holding that because doctrine was originally common-law rule, this court may modify it in absence of legislative action to contrarySummary of this case from Bronsen v. Dawes County
Filed August 30, 1968.
Municipal Corporations: Torts. Cities and all other governmental subdivisions and local public bodies of this state are not immune from tort liability arising out of the ownership, use, and operation of motor vehicles.
Appeal from the district court for Douglas County: DONALD BRODKEY, Judge. Reversed and remanded.
Lathrop Albracht and Daniel G. Dolan, for appellant.
James E. Fellows and Frederick A. Brown, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is an action at law against the City of Omaha, a municipal corporation, for personal injuries allegedly sustained by the plaintiff as the result of the negligence of a policeman in the operation of a police patrol car. The city filed a demurrer based upon governmental immunity from liability for tort actions. The demurrer was sustained by the trial court and the plaintiff has appealed. The issue is whether the traditional rule of governmental immunity from tort liability should be adhered to.
Sovereign immunity has been said to stem from the concept that "the King can do no wrong." The traditional judicial translation of this concept proceeds on the basis that it is better that a citizen injured by the negligence of the governmental entity should alone suffer the loss rather than the "sovereign" governmental unit. This court long ago adopted the traditional common law view that a public entity engaged in governmental activities is not liable for negligence. Immunity has been "based upon a public policy which subordinates mere private interests to the welfare of the general public." Gillespie v. City of Lincoln, 35 Neb. 34, 52 N.W. 811, 16 L.R.A. 349. Why the "sovereignty" doctrine was ever extended to municipalities and local governmental units "is one of the mysteries of legal evolution." Borchard, Government Liability in Tort, 34 Yale L. J. 1, 4 (1924).
Even under the traditional common law rule of immunity, activities of a municipal corporation which were judicially classified as "proprietary" rather than "governmental" in nature were not immune. Greenwood v. City of Lincoln, 156 Neb. 142, 55 N.W.2d 343, 34 A.L.R. 2d 1203. This concept has recently been extended to the state itself. See, Stadler v. Curtis Gas, Inc., 182 Neb. 6, 151 N.W.2d 915.
The rationale behind the "governmental-proprietary" distinction is that when a public entity is involved in a governmental function, it is immune from tort liability, but when involved in a proprietary function, it loses its cloak of immunity. Under this rule, the citizen who has been negligently injured by a vehicle of the city water department may recover, but the citizen who has been negligently injured by a vehicle of the city health department of the same city cannot recover. Such distinctions defy logical explanation.
Particularly during the past 10 years, judicial opinions in increasing volume have pointed out the fact that the reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society. The rule is today no longer just, reasonable, nor defensible. The judicial attack on the traditional rule of governmental immunity has resulted in judicial abrogation of the doctrine in several states. See, Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89; Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130, 60 A.L.R. 2d 1193; McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Stone v. Arizona Highway Comm., 93 Ariz. 384, 381 P.2d 107. See, also, Hink and Schulter, Some Thoughts on the American Law of Governmental Tort Liability, 20 Rutgers L. Rev. 710 (1966); A Comment on Governmental Tort Immunity in Kansas, 16 Kan. L. Rev. 265 (Jan. 1968).
The major conflict is no longer whether the traditional doctrine of governmental immunity from tort liability is obsolete and unjust, but, instead, lies in the area of the responsibility and power of the courts to reform it. For a discussion of the relative responsibility of courts and legislatures in this area, see, The Role of the Courts in Abolishing Governmental Immunity, Duke L. J. (1964), 888; Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265.
Many courts in the past have held that any change in the doctrine of governmental immunity must he made by the legislature and not by the courts. More recently, although recognizing that the doctrine of governmental immunity was a court-made rule and of judicial origin, some courts have nevertheless refused to abrogate or modify it because of the fact that the doctrine has been adhered to for many, many years. See, for example, Boyer v. Iowa High School Athletic Assn., 256 Iowa 337, 127 N.W.2d 606.
"The dozen or so state supreme courts that have recently abrogated the immunity doctrine have recognized that an unjust and irrational principle cannot be allowed to persist on the hollow ground that changing an antiquated rule is a job for the legislature." 16 Kan. L. Rev. 265 at page 273.
Section 49-101, R.R.S. 1943, provides: "So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska."
In State v. Tautges, Rerat Welch, 146 Neb. 439, 20 N.W.2d 232, this court held: "The courts have power to modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable." This court cited with approval the reasons of the soundness of that rule: "The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. One of its oldest maxims was that where the reason of a rule ceased, the rule also ceased, and it logically followed that when it occurred to the courts that a particular rule had never been founded upon reason, and that no reason existed in support thereof, that rule likewise ceased, and perhaps another sprang up in its place which was based upon reason and justice as then conceived. No rule of the common law could survive the reason on which it was founded. It needed no statute to change it but abrogated itself."
Another reason sometimes relied on as supporting noninterference by the judiciary in the field of governmental immunity is the contention that the Legislature has preempted the field. The legislation in Nebraska dealing with removal of governmental immunity is extremely limited, and could properly be said to represent only a few isolated areas of a very large field. Justice Traynor of California effectively responded to the preemption argument in the following language. "We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated re-enactment of a statute * * * Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most. Defendant would have us say that because the Legislature has removed governmental immunity in these areas we are powerless to remove it in others. We, read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas." Muskopf v. Corning Hospital Dist., supra. It should be pointed out also that at the time of the California decision, California had far more legislation on the subject than there is in Nebraska.
We are convinced that the rule of governmental tort immunity is of judicial or common law origin, and that this court has power to modify it in the absence of legislative action to the contrary.
Both the Legislature and this court have power to act to change the doctrine and it may well be that the Legislature will have the ultimate word. This would seem to be a poor reason to avoid the court's obligation to modify the common law to serve the requirements of justice in a modern society. We ought not to thrust upon the Legislature the sole responsibility for injustice on the ground that, "Thus it was said in the reign of Henry IV," nor even on the ground that any change would constitute the traditionally condemned heresy of judicial legislation.
We must recognize, however, that the doctrine of governmental immunity from tort liability underlies a very broad field and that the legislative process and procedures can be more effectively applied to a comprehensive solution, while the court's processes and procedures are more effectively directed to a solution more narrowly limited to specific facts framed in litigated cases. Any modification ultimately shaped by this court should be limited to torts, and should not be construed as imposing liability on any governmental body in the exercise of what might be termed "ministerial or discretionary functions" nor on the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions. See Holytz v. City of Milwaukee, supra.
The nature of the activities and the harm, fiscal consequences in general, analogies in private law, the public interest in effective, efficient governmental service, and the fact of a long-continued assumption of nonliability, together with the broad coexistent authority of the Legislature to act, all dictate a gradual judicial transition. That transition is preferably accomplished by the process of inclusion and exclusion, case by case, and step by step.
Automobile accidents do not fall within the category of reasonable exceptions to nonliability which might foreseeably be carved out of any future framework of modification. The general legislative policy to accept public financial responsibility in this area is already apparent in section 60-1008, R. S. Supp., 1967. That section requires liability insurance for all trucks, automobiles, snow plows, road graders, or other vehicles of state agencies.
The record here does not reveal whether or not the City of Omaha or other cities or governmental subdivisions carry liability insurance on motor vehicles. The existence of such insurance has in itself been treated as a waiver of immunity to the extent of such insurance in the states of Georgia, Indiana, Minnesota, Oregon, Wisconsin, North Carolina, Illinois, Kentucky, and Tennessee. See Annotation, Liability or Indemnity Insurance Carried by Governmental Unit as Affecting Immunity from Tort Liability, 68 A.L.R. 2d 1437, and supplement thereto. The availability of insurance eliminates one of the reasons sometimes used in support of traditional immunity — the catastrophic loss to smaller governmental units.
We therefore hold that cities and all other governmental subdivisions and local public bodies of this state are not immune from tort liability arising out of the ownership, use, and operation of motor vehicles. Contrary decisions are overruled to the extent of their inconsistency. To enable the various public bodies to make financial arrangements to meet this liability, this holding applies to all causes of action arising after September 29, 1968, 30 days following the filing date of this opinion. In respect to other causes of action, the new rule applies if, but only if, the city or other governmental subdivision was insured against such liability on the date the claim arose, and then only to the extent of the maximum applicable amount of its insurance coverage. For the reasons set forth in Myers v. Drozda, 180 Neb. 183, 141 N.W.2d 852, this decision is applicable to the case at bar.
The judgment is reversed and the cause remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.