overruling McCoy v. Bd. of Regents, 196 Kan. 506, 413 P. 2d 73 (1966), which held that it was up to the legislature to change the law
How later courts described this case
- overruling McCoy v. Bd. of Regents, 196 Kan. 506, 413 P. 2d 73 (1966), which held that it was up to the legislature to change the law
- date postponed from July 17, 1969 until August 30, 1969
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Brown v. Board of State Fair Managers
203 Kan. 841, 846, 457 P.2d 21, 26 (1969), superseded by statute, see Brown v. Board of State Fair Managers, 6 Kan. App.2d 40, 626 P.2d 812 (1981);
The opinion
Price, C. J.,
dissenting: This decision is another example of the wave of “judicial activism” that has been sweeping this country in recent years.
In 1966 — in a like action — a unanimous court held in McCoy v. Board of Regents, 196 Kan. 506 , 413 P. 2d 73 , that the rule applying governmental-proprietary distinction to the functions of municipalities in determining liability for negligence is irrelevant to the functions of a state agency; that the board of regents, as an agency of the state, is not liable for negligence unless such liabilty is imposed by statute, and that the power to impose such liability rests with the legislature and not this court. That decision, and all others of like holding — are today swept aside and thrown to the winds.
I do not propose to debate the “pros and cons” of the doctrine of governmental immunity — as applied to this or other situations. My point simply is this:
The doctrine — for good or for bad — has been recognized and applied since statehood. As such, it has become so deeply imbedded as to be the “public policy” of this state. If the public policy of this state is to be changed I think that it should be accomplished by the people of this state acting through their duly elected legislature— and not by this court. The power of this court is enormous, but about the only check upon the exercise of that power is our own sense of self-restraint.
And neither do I propose to rehash the doctrine of stare decisis. I still believe, however, that lawyers should be able to advise their clients and that trial courts should be able to decide cases — in reliance upon settled decisions of this court rather than being compelled to speculate whether what was held yesterday will be the law tomorrow.
*853 I therefore respectfully dissent.
The judgment should be affirmed.
Kaul, and Fromme, J. J., join in the foregoing dissent.