Whitmire v. Jewell , 223 Kan. 67 ( 1977 )

The opinion of the court was delivered by

McFarland, J.:

This consolidated appeal involves actions for damages brought by the appellants against the members of the Board-of Regents of the State of Kansas and others not presently involved for personal injuries sustained by the appellants while they were hospitalized at the University of Kansas Medical Center. The petitions sought recovery on the theories of both tort and implied contract. The University of Kansas Medical Center and the members of the Board of Regents of the State of Kansas moved to dismiss the actions as to them on the grounds they were immune from liability pursuant to K.S.A. 46-901 and that the petitions failed to state claims upon which relief could be granted. The motions were sustained as to all moving parties. From these orders, appellants perfected their appeals. The statement of points and appellants’ briefs complain only of the rulings as they relate to the members of the Board of Regents and do not complain of the rulings as to the Medical Center. This does not alter the issues raised as the members of the Board of Regents were named as defendants because of their supervisory authority over the Medical Center.

The appellants contend that K.S.A. 46-901 and K.S.A. 46-902 are unconstitutional. The appellants raise the same arguments in support of their position as those made in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015. The appellants concede that they cannot prevail if Brown v. Wichita State University, supra, remains the law of Kansas and seek re-examination of that decision. Shortly after the Brown decision came Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885, wherein this court stated:

“. . . This court’s recent exhaustive analysis of the question of governmental immunity and its constitutionality culminated in Justice Schroeder’s opinion on rehearing in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015, wherein we held that K.S.A. 46-901 is not unconstitutional. We adhere to that determination. . . .” (p. 373.)

This court continues to adhere to that determination.

The appellants also seek determination of whether the Medical Center was engaged in a proprietary or governmental function. This issue need not be determined by virtue of the adherence to Brown, supra.

The judgments are affirmed.