Thome v. City of Newton

The opinion of the court was delivered by Plaintiffs appeal from an order of the Harvey County District Court dismissing an action filed against the City of Newton. Dismissal of the case by the district court was based upon K.S.A. 1978 Supp. 46-902(b) and the doctrine of governmental immunity as it existed prior to our decision in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978). The relevant facts are brief. This action for damages and medical expenses arose out of injuries sustained on the 18th day of June, 1977, by plaintiff, Mary Lynn Thome, a minor, while playing softball in the City Park of the City of Newton, Kansas. While chasing a fly ball, Mary Lynn ran into an iron pipe railing rupturing her spleen. Medical expenses were incurred by her parents, the plaintiffs Linus and Mary Ann Thome. Suit was filed against the City of Newton on the 16th day of October, 1978, alleging it was negligent in its design and maintenance of the softball playing field. The City filed a motion to dismiss on the 16th day of November, 1978, contending the ownership and operation of a public park and playgrounds thereon constituted a governmental function and that by reason of the doctrine of governmental immunity the City was immune from liability. On July 1, 1980, the district court sustained the City's motion and dismissed plaintiffs' case. Plaintiffs appeal from that order of dismissal.