city to properly maintain the highways, roads and streets. Yet it is contended by the appellee that the motorist who elects to travel the most modern super highway in Kansas, and pays a fee for the privilege, has no such right or protection due to the broad general language in K.S.A. 46-901. If the plaintiff Jeanette Flax had been driving on any other public thoroughfare in the State she would not be denied the right to pursue her cause of action and she cannot constitutionally be deprived of that right while traveling on the turnpike.

In Carroll v. Kittle, 203 Kan. 841, this court found there was no rational basis for governmental immunity when the governmental body was engaged in a proprietary function and judicially wiped it from the books. In Carroll plaintiff brought an action against the members of the Board of Regents of the State of Kansas and others for personal injuries sustained by plaintiff, a private paying patient, while hospitalized at the University of Kansas Medical Center. The trial court sustained a motion to dismiss on the basis of governmental immunity. In reversing the trial court and abolishing the doctrine of governmental immunity when proprietary functions were involved, this court stated:

“It is difficult for the majority of the court to see why one governmental agency performing precisely the same acts - e.g., operating a hospital for profit - should be liable for negligence and others should not.” p. 847.

K.S.A. 46-901 and 902 comprise the legislative response to Carroll and reestablished governmental immunity for the State of Kansas and its various agencies, etc., for all activities, both governmental and proprietary, while maintaining liability for local units of government. Exceptions to the broad grant of immunity granted the State in 46-901 are found in other legislation.

In the present case, the inconsistency in the application of the doctrine, as now established by legislative action rather than judicial flat, reaches the ultimate in its discrimination against one small segment of the motoring public. Let us assume Jeanette Flax had entered Kansas coming from Denver, Colorado, on Interstate 70 with a destination of Kansas City. She, and her family, would have been protected from highway defects for over three-fourths of her journey in Kansas. Suddenly, by passing through Topeka and the turnpike tollgate, she loses her protection for the remaining few miles of her journey without ever leaving the same highway. Damage caused by a highway defect five miles west of Topeka would be compensable while the same damage on the same highway from a similar defect five miles east of Topeka would not.

To paraphrase Carroll: It is difficult to see why the state, counties, townships and cities performing precisely the same acts - e.g., the maintenance of a public thoroughfare - should be liable for defective roadways and the Kansas turnpike authority should not.

Legislation adopted by the legislature indicates an intent that the motorists of Kansas shall have recourse for highway defects and the attempt to bring one small segment of the motoring public within the general immunity language of 46-901 constitutes the rankest discrimination. Further indications that the legislature intends that the turnpike motorist should be treated the same as others is borne out by the adoption in 1975 of 75-5012, which attached the Kansas turnpike authority to the department of transportation as a part thereof. K.S.A. 46-901, which appellee contends would deny recovery to the turnpike motorists cannot be constitutionally valid as to that group in view of the other legislation which specifically grants a right of recovery to all other motorists. An attempt to put the turnpike motorist in a class separate and apart from all other motorists will not pass constitutional muster.

As early as 1885, the Supreme Court, in a tax case, stated:

“And it is no objection to the remedy in such cases, that the statute whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right; for the cases are numerous, where the tax laws of a State, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the Constitution of the United States.” Poindexter v. Greenhow, 114 U.S. 270, 295, 29 L.Ed. 185, 5 S.Ct. 903 (1885).

Harvey v. Clyde Park Dist., 32 Ill. 2d 60, 203 N.E.2d 573 (1964), involved an action on behalf of a minor for injuries alleged to have been caused by the negligence of the defendant park district in maintaining a children’s slide. The State of Illinois had adopted numerous statutes establishing governmental immunities and creating exceptions to them. In discussing discrimination, which might occur by reason of a series of statutes on the same general subject, the court stated:

“The circumstance that the alleged arbitrary discrimination results from a statutory pattern rather than from a single statute has not barred consideration of claims of violation of the equal protection clause of the 14th amendment to the Constitution of the United States, (Gregg Dyeing Co. v. Query, 286 U.S. 472, [52 S.Ct. 631], 76 L.Ed. 1232; cf. McGowan v. Maryland, 366 U.S. 420, 423-428, [81 S.Ct. 1101], 6 L.Ed.2d 393; Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 586-588, [81 S.Ct. 1135], 6 L.Ed.2d 551; Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 618-624, [81 S.Ct. 1122], 6 L.Ed.2d 536,) and we see no reason why that circumstance should bar the plaintiff’s claim of discrimination in this case.” pp. 64-65.

The defendant relied upon a statute which granted park districts immunity for negligence although other governmental units operating the same type facilities had limited liability or no immunity at all. After reviewing various statutes granting various degrees of immunity in different situations the court stated:

“So far as the present case is concerned, cities and villages, park districts, school districts and forest preserve districts, as well as the State itself, all maintain recreational facilities that are available for public use. If the child involved in the present case had been injured on a slide negligently maintained in a park operated by a city or village there is no legislative impediment to full recovery. If the child had been injured on a slide negligently maintained by a school district, or by the sovereign State, limited recovery is permitted. But if the child had been injured on a slide negligently maintained by a forest preserve district, or, as was actually the case, by a park district, the legislature has barred recovery. In this pattern there is no discernible relationship to the realities of life. We hold, therefore, that the statute relied upon by the defendant is arbitrary, and unconstitutionally discriminates against the plaintiff.” pp. 66-67.

The court held that by reason of the pattern established by the series of statutes, the one granting the state park districts immunity was unconstitutional.

In State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff’d 196 U.S. 447, 49 L.Ed. 546, 25 S.Ct. 289 (1905), this court recognized the proposition that general language, valid upon its face, may be construed to exclude certain subjects or classes of things in order that the entire statute will not be held unconstitutional:

“Throughout the entire history of English and American law the courts have been ruling that the general words of statutes were to be restrained in import and application whenever the taking of them in literal sense would lead to absurd or hurtful consequences, and the same is true under the American system of written constitutions, whenever the taking of general words in their full signification would expose them to conflict with the organic law.” p. 249.

We have no hesitancy in finding that a statute, apparently valid upon its face, may be unconstitutional as to a particular set of facts, circumstances or classifications.

Appellee, contending claims for turnpike defects are barred by 46-901, quotes from Brown II three tests or interests which were held to support the legislative classification established by the statutes. They were (1) the necessity to protect the state treasury, (2) allowing government to function without the threat of time and energy consuming legal actions, and (3) protection from high-risk activities.

K.S.A. 68-2001 et seq., as amended, are the statutes which control the Kansas turnpike authority and the construction and maintenance of toll roads within the state. The act contemplates financing by the issuance of revenue bonds and that the maintenance of the turnpike and the retirement of bonds shall be paid solely from revenue generated by the tolls collected from the public for the use of the roadway and not from state funds.

K.S.A. 68-2008 provides in part:

“Revenue bonds issued under the provisions of this act shall not be deemed to constitute a debt of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any such political subdivision thereof, but all such bonds shall be payable solely from the funds herein provided therefor from revenues.”

K.S.A. 1978 Supp. 68-2009 provides for the establishment of tolls for the use of the turnpikes and states in part:

“Such tolls shall be so fixed and adjusted in respect of the aggregate of tolls from the turnpike project or projects in connection with which the bonds of any issue shall have been issued as to provide a fund sufficient with other revenues, if any, to pay (a) the cost of maintaining, repairing and operating such turnpike project or projects and (b) the principal of and the interest on such bonds as the same shall become due and payable, and to create reserves for such purposes.

“Such tolls shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the state.”

Thus, it would appear that protecting the interest of the state treasury is not a valid argument in support of granting immunity to the Kansas turnpike authority, which functions free and clear of any obligation to, or receipt of funds from, the state treasury.

To say that the authority must be cloaked with immunity for defective highways because of time and energy consuming legal actions and as a protection from high-risk activities, when the state and every county, township and city are deemed capable of carrying such burdens, is not persuasive of any great need to single out the Kansas turnpike authority for special treatment and protection.

The ultimate effect of our series of statutes is to create a small class of motorists who are subjected to discrimination for no other reason than they happened to take the turnpike and as a result, are deprived of a remedy granted the motorist on every other road in Kansas. While a majority of the present members of this court would continue, in most situations, to uphold the constitutionality of K.S.A. 46-901, based upon Brown II and subsequent cases, it is obvious that the statute cannot be constitutional as applied to turnpike defects. (It might be said in passing that the current session of the Legislature has also recognized the inequities created by governmental immunity, and has seen fit to repeal 46-901 and 902 through the enactment of a tort claims act.) Such a classification is unconstitutionally discriminatory and therefore we hold K.S.A. 46-901 is constitutionally invalid to the extent that it attempts to grant the KTA immunity for damage suffered by any person who shall sustain damage by reason of any defect in the Kansas turnpike, including but not limited to the traffic lanes, acceleration lanes, deceleration lanes, structures, bridges, shoulders, medial strips, and access ramps located within the right-of-way of the Kansas turnpike authority.

While the foregoing would be sufficient to dispose of the other issues on appeal, as the case must be remanded for further proceedings, we deem it appropriate to consider two other matters.

Appellant, as one of her points, argues that the erection and maintenance of “Interstate” highway markers constituted an express warranty that the turnpike conformed to the standards of a federal interstate highway. We conclude that the trial court was correct in its holding as a matter of law that there is no such express warranty to patrons using the turnpike. Naaf v. Griffitts, 201 Kan. 64, 439 P.2d 83 (1968); Adrian v. Elmer, 178 Kan. 242, 284 P.2d 599 (1955); Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P.2d 964 (1950).

In K.S.A. 1978 Supp. 68-419, allowing recovery from the state for highway defects, the legislature has set forth a detailed procedure to be followed in presenting a claim against the state through the department of transportation. Unfortunately, no such procedure has been established for claims against the KTA and it is not the function of this court to establish such a procedure. Having determined that K.S.A. 46-901 is unconstitutional when applied to the KTA in a turnpike defect case, plaintiff is free to pursue her action as in any other civil case.

The judgment of the trial court is reversed and the case remanded for further proceedings in conformance with the views set. forth above.