Zaragoza v. Board of Johnson County Comm'rs

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 126,732

BRENDA ZARAGOZA,

Appellant,

v.

BOARD OF JOHNSON COUNTY COMMISSIONERS,

Appellee.

SYLLABUS BY THE COURT

1.

The Supreme Court will not consider issues not raised before the Court of Appeals

or issues not presented or fairly included in the petition for review. Rule 8.03(b)(6)(C)(i)

(2025 Kan. S. Ct. R. at 56). While the court has sometimes considered issues newly

raised on direct appeal, there is no exception to this rule for an issue first raised in

supplemental briefing after a petition for review has been granted.

2.

The Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., statutorily waives

government immunity and permits individuals to bring tort liability claims against all

state and local governmental entities, subject to stated exceptions. The governmental

entity has the burden to prove it falls within one of the KTCA's stated exceptions.

3.

Under the recreational use exception to liability provided in K.S.A. 75-6104(o),

now codified at K.S.A. 2024 Supp. 75-6104(a)(15), governmental entities are given

immunity and shall not be liable for damages resulting from any claim for injuries

resulting from the use of any public property intended or permitted to be used as a park,

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playground, or open area for recreational purposes, unless the governmental entity is

guilty of gross and wanton negligence proximately causing such injury.

4.

The recreational use exception to liability in K.S.A. 75-6104 granting immunity to

a governmental entity for the use of any public property intended or permitted to be used

as an open area for recreational purposes includes recreation that refreshes the body or

mind in any form of play, amusement, or relaxation and applies to both outdoor and

indoor public property.

5.

The recreational use exception to liability in K.S.A. 75-6104 granting immunity to

a governmental entity for the use of any public property intended or permitted to be used

as an open area for recreational purposes includes both the qualifying property and areas

that are integral to the functioning of the qualifying property.

6.

To establish gross and wanton negligence, a plaintiff must show realization of

imminent danger and reckless disregard or complete indifference and unconcern for the

probable consequences. Although the presence or absence of negligence in any degree is

generally a question of fact for the jury, courts may decide the issue as a matter of law

where no reasonable person could reach a different legal conclusion based on the

available evidence.

Review of the judgment of the Court of Appeals in 64 Kan. App. 2d 358, 551 P.3d 175 (2024).

Appeal from Johnson District Court; RHONDA K. MASON, judge. Oral argument held January 22, 2025.

Opinion filed June 27, 2025. Judgment of the Court of Appeals affirming the district court is affirmed.

Judgment of the district court is affirmed.

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Richard W. Morefield Jr., of Morefield Speicher Bachman, LC, of Overland Park, argued the

cause and was on the briefs for appellant.

Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Overland Park, argued the

cause and was on the briefs for appellee.

Jakob J. Provo, of Prochaska, Howell & Prochaska, LLC, of Wichita, and James R. Howell, of

the same firm, were on the brief for amicus curiae Kansas Trial Lawyers Association.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, LLC, of Wichita, and John W. Ralston, of

the same firm, were on the brief for amicus curiae Kansas Association of Defense Counsel.

Johnathan Goodyear, general counsel, was on the brief for amicus curiae League of Kansas

Municipalities.

The opinion of the court was delivered by

STANDRIDGE, J.: Brenda Zaragoza fell in the parking lot of a Johnson County

public library when she stepped off a curb next to a storm drain onto the sloped pavement

below. As a result of the fall, Zaragoza fractured her knee, ankle, and heel, requiring

hospitalization, surgery, and rehabilitation. She filed a negligence claim against the

Johnson County Board of Commissioners ("County"), alleging it failed to mitigate the

presence of the storm drain and warn of the change in elevation between the curb and the

parking surface. The district court granted summary judgment for the County based on

recreational use immunity under the Kansas Tort Claims Act (KTCA), which bars

negligence claims that arise from the use of public property intended or permitted to be

used for recreational purposes, unless gross and wanton negligence was involved. The

court also denied Zaragoza's motion to amend her petition to add a claim of gross and

wanton negligence.

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A Court of Appeals panel affirmed the district court. The panel held summary

judgment was proper based on the library's recreational use immunity and that the district

court did not abuse its discretion in denying Zaragoza's untimely motion to amend her

petition.

Zaragoza petitioned for review on both issues. After we granted her petition,

Zaragoza filed a supplemental brief raising a constitutional argument not presented in her

petition for review or before the lower courts. For the reasons below, we decline to

consider Zaragoza's unpreserved constitutional challenge. We uphold the panel's decision

affirming the district court's grant of summary judgment based on the library's

recreational use immunity. We also uphold the panel's decision affirming the district

court's denial of Zaragoza's untimely motion to amend her petition to add a claim of gross

and wanton negligence.

FACTUAL AND PROCEDURAL BACKGROUND

Zaragoza, a 64-year-old Johnson County resident, frequently visited the

Monticello Branch of the Johnson County public library. On the morning of July 18,

2020, she visited the library to check out some books and videos. After leaving the

building with materials in hand, she walked along a paved sidewalk towards the parking

lot where she was parked. As she approached the curb, she stepped off the sidewalk into

an adjacent mulch bed. When Zaragoza stepped from the mulch bed down onto the

parking surface, her foot landed on a downward slope leading towards a storm drain,

causing her to lose her balance and fall to the ground. As a result of the fall, Zaragoza

fractured her knee, ankle, and heel, which required hospitalization, surgery,

rehabilitation, and additional home healthcare services.

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Zaragoza sued the County, alleging ordinary negligence. She claimed the County's

"failure and/or refusal to remedy the dangerous condition it created, and its failure to

provide patrons with any notice, warning, barrier or barricade of the dangerous condition,

constituted a breach of [the County's] duty of reasonable care owed to patrons" of the

library. She also claimed the County had specific knowledge of this alleged dangerous

condition. In response, the County raised several defenses, including a claim that

Zaragoza's suit was barred by exceptions from liability under the KTCA. See K.S.A. 75-

6104 (listing general and specific exceptions from liability).

After the close of discovery, the County moved for summary judgment arguing, in

part, that Zaragoza's ordinary negligence claim was barred by the KTCA's recreational

use immunity exception under K.S.A. 75-6104(o), and that she had not pled, nor could

she prove, gross and wanton negligence to overcome this defense. In response, Zaragoza

argued recreational use immunity does not apply to a public library because its function is

primarily educational, not recreational. Zaragoza further argued the library's parking lot

was not "integral" to any recreational use on the day of her injury, which meant the

immunity provision did not apply. Finally, Zaragoza claimed she sufficiently pled gross

and wanton negligence in her original petition—despite not using those exact words—by

alleging the County knew of the dangerous condition but failed to mitigate it.

After considering written and oral arguments from the parties, the district court

granted summary judgment for the County. Specifically, the court held the County was

entitled to recreational use immunity for ordinary negligence that extended to the library's

parking lot where Zaragoza fell. The court also denied Zaragoza's motion to amend as

futile and untimely because Zaragoza had failed to plead and could provide no facts to

support a claim for gross and wanton negligence. On review, a Court of Appeals panel

affirmed the district court's decision. Zaragoza v. Board of Johnson County Comm'rs, 64

Kan. App. 2d 358, 380, 382, 551 P.3d 175 (2024).

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Zaragoza petitioned for review, asking this court to reverse the Court of Appeals'

decision affirming the district court's grant of summary judgment and denial of her

motion to amend. The Kansas Trial Lawyers Association filed a brief as amicus curiae

supporting Zaragoza. The Kansas Association of Defense Counsel and the League of

Kansas Municipalities filed briefs as amici curiae supporting the County.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for review of Court of

Appeals' decisions); K.S.A. 60-2101(b) (Supreme Court can correct, modify, vacate, or

reverse Court of Appeals' decisions).

ANALYSIS

Zaragoza raised three arguments in her petition for review. After this court granted

review of those issues, Zaragoza filed a supplemental brief that raised a constitutional

argument not presented in her petition for review or before the lower courts. We combine

her arguments into the following issues: (1) whether the recreational use immunity

provision of the KTCA violates the Kansas Constitution, (2) whether the Court of

Appeals erred by affirming the district court's grant of summary judgment based on

application of recreational use immunity to a public library parking lot, and (3) whether

the Court of Appeals erred by affirming the district court's refusal to allow Zaragoza to

amend her petition to plead gross and wanton negligence.

I. Constitutional challenge

After this court granted Zaragoza's petition for review, she raised a new argument

in her supplemental brief: that the KTCA's recreational use immunity provision violates

sections 5 (jury trial) and 18 (right to a remedy) of the Kansas Constitution Bill of Rights.

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She contends the statute unconstitutionally abrogates a common-law negligence claim

against a government entity. The County responds that the issue is unpreserved and, even

if it were not, sections 5 and 18 are not implicated because government entities were

immune from private suits at common law when the Constitution was adopted. The

County also argues the statute survives section 18's quid pro quo test. Three amici address

Zaragoza's constitutional claim to varying degrees.

Zaragoza concedes her argument is unpreserved but asks this court to apply one of

the prudential exceptions allowing the court to consider constitutional issues raised for

the first time on appeal. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015)

("Despite the general rule, appellate courts may consider constitutional issues raised for

the first time on appeal if the issue falls within one of three recognized exceptions: (1)

The newly asserted claim involves only a question of law arising on proved or admitted

facts and is determinative of the case; (2) consideration of the claim is necessary to serve

the ends of justice or to prevent the denial of fundamental rights; or (3) the district court

is right for the wrong reason."). But that exception applies to direct appeals—not to

issues raised for the first time in supplemental briefing after review is granted.

Zaragoza did not raise the constitutional challenge in the district court, on direct

appeal, or in her petition for review. Under Kansas Supreme Court Rule 8.03(b)(6)(C)(i)

(2025 Kan. S. Ct. R. at 56), this court "will not consider issues not raised before the Court

of Appeals or issues not presented or fairly included in the petition for review." See State

v. Ward, 292 Kan. 541, 580, 256 P.3d 801 (2011). While the court has sometimes

considered issues newly raised on direct appeal, see State v. Robison, 314 Kan. 245, 247-

48, 496 P.3d 892 (2021), no case supports applying an exception to Rule 8.03(b)(6)(C)(i)

for an issue first raised in supplemental briefing after review is granted—and Zaragoza

cites none. Indeed, the court has consistently declined to consider unpreserved

constitutional challenges not raised in the courts below or the petition for review. See,

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e.g., State v. Huggins, 319 Kan. 358, 362, 554 P.3d 661 (2024); State v. Slusser, 317 Kan.

174, 184, 527 P.3d 565 (2023); In re P.R., 312 Kan. 767, 785, 480 P.3d 778 (2021).

We acknowledge that exceptions exist under Rule 8.03(b)(6)(C)(i) for "plain error"

or ambiguous preservation. See State, ex rel. Secretary, DCF v. M.R.B., 313 Kan. 855,

864, 491 P.3d 652 (2021); In re M.F., 312 Kan. 322, 333-35, 475 P.3d 642 (2020); State v.

Williams, 311 Kan. 88, 93-94, 456 P.3d 540 (2020). But Zaragoza's claim fits neither of

these exceptions. Accordingly, and consistent with established precedent, we decline to

consider Zaragoza's constitutional challenge.

II. Recreational use immunity

Zaragoza challenges the district court's decision to grant summary judgment for

the County based on the recreational use immunity exception under the KTCA. The

standard governing appellate review of a district court grant of summary judgment is well

known:

"'Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law. The trial court is required to resolve all facts and inferences which may

reasonably be drawn from the evidence in favor of the party against whom the ruling is

sought. When opposing a motion for summary judgment, an adverse party must come

forward with evidence to establish a dispute as to a material fact. In order to preclude

summary judgment, the facts subject to the dispute must be material to the conclusive

issues in the case.' [Citations omitted.]" Fairfax Portfolio LLC v. Carojoto LLC, 312 Kan.

92, 94-95, 472 P.3d 53 (2020).

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In support of her challenge, Zaragoza invokes principles of statutory interpretation

to argue that application of recreational use immunity to a public library and its parking

lot conflicts with the plain language of K.S.A. 75-6104(o). First, she claims the immunity

exception does not apply to the parking lot because the library itself does not meet the

plain language of the statutory requirements for a qualifying property. Specifically, she

claims the library's core services are educational, not recreational, and the library is an

enclosed, rather than open, space. Second, she claims that even if the library itself is a

qualifying property, the immunity exception does not apply to the parking lot because

granting immunity to areas "integral" to the function of a qualifying property

unreasonably expands the scope of the exception beyond the plain language of the statute.

To resolve Zaragoza's claims, we begin our analysis with a general overview of the

structure of the KTCA and the recreational use immunity exception under K.S.A. 75-

6104(o). Next, we address each of Zaragoza's statutory interpretation arguments, which

claim application of the recreational use immunity to a public library and its parking lot

conflicts with the plain language of K.S.A. 75-6104(o).

A. General overview of the KTCA and recreational use immunity

The state and its political subdivisions (including counties) had blanket immunity

from civil actions at early Kansas common law. See Brown v. Wichita State University,

219 Kan. 2, Syl. ¶ 4, 10, 547 P.2d 1015 (1976). But in 1979, the Legislature enacted the

KTCA, which statutorily waives government immunity and permits individuals to bring

tort claims against all state and local governmental entities, subject to the limitations of

the act. See K.S.A. 75-6103(a) ("[E]ach 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

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entity, if a private person, would be liable under the laws of this state."). The County is a

governmental entity under the KTCA. K.S.A. 75-6102(b), (c).

Although generally imposing tort liability on governmental entities, the KTCA

includes over 20 enumerated exceptions that limit when a government can be sued. And,

at the end of the statute, the Legislature included a catchall phrase stating the enumerated

exceptions are not exclusive. See K.S.A. 75-6104. To avoid liability, a governmental

entity has the burden to prove it falls within one of the KTCA's immunity exceptions.

Keiswetter v. State, 304 Kan. 362, Syl. ¶ 3, 366, 373 P.3d 803 (2016).

One of the exceptions to liability is "recreational use immunity" which bars

ordinary negligence claims for injuries on public property intended or permitted to be

used as a park, playground, or open area for recreational purposes. See K.S.A. 75-

6104(o) (now codified at K.S.A. 2024 Supp. 75-6104[a][15]). The County's basis for

claiming statutory immunity here is that the Monticello Branch of the public library is

used for recreational purposes and the adjacent parking lot is integral to its function. In

response, Zaragoza contends granting recreational use immunity to a public library and

its parking lot improperly expands the scope of the exception beyond the plain language

of the statute.

B. Statutory interpretation

Zaragoza's claims involve statutory interpretation, which is a question of law over

which we exercise unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432

P.3d 647 (2019). Because the plain language of the statute is the best indicator of

legislative intent, we begin by considering the language of K.S.A. 75-6104(o), giving

common words their ordinary meaning while accounting for both the specific context in

which the language appears and the broader statutory framework. Montgomery v. Saleh,

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311 Kan. 649, 654-55, 466 P.3d 902 (2020). When a statute is plain and unambiguous, an

appellate court should not speculate about the legislative intent behind that clear

language, and it should refrain from reading something into the statute that is not readily

found in its words. Schmidt v. Trademark, Inc., 315 Kan. 196, 200, 506 P.3d 267 (2022).

When there is no ambiguity, appellate courts need not resort to statutory construction.

Only if the statute's language or text is unclear or ambiguous does the court use canons of

construction or legislative history to construe the Legislature's intent. Chalmers v.

Burrough, 314 Kan. 1, 8, 494 P.3d 128 (2021).

K.S.A. 75-6104(o) states:

"A governmental entity or an employee acting within the scope of the employee's

employment shall not be liable for damages resulting from . . . 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."

Thus, to qualify for immunity, a property must be public and intended or permitted

to be used as a park, playground, or open area for recreational purposes. Poston v. U.S.D.

No. 387, 286 Kan. 809, 813, 189 P.3d 517 (2008). Zaragoza concedes the library is public

property; thus, we move on to consider (1) whether the library is intended or permitted to

be used for recreational purposes; (2) whether the public library is an "open area" as that

term is used in the statute; and (3) whether granting recreational use immunity to

facilities or spaces that are deemed "integral" to the function of the qualifying property

conflicts with the plain language of K.S.A. 75-6104(o).

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1. Intended or permitted to be used for recreational purposes

We begin with the statutory criteria "recreational purposes" since the other criteria

are best understood in reference to this term. The KTCA does not define the term

"recreational purposes" or its root word "recreation." Lacking a statutory definition,

dictionaries are good sources for determining the "'ordinary, contemporary, [and]

common' meanings of words." Midwest Crane & Rigging, LLC v. Kansas Corporation

Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017). Over 24 years ago, this court adopted

the dictionary definition of the word recreation:

"'[R]efreshment of the strength and spirits after toil: DIVERSION, PLAY.' Webster's

Third New International Dictionary 1899 (1986). Play 'suggests an opposition to work; it

implies activity, often strenuous, but emphasizes the absence of any aim other than

amusement, diversion, or enjoyment.' Webster's Third New International Dictionary 1737

(1986)." Jackson ex rel. Essien v. U.S.D 259, 268 Kan. 319, 330, 995 P.2d 844 (2000)

(quoting Ozuk v. River Grove Board of Education, 281 Ill. App. 3d 239, 243-44, 666

N.Ed.2d 687 [1996]).

Here, the panel proposed a similar, updated dictionary definition of the word

recreation meaning "'refreshment in body or mind, as after work, by some form of play,

amusement, or relaxation'" and "'any form of play, amusement, or relaxation used for this

purpose, as games, sports, or hobbies.'" Zaragoza, 64 Kan. App. 2d at 366 (quoting

Webster's New World College Dictionary 1215 [5th ed. 2018]).

a. Recreation is not limited to physical activity

Zaragoza takes issue with how Kansas courts have interpreted the term

"recreation" and proposes a narrower interpretation of the word to include only those

recreational activities that "involve physical activity or increased risk of injury." Zaragoza

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derives this proposed definition solely from Boaldin v. University of Kansas, 242 Kan.

288, 294, 747 P.2d 811 (1987), where, in referring to the recreational use immunity

exception at that time, the court observed that "[a]lmost every recreational activity has

risks of injury, and that is the reason for adopting a provision such as K.S.A. 75-6104(n)."

However, the Boaldin court's comment was made in a very different context from the one

presented here. There, the court held a governmental entity's awareness of the obvious,

inherent risk of injury from sledding on a college campus did not constitute gross and

wanton negligence. 242 Kan. at 294-95. In context, the comment reads as a

generalization about recreational activities—that they often carry risks of physical

injury—and a logical conclusion that the Legislature intended to protect governmental

entities in this very type of situation.

Thus, we reject the notion that the Boaldin comment imposes a narrow standard

for recreational use immunity that includes only "physical activities" which carry an

inherent "risk of injury" (like sledding and other sports) and would exclude other types of

activities that Kansas courts have since determined are also recreational. See, e.g.,

Poston, 286 Kan. at 819-20 (holding a public school's commons area served a

recreational purpose); Lane v. Atchison Heritage Conf. Center, Inc., 283 Kan. 439, 440-

42, 153 P.3d 541 (2007) (holding a city's conference center used for musical

performances served a recreational purpose); Tullis v. Pittsburg State University, 28 Kan.

App. 2d 347, 350-51, 16 P.3d 971 (2000) (holding a college indoor theater served a

recreational purpose). Although physically strenuous activities that carry an inherent risk

of injury, like sports, may be first to mind when thinking of "recreation," the plain

language of K.S.A. 75-6104(o) does not limit immunity to property intended or permitted

to be used only for physical activities or activities that carry an inherent risk of injury.

As noted, the dictionary definition of recreation this court has adopted

encompasses a broad range of activities aimed at "'amusement, diversion, or enjoyment.'"

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Jackson, 268 Kan. at 330. And modern dictionary definitions support this broad

definition. See American Heritage Online Dictionary (5th ed. 2022) (defining recreation

as: (1) "[p]hysical or mental activity pursued primarily for pleasure"; (2) "[a]n activity,

such as a game or hobby, that is pursued primarily for pleasure"); Oxford English Online

Dictionary (defining recreation as: "the action or fact of refreshing or entertaining

oneself through a pleasurable or interesting pastime, amusement, activity, etc.").

A public library's core services of allowing patrons to read and borrow books and

media fit within these common and ordinary meanings of recreation. In fact, a brief

internet search reveals the terms "recreational reading," a.k.a. "leisure reading," are in

common use and many articles, studies, and books have been published on the subject.

See, e.g., Block & Mangieri, Recreational Reading: 20 years later, The Reading Teacher,

572-80 (Mar. 2022); Levine, Cherrier, Holding & Koestner, For the Love of Reading:

Recreational Reading Reduces Psychological Distress in College Students and

Autonomous Motivation is the Key, J. Am. Coll. Health (Jan. 2022); Wilhelm & Smith,

The Power of Pleasure Reading: What We Can Learn from the Secret Reading Lives of

Teens, The English Journal, 105.6, 25-30 (2016); Moyer, Learning from Leisure

Reading: A Study of Adult Public Library Patrons, Reference & User Services Quarterly,

66-79 (2007); Morrow, Promoting Innercity Children's Recreational Reading, The

Reading Teacher, 266-74 (Dec. 1987).

Therefore, we decline Zaragoza's request to narrowly interpret the term

"recreational" in the statutory immunity exception to include only those recreational

activities that "involve physical activity or any increased risk of injury."

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b. Recreational purposes on or before the date of injury

In addition to the core recreational function of allowing patrons to read and

borrow books and other media, the record here shows that the Monticello branch of the

public library also offers a variety of other programming to the public which meets the

definition of "recreational," including:

"art installations and sculptures by local artists; a dedicated story room for children,

which is open to the public when not in use; an outdoor children's storywalk; and

community events such as toddler and family story times, tabletop gaming nights, book

clubs, events that allow children to read stories to therapy dogs, an after-hours mystery-

solving event for teens, and yoga for preschoolers." Zaragoza, 64 Kan. App. 2d at 368.

Zaragoza does not attempt to claim these activities are not recreational. Instead,

she argues there is no evidence that the library or its parking lot were being used or

intended to be used for recreational purposes on or before the date of her injury. But the

library branch manager's deposition testimony repudiates Zaragoza's argument. When

asked about the factual basis for the library's claim of recreational use immunity, the

branch manager responded:

"'A. So for that one, Johnson County Library provides programming such as we have

performers that come. We've had—we have tabletop programming. We have story times,

outdoor programming. We've had outdoor story times on the terrace, just various different

programming that we—that we have on site.

"'Q. Are you suggesting that Ms. Zaragoza was making a recreational use of the parking

lot when she was injured?

"'A. I'm not sure—I'm not sure if I'm suggesting that, but I'm just saying that that's what

we—we do have those things.

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"'Q. Okay. Do you have a factual basis for believing that Ms. Zaragoza was engaged in

recreation when she was walking from the library building to her car?

"'A. I'm not sure that I'm claiming that. I'm just kind of stating that's what we provide at

the library.

....

"'Q. Are you talking about inside the library building?

"'A. Inside the library building, and we have used—we have used the parking lot. Not the

parking—we have used the sidewalks to do like some various different programming,

such as when we did the opening of Monticello, we had a poem that we dedicated out

there, a time capsule out there on the sidewalks as well, and then with the extent of the

exterior, we have used the terrace to do story times.

"'Q. That wasn't going on on the date that Ms. Zaragoza was injured though, was it?

"'A. The activities outside were not going on.'" 64 Kan. App. 2d at 369.

Even so, Zaragoza contends the panel improperly inferred from this testimony that

the library offered these activities before or at the time of her injury; she claims such an

inference is improper because summary judgment standards required the panel to infer

that the library only began offering these programs after her injury. See Fairfax Portfolio

LLC, 312 Kan. at 94-95 (Courts are "'required to resolve all facts and inferences which

may reasonably be drawn from the evidence in favor of the party against whom the

[summary judgment] ruling is sought.'"). Yet Zaragoza offers no evidentiary support for

her claim that the library only began offering recreational programming after her injury.

See 312 Kan. at 94-95 (party opposing summary judgment "must come forward with

evidence to establish a dispute as to a material fact"); Geer v. Eby, 309 Kan. 182, 190,

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432 P.3d 1001 (2019) ("Mere speculation is . . . insufficient to avoid summary

judgment."). Thus, there is no material dispute on this issue to prevent summary

judgment.

As for Zaragoza's more general argument that recreational activity must be

happening at the precise time of an injury, we note the plain language of the statute places

no such temporal restrictions. Recreational use immunity "depends on the character of the

property in question and not the activity performed at any given time." Barrett v. U.S.D.

No. 259, 272 Kan. 250, 257, 32 P.3d 1156 (2001) (citing Jackson, 268 Kan. 319, Syl. ¶

6). This court has held the correct test to be applied is "whether the property has been

used for recreational purposes in the past or whether recreation has been encouraged."

Poston, 286 Kan. at 819 (quoting Lane, 283 Kan. at 447).

In considering the plain language of K.S.A. 75-6104(o) and giving common words

their ordinary meanings, we conclude a public library is intended and permitted to be

used for the recreational purpose of allowing patrons to read and borrow books and other

media. And, as many public libraries do, the Monticello branch of the public library

offers additional programming that independently meets this definition.

2. Park, playground, or other "open area"

To qualify for recreational use immunity, public property must be intended or

permitted to be used as a park, playground, or "open area" for recreational purposes.

K.S.A. 75-6104(o). Zaragoza argues that a public library is not an "open area" within the

plain language of the statute because it is "an enclosed building."

The adjective "open" has many dictionary definitions, the first being: "having no

enclosing or confining barrier." Merriam-Webster Online Dictionary

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(https://www.merriam-webster.com/dictionary/open). Although an "enclosing" barrier

suggests a physical restriction, the term "confining" can refer to either a physical or

conceptual restriction. This conclusion is supported by another definition of "open"

meaning "not restricted to a particular group or category of participants" (i.e., "open to

the public"). Merriam-Webster Online Dictionary (https://www.merriam-

webster.com/dictionary/open). A public library therefore fits the ordinary or common

description of an "open area" because access to the library is neither confined nor

restricted to a particular group or category of participants.

Zaragoza disagrees, arguing the Legislature intended the term "open area" to be

narrowly restricted to outdoor areas. Though Zaragoza offers no support for this

contention, we will construe her argument as one alleging that the statutory language is

ambiguous, which allows us to review legislative history, canons of construction, or other

background considerations to determine legislative intent. See City of Dodge City v.

Webb, 305 Kan. 351, 356, 381 P.3d 464 (2016) (citing cases).

a. Legislative history

After comprehensive review, we find no "smoking gun" in the legislative history

to indicate what the Legislature meant by the exact wording of the recreational use

immunity provision of the KTCA. In 2004, University of Kansas School of Law

Professor William Westerbeke critically observed that "Kansas courts have not seriously

delved into the legislative intent underlying the recreational use immunity" to faithfully

guide the interpretation of this provision. Westerbeke, The Immunity Provisions in the

Kansas Tort Claims Act: The First Twenty-Five Years, 52 U. Kan. L. Rev. 939, 1018

(2004) (analyzing the KTCA and Kansas Supreme Court decisions interpreting its key

provisions). This is not entirely true. The Jackson court "delved" into the legislative

history surrounding this provision and came up mostly empty-handed.

18

The Jackson court chronicled the legislative proceedings leading up to enactment

of the KTCA. The court noted that the KTCA was introduced in the Senate on January

11, 1979, as S.B. 76 and later replaced with a substitute bill, neither of which contained a

recreational use immunity provision. 268 Kan. at 326. The court described how the

substitute bill was subjected to "a significant amount of debate" in the Senate before

being passed and sent to the House Judiciary Committee, where the bill was extensively

debated and was amended to add many exceptions, though none of them added a

recreational use exception to immunity. 268 Kan. at 326-27. Then, "[o]n April 2, 1979,

Representative Stites made a motion before the House to add the 'recreational use'

exception now found at K.S.A. 75-6104(o). There are no committee notes discussing the

'recreational use' exception." 268 Kan. at 327. The court noted the House passed the

amended substitute bill the same day, April 2, and the Senate concurred the next day.

Given what little legislative history is available, the Jackson court considered the

likely legislative purpose and supporting policy of the recreational use immunity statute

and ultimately concluded:

"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." Jackson, 268 Kan. 319, Syl. ¶ 10.

Following in Jackson's footsteps, we uncovered no new information that would

support departing from this precedent.

19

b. Canons of construction

Absent legislative direction, we find helpful the well-established canon of

construction directing the court to construe statutes to avoid unreasonable or absurd

results. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918,

296 P.3d 1106 (2013). First, we note that the statutory language does not restrict

immunity solely to properties that are physically "open" to the elements; instead, it

includes any property intended or permitted to be used for recreational purposes.

Next, to read the phrase "open area" so narrowly as to exclude an indoor facility

intended for public recreation, as Zaragoza proposes, would result in the kind of

unreasonable or absurd results that we must avoid. Recreational use immunity would

depend, not on the purpose of the facility, but whether the same activity took place

indoors or outdoors. For example, the public library's StoryWalk would qualify for

recreational use immunity if it was hosted outdoors but would not qualify for immunity if

it was hosted indoors. The same goes for indoor/outdoor musical concerts,

indoor/outdoor county fair activities, indoor/outdoor farmers' markets, indoor/outdoor

yoga classes, as well as indoor/outdoor swimming pools, tennis courts, and basketball

courts. To avoid these unreasonable and absurd results, we reject the interpretation of the

statute advanced by Zaragoza and continue to apply the logic from Jackson: "It defies

common sense to hold that K.S.A. 75-6104(o) provides immunity from injuries which

occur on a football field, a baseball field, a track and field area, and a sledding area, but

not on an indoor basketball court solely because it is indoors." 268 Kan. at 325.

Our interpretation of "open area" as one that is not confined or restricted but open

to the public is consistent with the legislative purpose of the recreational use immunity

20

statute we continue to use from Jackson and avoids absurd or unreasonable results. A

public library easily satisfies this criteria as a qualifying "open area."

c. Stare decisis

Our conclusion that a public library is an "open area" under the recreational use

immunity statute is consistent with our precedent holding other types of indoor facilities

qualify for recreational use immunity. See, e.g., Jackson, 268 Kan. at 325 (recreational

use immunity applies to indoor school gymnasium); accord Poston, 286 Kan. at 812-16

(recreational use immunity applies to middle school indoor "commons" area adjacent to

gymnasium); Lane, 283 Kan. at 451-52 (recreational use immunity applies to indoor

conference center); Wilson v. Kansas State University, 273 Kan. 584, 591-92, 44 P.3d 454

(2002) (recreational use immunity applies to indoor restrooms at a football stadium).

"The doctrine of stare decisis recognizes that 'once a point of law has been

established by a court, that point of law will generally be followed by the same court and

all courts of lower rank in subsequent cases where the same legal issue is raised.'"

McCullough v. Wilson, 308 Kan. 1025, 1032, 426 P.3d 494 (2018). This court should not

"lightly disapprove of precedent" because "adherence to precedent promotes the systemic

stability of our legal system." State v. Spencer Gifts, 304 Kan. 755, 766, 374 P.3d 680

(2016). While "stare decisis is not an inexorable command," this court endeavors to

adhere to the principle unless clearly convinced a rule of law established in its earlier

cases "'was originally erroneous or is no longer sound because of changing conditions

and that more good than harm will come by departing from precedent.'" 304 Kan. at 766.

We find no justification to depart from our legally sound and longstanding

precedent interpreting the recreational use immunity statute to provide immunity for

indoor recreational facilities. Moreover, we conclude such a departure would do more

21

harm than good. To jettison this body of precedent now and without good cause would

create significant disruption and uncertainty. For over 25 years, state and local

governments have justifiably relied on the settled interpretation of the KTCA recreational

use immunity provision in managing risk, maintaining public facilities, and encouraging

community use of indoor recreational spaces. These decisions likely inform how

governments allocate resources, structure programming, and decide whether—and under

what conditions—to open facilities like libraries, gyms, community centers, and

auditoriums to the public. A sudden judicial reversal at this stage would not only create

legal confusion, but could also chill public access and community engagement.

In sum, we reaffirm the settled principle that the recreational use immunity statute

applies to indoor public spaces intended or permitted to be used for recreational purposes.

Doing otherwise would produce unreasonable and absurd results, needlessly destabilize

the law, and undermine the confidence public entities place in long-established judicial

interpretations.

3. Areas that are "integral" to the function of qualifying property

Finally, Zaragoza claims that even if the library itself is a qualifying property, the

immunity exception does not apply to the library's parking lot because granting immunity

to areas "integral" to the function of a qualifying property unreasonably expands the

scope of the exception beyond the plain language of K.S.A. 75-6104(o).

Consistent with the rules of statutory interpretation, courts should "avoid reading

something into the statute not readily found in its words." City of Wichita v. Griffie, 318

Kan. 510, 523, 544 P.3d 776 (2024) (citing State v. Eckert, 317 Kan. 21, 27, 522 P.3d 796

[2023]). Yet this court has found in several cases that a qualifying public property's

recreational use immunity extends beyond areas specifically intended or permitted for

22

recreational purposes to co-located or adjacent areas which serve an ancillary purpose.

See, e.g., Nichols v. U.S.D. No. 400, 246 Kan. 93, 93-94, 97, 785 P.2d 986 (1990)

(holding a high school football field's recreational use immunity applied to a grassy

drainage area between the field and locker room where a student fell); accord Poston, 286

Kan. at 810, 816 (holding a public school commons area outside the gymnasium where a

parent suffered an injury from a falling piece of hardware is covered by recreational use

immunity); Lane, 283 Kan. at 441, 445 (holding a convention center's recreational use

immunity extended to its loading dock where a musician slipped and fell on ice); Wilson,

273 Kan. at 589 (holding a college football stadium's recreational use immunity applied

to the restrooms in the stands where a fan suffered chemical burns by sitting on a toilet

seat). Of these cases, Wilson is the most comprehensive and instructive here.

Wilson involved a negligence claim by a college football game attendee who

suffered chemical burns and scarring after sitting on an unknown substance on a toilet

seat in the stadium restroom. The court noted that the statutory language broadly provides

for immunity of "any public property intended or permitted to be used as a park,

playground, or open area for recreational purposes" and did not expressly limit immunity

only to the specific "portion" of the property used for recreational purposes. (Emphasis

added.) 273 Kan. at 592. Considering the stadium restrooms, the court observed these

facilities were "not 'incidentally' connected to the stadium but rather necessarily

connected . . . by plan." 273 Kan. at 590 ("A facility servicing large numbers of people

must include restrooms."). Additionally, the court found the restrooms significantly

enhanced the use of the stadium by permitting attendees to enjoy the recreational purpose

of watching football games without having to leave the premises to access a restroom.

273 Kan. at 589-90 (citing persuasive authority from Illinois appellate courts and the

Wyoming Supreme Court). On these bases, the Wilson court held that a qualifying public

property's recreational use immunity includes areas that are integral to the property when

23

they are necessarily connected to the property or collectively intended to be used for

recreational purposes. 273 Kan. at 591-92.

This court has continued to interpret the statutory phrase "any property" to support

application of the recreational use immunity to facilities that are integral to the function

of a qualifying property, even when the ancillary facility or area possesses no

independent, recreational character. See Lane, 283 Kan. at 444-45 (holding recreational

use immunity extends collectively to an indoor conference center permitted to be used for

recreational purposes and the outdoor loading dock where plaintiff was injured).

Relying on Wilson, the panel analyzed the function of the parking lot with respect

to the library and found:

"Zaragoza conceded to the district court that the library parking lot is integrally

connected to the library's educational use, but she contends that the parking lot is not

integrally connected to its recreational use. But it defies logic to assert that the library's

parking lot is integral to some of the library's offerings, but not others. The library's

parking lot serves as the primary location for patrons to park their vehicles while visiting

the library, regardless of their purpose in going there. See K.S.A. 60-409(a) (permitting

court to take judicial notice, without request from either party, of specific facts and

propositions of generalized knowledge that are so universally known that they cannot

reasonably be the subject of dispute). And the parking lot has no viable purpose apart

from the library; its only function is to facilitate the use of the library, be it recreational or

educational." Zaragoza, 64 Kan. App. 2d at 372.

We agree with the panel and conclude the phrase "any property" supports

application of recreational use immunity to areas that are integral to the functioning of a

qualifying property. Our conclusion in this regard is supported by the plain language of

the statute and consistent with principles of stare decisis.

24

4. Conclusion

We conclude the plain language of K.S.A. 75-6104(o) makes clear that the

Monticello branch of the Johnson County public library is a qualifying property under the

statutory recreational use immunity exception because it is public property intended or

permitted to be used as an open area for recreational purposes and the phrase "any

property" supports application of recreational use immunity to areas that are integral to

the functioning of a qualifying property.

III. Untimely motion to amend petition

Finally, Zaragoza challenges the panel's decision affirming the district court's

ruling denying her untimely motion to amend her petition to add a claim of gross and

wanton negligence against the County.

Under K.S.A. 2024 Supp. 60-215(a)(2), once the time to amend a pleading as a

matter of course has passed, "a party may amend its pleading only with the opposing

party's written consent, or the court's leave. The court should freely give leave when

justice so requires." We review a district court's decision on a motion to amend pleadings

for abuse of discretion. Alain Ellis Living Trust v. Harvey D. Ellis Living Trust, 308 Kan.

1040, 1045, 427 P.3d 9 (2018). A judicial action constitutes an abuse of discretion if (1) it

is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based

on an error of fact. In re Spradling, 315 Kan. 552, 590, 509 P.3d 483 (2022). The party

asserting the district court abused its discretion bears the burden of showing it. Bicknell v.

Kansas Dept. of Revenue, 315 Kan. 451, 466, 509 P.3d 1211 (2022).

As discussed, the recreational use immunity extended in K.S.A. 75-6104(o) may

be negated when a municipality is guilty of gross and wanton negligence. Thus, even

25

though we found that recreational use immunity under K.S.A. 75-6104(o) applies to the

library's parking lot, the County may still be liable for Zaragoza's injuries if it "is guilty

of gross and wanton negligence proximately causing such injury." K.S.A. 75-6104(o).

Gross and wanton negligence requires more than the mere carelessness or

inadvertence of ordinary negligence but less than a willful act. See Soto v. City of Bonner

Springs, 291 Kan. 73, 82, 238 P.3d 278 (2010). Culpability depends on action or inaction

"'indicating indifference to known circumstances.'" Adamson v. Bicknell, 295 Kan. 879,

890, 287 P.3d 274 (2012); see Gould v. Taco Bell, 239 Kan. 564, 572, 722 P.2d 511

(1986) ("'Wantonness' refers to the mental attitude of the wrongdoer rather than a

particular act of negligence. It follows that acts of omission as well as acts of commission

can be wanton since reckless disregard and indifference are characterized by failure to act

when action is called for to prevent injury.").

To establish gross and wanton negligence, a plaintiff must show (1) realization of

the imminence of danger and (2) a reckless disregard or complete indifference and

unconcern for the probable consequences. Soto, 291 Kan. at 82; see Reeves v. Carlson,

266 Kan. 310, 314, 969 P.2d 252 (1998) (keys to finding of gross and wanton negligence

are knowledge of dangerous condition and indifference to consequences). The presence

or absence of negligence in any degree is generally a question of fact for the jury. But

courts may decide the issue as a matter of law where no reasonable person could reach a

different legal conclusion based on the available evidence. Gruhin v. City of Overland

Park, 17 Kan. App. 2d 388, 392, 836 P.2d 1222 (1992) (citing Smith v. Union Pacific

Railroad Co., 222 Kan. 303, 306, 564 P.2d 514 [1977]).

Zaragoza's original petition did not plead gross and wanton negligence; her sole

claim was for ordinary negligence. The district court denied Zaragoza's motion to amend

her petition to add a claim of gross and wanton negligence as both futile and untimely,

26

finding the facts she sought to add did not amount to gross negligence and the deadline to

amend the petition had long passed. The panel affirmed the district court's ruling on both

grounds. Zaragoza, 64 Kan. App. 2d at 377-79, 381-82.

Zaragoza points to the following direct evidence from which she claims a jury

could conclude the County engaged in gross and wanton negligence: (1) the County had

painted another curb yellow as a safety measure elsewhere in the parking lot and (2) the

County failed to install a bush or plant in the mulch bed that she walked through before

stepping down onto the sloped parking lot. Based on this evidence, Zaragoza suggests the

County knew the curbs in the library's parking lot constituted a dangerous condition and

demonstrated a complete indifference by not correcting the danger where she fell.

Zaragoza argues the district court should have granted her motion to amend because the

County concealed this evidence until after the deadline to amend her petition had passed.

Zaragoza's arguments are unpersuasive. First, her claim that the County concealed

this evidence is speculative and unsupported by the record. The deadline for Zaragoza to

amend her petition was May 20, 2022. Zaragoza did not question the County about the

yellow paint on the library's front curb until well after the deadline to amend had passed.

In its December 15, 2022, response to requests for admissions, the County denied that the

paint on the library's front curb served as "a warning as to the existence of a curb or as to

the slope of the walking space." In her January 5, 2023, deposition, the library's capital

program manager testified that the curb in the library's drop-off area could be painted

yellow to designate a fire lane. She also recalled that the curb had been painted following

complaints about the lack of differentiation between the curb and the parking lot. The

County's differing responses about the reason for the painted curb were given only three

weeks apart. This is hardly proof of concealment. Zaragoza even acknowledged that it

was "entirely possible that the Library's employees did not communicate this important

information to its counsel earlier in the discovery process."

27

Second, the evidence Zaragoza relies on does not establish gross and wanton

negligence. As discussed, to establish gross and wanton negligence, Zaragoza had to

show that (1) the County knew or had reason to believe that the location in the parking lot

where she fell constituted a dangerous condition and (2) the County failed to address the

danger. See Soto, 291 Kan. at 82. She makes no such showing.

Zaragoza was injured when she stepped down from the curb into an area of the

parking lot that was sloped near a rainwater drain. At the time of Zaragoza's injury, over

300,000 people had passed through the library's doors since its opening nearly two years

earlier. There is no evidence that any other patron had fallen near the slope in the parking

lot, and neither the construction plans nor the city codes required the curb where

Zaragoza fell to be painted. Despite Zaragoza's assertion to the contrary, the County's

decision to paint the curb in another area of the parking lot does not show that it was

aware of the danger presented by the slope where Zaragoza fell. This is because the

danger presented by the curb near the drop-off area of the library is separate and distinct

from the danger of the sloped area of the parking lot where Zaragoza fell. Indeed,

Zaragoza did not fall because she was unaware that she was stepping down from the curb

into the parking lot. Before her injury, Zaragoza had visited the library and parked in the

parking lot on many occasions. But this was the first time she walked through the mulch

bed when leaving the library. Zaragoza said she knew she was about to step off the curb

but was not expecting the surface of the parking lot to slope down. This is a different

danger than that previously experienced by other library patrons and remediated by the

County.

Thus, evidence that the County painted the curb near the library's drop-off area

does not establish that the County knew the slope in the parking lot constituted a

dangerous condition. See Lee v. City of Fort Scott, 238 Kan. 421, 424-25, 710 P.2d 689

28

(1985) (City's issuance of traffic citations for driving off roadway at a park did not

establish City's awareness of imminent danger of steel cables strung between two trees in

the park; cables had been in place for seven years with no prior accidents involving the

cables reported); Robison v. State, 30 Kan. App. 2d 476, 480, 43 P.3d 821 (2002)

(rejecting claim of gross and wanton negligence based on plaintiff's slip and fall in

hallway outside pool at a state hospital where evidence was presented that state

employees knew that mats had been removed from the hallway but did not know of any

excess water in the hallway); Lanning v. Anderson, 22 Kan. App. 2d 474, 480-82, 921

P.2d 813 (1996) (failure to foresee a combination of elements leading to an accident is not

gross and wanton negligence; wantonness indicates an indifference to known

circumstances); Gruhin, 17 Kan. App. 2d at 392-93 (summary judgment inappropriate

where employees of golf club had knowledge of a prior accident occurring at same

location where plaintiff received his injuries and did nothing to protect golfers from this

dangerous condition other than using chalk lines to mark the area around the hole where

plaintiff was injured).

Nor does the absence of a plant in the mulched area that Zaragoza stepped into

before her fall constitute proof of gross and wanton negligence sufficient to establish the

County's knowledge of the danger or its indifference in failing to address it. Although the

original design plans called for a plant to be placed in the mulched area, there is no

evidence in the record showing whether a plant had ever been there or why one was not

there on the date Zaragoza fell. Although a plant arguably would have deterred a patron

from walking through the mulch and onto the sloped area of the parking lot, no evidence

suggests that a plant was intended for that purpose or that it would have provided a

warning about the slope. And there is no evidence that the County knew a plant was

missing from that location or that its absence presented any danger to library patrons.

29

Because no evidence shows the County was aware of the specific danger that

caused Zaragoza's injury or that the County otherwise displayed indifference in failing to

address the danger, the district court did not abuse its discretion in denying Zaragoza's

untimely motion to amend her petition to add a claim of gross and wanton negligence.

CONCLUSION

For the reasons above, we decline to consider Zaragoza's unpreserved

constitutional challenge, we uphold the panel's decision affirming the district court's grant

of summary judgment based on the library's recreational use immunity, and we uphold

the panel's decision affirming the district court's denial of Zaragoza's untimely motion to

amend her petition to add a claim of gross and wanton negligence.

Judgment of the Court of Appeals affirming the district court is affirmed.

Judgment of the district court is affirmed.

BILES, J., not participating.

***

STEGALL, J., concurring: If interpreting this statute were a matter of first

impression in this case, I would agree with the view expressed in the dissent. As it is,

with decades of undisturbed caselaw interpreting the recreational use immunity in more

expansive ways—an interpretation relied upon by the public and government entities

alike—I am of the view that stare decisis compels the result reached by the majority.

Hence, I concur in the outcome solely on those grounds.

WILSON, J., joins the foregoing concurring opinion.

30

***

WALL, J., concurring in part and dissenting in part: The Kansas Tort Claims Act

shields government entities from liability for simple negligence when someone is injured

while using "any public property intended or permitted to be used as a park, playground

or open area for recreational purposes." K.S.A. 2024 Supp. 75-6104(a)(15). Twenty-five

years ago, our court took a remarkable interpretive leap, concluding that an "open area"

included indoor spaces like school gymnasiums. Jackson v. U.S.D. 259, 268 Kan. 319,

325, 995 P.2d 844 (2000). Today, the majority reaffirms that interpretation, holding that

a branch of the Johnson County Library qualifies as an "open area" within the plain

meaning of the statute.

Jackson failed to engage with the statutory text. Instead, it simply declared that

excluding indoor spaces "defie[d] common sense." 268 Kan. at 325. Now the majority

attempts to salvage this precedent by interpreting "open area" to mean an area "'not

restricted to a particular group or category of participants.'" Zaragoza v. Board of

Johnson County Comm'rs, 320 Kan. ___, ___, slip op. at 18. This strained reading

ignores the statutory context and cannot be reconciled with common usage.

Still, the doctrine of stare decisis ordinarily directs courts to follow points of law

previously established by the same court. See State v. Moeller, 318 Kan. 860, 864, 549

P.3d 1106 (2024). This foundational principle ensures legal stability and predictability

through consistent application of established doctrines. And I have emphasized these

interests in many cases. See, e.g., 318 Kan. at 863-74; In re N.E., 316 Kan. 391, 412-19,

516 P.3d 586 (2022); State v. Clark, 313 Kan. 556, 565-70, 486 P.3d 591 (2021).

Yet our court has consistently recognized that "'stare decisis is not an inexorable

command.'" 313 Kan. at 565. We depart from precedent when two conditions are met:

31

we must be clearly convinced (1) that our prior interpretation was originally erroneous

and (2) that more good than harm will come from abandoning it. See In re N.E., 316 Kan.

at 412-13. Both conditions are satisfied here. Jackson's interpretation contradicts the plain

statutory text. And overruling it would both restore the intended balance in the Tort

Claims Act and respect the separation of powers by applying the Legislature's

unambiguous language. I therefore respectfully dissent from the majority's decision to

affirm summary judgment for the library, though I concur that we should not address the

constitutional issue raised for the first time in supplemental briefing.

Jackson's interpretation of "public property intended or permitted to be used as a park,

playground or open area for recreational purposes" is untenable.

The path to today's decision begins with Jackson, where a middle school student

broke his arm while using a springboard during gym class. His mother sued the school

district for negligence and argued that the school's gymnasium was not a "park,

playground or open area for recreational purposes" under the recreational-use provision

of the Tort Claims Act. Specifically, she argued that the Legislature intended to limit an

"open area for recreational purposes" to outdoor areas.

Our court disagreed. It first noted that Kansas courts had applied recreational-use

immunity when plaintiffs were injured using outdoor recreation areas like football fields,

tracks, and an open area on the University of Kansas campus. Jackson, 268 Kan. at 324.

Finding no legislative history limiting "open area" to outdoor spaces, the court concluded

that it "defies common sense" to provide immunity for outdoor recreational spaces but

not comparable indoor spaces. 268 Kan. at 325. The court recognized that it was duty

bound to "interpret the words 'open area' using their ordinary meaning." 268 Kan. at 325.

But it concluded that an "open area" included an indoor gym without even defining the

relevant statutory terms. 268 Kan. at 325. This interpretation is untenable.

32

Legislative intent guides our statutory interpretation, and we discern that intent

through the plain language of the statute. Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d

1007 (2022). This requires us to give common words their ordinary meaning while

considering both the specific context in which the language appears and the broader

statutory framework. 316 Kan. at 224-25. When statutory language is plain and

unambiguous, we apply it as written, neither speculating about legislative intent nor

reading in language missing from the text. 316 Kan. at 224-25. Only when plain-language

analysis yields ambiguity do we turn to interpretive canons, legislative history, or other

background considerations. 316 Kan. at 224-25.

The statutory provision establishing recreational-use immunity covers simple

negligence claims from "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."

K.S.A. 2024 Supp. 75-6104(a)(15). This text yields a plain meaning: when grouped with

parks and playgrounds, "open area for recreational purposes," means open-air spaces

typically used for physical recreation. Cf. Oxford English Online Dictionary (defining

"open space" as "a park, garden, etc., without buildings in the midst of an urban area; esp.

an area designated as such by a municipal authority, government, etc."). And before

Jackson, that appeared to be this court's view too. In a case addressing recreational-use

immunity for a sledding accident on the University of Kansas campus, this court

described the location as an "open area east of Ellsworth Hall known as Daisy Hill" that

students and the public had used as "an open space for many years" for "sledding . . .

football, soccer, baseball, softball, Frisbee throwing, sunbathing, and other sports."

(Emphases added.) Boaldin v. University of Kansas, 242 Kan. 288, 289-90, 747 P.2d 811

(1987).

Even if one were to find the phrase "open area used for recreational purposes"

ambiguous, a common rule of statutory construction would resolve any uncertainty in

33

favor of the plain-language interpretation above. When words appear together in a statute,

they should be interpreted in light of their companions—what lawyers call the canon of

noscitur a sociis. See, e.g., Woessner v. Labor Max Staffing, 312 Kan. 36, 56-57, 471

P.3d 1 (2020) (Luckert, C.J., concurring). Here, "open area for recreational purposes"

appears alongside "park" and "playground" as three related categories describing types of

property eligible for immunity. Reading these companion terms together, "open area for

recreational purposes" should refer to spaces similar in character to parks and

playgrounds: outdoor areas designed primarily for active, physical recreation.

I am not the first to question Jackson's interpretation. Professor Westerbeke

concluded that "[n]otwithstanding [the Kansas Supreme Court's] rather cavalier statement

to the contrary, the plain meaning of the phrase 'open area' does not include buildings."

Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First Twenty-

Five Years, 52 U. Kan. L. Rev. 939, 1022-24 (2004). And Justice Johnson's thoughtful

dissent a few years later similarly concluded that the "common meaning of 'open area'

would not include a facility fully enclosed inside four walls and a roof." Poston v. U.S.D.

No. 387, 286 Kan. 809, 822, 189 P.3d 517 (2008) (Johnson, J., dissenting).

Both authors highlighted Jackson's perplexing reliance on a similar Illinois statute

that extended immunity to "'parks, playgrounds, open areas, buildings or other enclosed

recreational facilities.'" Jackson, 268 Kan. at 328 (quoting Ill. Comp. Stat. ch. 745, 10/3-

106 [1998]); Poston 286 Kan. at 822-23 (Johnson, J., dissenting); Westerbeke, 52 U.

Kan. L. Rev. at 1023-24. This comparison in fact undermines Jackson, as the Illinois

General Assembly clearly did not consider "open areas" to encompass "buildings or other

enclosed recreational facilities." Otherwise the additional statutory language would serve

no purpose. Yet Jackson failed to "discuss this critical distinction in statutory language or

the logical implication of our legislature having omitted 'buildings or other enclosed

34

recreational facilities'" from the Kansas statute. Poston, 286 Kan. at 823 (Johnson, J.,

dissenting).

Rather than home in on the text, Jackson's interpretation rests almost entirely on

an absurd-results argument: that providing immunity for outdoor recreational spaces but

not indoor basketball courts "defies common sense." Jackson, 268 Kan. at 325. This

reasoning is flawed. For one, as Justice Johnson observed, the Legislature "need not

assuage our appetite for common sense, so long as it plainly and unambiguously states its

intent with ordinary words employed with their ordinary meaning." Poston, 286 Kan. at

823 (Johnson, J., dissenting).

But Jackson's reasoning also fails to consider the numerous rational grounds for

distinguishing between outdoor and indoor facilities. Indoor spaces are often contained,

managed environments. They typically have regular maintenance schedules, staff

supervision, and security measures when closed. Outdoor areas, by contrast, present

distinct challenges. They often cover large areas with varied terrain, require significantly

more resources to monitor and maintain, and permit less control over public usage. Far

from producing an absurd result, limiting immunity to outdoor spaces represents a

rational policy distinction that the plain text of the statute appears to embrace.

True, the Legislature has not amended the recreational-use provision of the Tort

Claims Act since Jackson, which could suggest that this court's interpretation was

correct. And our court has sometimes looked to legislative inaction when evaluating a

prior interpretation's validity. See, e.g., State v. Quested, 302 Kan. 262, 278, 352 P.3d

553 (2015). In fact, I have relied partly on legislative inaction to uphold an earlier

statutory interpretation. See In re N.E., 316 Kan. at 418.

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But firm reliance on legislative inaction can present serious interpretive flaws.

First, "it can be perilous to rely heavily on legislative silence and inaction to conclude

that a court's interpretation of a statute is correct" because such silence typically stems

from "unawareness, preoccupation, or paralysis" rather than deliberate approval. State v.

Jackson, 287 Ga. 646, 659 n.8, 697 S.E.2d 757 (2010). More fundamentally, even if we

could discern a later Legislature's perspective, our duty is to interpret the statute the

enacting Legislature passed, which makes subsequent legislative views largely irrelevant.

See Easterbrook, Stability and Reliability in Judicial Decisions, 73 Cornell L. Rev. 422,

427 (1988) ("Today's Congress may leave in place an interpretation of a law simply

because today's coalitions are different. The failure of a different body to act hardly

shows that the interpretation of what an earlier one did is 'right.'"); Wenke v. Gehl Co.,

274 Wis. 2d 220, 243, 682 N.W.2d 405 (2004) ("[A] subsequent legislature's approval of

a judicial construction is not as probative as the intent of the legislature when it enacted

the statute."). Given these limitations, perhaps "we should admit that vindication by

congressional inaction is a canard." Johnson v. Transportation Agency, 480 U.S. 616,

672, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) (Scalia, J., dissenting).

At any rate, even if we give some weight to legislative inaction, our court has

emphasized that applying the plain language of statutes is "[m]ore important." Hall v.

Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). Other courts similarly

refuse to let legislative inaction override clear statutory text. See, e.g., Ritchie v. Rupe,

443 S.W.3d 856, 870 n.16 (Tex. 2014) ("[T]his Court has consistently refused to rely on

'legislative acquiescence' as a doctrine of statutory construction when it runs contrary to

the plain language of the statute."); Neal v. Wilkes, 470 Mich. 661, 668 n.11, 685 N.W.2d

648 (2004) ("[N]either 'legislative acquiescence' nor the 'reenactment doctrine' may 'be

utilized to subordinate the plain language of a statute.'"). And the plain language of the

recreational-use-immunity provision simply cannot be stretched to encompass fully

enclosed indoor spaces.

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Given these considerations, I conclude that our court's interpretation in Jackson

was clearly erroneous. The term "open area" simply cannot be read to include fully

enclosed indoor spaces like gymnasiums or libraries without doing violence to the plain

language of the statute.

The majority cannot salvage Jackson.

The majority tries to rescue our court's unpersuasive precedent by offering its own

gloss on the statutory language. It cites a dictionary defining "open" as "having no

enclosing or confining barrier," and then explains that "the term 'confining' can refer to

either a physical or conceptual restriction." Zaragoza, 320 Kan. at ___, slip op. at 18. The

majority latches onto this idea of a "conceptual" confinement to conclude that "open

area" must mean a place "not restricted to a particular group or category of participants."

320 Kan. at ___, slip op. at 18. A public library qualifies, the majority reasons, because

everyone can access it. This interpretation cannot be reconciled with the statutory text.

The Tort Claims Act shields government entities from liability for most 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." (Emphasis added.) K.S.A. 2024

Supp. 75-6104(a)(15). Our task is to determine legislative intent by giving common

words their ordinary meaning within their specific context. Bruce, 316 Kan. at 224-25.

Yet the majority's interpretation effectively reads "open area" to mean "public

area"—even though the statute already specifies that it applies only to "public property."

This redundancy alone signals a misreading. Moreover, it is unclear whether the

majority's definition would apply to injuries occurring on outdoor recreation areas like

school football fields or tracks, since these areas are typically restricted to particular

37

participants—namely, students. More troubling still, the majority disregards that "open

area" appears directly alongside "park" and "playground"—terms that denote physical

spaces, not conceptual accessibility.

As Justice Johnson astutely observed, such an interpretation essentially rewrites

the statute. By extending immunity to any space "not restricted to a particular group"—

i.e., any public space—the majority "effectively remove[s] the words 'as a park,

playground or open area' from the statute," transforming limited immunity into a broad

shield for any "public property used . . . for recreational purposes." Poston, 286 Kan. at

822 (Johnson, J., dissenting). The majority thus erases the Legislature's specific

limitations, imposing its own policy preferences in place of the enacted text. In my view,

this strained attempt to salvage our precedent only further demonstrates why the original

interpretation was clearly erroneous.

More good than harm will come from overruling Jackson.

Determining that an earlier decision was wrong is only half of a stare decisis

analysis. To depart from precedent, we also must be clearly convinced that more good

than harm would come from abandoning it. See In re N.E., 316 Kan. at 412-13. I am

convinced for three reasons.

First, our court has repeatedly emphasized that under the Tort Claims Act, liability

is the rule and immunity is the exception. See, e.g., Poston, 286 Kan. at 812 (Johnson, J.,

dissenting); Lane v. Atchison Heritage Conf. Center, Inc., 283 Kan. 439, 444, 153 P.3d

541 (2007); Jackson, 268 Kan. at 322. That is because the Act makes government entities

"liable for damages" for negligence "under circumstances where the governmental entity,

if a private person, would be liable" unless a statutory exception applies. K.S.A. 75-

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6103(a). This framework places the burden on the governmental entity to prove that an

exception shields it from liability. Lane, 283 Kan. at 444.

Yet Jackson effectively inverts this framework. By extending recreational-use

immunity to indoor spaces like school gymnasiums, Jackson opened the door to a

sweeping expansion of governmental immunity. Courts have since applied this immunity

to injuries occurring during a performance in an indoor theater (Tullis v. Pittsburg State

Univ., 28 Kan. App. 2d 347, Syl. ¶ 2, 16 P.3d 971 [2000]); in a bathroom at Kansas State

University's football stadium (Wilson v. Kansas State University, 273 Kan. 584, Syl. ¶ 1,

44 P.3d 454 [2002]); in a school commons while a student practiced basketball in the

gym (Poston, 286 Kan. 809, Syl.); on a loading dock at a conference center hosting a

dance (Lane, 283 Kan. at 452); and now, in a parking lot outside a public library. But see

Barrett v. U.S.D. No. 259, 272 Kan. 250, 260-61, 32 P.3d 1156 (2001) (explaining that

recreational-use immunity would not apply to parking lots because, unlike recreational

facilities, schools would develop parking lots regardless of immunity incentives). This

ever-expanding immunity to areas the enacting Legislature could not have contemplated

has upended the Act's framework, threatening to make governmental immunity the norm

rather than the exception the statute intended.

Second, declining to overturn precedent that misinterprets the clear statutory text

raises serious separation-of-powers concerns, as other courts have recognized. Courts

must apply "the unambiguous statutory language, not improve it" with judicially created

additions lacking textual foundation. McCormick v. Carrier, 487 Mich. 180, 208, 795

N.W.2d 517 (2010). Though stare decisis promotes "'evenhanded, predictable, and

consistent development of legal principles,' . . . the separation of powers doctrine" equally

advances these values by requiring courts to "respect the intentions of the Legislature by

giving faithful meaning to the words of the law." Garg v. Macomb Mental Health, 472

Mich. 263, 284 n.10, 696 N.W.2d 646 (2005). When courts misinterpret "straightforward

39

words and phrases in statutes," they "disregard [their] duty to interpret the law, eroding

the constitutional separation of powers" while overturning "compromises made in the

legislative process." Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 226, 731

N.W.2d 41 (2007) (Markman, J., concurring). "[S]eparation of powers considerations

counsel in favor of reaching the correct decision" when addressing statutes enacted by "a

co-equal branch of government" rather than judge-made law because courts must

faithfully apply "the law as enacted by the legislative branch." Harrison v. McAfee, 338

Ga. App. 393, 402, 788 S.E.2d 872 (2016). So here, even if policy considerations would

favor extending recreational-use immunity to both indoor and outdoor facilities, the

Kansas Constitution's implicit separation of powers precludes judicial amendment of

unambiguous statutory text.

And third, while I take the majority's reliance-interests argument seriously, I am

concerned that this justification may have originated from our court's speculation rather

than evidentiary support. In Jackson, this court declared that recreational-use immunity

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." 268 Kan. 319, Syl. ¶ 10. The court painted a compelling picture of the

"enormous" public benefit: access to facilities for "such recreational activities as

basketball, softball, or football, often at a minimal cost and sometimes at no cost" and to

"a place to meet with others in [the] community." 268 Kan. 319, Syl. ¶ 10.

I have no doubt that such facilities provide great public benefit. But as the

majority acknowledges, the legislative record offers no insight into the purpose or scope

of the recreational-use provision. Zaragoza, 320 Kan. at ___, slip op. at 18-19. This

absence provides no foundation for the policy benefits Jackson attributed to its expansive

reading (another flaw Justice Johnson identified in his Poston dissent). See 286 Kan. at

820-21 (Johnson, J., dissenting); see also Westerbeke, 52 U. Kan. L. Rev. at 1016 ("The

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legislative intent underlying the recreational use immunity is virtually non-existent and

unclear."). Without this foundation, Jackson's policy justifications rest entirely on judicial

speculation rather than legislative intent.

In sum, the Kansas Tort Claims Act limits recreational-use immunity to "public

property" used as a "park, playground or open area for recreational purposes," language

that simply cannot encompass indoor spaces like libraries, indoor theaters, and

convention centers. K.S.A. 2024 Supp. 75-6104(a)(15). While Jackson has persisted for

25 years, longevity alone cannot validate an interpretation that contradicts plain statutory

language. See, e.g., State v. Hopkins, 317 Kan. 652, 655-57, 537 P.3d 845 (2023)

(overturning 55-year-old interpretation of jail-time credit statute because plain language

did not support prior interpretation). And in my view, correcting our court's error would

restore the Legislature's intended balance between liability and immunity for

governmental entities and respect our constitutional separation of powers. For these

reasons, I would overrule Jackson and hold that the Kansas Tort Claims Act does not bar

plaintiff's claims in this action.

ROSEN, J., joins the foregoing opinion concurring in part and dissenting in part.

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