State liability still undecided in WSU plane crash
Bv BRENT ANDERSON
More than five years after 32 Wichita State University football players, coaches, staff members and fans were亡 in a plane crash near Silver Plume, Colo., the Kansas Supreme Court has yet to decide whether the State of Kansas can be held liable for their deaths.
Relatives of the victims who sued WSU and its Physical Education Corporation after the Oct. 2, 1970, crash, have waited five years for the case to be decided, and attorneys connected with the case say they will be a still year or more before the deluge of lawsuits filed as a result of the crash are finally settled.
The Kansas Supreme Court is expected to reach a final decision in January on the constitutionality of a 1970 Kansas statute that gives all state agencies, including the Department of Health, unqualified immunity from liability in civil cases.
On July 9, the supreme court, in a 43 decision, temporarily struck down the immunity statute, declaring that the statute "works an injustice upon everyone concerned."
That decision, based on an appeal by relatives of the crash victims, concluded that the concept of "liability" should not be applied.
constitutional and ordered the case to be tried with WSLI and its athletic corporation as defendants
That decision was declared void Sept. 16, when the state's highest court ordered a rehearing of the case. The rehearing order came two months before the commission was consolidated by the courts, was scheduled to begin.
Exactly why the supreme court decided to rehear the case isn't certain.
John Martin, assistant attorney general, has said it was reasonable to assume that one of the justices had changed his mind about the far-reaching decision. He said the supreme court would probably change its mind and allow the immunity statute to stand
That opinion is disputed, however, by Lawrence Mayor Barkley Clark, professor of law, who said he thought the supreme court had ordered a rehearing of the case to clarify its position and facilitate a change in state law that would be consistent with constitutional constitution and equitable to the people of Kansas.
Clark said he didn't think the supreme court had ordered a rehearing to reverse its earlier decision, but rather to establish a basis upon which Kansas law could be strengthened.
Howard C. Kline, Sedgwick County district court judge, who sustained a motion by WSU attorneys claiming that WSU and the athletic corporation did not enforce therefore immune from liability under state law.
WSU and its athletic corporation were dismissed as defendants in the case on Jan. 11, 1973, by
Ronald G. Bodine, an attorney for four of the families suing WSU, said many of the relatives of the plane crash victims had received no compensation as a result of the plane crash deaths.
"The only ones who have received any money in this thing are relatives of the victims who had life insurance."
Bodine said there was little question in his mind that the State of Kansas should be responsible for the shooting.
"The coats have already established that the athletic corporation is part of WSU." Bodine said, "and WSU is a state university. I think the court will stick by its decision to make WSU a defendant."
More than 40 lawsuits have been filed as a result of the WSU plane crash seeking damages of more than $1 million.
Defendants in the case include WSU; WSU's Physical Education Corporation; Golden Eagle Aviation Corp., Oklahoma City, Ola., which was the company that supplied the pilot of the ill-fated Martin 404 twin-engine plane; Jack Richards Aviation Co., which owned the plane; and Ron G.
Golden Eagle, Jack Richards Aviation and Skippeer declared bankruptcy less than six months after the crash, and although they are technically insolvent, they are required to pay damages even if they lose the case.
Skipper, who was co-pilot of the plane and one of nine survivors of the crash
WSU said it had entered into a written agreement with Golden Eagle which, in part, specified that the company "would provide for liability insurance for the benefit of the passengers."
It was determined in Oklahoma City District Court, however, that Golden Eagle never purchased liability insurance for the passengers, leaving WSU to deal with the situation as the only solvent defendants in the case.
In its July 9 decision, the supreme court, in a majority decision written by Chief Justice Harold R. Fatzter, said, "The doctrine of governmental immunity is a historic anachronism which manifests an inefficient public policy and works an injustice upon everyone concerned."
Dissenting Justice Robert Kaul said, however, that the constitutional authority of the legislature to deal with governmental immunity had been recognized many times by the supreme court.
"I know of no reasons of public policy which dictate or justify this sudden about-face in judicial
attitude concerning a matter of such far-reaching consequences," Kgal said.
cark, who is filing a brief in the case on behalf of the Kansas League of Municipalities, said that the case, though based on the tragic WSU plane crash, would serve to modernize Kansas law by removing inconsistencies and inequities that had previously existed.
In the past, Clark said, cities, municipalities, school districts and counties have been immune from liability when they had acted in a governmental capacity.
If, for example, someone was injured because of the negligence of a policeman or fireman, the appropriate governmental agency couldn't be held liable because of this negligence. Clark said.
However, if a patient in a county hospital is injured because of the negligence of a county employee, the county could be liable. Clark said, "If the county would be acting in a proprietary function."
"This is where the controversy lies." Clark said. "Is it fair for the state to be immune from liability when an employer of a state hospital is negligent, while a county can be held liable for the same
if the supreme court upholds its earlier decision
    See CRASH nare three.
THE UNIVERSITY DAILY KANSAN
The University of Kansas—Lawrence, Kansas
October 31,1975
BY MARY ANN DAUGHERTY
TOPEKA—A dozen persons testified before the Kansas Legislature's Judiciary Committee yesterday afternoon to present comments that mostly encouraged the legislature to decriminalize the possession of small amounts of marijuana.
The committee, which was asked last July by the Legislative Coordinating Council to study the proposal, is expected to discuss the topic this afternoon.
They will give their recommendations to the council next month.
Berkowitz, Walaszek, Modlin and Burr said they favored decriminalization of possession of marijuana, which is a misdemeanor punishable by a jail sentence.
Among those who appeared where David Berkowitz, Douglas County attorney; Herbert Modlin of the Meninger Foundation, Topeka, E.J. Waltzsak, chairman of the Waltzsak-KU Medical Center; Judge Allan Hazlett of Shawnee County Magistrate Court; Lance Burr, former assistant attorney general; James Connannon, assistant professor of Washburn University; and William Abbott, criminal psychologist at State Hospital.
Albott, Hazlett and Concannon called for a reevaluation of present laws and social trends but said they couldn't recommend specific policy alterations.
“It’s time we get this dragon out of the cave and take a look at it and see what to do,” Burr said. “The question is whether we want to encarcerate people in the Kansas desertitory or in county jails for possession of a small amount of marijuana.”
He said that there was no clear-cut studies to indicate that smoking marijuana was injurious to health, and the only documented physical changes were a reddening of tiny blood vessels in the eye and an increase in pulse rate.
Modlin said he supported the recent recommendation of the board of directors of the American Medical Association, which has recommended a ban on possession of marijuana for personal use.
Marjuma smoking, he said, has little effect on the mind other than to produce a sense of calm.
See MARIJUANA page three
Modlin also challenged what he said were two common contentions about the effect of marijuana on social behavior, that it causes the user to graduate in burden, drugs and
Staff Photo by DAVID CRENSHAW
Halloween hijinks
also. Last night, Tony Potter, 10, and Shea Ward, 11, both of
him, visited the house for a few good scares before
Balloonland.
Ghosts and goblins have invaded Lawrence and for the last few days, they have been staying at 945 Rhode Island. The Lawrence University offers a variety of courses.
Case on Senate conditionally out
By SHERI BALDWIN
Reverse discrimination charges filed in a suit against the Student Senate have been conditionally dismissed, but charges against Kofis, student body president, still remain.
The suit, filed by Wendell J. Barker, Hutchinson third-year law student, charged that the KUAC, in amending its bylaws in March, had eliminated consideration of white male students for board appointments in 1975. Barker is white and male.
In a University Judiciary ruling by James Masuda, chairman of the judiciary hearing division, charges against the Senate were dropped on the condition that the Senate Finance and Auditing Committee assume jurisdiction of the case.
Rolfs, the Senate, KUAC and Clyde Walker, athletic director, are named in the
The KUCA bylaws now require student membership on the board to include one student and two students who are students are on the board; the student body president, chairman of the Senate Sports Committee and two students appointed to two-year terms by the student body president.
By Article 11 of the Senate Code, unless groups abide by the code's provisions, they are not required to vote.
Article 10 of the code allows students the right to participate in any University-sponsored or University-approved activity regardless of race, religion, ethnic background, political affiliation or sex, unless sex is a qualification.
Barker also charged that the Senate misallocated $147,000 to the KUAC.
Old house comes alive once again
By DAVID HAUBER
Staff Writer
The life that once breathed in the house on 945 Rhode Island St. has just about expired. It is a shell of the mansion which once had been inhabited by a proud family.
The house was built in 1861 by Colonel T. B. Eldridge two years before Quantrill's Raid. This year it is the Lawrence Jaycees' annual haunted house.
being committed in it, a crazy old woman setting it on fire and the killing of its original builders during Quarrill's Raid, he said.
Rumors are apt to abound when one looks through the house and sees scorched walls on the second floor, falling plaster in what might have been grand places of entertainment and spider webs covering the entrances to rooms.
A member of the Jaycees last week
that many rumors retreated about the House.
But he said it was a "really good"
thing.
Despite the rumors, police records show no violence ever being committed in the
Endowment land needed for city airport expansion
Master plans for expanding and improving Lawrence Municipal Airport are in, but the plans are contingent on whether the city can acquire Kansas University Endowment money needed for the project. Mike Wildgen, assistant city manager, said yesterday.
"I think we have to get the land first,"
Widgeman asks for his first step, to
work that problem.
By BRUCE SPENCE
Staff Writer
The city isn't sure where the money needed for the project will come from, but any possibility for federal funding depends on the land's being owned by the public.
The city has approached the Federal Aviation Administration (FAA) with a
proposal for expanding the airport, located north of Lawrence near Teeysee junction. The expansion would be made on land leased from the Endowment Association, a private institution, but the proposal was rejected by the foundation grant for a federal airport expansion grant.
About 20 of the Jaycees hammered, swept, carried in props and equipment and prepared for the haunted house's opening just Friday.
"They say, 'Don't even come to us if you don't have control of the land,'" Wildglen
FAA funding would provide matching funds for the airport, if the city qualified, FAA.
The house was owned by the Topham family for most of its life. The family bought the house from Eldridge around the turn of the century. The last occupant of the house, Laura Topham, died in 1973. She left the house to the Salvation Army.
The additional land is necessary for the airport because the runways need to be
'If you don't do that, there's really no
Cap. Howard Chase of the Salvation Army and the leaving of the house to the wife.
See AIRPORT page nine
Chase said that, after the house was used by the Jaycees, it would probably be torn down. "It's been about $13,000. Originally, he said, the Salvation Army wanted to use the house as a crisis center for families needing a place to live. He explained that a livable apartment too expensive, he said.
"She was always a loner," he said. "She had no family."
As they stood looking around the house, many of the Jaycees couldn't help talking about the house's past. The front doors, one antique buff said, were unique because of
the their massive oak construction and the etched glass windows in them.
Another Jaycee worker pointed to the side entrance door's well-decorated six locks.
Although Crase said he had only one with the Salvation Army in Lawrence for a few years, he recalled much of his acquaintances with Toobam.
"She was witty, had a sharp tongue and she'd tell you just as it was—very strange." Chase said. "She was an impressive old lady with a lot of stories to tell."
Thompson used to lose her keys all the time, chase and, which is one reason why she had a hard time trying to get them back.
Jobs open on Kansan
Applications for the positions of editor and business manager for the spring semester Kanman will be accepted until noon today in 106 Flint
Application forms are available in 106 Flint; the Student Senate office, 106B Kansas University; the office of the dean of men, 228 New Hall; and the office of the dean of women, 222 Strong.
Chase said Topham had been an educated woman who had been all over the world. Neighbors, whom Topham called "her family," remembered her as an intelligent woman, Mr. and Mrs. Leslie Boring, RPD 3, and their son, Paul, said Topham was a successful house on New Hampshire St. to eat a meal or be with them.
The Kansan Board will interview candidates and select a spring editor and business manager Nov. 3.
--for the locks, he said, was that Topham was afraid of people coming into her
"She was lonely." Paul Boring said.
He said Topham tutored him in French, her favorite language, and could speak English fluently.
Topham loved to teach, Boring said. She tutored children in her neighborhood.
Boring said that Topham was a well-educated woman who participated in high school and went on to work for them, he said, including many of her letters from all over the world. The letters came from different countries where Topham and taught or was engaged in society circles, he
"It's a crime somebody like her had to be"
"Boring said."
Topham died of pneumonia, he said, which might have been caused by the shutting off of the gas in the house because it was too cold. But that, he said, the water pipes froze and
Many KU students stayed at the Tophm house, Boring said. It was a boarding house for many years. Paul Boring said Tophm had been a student at KU and received two other degrees from the University of Texas and the University of Paris.
See TOPHAM page eight
Ken Dodd, assistant to the University
Dooa council, represents Rolfs and the
Senate.
Walker and KUAC, represented in the case by J. Hammond McNish, adjunct professor of business, weren't involved in the decision. The professor and therefore aren't included in the ruling.
In his opinion on the case, Masula said that the Student Senate complaint center didn't have published a handling procedures at the time Barker filed his case.
Dodds had stated in his motion that complain center or the Senate body itself.
Under judiciary provisions, an individual must exhaust the resources of all other University tribunal bodies that could handle the case before so to the judiciary.
Masuda stated that charges against barker accusing him of misconduct by presenting his case through statements to press ("did) not warrant dismissal claims.
According to Dodds, Rolfs has an option to appeal the decision to the appellee division of the University Judiciary within 30 days. "We will be seriously considering the
"We will be seriously considering the anopeal." Dods said.
Rolfs said that he had not received his copy of the decision as of yesterday, but that he planned to talk to StuEx Sunday to obtain a cross-section of opinions on the matter.
Dodds said that by Senate rules and regulations, the Finance and Auditing Committee would study the matter and Senate recommending appropriate action.
At the Senate meeting, time will be allotted for the presentation of written or oral arguments. The Senate must then present an argument there is a violation of the Senate Code.
The next action would be for the Senate to decide by a two-thirds vote whether to withhold or cancel part or all of the funds allocated to the KUAC.
Dodd's said there may be a question about the Senate's ability to cancel funds (about $73,000) that the KUAC has already been approved by the Senate and half of the appropriation in January.
Barker seeks only injunctive relief in the case, according to Dodds.
"If KUAC agrees to change its bylaws, Barker may be satisfied." he said.
The addition of positions to the board might be an inadequate solution to Barker, he may still want changes in the race and sex discriminatory clauses, he said.
Calgaard gets new assistant
Janie Riley, personnel director for the University of Kansas housing department, has been appointed assistant vice chancellor for academic affairs.
Riley will be handling statistical and budgetary studies in addition to the processing of appointments in his office, and he will also be a mentor for academic affairs, said last night.
Calgaard said she was now handling appointment procedures and budgetary matters for J. J. Wilson, director of housing management.
The office of assistant to the vice chancellor opening was advertised late in August, he said. About 55 applications were received for the position before the October deadline.