# Zaragoza v. Board of Johnson County Comm'rs

> Supreme Court of Kansas · June 27, 2025

URL: https://www.frixlaw.com/law-library/cases/11278561

## Case

- **Court:** Supreme Court of Kansas
- **Decided:** June 27, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11278561

## How later opinions describe it (automated extraction)

- explaining that recreational-use immunity would not apply to parking lots because, unlike recreational facilities, schools would develop parking lots regardless of immunity incentives
- holding a college indoor theater served a recreational purpose

## Opinion text

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,
1
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.

2
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.

3
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.

4
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).
5
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.
6
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,
7
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).

8
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

9
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,
10
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).

11
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

12
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.'"
13
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."

14
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.

15
"'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,
16
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
17
(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.
36
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-

38
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
40
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11278561. Public record. Not legal advice.