Open Area Means Open to the Public: Kansas Supreme Court Affirms Recreational-Use Immunity for Indoor Libraries and Integral Areas, and Bars New Issues in Post‑Grant Supplemental Briefs

Introduction

In Zaragoza v. Board of Johnson County Commissioners, the Kansas Supreme Court reaffirmed a broad interpretation of the Kansas Tort Claims Act’s (KTCA) recreational-use immunity and clarified a key preservation rule for Supreme Court review. Brenda Zaragoza, a library patron, suffered serious injuries after stepping from a mulch bed onto a sloped parking lot surface adjacent to a storm drain outside the Monticello Branch of the Johnson County public library. She sued the County for ordinary negligence.

The County sought summary judgment under the KTCA’s recreational-use exception to liability, arguing that the library is public property intended or permitted for recreational purposes and that immunity extends to integral areas such as the adjacent parking lot. The district court agreed and also denied Zaragoza’s late motion to amend to add gross and wanton negligence. The Court of Appeals affirmed. The Supreme Court granted review on those issues, but Zaragoza then also raised a constitutional challenge in supplemental briefing contending the KTCA’s immunity violates sections 5 and 18 of the Kansas Bill of Rights. The Supreme Court refused to entertain that new challenge and ultimately affirmed across the board.

The core questions the Court addressed:

Preservation: Can a party raise a new constitutional theory in supplemental briefing after the petition for review has been granted? The Court said no.
Recreational-use immunity: Does a public library—and its parking lot—qualify as “public property intended or permitted to be used as a park, playground, or open area for recreational purposes” within K.S.A. 2024 Supp. 75-6104(a)(15)? The Court said yes.
Gross and wanton negligence: Did Zaragoza present sufficient facts to add this claim late and avoid immunity? The Court said no, and it affirmed the denial of leave to amend as both untimely and futile.

Summary of the Opinion

The Supreme Court (opinion by Standridge, J.) affirmed the Court of Appeals and district court:

Preservation rule strengthened: Under Kansas Supreme Court Rule 8.03(b)(6)(C)(i), the Court will not consider issues not raised in the Court of Appeals or not presented or fairly included in the petition for review. There is no exception for issues first raised in supplemental briefing after review is granted.
Recreational-use immunity applies: A public library is an “open area for recreational purposes” because “recreation” includes refreshing the mind via play, amusement, or relaxation—such as reading and borrowing media—and “open area” encompasses indoor public spaces. Immunity extends to integral areas necessary to the functioning of the facility, including the library’s parking lot.
No gross and wanton negligence: Zaragoza’s proffered facts (a different curb painted yellow elsewhere and the absence of a plant in a mulch bed) did not show the County’s knowledge of an imminent danger at the location of her fall or reckless indifference to probable consequences. Denial of leave to amend was not an abuse of discretion.

Concurring (Stegall, J., joined by Wilson, J.): The outcome is compelled by stare decisis; were the question one of first impression, he would agree with the dissent.

Concurring in part and dissenting in part (Wall, J., joined by Rosen, J.): Would overrule Jackson v. U.S.D. 259 (2000) and its progeny, holding that “open area” plainly refers to outdoor spaces akin to parks and playgrounds; would reverse on immunity but concurs in declining to reach the late constitutional claim.

Analysis

1) Precedents Cited and Their Influence

Rule 8.03(b)(6)(C)(i) preservation line: The Court cites State v. Ward (2011), State v. Huggins (2024), State v. Slusser (2023), and others to emphasize it consistently refuses to consider unpreserved constitutional challenges not raised in the lower courts or in the petition for review. While prudential exceptions sometimes allow new issues on direct appeal (e.g., State v. Robison, 2021), the Court underscores there is no exception for first raising an issue in supplemental briefing after review is granted.
KTCA framework: Brown v. Wichita State University (1976) on common-law sovereign immunity; the KTCA (enacted 1979) waives immunity subject to exceptions; the government bears the burden to prove an exception applies (Keiswetter v. State, 2016).
Meaning of “recreation” and “open area” (Jackson line of cases):
- Jackson v. U.S.D. 259 (2000): Adopted a broad, dictionary-based concept of recreation—diversion/play for enjoyment—and applied immunity to an indoor school gymnasium, eschewing a strictly outdoor-only reading of “open area.”
- Poston v. U.S.D. 387 (2008): Extended immunity to a school “commons” area adjacent to a gymnasium; emphasized immunity depends on the character of the property and whether recreation was encouraged or occurred historically, not on what was happening at the precise time of the injury.
- Lane v. Atchison Heritage Conference Center, Inc. (2007): Immunity applied to an indoor conference center hosting recreational performances, and, critically, to its loading dock as an ancillary/integral facility.
- Wilson v. Kansas State University (2002): Immunity covered stadium restrooms—areas “necessarily connected” by plan to a recreational facility—because they enhance and are integral to the recreational experience.
- Nichols v. U.S.D. No. 400 (1990): Immunity extended to a grassy drainage area between field and locker room.
- Barrett v. U.S.D. No. 259 (2001): Emphasized the character-of-property test; dissent here cites Barrett for policy concerns about parking lots but the majority adopts the Wilson/Lane “integral area” approach.
- Boaldin v. University of Kansas (1987): Sledding case; observation that recreation often carries risk does not limit “recreation” to physical-risk activities.
Gross and wanton negligence standard: Soto v. City of Bonner Springs (2010); Reeves v. Carlson (1998); Gould v. Taco Bell (1986); Adamson v. Bicknell (2012) establish that the plaintiff must show realization of imminent danger and reckless disregard or indifference. Courts may resolve the issue as a matter of law if the record could not support a contrary finding.
Summary judgment standard: Fairfax Portfolio LLC v. Carojoto LLC (2020) and Geer v. Eby (2019) reinforce the requirement that the nonmovant point to evidence creating a genuine dispute of material fact; mere speculation is insufficient.

2) The Court’s Legal Reasoning

a) Preservation: No new issues in supplemental briefs after grant

The Court squarely holds that Rule 8.03(b)(6)(C)(i) forecloses new arguments not presented in the Court of Appeals or petition for review, and it rejects any implied exception for issues first raised in supplemental briefing post-grant. While Kansas law sometimes allows constitutional issues to be raised for the first time on direct appeal under prudential exceptions, those exceptions do not extend to the Supreme Court’s post‑grant supplemental briefing stage. Nor did “plain error” or ambiguous preservation exceptions apply on this record. The Court thus declines to reach Zaragoza’s new section 5 and 18 constitutional arguments.

b) Recreational-use immunity: Libraries and their parking lots qualify

The KTCA exception (K.S.A. 2024 Supp. 75-6104[a][15]) immunizes governmental entities from damages 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,” absent gross and wanton negligence.

The Court proceeds in three steps: What counts as “recreational purposes”; whether a library is an “open area”; and whether immunity covers integral areas like the parking lot.

Recreational purposes. Drawing on Jackson and updated dictionary definitions, the Court reaffirms that recreation includes activities that refresh body or mind through play, amusement, or relaxation. Leisure reading and borrowing media fit comfortably within this definition, as do typical library programs like story times, gaming nights, book clubs, and yoga for preschoolers. The Court rejects the argument that “recreation” is limited to physically strenuous or inherently risky activities.
Timing question. Immunity depends on the character of the property—whether it has been used for recreation in the past or whether recreation has been encouraged—not on whether a recreational activity was occurring at the precise moment of the injury (citing Barrett and Poston). The record showed the Monticello branch offered recreational programming and services; Zaragoza did not present evidence creating a genuine factual dispute to the contrary.
“Open area” includes indoor public property. The Court adopts an ordinary meaning approach and, to avoid absurd results, interprets “open area” to encompass indoor public facilities intended or permitted for recreational purposes. It reasons that “open” includes being open to the public (not confined or restricted to a particular group) and that limiting immunity to outdoor facilities would irrationally treat identical activities differently based on whether they occur inside or outside. The Court leans on stare decisis, reaffirming Jackson, Poston, Lane, and Wilson’s consistent line of cases applying immunity to indoor spaces.
Integral areas are covered (“any property”). Reading “any public property” broadly, the Court reiterates that immunity extends to areas integral to the functioning of a qualifying recreational facility—those necessarily connected to or collectively intended with the facility—such as restrooms (Wilson), loading docks (Lane), adjacent drainage/commons areas (Nichols, Poston), and here, a library’s parking lot. A parking lot’s purpose is to facilitate access to the library for all uses, including recreational ones.

c) Gross and wanton negligence: No factual basis; denial to amend affirmed

To overcome immunity, Zaragoza needed to plead and support a plausible claim of gross and wanton negligence—requiring realization of imminent danger and reckless disregard or complete indifference to consequences. Her proposed amendment relied on two facts: a different curb elsewhere in the lot had been painted yellow at some point, and a plant called for in the landscaping plan was not present in the mulch bed she traversed. The Court holds:

These facts do not show the County’s knowledge of a specific dangerous condition at the precise location where she fell or indifference to it.
The curb painting in a separate drop‑off/fire lane area does not prove knowledge of slope-related hazards at the storm drain area at issue; the hazards and locations were different.
Over 300,000 patrons used the library without similar incidents; no code or plan required painting that particular curb; and no evidence showed the County knew a missing plant created danger or served as a warning device.
Speculation about discovery “concealment” failed; the record did not support bad faith or unfair surprise preventing timely amendment.

Because no reasonable jury could find gross and wanton negligence on these facts, the amendment was futile; because it also came after the scheduling deadline without good cause, denial was not an abuse of discretion.

3) The Dissent and Concurrence: The Fault Lines

Justice Wall (joined by Justice Rosen) would overturn Jackson and retrench “open area” to outdoor spaces akin to parks and playgrounds, applying the noscitur a sociis canon (words are known by their companions). He contends the majority’s “open to the public” gloss effectively rewrites the statute, collapsing “open area” into “public property,” rendering key limiting words superfluous, and aggrandizing immunity beyond legislative intent. He warns that continued reliance on judicial policy rather than statutory text raises separation‑of‑powers concerns and invites immunity creep to theaters, stadium restrooms, conference center docks, and now library parking lots.

Justice Stegall (joined by Justice Wilson) concurs only because stare decisis and reliance interests control; were the issue new, he would agree with the dissent’s statutory reading.

4) Impact and Forward-Looking Implications

Preservation practice tightened: Litigants must include all issues—especially constitutional challenges—in the district court, in the Court of Appeals, and in the petition for review. New theories first floated in supplemental briefing after review is granted will not be considered.
Recreational-use immunity is robust and settled for indoor public facilities: Libraries, school gyms and commons, conference centers, and comparable indoor venues remain within the immunity’s ambit if intended or permitted for recreational purposes—even when the injury occurs in an ancillary space (restroom, loading dock, adjacent commons, or parking lot) integral to the facility’s function.
Property-focused, not time-focused: Plaintiffs cannot avoid immunity by arguing no recreational activity was occurring at the exact moment of injury; courts examine the character, usage history, and encouraged uses of the property.
Pleading strategy for plaintiffs: Where recreational-use immunity is likely, plaintiffs should assess early whether facts plausibly support gross and wanton negligence. Conclusory allegations or different hazards in different locations will not suffice. Timeliness matters—seek amendment within scheduling deadlines and anchor the request in concrete, non-speculative discovery developments.
Risk management for public entities: This decision rewards robust programming and public access to indoor facilities without materially increasing tort exposure for ordinary negligence. Entities should still document maintenance practices, incident histories, and remedial decisions to defeat claims of knowledge and indifference of specific hazards.
Legislative horizon: The dissent’s textual critique and the concurrence’s stare decisis warning may prompt legislative attention. If the Legislature intends to narrow or refine “open area” or the scope of “integral” areas, statutory amendment would be the vehicle.

Complex Concepts Simplified

KTCA (Kansas Tort Claims Act): The default rule is that government entities are liable for negligence like private persons, unless a specific statutory exception applies. The government must prove the exception.
Recreational-use immunity (K.S.A. 2024 Supp. 75-6104[a][15]): Shields government from ordinary negligence claims for injuries on public property intended or permitted as a park, playground, or open area for recreational purposes. It does not protect against gross and wanton negligence. Courts look at the property’s character and history of recreational use, not just the activity at the moment of injury.
“Open area” (as construed): Not limited to outdoors; includes indoor public facilities intended or permitted for recreation. The Court reasons that “open” includes open to the public and avoids inconsistent results for identical activities held indoors versus outdoors.
“Integral areas”: Spaces necessarily connected to or collectively intended with a recreational facility—like restrooms, loading docks, commons, and parking lots—are covered because they enable or enhance the use of the recreational property.
Gross and wanton negligence: More culpable than ordinary negligence but less than intentional harm. Requires proof that the defendant realized an imminent danger and nevertheless acted with reckless disregard or indifference to the probable consequences. Without evidence of knowledge of a specific hazard, courts may reject such claims as a matter of law.
Summary judgment: A case can be resolved before trial when there’s no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. The nonmoving party must point to concrete, admissible evidence—not speculation—to create a triable issue.
Preservation and petitions for review: To get Supreme Court consideration, an issue must be raised in the lower courts and included in the petition for review. Raising a new argument after review is granted, in supplemental briefing, is too late.
Stare decisis: Courts generally follow their prior decisions to stabilize the law. Overruling precedent requires clear error and a determination that more good than harm will result. Here, the majority reaffirmed decades of recreational-use cases on reliance and stability grounds.

Conclusion

Zaragoza cements two important propositions in Kansas law. First, as a matter of appellate procedure, the Supreme Court will not consider issues first raised in supplemental briefing after a petition for review is granted; Rule 8.03(b)(6)(C)(i) means what it says. Second, on the merits, the Court reaffirms a broad, property‑focused understanding of the KTCA recreational-use immunity: public libraries are “open areas for recreational purposes,” recreation includes mental refreshment like reading, and immunity extends to integral areas that enable the recreational use—here, the parking lot.

On the exception to immunity, the opinion underscores the demanding nature of gross and wanton negligence. Absent evidence that the County knew of a specific imminent danger and recklessly disregarded it, Zaragoza could not revive her case by late amendment.

The concurring and dissenting opinions signal a live textual debate about the scope of “open area,” with the dissent urging a return to outdoor‑only coverage based on statutory context and canons of construction. For now, however, stare decisis prevails: Kansas governmental entities may continue to operate indoor recreational spaces—and their integral support areas—without exposure to ordinary negligence claims, unless plaintiffs can plausibly allege and prove gross and wanton negligence. Litigants should heed the tightened preservation rule and the high bar for overcoming recreational‑use immunity; policymakers who disagree with the breadth of immunity, as applied to indoor facilities and integral areas, will need to look to the Legislature.