*1 18,365. No. of Denver Gaylean Rita Madison, etc. (351 826) [2d] P. January Decided rehearing May 23, 1960, original opinion
On adhered to. *2 Ty Williams, for plaintiff Mr. R. Mr. John C. Banks, in error. in error. for defendant
Mr. G. Morris, Michael En Banc. of the Court. opinion delivered the
Mr. Justice Moore personal injuries. for for damages is an action This of plaintiff in a verdict in favor Trial of the case resulted Denver, against and $35,000.00. County for The City here entered, the case brings whom said was judgment City We will refer to the for writ of error. review defendant, and to City and of Denver as the County as plaintiff. defendant in error the and April commenced action was was born plaintiff that allegations contained complaint or other fiduciary that no 27, 1946; guardian on July in- protect court order been appointed by ever claim that a notice of the plaintiff; the minor terests of and that 20, 1956, on April served was against City prescribed by within the time not served said notice was plaintiff is, an infant and was, that reason law Hospital disability; that Denver General under City that on operated Denver; plaintiff old February months was six 1947, when physician hospital em- where a said she was taken to suffering ployed by that she determined hospital pneumonia; said admitted to she was and that as result of treatment, for observation negligence plain- patient aforesaid while face back, buttocks, her tiff severe burns on suffered crippled disfigured so her that said arms; burns permanently legs has been that the of her arms and use impaired became of said burns she and that reason permanently idiot. blind, deaf, mute ground a motion to dismiss on
Defendant filed complaint upon a claim which relief failed to state granted Denver General could be for the reason employees pertinent Hospital at times were all and its *3 engaged a and therefore as in a function City liable. As matter of could not be held law ground alleged City that further for said motion give claim the time failure to within written notice required by to should defeat the action. The motion law City an de- dismiss and the filed answer was overruled nying negligence part, generally placing and on its allegations complaint. issue all material separate City alleged im- As a defense the that was employees City because the mune injuries plaintiff governmental allegedly whose acts caused to were performing services in connection with function of Denver. Additional alleged by were that the disabilities defenses by congenital plaintiff suffered were caused condi- improper pre- existing birth, at the time of her tions improper child, care the mother and care natal plain- subsequent at the time of to and treatment limitations, C.R.S. birth; tiff’s that the statute injuries recovery; and that barred 139-35-1, damages sustained caused were acci- unavoidable dent.
The parties stipulated concerning many of the perti- nent facts, record establishes without dispute that plaintiff was admitted to the Denver General Hos- pital on 1, 1946, was February where she treated for pneumonia; on February while she was strapped in her bed part her treatment consisted of the use of steam vaporizer; thus while treated being she was very burned seriously from steam or water, hot or both. The record hospital relating to the as tragic incident, recorded the nurse who first discovered what had happened, follows:
“Diagnosis pneumonia. Lobar At Condition serious. 1:00 I p.m. came At duty. on 1:00 p.m, report baby’s condition was reported improved since into entrance hospital. I went give p.m. to child 2:00 formula. Around 1:30 child was steam inhalations and getting restrained with securely Finding double clove hitch. the water container almost I empty filled container about two thirds full with leaving water the lid to ajar container so excess steam could escape. supervisors made around rounds 3:10 Found the p.m. all At baby about 3:25 I right. returned the baby give it water and child found burned. Steam severely droplets were from the I dripping spout. reported to the head nurse Do how not know accident immediately. oc- curred. Pressure inside the container must have caused a of hot steam which hit spray restrained at the of the bed.” baby top
The infant plaintiff suffered second and third degree burns on the left foot, leg, buttocks, left three-fourths *4 back, arms, the area of the and the of her face. portions — — At deaf, the time of trial March 1957 plaintiff was dumb, blind, walk, and described unable to was as an “idiot.” of the
By stipulation hospital counsel records contain- the case of ing history were admitted in evi- plaintiff the admitted first that she was dence. disclose They the child born 1946, prematurely as hospital 27, July about weighing months gestation, of six to seven product dis- was and developed She two two ounces. pounds five approximately 23, 1946, weighing missed October normal in the that point pounds, progressed having next births. She in premature that way expected and received February hospital admitted to the February of on the burns complained stipulated: It was further “ * * * Hospitals, and Health of that the Department the of Hospital and Denver General the particularly, and maintained Denver, operated, of and City County and Coun- the City controlled to the Charter pursuant per- State statutes and in with Denver, compliance ty hos- county and operation to the maintenance taining protecting for pitals, purpose preserving, people of the health and welfare maintaining * * Denver County City and testified witness expert Dr. Collett as qualified condition was present that in his opinion plaintiffs hospital. at the caused burns which she received by the con- It relied on no evidence. Defendant offered negli- to show That had failed plaintiff tentions: (1) was congenital; condition of plaintiff gence; (2) within ninety to the given City that no notice was (3) statute; (4) as days injury required (5) limitation barred recovery; statute of for under the doctrine of liable, immunity, was not aof func- negligence tion.
Questions to be Determined. injuries a person personal proxi- First. Where suffers negligence employees caused mately Denver while such caring person for city in a hospital operated patient preserving, protecting maintaining purpose of is the liable city; municipality health the people of *5 6 caused said em- damages hy negligence
for ployees? of
This is answered in the question negative. Very settled firmly in the law of this state is rule that is not for the of municipality officers, agents liable acts or them in of employees, committed discharge functions or duties which are in nature governmental and which are in “exercised virtue of certain attributes to it for the and sovereignty delegated pro welfare tection' of its inhabitants.” Moses v. and City County of Denver, 609, 89 Colo. 5 P. It 581. (2d) well equally established that municipality liable for the negli gent acts of its agents duties re lated to the or private proprietary corporate purposes As stated in city. Denver, Moses v. supra: “ * * * In the former case its functions are political and governmental, and no attaches to it either for nonuser or misuser of a power; in the latter, while stands upon same with a footing private corporation, held will be to the same with a responsibility pri- vate corporation for injuries resulting its negli- gence.”
This distinction between the exercise of power on the one hand and proprietary corporate power on the other, laid down in a clearly long line of decisions City court. Denver v. 4 Colo. Capelli, 25; Veraguth Denver, v. The City 473, 19 Colo. App. 76 539; Pac. City Davis, Denver v. 37 370, Colo. 86 Pac. 1027; Denver City County Forster, v. Adminis trator, 89 Colo. 1 P. Meek 246, (2d) 922; v. Love City of et land, al., 346, 30; 85 Colo. 276 Pac. McIntosh v. City Denver, 98 55 County 403, Colo. P. (2d) 1337; Schwalb, et al. Connely, 195, 667; v. Colo. 179 P. (2d) Barker, et al. v. County Denver, 113 Colo. 363; 160 P. Atkinson v. County of Denver, al., 977; et 118 Colo. 195 P. (2d) City and Denver Leonard Austria, 136 Colo. P. pro governmental and This differential between corporations, municipal upon prietary powers conferred given question to whether case as controls the city agents. negligence Coun of its can be held for liable plaintiff this court decisions of sel relies on the *6 Ag Department Flying Ace v. Colorado Service, Inc. of Colorado 278; P. riculture, Racing al., 19, et 136 Colo. 314 Racing Association, Brush Commission, et al. v. Frances and Lavinia 582; 316 P. Inc., Colo. Currigan, Auditor Stone, Admx., etc. v. Thomas G. of County 334 P. 138 Colo. Denver, of sovereign immunity (2d) 740, in which the doctrine of repudiated. sounding from suit in actions in contract was application to The rule announced in those cases has no recog always actions ex delicto. substantive law has right bring against nized the an action of individual to municipality city, with or without the consent of the provided good against and has that a defense to an action personal injuries by negligence it for caused of agent negligent shown, at if the time of the act agent engaged performance per duty was in the of a taining governmental injured person to a function. The against remedy has, course, of the actual tort-feasor. province judicial It within the branch of government change long principles thus to established legislature par of law. This is a function of the and in a legislature performed by ticular area the its function changing Assembly the rules. In 1949 the General adopted providing, a statute inter alia: any injury person property
“In case to the or an by operation other is caused the tortious of a motor ve county, municipal quasi-municipal a state, hicle or police, department engaged or health fire while duty, county, municipality quasi- state, line municipality and the motor vehicle drivers thereof shall injury be liable for such to the extent stated; hereinafter subject apply to all defenses and laws as the same (C.R.S. 13-10-1.) to such on tort.” '53, actions founded In Kemmerer, et Maffei, al. v. Town Incorporated (Wyo. 1959), held in substance P. (2d) that although a product merely rule law which is judicial decision, born of the of particular necessities circumstances, subject when judicial repudiation the reasons which have failed adoption rise to its gave or no longer exist, an firmly ancient doctrine embedded in the common through long law which became so custom and usage cannot judicially abrogated any more than courts authorized to abolish law statutory because in their opinion legislative the reason for the enactment no longer justifies continuance of the law.
Second. Where a
admitted to a
patient,
hospital
operated by the
Denver, was treated
therein without charge
doctors
employed
and nurses
and while
municipality,
being so treated suffered
due
injuries
attendance;
negligence
those in
did the
acts
negligent
or omissions
said attendants
arise out
function
*7
the municipality?
This question is answered in the affirmative.
In this
connection we think it sufficient
to
from Schwalb
quote
v. Connely, supra, as follows:
“Municipal corporations
exercise two classes of pow-
**
*
ers, ‘one
aof
and
public
general character,
to be
exercised in
virtue
certain attributes of sovereignty
delegated to it for
the welfare
protection
and
of its
inhabitants;
other relates only
special
private
to
or
corporate purposes,
for the accomplishment of which it
acts, not through
public
its
officers
such,
but through
or servants
agents
it. In the
employed by
former case
its functions are
political
governmental,
and no lia-
attaches
bility
it,
either for
nonuser
mis-user of a
power;
latter,
while
stands
same
upon the
foot-
private
with a
ing
corporation,
will be held to the
same
with a private corporation for in-
responsibility
from its
juries resulting
negligence.’ Veraguth
City of
Colo.
Denver,
473,
Neither the Doyle moor- true contains doctrine Mr. Justice opinion ings Justice of Mr. our common law. goes Doyle rule contra to the well-established hospital municipally operated is immune doc- in those cases which follow the tort, enunciated governmental. sovereign immunity in matters trine of universality the rule. See 25 A.L.R. 203 for sovereign immunity recognizing doctrine but In municipally operated denying application hos- stay pital, Doyle inevitable inter- Mr. Justice would *8 thought had Indeed, rule. I we ment of an anachronistic pronouncements in in our seen the demise of the rule Racing Racing 279, Association, 136 Colo. Commission v. Currigan, (2d) 442, 582, and 138 Colo. 316 P. Stone 334 P. 740.
His opinion is of the destruction really example well, rule inchmeal. This other court, courts as have via bring- been attrition, inch-by-inch, case-by-case ing about sovereign immunity. extinction of gradual So concerned, far as I am I would break forthrightly from a as I doctrine, thought had, we should already have died aborning. on government tort,
Immunity vestige is a of the absolutism theory sovereignty, of monarchical and on days England the continent — Europe. potest “Rex non no peccare” King can do — a maxim It wrong was once of the law of England. developed from the esteem in was which Crown held. Sovereignty, perfection and pre-eminence, perpe- were deemed the tuity principle attributes of the Crown. Broom’s Legal Maxims, (9th Ed. et by Byrne), page 30 seq.
This relic form past of a of government ours, antithetical except during history our early when English colonies were established on the Eastern continent, shores of this had its genesis theory right kings. divine Woven into the texture of regal was respondeat doctrine of inapplicability superior. “The was immune from city liability because the doc- trine of respondeat superior was held to be inapplicable. This was a rudimentary maxim, survival ‘The ” v. Berry, Evans King wrong.’ 61, can do no 262 N.Y. 186 N.E. 89 A.L.R. per Judge Pound. As a palli- ative this obsolete doctrine of enlarged that “the can king do no but min- signify wrong, his Town Hargrove v. Cocoa isters Beach, (Fla.) may.” So. A.L.R. (2d) 1193. In terms Crown all eloquent attributes were repudiated the Declaration of Independence are reminded in We the Declaration of Independ- ence men are endowed their “Creator cer- with rights; tain unalienable these among life, liberty, *9 rights, happiness. these pursuit That to secure and the deriving among their governments men, are instituted governed A just powers ...” of the from the consent functioning republic government, under a new form of — Colo- A state in 1787. established constitution, was — enabling adopted constitu- pursuant act rado tion in 1876. recognized constitutions
That
these
Declaration
protec-
government
purpose
primary
is the
that the
rights
person
property
of men. “The
tion
rights
liberty
‘To
personal
natural
men.
life and
Independ-
rights,’ says
Declaration of
secure these
ence,
deriving
among
‘governments
men,
are instituted
governed.’
just powers
of the
from the consent
their
highest duty
they
very
entered
States,
of the
when
protect all
Constitution,
was to
into
Union under
enjoyment
persons
their boundaries in the
within
rights
they
endowed
‘unalienable
with which
were
these
Sovereignty,
purpose,
by
rests
their Creator.’
for
et
United States v. Cruikshank
alone
with
States.”
al.,
In as established view of the why difficult documents, it is to understand these solidly sovereign immunity grafted en- ever became so doctrine Perhaps body of our law. on the statement Liability M. Borchard in “Government Edwin explains Journal it: “The reason Tort,” 34 Yale Law injustice Anglo- long growing continued for this upon English course, rests, medieval American law King wrong,’ theory can do no which that ‘the without understanding was introduced with the com- sufficient country, mainly survived into this mon law (Emphasis supplied.) antiquity.” reason of immunity expanded: the doctrine of Predication analysis upon rests three “In the final sovereign grounds; rule that first, the technical suit; second, the ancient idea that it is immune from injury should suffer an the individual than better third, that the should suffer an public inconvenience; liability would tend to retard agents city of their duties for fear suit being brought against municipality.” “Distinction Between Governmental and Proprietary Functions of Municipal Corporations,” Doddridge, 23 Mich. L. Rev. 325.
Much of the common law of England has become the *10 common law of and this Colorado, ’53, virtue of C.R.S. 135-1-1, provides: which
“The common law of England, so as the jar same is a applicable general of nature, all acts and statutes of the British parliament, made in aid of toor the of supply defects the common law prior to the fourth year of James the First, excepting the second section of the sixth of chapter forty-third Elizabeth, the eighth of thirteenth chapter Elizabeth, ninth of chapter thirty-seventh the Henry Eighth, and which a are of general nature, and not local to that kingdom, be shall decision, the rule of and shall be considered as of full force until repealed by legislative authority.” (Emphasis supplied.) into focus the doctrine
Bringing immu- municipal since that is our immediate nity, problem, we again the advert excellent dissertation in 23 Mich. L. Rev. 325. The author says: is that the theory municipal
“The a corporation has function, one exercised aas mere agent dual of the process government, State the other private in its nature in that it is exercised for particular the the benefit of its inhabitants corporation as distin- from those which guished things the whole state If in its acting an interest. capacity, is not liable in tort for either a non-feasance municipality in so is misfeasance, acting or a because but the agent so a part of the and is far State State it par- State in sovereignty respect takes to immu- stated: Concisely from suit. State is nity sovereign, cannot be sued without its sovereign consent, q.e.cl, agent municipality State, of the is a mere municipality shows unless the State cannot be sued acting municipality by legislation. But, if the consent particular capacity, benefit of proprietary for the in its acting locality, it is not as inhabitants of privilege exercising merely agent but is the State partake granted by does and therefore State of the State.” temper melancholy our insti- It distortion accep- gained tutions doctrine of ever that the incongruous just Sovereign immunity as to our tance. way government speaking squared circle. The recognition and when the baseless, reasons for its longer disappears, the law should no reason for a law given effect. law, when the reason the soul of the
“Reason is particular any ceases, so law itself.” law does the Biggerstaff 108 Colo. 114 P. Zimmerman, 19, 46 P. 1098; Rains, 97 Colo. Rains v. beginning had a and its attributes never
The Crown *11 kings right of never the The divine became in Colorado. right government, federally either or in the divine of concerning England the Crown of state. These notions are government. strange system alien to our of and transposed rights of the old order Our common law government As and duties already the individual. between duty government primary is to the noted, property, right person protect the his but in the growing controversy a tort committed the out of sovereign government against citizen, the doctrine relationship immunity duty right. the reverses right protecting life, individual in his Instead of the body, people, protects against the the collective the State although people through individual, claim the seriously agent injuring may committed a tort have their sovereign immunity Thus, violates the individual. the primary duty government toward the individual in it disregards natural rights duties and is con- trary to the spirit and state federal constitutions.
Sovereign ’53, finds no shelter C.R.S. In fact, 135-1-1. it is excluded as a inferentially part of the common of this law state. only common law of England made a part of the common law of Colorado that part which be may applicable and which local to England. It would labor the only point to elaborate further upon basis of archaic granting rule sov- ereign Where a immunity. common law rule England is not it applicable and where is local to that kingdom it has no force in this Zimmerman, Biggerstaff state. Rains, Rains v. supra; supra.
The other grounds two sovereign are so well exploded the “Comment in 120 A. Note” L. R. I 1376 that therefrom quote liberally: “The mere statement of the second ground condemns it. True democratic principles do not countenance doctrine that it is better that an innocent individual should great suffer a without than that injury remedy at should be community large subjected to the risk slight inconvenience. As indicated in an earlier anno- tation, the damage from the act resulting wrongful government should be distributed the entire among community constituting the could government, where it borne without hardship where justly belongs, rather than imposed upon single individual entirely who suffers the See the injury. annotation 75 A.L.R. 1196. The rule of immunity leaves burden where fate casts it. greater No element of blind chance, and injustice, little more of would be involved if the law the damage sustained injured per- required son be another individual selected lot. paid by third ground
“The is purely argumentative; and, so it supports far argument goes, opposite rule *12 it doctrine of immunity. as much as does the For may that the recklessness of urged municipal be employees ‘retarded,’ to be and if the abrogation and officers needs operate municipal deterrent as a would persons, a upon negligence serve it would of such highly end.” desirable condemning the doctrine unison in are in
Text writers say exaggeration immunity. sovereign It nois have been written law articles in excess of two hundred America. excoriating anachronism in as an doctrine unfortunately this suggested retreat from above, As Apparently imperceptible. courts doctrine is almost legisla- awaiting by their action the several states gained extirpate have never that should a rule tures to country. in this root done was
I should do that which believe that this court supra. Hargrove Beach, Cocoa v. Town case opinion immunity be no held to a In well reasoned longer The court said: the law in Florida. governmental func-
“Immunization in the exercise traditionally put theory that ‘the tions has on been may.’ apply- king wrong In can his ministers do no but transposed ing theory our demo- have into the courts sovereign system concept is divine that the cratic reproach. preserving divinity beyond In and that completely theory they seem to have overlooked Independence produced wrongs our Declaration of Revolutionary War. resulted in the ultimate to declare therefore, time arrived We, feel that the system only [sic] our this doctrine anachoristic concepts justice democratic but to our traditional government. prior our decision therefore now recede from
“We municipal corporation immune from which hold that Affirmatively police we officers. torts of for the corporation may municipal held liable for hold that respon- police doctrine of officers under torts of ** * superior. deat “Subject here announced, we above to the limitations direct, merely an individual suffers hold when *13 personal injury caused proximately negligence a of municipal employee acting while within the scope of his employment, injured individual entitled ” * * * to redress for wrong done.
This court has held that the doctrine sovereign is no in longer effect in Colorado. At least I thought that the axe had been laid truly to the root of the tree. Mr. Justice Hall declared in Racing Commis- sion v. Racing Association, supra: “In Colorado ‘sover- eign may be immunity’ proper subject for discussion students but finds no mythology haven or refuge in court.” Stone v. Currigan, supra, case, In another Mr. Justice Hall in clearest language stated: “The deci- sion in the Montezuma case is predicated on the doctrine that a county arm merely an state; that state sovereign and as is, such unless named expressly therein, from immune imposed sanctions by statutes. The doctrine of sovereignty limbo, Colorado is in only memory on. lingers Sequiturs emanated from the doctrine such as from ‘immunity suit,’ ‘immunity interest,’ paying ‘immunity from the statute of limitations,’ etc., have with the demise of the doctrine ” * * * become non-sequiturs.
I am for a declaration by this court effect that sovereign should never have been recognized in Colorado since foundation for the rule never existed in this state. I Hence, would affirm the judg- ment.
I am authorized to say Mr. Justice Hall concurs this opinion. Doyle Mr. Justice dissenting:
I would affirm judgment of the trial court but would do so on a much narrower basis than that set forth in the dissenting opinion of Mr. Justice Frantz. case,
This in my opinion, does not call for a determina- tion as to whether or not the doctrine of sovereign immu- nity state, to the applicable the municipal corporation, agencies other school district and judicial “repealed” by I If were decision. should be opinion activity question classi should that the governmental, because reversal I would vote for fied as body deeply my can of law embedded view is that this — changed simple judicial that it rests decree not be legislature policy it is for on considerations *14 policy. agree questions I Thus with to determine opinion majority a function “This is comment legislature legislature particular area the and in of the changing performed The the rule.” its function referring majority which to the 1949 statute is there injuries respect immunity caused with to waived p. emergency 1948, Laws 268. vehicles. Session My majority opinion disagreement stems with precedent. blindly In it adheres to from the fact that legal position regardless or his- its is that effect activity conclusion that here soundness of the torical in powerless governmental properly question classified as we against recognized and examine it standards to judicial process my mind, redefine it. To involves analysis and the common law evolves in case case province it thus within our to re- manner, and categories dealing. are here with which we examine They can ones which never be modified are not closed though gave which rise to the circumstances them even have
changed. my viewpoint, adequately to show In order history necessary immunity of the to review the rule applied its basis as to it, examine the basis to corporations, municipal and to show the which standards problem properly apply here solution of raised. to governments immunity for torts The King wrong.” originated can idea that “the do no governments of the United States and It extends to the Though ap- statuory modifications. still each state with plied, discredited owes continued it has become policy vitality to various considerations. existence 18 Governmental
Borchard,
36 Yale
Responsibility
Tort,
L.J.
39.
rule is said
to have been extended
municipal
corporations
other
sub-
divisions
aby
deci-
misapplication
English
early
sion in Russell v. Men
Eng. Rep.
Devon
100
(1788),
359. This
Lei-
misinterpretation
occurred in Mower v.
cester
At present, although condemned universally by courts and text alike, writers the doctrine is consistently ap- *15 plied (in tort at cases to least) except extent has been immunity waived by statute or constitutional amendment, and except where courts have taken more critical look at the traditional “governmental” and “pro- prietary” classifications and have redefined and nar- rowed former group. Prosser, See Torts, 774, 775; Rhyne, Law, Municipal 730, etc.; & Harper James, Torts, 1619, Sec. 75 29.6, etc.; at A.L.R. page 1196, 120 at A.L.R. 1377, 25 page A.L.R. (2d) at pages 207-209. Borchard, Governmental Liability Tort; 34 Yale L.J. 1, 129 and 229; and Governmental Responsibility Tort; 36 Yale 1, 757, L.J. and 1039; Fuller and Casner, Municipality Tort Liability 54 Operation; L. Harv. Rev., 437. See also the concurring opinion of Peters, P.J. and the dis- of Carter, sent J. in Madison v. San Francisco, 106 Cal. 253, 236 P. (2d) (2d)
This has repudiated Court the doctrine of sovereign
19 sounding immunity Colorado in actions in contract. Racing Racing 279, Assn., Commission v. Brush 136 Colo. (2d) Flying Dept. 582; 316 P. Ace Service v. Colorado Agriculture, 136 Colo. 314 P. and Stone Currigan, latter Colo. P. 740. In the relegated case Mr. Justice Hall eignty “the doctrine of sover only memory lingers limbo, ... but on,” something memory more than exists in tort actions. In immunity departed, this field has never and notwith standing agreement among there almost universal sovereign immunity courts and text writers that illogical unjust, doctrine is ill-founded, is so deeply imbedded, and with all of its such corollaries is large body subject judicial law, as to be not uprooting. generally agreed immunity It is that where by legislative only exists, it can be waived action. On supra, p. Prosser, has said at 775: “ * * * bound, The courts are however, so far precedent existing any classifications that real re- ” * * * form of the law must come statutes, Harper supra,
See also & James, 1613, Borchard, 34 Yale L.J. 137. Since the of the state is not subject judiciary to waiver consent at the hands of the question the narrow here whether the treatment of indigent governmental activity sick ais clothed immunity. with the claimed appearing supporting
The reasons in the decisions generally doctrine of of the state are reasons public policy. by Harper These are summarized & supra, James, Sec. 29.3. The authors call attention to an often cited dictum of Justice Holmes in Kawananakoa Polyblank, sovereign v. from exempt “[a] U.S. 349 any conception
suit, because of formal or obso- theory, logical practical ground lete but on the legal right against authority there can be no *16 right depends,” makes the law on which the and note right” theory that pounded the “absence of which is ex- there supported history help is not and is of no democratic modern “in whether solving problem expedi- or either morals should, as matter of society reasons recognized . .” assume . Other ency, sovereign (1) authors include: since cited to com- a servant do it can not authorize wrong can no acts tortious the servant’s mit a As a tort. consequence — superior of respondeat ultra vires the doctrine are — the concept this (The never advances applies. (2) principal), master or any same could be said of devoted and can not be sovereign public are funds of would be service (3) public to private compensation, endan- public safety hindered and undermined and suit at the in- be to subjected if the state could gered would be em- citizen, (4) governments stance of every impair efficiency. would broiled in endless suits which rule as appears for the Thus the motivation judicial activities government about interference with concern ac- prevention government uninhibited possible as to excessive cost. tion, with together apprehension also here are given Other reasons which underlying “ * ** are: applicable be urged by are public agents of such duties officers performance so that doc- corporation, and not of the state does . . . and superior trine respondeat apply; hold the liable for corporation it unreasonable imposed upon duties negligence rather than assumed legislature, voluntarily it Prosser, Torts, (2d Ed.) general powers.” under should extended to a particular Whether be whether depended has on activity traditionally Often proprietary. held to be and this arbitrarily categorical determined method such holding results street mainte- illogical produced be garbage collection to proprietary gov- nance to & Cases on Seavey, Keeton, Torts, Keeton ernmental. However, the criteria tests which have been used courts for whether are determining functions more than the arbi- hardly helpful governmental,
21 trary categorical approach. generally agreed that It is — municipal corporation immunity a has no inherent immunity enjoys that it can be sued but that it agency to the extent that it acts as performance state in the been duties which have dele- gated perform. to or which the state has authorized it to supra, pp. Harper Prosser, supra, James, Sec. & specific 1623-1625. Other in- criteria most often voked are said to be: “ * * * (1) whether the function is to the allocated municipality profit special advantage for or or purpose carrying public whether for the out special advantage functions of the state without to city, (2) historically whether the function is one ‘ performed by government. only duty [I] t is where the ordinarily performed by is a one, new and is such as is trading corporations, give private that an intention a to neglect presumed.’ action for a in its is to be unsatisfactory. “These criteria are elusive and theAll — — municipality functions of a or should be for the public They they benefit. are none the less so because directly primarily only segment serve a limited public people rather than all the of the state. To the extent that cities are state, instrumentalities of the their purposes locally. main function is to serve state’s municipality charge profit fact that the The a makes aor in connection with the service rendered has often been governmental considered; but functions have been held spite charge, a pro- and functions have been held prietary charge profit. where there is neither nor suggestive guide though faltering historical test is a Many generally one. of the functions now considered privately performed very were in the not past. distant Little wonder that courts and commenta- despaired finding tors have a rational and consistent * ** ” key Harper the distinction. & James, 1621- At times the determination whether the im- mandatory is power duty or rests on whether munity duty if the is or exists permissive. Thus, discretionary. if it one but is non-existent mandatory reference Other determine this with courts question ministerial, recogniz- the act whether discretionary have courts if it Other ing discretionary. and acts misfeasance distinguished between acts of is liable municipality nonfeasance holding *18 harm but active risk of exposure unreasonable etc. Rhyne, supra, pp. 735, liable for its failure. passive recognized generally activities have been The which James, & 2 Harper as are summarized in governmental supra, 1623: “ ** * activi- following precedent goes, So far as ties held be gov- illustrate which are generally those (such as the passage ernmental: legislative activity activ- repeal of, ordinance); police or failure to pass, education; and health. On public ity; fighting; fire utilities maintenance of other hand the operation gas plants, or electric (waterworks, systems, sewer as generally regarded pro- street airports) railways, is the authori- among functions. There conflict prietary collection, parks, cleaning, garbage ties to street and maintenance and the erection swimming pools, separate deserve highways Streets buildings. public ”* ** treatment. these matters are often of the courts in Conclusions to the classifications referring generally arrived at by determining whether of the decided cases such classifications. fits within one of in suit activity a here, used the result would be If this were approach health and activity public present holding The case noted 25 A.L.R. governmental. consequently Louis, v. Schroeder St. 293, 360 Mo. 228 SW 200, (2d) of this (2d) 200, typical type A.L.R 677, 25 (2d) said: method. Here it was mechanical “ * * * public safeguarding The preservation city government. of a power the police within health is recognized generally That Muni- CJS, rule. See 62 cipal Corporations, p. § 133, cited. 278, and cases there By weight authority main- the establishment and hospital by city govern- tenance a a is considered activity, city mental and hence the is held not liable in Municipal Corporations, p. § CJS, 905, tort actions. 63 Am 311; 594, Jur Sec. 13. contrary
“A few states hold to the
as evidenced
plaintiffs.
They
City
cases cited
are:
Miami v.
Okmulgee
(2d)
City
Oates, 152 Fla 21, 10 So
721;
v.
City
Carlton,
605,
180 Okl
722;
71 P.
of Shawnee v.
City
Long
Roush, 101 Okl
Beach, 54 Cal
60,
354;
223 P.
Sanders
App (2d)
129 P.
loc cit 516
511,
(9), citing
Francisco,
Bloom v.
of San
Cal.
only prece- semblance a particular point regarded it should not be controlling subject open as and the is thus to considera- acceptance rejection tion and to of tendered tests and criteria. specific prescribed
A more
and reasoned method is
in
Davis,
Denver v.
37 Colo.
“The liability rule which determines the or non- liability municipality aof in cases of this nature is the duty performed depart- character of the rather than the agent corporation by ment, officer, or of the whom the * * * duty performed. is think We that the evidence estab- fact that the this case establishes the clearly in dumping ground and lishment maintenance of inhabitants and for the benefit convenience depart- the cleaning the street adjunct as city, discharge any was not in the ment the city, state; that the city duty imposed upon public * ** (Emphasis in character. was local and its special supplied.) Austria, supra, Denver See also
wherein Court declared: “ * ** claimed city As non-liability, to the governmental capacity, because it was acting the doctrine of decisions is to restrict trend of general and construe non-liability governmental strictly against city.” the doctrine [*] [*] [*] because seems to be that contention of city “The maintenance of the statute the erection requires that court- connected with activity courthouse that every fit to sees city house function. If the governmental activities, necessary perform- on other carry functions, then it assumes ance of its or operation conduct for its torts risk of ” * ** of such activities. par- us more Davis and cases teach Austria facts particular ticular and careful analysis criteria as are such demanded, apply and that we must im- are conceded to these though available even perfect. of 25 the annotation cases collected in
Study the decisions often very A.L.R. 229-230 shows patient or not are made on the basis whether is conducted on activity a fee or whether paid factor will almost profit of this Emphasis basis. profit the conduct the conclusion result invariably always applied criterion were and if this governmental, *20 non-governmental to be be held would few activities ever, conduct a seldom, profit if municipalities because producing business. It would seem, therefore, that rejected controlling should be as a criterion. activity
The fact that the benefits the commu- entire nity municipal every activity is inconclusive. Most af- directly indirectly community. High- fects or the entire way example, certainly maintenance, for an has such yet pro- anomalously effect and held is often to be prietary. Borchard, 34 Yale L.J. 229.
Merely because the conduct occurs within the walls public hospital governmental. of a mark does not it as supra, Davis, Denver v. Denver supra. might activity v. Austria, Some such be so classi- might hospital pub- fied. be true administration, This planning, inspecting lic health such as activities carrying particular out the mandates of statutes and example, Connely, ordinances. For Schwalb v. 116 Colo. recognizes 195, 179 P. that the governmental autopsy and thus immune. This lat- police ter, however, is incidental the state’s function properly and is so classified.
A more realistic test and one which is in accord with municipal history immunity is whether the ac- being tivity agency carried on as an of the state and under the mandate of state law. Where this is true it argued municipality exercising can state’s power is entitled to the which the state performing would have if it were the function itself. Immunity upon dependent at the local level is conceded to be
existence of at the state level and thus gauge this criterion offers more accurate of whether activity non-governmental than approach by category profit Harper or the test. 2 Cf. supra, & James, the cases cited 21. note See (1942), also Miami v. Oates 152 Fla. 21, So. (Alaska Tuengel 1953), Supp. Sitka 118F. Tuengel supra,
In the case, the Court reasoned: “ ** * Incidentally, it should be noted that the term *21 26 doctrine,
‘rule,’ immunity so the describing often used is that one misnomer, is it rule general a is the really and hence conduct, tortious liable for his or negligence the exceptions to all really of concepts a in the municipality of rule. In the older cases the on character of a turned operation hospital is it Whether governmental. function as proprietary that on distinctions depends labeled as one or the other a comparison arbitrary, to be artificial appear with 211-213, in 25 A.L.R. (2d) the authorities cited The rule 213-214 will disclose. those cited on pages prevailing and sound is one appears preferable holds denies and Canada which England liable for government political subdivisions operation hospital their servants negligence individuals, notwithstand- private to the same extent as of public act in the ing performance they may 25 functions, and charitable eleemosynary duties or ” * * * A.L.R. 216. declared: In the Miami case the Florida Court for the benefit of the hospitals maintaining “The common law function not under citizenry nor a government, duty to be required performed assume owe to would government which the citizenry.” Bartholomew’s Governors St. Hillyer
And in Farwell, L.J. 2 said: 1909), K.B. Hospital (Eng. is “It that a liable for public body is now settled as private servants in the same way negligence circumstances, similar be liable under individuals would acting it notwithstanding ”** * duties. public more sensible is whether Another test which seems been conducted exclusively is one which has activity business is authorities, private and whether by public private hospital In Colorado a in the same area. liable v. Long, Luke’s Hospital its torts. St. is liable for P. Colo.
Though Hospital is conducted in Denver General operated any accordance with it law, state is not under statutory Furthermore, mandate. C.R.S. 66-3-41. ’53, See indigent care sick local has been a function in America and in earliest times and Colorado locality perform when this function for the acts impossible benefit of its citizens to conclude that doing agency it is so as and that it the state *22 immunity enjoys therefore entitled to the which state governmental itsof functions. opinion, I am of the therefore, that the conduct here question primarily oper- local. of Denver The hospital agency ates this not as an of the state but rather Though phases benefit of its own citizens. hospital may govern- administration be function mental in the main, treatment of sick is the same type activity performed by private corporations that is private agree am Therefore, individuals. I unable to governmental. my opin- that it must be as classified In non-governmental activity ion, more character as governmental. Consequently, the trial court was than my opinion, overruling City’s correct, in conten- submitting jury. tion the case to the Finally, injustice holding majority as the holds immunity is in “limbo” as far as rights litigants contract are concerned and that can sue the state on ex contractu claims and at the same time personal injury litigant to hold that in a case the has no remedy apparent. comparison is at once This is well expressed in 25 210: A.L.R. “ * * * shocking effect of the doctrine the fact that, well illustrated in the view of some property rights courts, no attaches where by governmental action, violated but does attach where merely a it is being. matter the life or limb of a human ” * ** judgment This should affirmed.