68-419. History: L. 1929, ch. 225, § 23; L. 1957, ch. 359, § 1; L. 1972, ch. 246, § 1; L. 1975, ch. 350, § 2; L. 1975, ch. 427, § 104; Repealed, L. 1979, ch. 186, § 33; July 1. CASE ANNOTATIONS 1. State has waived immunity from civil actions against commission. McCandliss Const. Co. v. Neosho County Comm'rs, 132 Kan. 651, 653, 296 P. 720. 2. Statutory liability interpreted; rut in shoulder adjoining slab held defect. Collins v. State Highway Comm., 134 Kan. 278, 282, 285, 5 P.2d 1106. 3. Holes in highway constitute defect; sufficiency of notice considered. Williams v. State Highway Comm., 134 Kan. 810, 8 P.2d 946. 4. Road under construction; no liability where warning signs adequate. Eastman v. State Highway Comm., 135 Kan. 302, 304, 10 P.2d 854. 5. Accumulation of ice and snow on highway held not a defect. Gorges v. State Highway Comm., 135 Kan. 371, 10 P.2d 834; 137 Kan. 340, 20 P.2d 486. 6. No liability for injury on designated strip not opened as highway. Payne v. State Highway Comm., 136 Kan. 561, 563, 16 P.2d 509. 7. Cited in holding attachment action against commission not authorized. Barker v. Hufty Rock Asphalt Co., 136 Kan. 834, 836, 18 P.2d 568. 8. Culvert off center of road as defect establishing liability. Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P.2d 343. 9. Cited in discussing language necessary to create liability of municipality. Simpson v. Kansas City, 137 Kan. 915, 918, 22 P.2d 955. 10. Notice is condition precedent to action; minors bound by condition. Bohrer v. State Highway Comm., 137 Kan. 925, 22 P.2d 470. 11. Cited in holding notice to employee of commission sufficient. Collins v. State Highway Comm., 138 Kan. 629, 631, 632, 27 P.2d 216. 12. Verdict against commission for defect held not sustained by evidence. Elliott v. State Highway Comm., 138 Kan. 738, 28 P.2d 960. 13. Cited in holding state act for federal loan for highways constitutional. State, ex rel., v. State Highway Comm., 138 Kan. 913, 917, 28 P.2d 770. 14. Moderate depression in pavement held not a defect. Snyder v. State Highway Comm., 139 Kan. 150, 153, 30 P.2d 102. 15. Section inapplicable to injury sustained on detour on county road. Summerville v. State Highway Comm., 139 Kan. 530, 531, 32 P.2d 224. 16. Injured person held guilty of contributory negligence and recovery denied. Borman v. State Highway Comm., 139 Kan. 540, 548, 552, 32 P.2d 457. 17. Cited in holding 1925 and 1927 highway acts did not create "state roads." State, ex rel., v. State Highway Comm., 139 Kan. 858, 860, 33 P.2d 324. 18. Action hereunder must be commenced within two years after accident occurs. Fuller v. State Highway Comm., 140 Kan. 558, 559, 38 P.2d 99. 19. Few stones or gravel on paved highway held not a defect. Doherty v. State Highway Comm., 140 Kan. 686, 687, 38 P.2d 95. 20. Nail or spike left on highway does not constitute defect. Hanna v. State Highway Comm., 141 Kan. 135, 136, 40 P.2d 472. 21. Cited in discussing venue of actions against highway commission. Rome Mfg. Co. v. State Highway Comm., 141 Kan. 385, 387, 41 P.2d 761. 22. Rough and corrugated condition constitutes defect; evidence of notice held sufficient. Cheney v. State Highway Comm., 142 Kan. 149, 151, 45 P.2d 864. 23. Question whether alleged defect is within statute is question of law. Douglas v. State Highway Comm., 142 Kan. 222, 223, 46 P.2d 890. 24. Washboardy, corrugated, gravel road held not defective highway; cases reviewed. Douglas v. State Highway Comm., 142 Kan. 222, 223, 46 P.2d 890. 25. Commission's liability, if any, is statutory; misjoinder of causes of action. Rakestraw v. State Highway Comm., 143 Kan. 87, 89, 53 P.2d 482. 26. Narrow bridge without warning signs as constituting defect, held question for jury. Hill v. State Highway Comm., 143 Kan. 129, 130, 53 P.2d 882. 27. Chuck holes in level gravel road held not a defect. Espey v. State Highway Comm., 143 Kan. 873, 57 P.2d 424. 28. Consent not given to bring damage action for injury to land. Gresty v. Darby, 146 Kan. 63, 68 P.2d 649. 29. Permitting weeds to grow, hiding stop sign, held not defect. Phillips v. State Highway Comm., 146 Kan. 112, 113, 68 P.2d 1087. 30. Action is against state; section strictly construed; insurance carrier cannot maintain action. American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 240, 242, 244, 246, 70 P.2d 20. 31. Evidence held insufficient to establish defect; plaintiff guilty of contributory negligence. Parsons v. State Highway Comm., 146 Kan. 476, 479, 72 P.2d 75. 32. Strictly construed; stop sign hidden by weeds at secondary road intersection held not defect. Phillips v. State Highway Comm., 148 Kan. 702, 703, 704, 706, 84 P.2d 927. 33. Venue of action hereunder discussed in determining venue of other actions against commission. Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 194, 86 P.2d 592. 34. Roadside dike obscuring visibility not a defect within section. Moore v. State Highway Comm., 150 Kan. 314, 315, 92 P.2d 29. 35. Plaintiff's evidence held sufficient to establish prima facie case; defective bridge. Trezise v. State Highway Comm., 150 Kan. 845, 848, 96 P.2d 637. 36. Absence of warning signs; highway color blending with connecting road; no defect. Blessman v. State Highway Comm., 154 Kan. 704, 706, 121 P.2d 267. 37. Windrow of sand and sand pile which narrows road constitutes defect. Brock v. State Highway Comm., 157 Kan. 252, 254, 259, 139 P.2d 811. 38. State highway may be opened by implication; liability for defect. Thummel v. State Highway Comm., 160 Kan. 532, 538, 546, 164 P.2d 72. 39. Piles of chat near highway not highway defect authorizing suit hereunder. Lyke v. State Highway Comm., 160 Kan. 709, 710, 165 P.2d 228. 40. Discussed; property taken without condemnation; adequate legal remedy; mandamus writ denied. Atchison v. State Highway Comm., 161 Kan. 661, 664, 665, 171 P.2d 287. 41. Depression in "black top" road held not a defect; each case handled separately. Shafer v. State Highway Commission, 168 Kan. 591, 592, 595, 597, 598, 599, 215 P.2d 172. Reversed on rehearing: 169 Kan. 264, 265, 219 P.2d 448. 42. Action by next friend proper where person injured is incompetent. Perry v. State Highway Commission, 169 Kan. 382, 383, 384, 385, 219 P.2d 659. 43. Petition considered and held sufficient; defect; contributory negligence. Perry v. State Highway Commission, 169 Kan. 382, 385, 387, 219 P.2d 659; Holland v. State Highway Commission, 169 Kan. 584, 219 P.2d 1063. 44. Discussed; petition held to state cause of action under K.S.A. 68-301. Thompson v. Morris County Comm'rs, 170 Kan. 74, 76, 223 P.2d 749. 45. Oil spilled on road by third party not defect in highway. Sheen v. State Highway Commission, 173 Kan. 491, 492, 494, 495, 496, 497, 498, 249 P.2d 934. 46. Mentioned; motion for judgment on pleadings was improperly sustained. Drury v. State Highway Commission, 175 Kan. 667, 265 P.2d 1022. 47. State's liability is purely statutory and limited to defects in state highways. Lungstrum v. State Highway Commission, 177 Kan. 57, 58, 59, 276 P.2d 346. 48. Petition held not to allege "defect" in highway. Summers v. State Highway Commission, 178 Kan. 234, 235, 236, 284 P.2d 632. 49. Service of notice held not effected merely by deposit in registered mail. Shields v. State Highway Commission, 178 Kan. 342, 343, 345, 347, 286 P.2d 173. 50. Notice not received by director of highways within period prescribed; valid defense. Shields v. State Highway Commission, 178 Kan. 342, 343, 345, 347, 286 P.2d 173. 51. Mentioned in discussing liability of turnpike authority for certain torts. Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 755, 308 P.2d 172. 52. Liability is statutory; not based on negligence (dicta). Rockhold v. Board of County Commissioners, 181 Kan. 1019, 1024, 317 P.2d 490. 53. What constitutes a "defect" held a question of law. Cronin v. State Highway Commission, 182 Kan. 42, 43, 44, 45, 46, 318 P.2d 1066. 54. Four-inch drop-off in lane of travel held defect. Earnest v. State Highway Commission, 182 Kan. 357, 358, 359, 360, 320 P.2d 847. 55. Mentioned; bridge collapsed by falling tree; defect within purview of K.S.A. 68-301. Schmidt v. Board of County Commissioners, 188 Kan. 496, 499, 363 P.2d 539. 56. Mentioned in determining prerequisites to liability of a county under K.S.A. 68-301; notice of defect not established. Bishop v. Board of County Commissioners, 188 Kan. 603, 606, 364 P.2d 65. 57. Shawnee county district court has exclusive jurisdiction of in personam action against state highway commission. Bartell v. State Highway Commission, 191 Kan. 539, 541, 382 P.2d 334. 58. State immune from suits in federal courts unless immunity waived. Dunnuck v. Kansas State Highway Commission, 21 F. Supp. 882. 59. Mentioned; bridge surface slick when wet held no defect under K.S.A. 68-301. Dunlap v. Lawless, 192 Kan. 686, 690, 391 P.2d 70. 60. Default judgment against highway commission set aside. Williams v. State Highway Commission, 194 Kan. 18, 19, 397 P.2d 341. 61. Mentioned; liability of a city for defect in street. Grantham v. City of Topeka, 196 Kan. 393, 397, 400, 411 P.2d 634. 62. Mentioned; "governmental immunity" of operation of university of Kansas medical center considered. McCoy v. Board of Regents, 196 Kan. 506, 510, 413 P.2d 73. 63. No legal footrule as to what constitutes defect in highway; liability hereunder predicated on existence of defect, not on law of negligence. Schroeder v. Kansas State Highway Commission, 199 Kan. 175, 179, 180, 181, 429 P.2d 814. 64. Stop sign defectively installed; embraced with term "defect in a state highway" notice sufficient. Brown v. State Highway Commission, 202 Kan. 1, 2, 3, 5, 7, 8, 10, 11, 12, 17, 19, 444 P.2d 882. 65. Mentioned in discussing K.S.A. 68-301; failure to place stop sign at intersection not defect unless statutory duty to erect such sign exists. Coffman v. Fisher, 203 Kan. 618, 621, 455 P.2d 490. 66. The right of action against highway commission is not based on negligence; there can be no liability except as provided by statute. Kelley v. Broce Construction Co., Inc., 205 Kan. 133, 137, 468 P.2d 160. 67. State not liable for interest on judgment rendered hereunder. Brown v. State Highway Commission, 206 Kan. 49, 476 P.2d 233. 68. Action hereunder; construed; defects; question of law to be determined on case by case basis. Hampton v. State Highway Commission, 209 Kan. 565, 566, 570, 571, 498 P.2d 236. 69. Cited; absence of guardrails may constitute a defect in highway making state liable (dissenting opinion). Martin v. State Highway Commission, 213 Kan. 877, 888, 518 P.2d 437. 70. Action hereunder mentioned in discussion of liability for payment of interest on judgment rendered against state agency. Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 355, 532 P.2d 1081. 71. Section cited; under comparative negligence statute (K.S.A. 60-258a) Secretary of Transportation proper party to be joined for highway defect. Wilson v. Probst, 224 Kan. 459, 461, 581 P.2d 380. 72. Comparative negligence action statute (K.S.A. 60-258a) applicable to statutes governing highway defect liability. Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 542, 543, 582 P.2d 271. 73. No actual notice to director of highways within time prescribed; requirements of section not satisfied. Rodack v. State Highway Comm'n, 2 Kan. App. 2d 535, 536, 537, 538, 539, 583 P.2d 1035. 74. Purpose of notice requirement discussed; notice found to be in substantial compliance. Rodack v. State Highway Commission, 225 Kan. 343, 344, 349, 350, 591 P.2d 630. 75. Mentioned in holding governmental immunity statute unconstitutional when applied to the Kansas turnpike authority for defects in the turnpike. Flax v. Kansas Turnpike Authority, 226 Kan. 1, 6, 11, 13, 14, 19, 596 P.2d 446. 76. Judgment in action brought hereunder affirmed; no error by trial court in submitting question of the existence of defect to jury. Schaeffer v. Kansas Dept. of Transportation, 227 Kan. 509, 510, 511, 515, 608 P.2d 1309. 77. Cited. Kennedy v. City of Sawyer, 4 Kan. App. 2d 545, 553, 608 P.2d 1379. 78. Compared; nothing under K.S.A. 74-2105 et seq. grants highway patrol capacity to sue or be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). 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