# Carroll v. Kittle

> Supreme Court of Kansas · July 17, 1969 · 203 Kan. 841

URL: https://www.frixlaw.com/law-library/cases/9546433

## Case

- **Full name:** Wayne C. Carroll, Appellant, v. C. Frederick Kittle, M. D., W. Ashcraft, K. O’Fallon, and Henry A. Bubb, Arthur H. Cromb, C. N. Cushing, John F. Eberhardt, Ray Evans, Clement H. Hall, Dwight D. Klinger, Larry Morgan, Eldon Sloan and Max Bickford, Members of the Board of Regents of the State of Kansas, Appellees
- **Court:** Supreme Court of Kansas
- **Decided:** July 17, 1969
- **Citations:** 203 Kan. 841; 457 P.2d 21; 1969 Kan. LEXIS 473
- **Precedential status:** Published
- **Opinion:** Dissent by Price
- **Judges:** Hatcher, Kaul, Fromme, Price
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Brown v. Board of State Fair Managers.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546433

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546433. Public record. Not legal advice.