James R. Spencer v. General Hospital of the District of Columbia
425 F.2d 479
D.C. Cir.
1969
Check Treatment

*1 light har- discipline or tion Pickering.” additional evidence “in no involved, no compelled mony among I feel to ask— co-workers involving working relationship what sort new case evidence? This close personal gone through prior has hearing, no a full administrative loyalty, admonition separate stages article, and, most two of inter- to write such an review, diplomatic situation mediate portantly, administrative a district no volatile determination, by Lastly, majority seems court a determination in existence. panel court, hearing appellant’s approval ar- give this and now a tacit gument did en banc. I feel this his conduct that at that because point actually injuries litigation, it any deaths in this which ad- cause mittedly lengthy route, permissible conduct. all the traversed a therefore however, plainly argument, miscon- salient facts have been adduced. This set- applicable certainly ripe is well case law. It is ceives the decision may punish record, present is the Government which full and com- tled that pres- plete. my Pickering It creates a “clear view that does conduct which danger” evil. appellant’s not affect of a substantive The ma- ent dismissal. States, jority they might, United thinks it Schenck (1919); say Instead, they L.Ed. do not 39 S.Ct. how. remand States, accord, United for the Civil to de- Dennis v. Service Commission how, 857, 95 L.Ed. 1137 cide any without elucidation words, person standards, guidelines vague screams other when even com- Pickering theatre he has crowded intimations how “fire” will affect inju- though wrong- offense, even the merits of claim mitted an Meehan’s In the may his ful result from action. dismissal. ries pervasive threat posture of this case For these I would terminate reasons of new outbreaks violence stage litigation and affirm at this time Zone at the Canal hovered over the decision of district court. clearly appellant’s conduct rendered I am authorized state danger” present within “clear and Judge BURGER concur DANAHER and meaning I feel Thus, of Schenck. opinion. in this appellant and differences between Pickering ascribe To manifold. Pick- intent foreign policy matters ering applied to touching upon problems national or to nothing security incredible. short Pickering language of The restrictive Supreme Court the multitude SPENCER, Appellant, James R. giv- confirming the broad latitude cases Executive en Constitution GENERAL OF DIS HOSPITAL militate in these areas al., TRICT OF COLUMBIA et strongly against a construction. such Appellees. Ill No. 21493.

n myself Addressing now to the final Appeals United States Court aspect disagreement my with District of Columbia Circuit. court, major- Rehearing me seems to that if On En Banc. ity Pickering going interpret Reargued May affecting (which unable this case I am DecidedNov. do) ought to tell the Commission Today’s how it affects Meehan’s claim. closely feel, is, akin nebulous remand judicial function. to an abdication majority for the introduc- remands *2 Judges, WRIGHT, McGOWAN, Circuit

TAMM, LEVENTHAL, ROBINSON ROBB, sitting Judges, en Circuit banc.
McGOWAN, Judge:* Circuit Appellant’s complaint in the District alleged pay- (1) had, Court he as ing patient, District been admitted to the diag- Hospital of Columbia General for pain nosis and in his treatment back, (2) Hospital’s employees had recklessly, carelessly” “negligently, him, including improper per- treated surgery, formance the in- juries compensable so were suffered damages. Hospital, agency of an Government, to dis- moved complaint miss the before trial barred as assertedly to suit en- joyed by District of Columbia as a entity. granting In reason, motion for this we think the Dis- trict Court erred. support judgment appealed

from, appellee insists that v. Dis- trict inapposite be- improper

cause involved maintenance playground, of a school whereas complaint in this case relates provision medical services in hospital. area, appellee In this latter points to our decision in Calomeris King David, C., Washington, Mr. D. controlling, 226 F.2d 266 as appellant. for necessitating and as affirmance Mr. 'Richard Barton, Assistant W. District Court unless we are char- Corporation Counsel for the District continuing acterize that case as without Columbia, with whom Messrs. T. Charles authority. We think this last a fair Duncan, Corporation Counsel, B. Hubert challenge, directly. and we meet it Pair, Principal Corporation Asst. Coun- was, Calomeris like the now be- case sel, Sutton, Corpora- and David P. Asst. allegedly us, a suit fore to recover Counsel, ap- tion brief, were on the paying medical treatment of a pellees. patient Hospital. at D.C. General Clas- BAZELON, Judge, sifying Hospital Before Chief DANAHER, perform- PRETTYMAN and Senior Government * Judge BAZELON, Judges opinion, Judge Chief DANAHER TAMM, LEVENTHAL, ROBINSON, joins. Judge WRIGHT concurs join opinion. Judge separate opinion, and ROBB in this in which Chief separate joins. PRETTYMAN concurs BAZELON also

4«1 thought function,” appropriate for the issue so “governmental anee of a only pursued to be banc. did east en We concluded Calomeris court inhibited, however, probing attached, not feel accordingly affirmed emerging mu formulations pre-trial dismissal District Court’s and, nicipal par principle had complaint. ticular, regret” trend, we remarked to its “much this action taken jurisdiction elsewhere, 268), towards F.Supp. and this analysis *3 unhappiness of which looked to the appeal nature its own on recorded by being performed (at p. a mu 268 function result these terms about the in nicipality stop F.2d): which not short and did of 226 governmental finding a of char agree that Holtzoff with We activity question. of acter in We governmental of function the defense found that of im the articulation negligence, mis- complaint to for a munity “governmental,” test in of terms malpractice obso- is ‘an treatment opposed “proprietary,” as to functions doctrine’, also dying we and but lescent increasingly vitality as had lost its ac phase agree him since it is a with that adequate curate or for im rationale immunity Congress government of munity privilege. that We noted this replace join his in it. We alone can evolving court had contributed to an con suggestion that the attention cept municipal of in as tort might Congress it. to well be directed deriving purpose jeop not from a Congress not include the District did quality efficiency gov ardize “the and of Fed- of Government Columbia by exposing ernment itself” the exercise * ** eral Tort Claims Act. gov of discretion in the formulation of Elgin, put issue In we to one side an scrutiny ernmental to the plea of that to us in terms a tendered liability.2 sanction of tort sovereign im of we the doctrine abolish Under these circumstances munity tort for District Govern by court did not think itself disabled doing so, took of ment. In we note vari deciding stare decisis from court, that case expressions by ous this in addition that the mere fact school Calomeris, to the effect that abolition was did not foreclose involved further Congress,1 we was matter Weightman bridge, v. Columbia, construction v. District 114 Harbin Corporation Washington, 31, ; 66 U.S.App.D.C. (1964) U.S. 336 F.2d 950 Black) ; 39, (1861) and, Columbia, L.Ed. 52 as 17 v. District of Urow 114 U.S. recently 350, 351, petition v. Colum App.D.C. as Urow District F.2d 316 bia, supra, April rehearing 1963, 16, 1 court echoed the en banc denied Weightman denied, 826, 69, distinction between “dis 84 cert. 375 U.S. S.Ct. “legislative” cretionary” function, Capital (1963) ; on 59 L.Ed.2d Transit hand, act, Columbia, U.S.App. the one and a “ministerial” on Co. v. District expressions 199, (1955) ; the other. For other D.C. F.2d 38 Wilson Supreme U.S.App.D.C. S. the matter of Columbia, U. municipal 28, for the Dis (1949). tort F.2d 44 Government, trict see Barnes v. District Columbia, 2. Booth v. District of 100 U.S. Columbia, 540, 23 L.Ed. 440 91 U.S. 32, App.D.C. (1956), 241 F.2d with Columbia, Johnston v. District compare Johnston District 19, 6 S.Ct. 923 Columbia, U.S. S.Ct. Woodbury, District of Columbia v. (1886). also District L.Ed. 75 See L.Ed. Caton, App.D.C. ultimately (1890). Our cases came (1918) ; v. District Sass exceptions rest so-called for nui U.S.App.D.C. maintenance, sances and street (1963) ; and Elliott v. District of Colum exceptions pretended these was bia, 64, 160 F.2d 386 upon any were view of the ac founded non-governmental. tivities long ago As the United States See v. District Smith Court held the District Govern- negligent ment answerable in tort for the 189 F.2d grounded upon mu- motion was that that nicipal question of whether inquiry into the immunity. immune District Government giving rise facts looked suit. We concluded II injury, guardrail aon repair of keeping reaching do refer- In the result we obviously although playground, school (1) ap- Elgin, we confront both ence to function, not of such argument only pellee’s quality pose threats a nature as may abolish the tort the Dis- efficiency view (2) the Government, and District tort was made if trict expressed in concurrence omission. consequence act or enough go be- far does not that decision provision of did believe We public cause it to effect such abolition. fails would be education in the contrasting commenting upon these making an- undermined immunity, stances towards failing maintain in tort for swerable may first to take look useful a hard playgrounds properly. We *4 the school customarily under at what is subsumed seeing a fence needed that doubted that the of “abolition.” rubric of fixing performance involved “the Davis, surely of the Professor one degrees highest calling for the functions of im- sternest critics and most relentless judgment,” it was and of and discretion being Elgin munity, has characterized as the conceived be the latter which we complete doctrine “as an abolition proper objects court- of solicitude liability sovereign immunity from tort immunity. municipal concept of created any judicial opinion has been as that by any that in written of the state courts The error of the District Court have abolished that doctrine.”3 Chief apparent resides in its the case before us Judge Bazelon, by contrast, lamented allegiance than to Calomeris abolition, and Elgin its failure to achieve “gov- Elgin. Each, in the sense broad longingly of the looked towards decisions “proprietary,” in- ernmental” versus Supreme California Court which Profes- Neither, in the nar- volved former. his sor stellar items in Davis cites as terminology ver- of “ministerial” rower catalogue abrogations of state “discretionary,” latter. sus involved offending differing These doctrine.4 perceive no between And we distinctions degrees by Elgin rapture evoked hospitals, on the one the hand, sharing two able observers the same ob- other, schools, of- on the that jectives suggests that there must be meaningful fer bases for differentiation ambiguity concept some in the of aboli- liability imposition for acts in the of tort tion. alleged the kind in those cases and therefore, not, one before us. do course, by We if Of what is meant retaining au- “gov- consider Calomeris as term the of the abandonment thority to the result reached command ernmental-proprietary” distinction and Court, by the and we hold of .the concomitant readiness ineluctably pointed denial towards courts to bar suit whenever the sov- degree ereign motion to acting dismiss is found to in the former be ” * * * Treatise, satisfactory 3. K. Davis 3 Administrative Law known to law Part). p. (1965 p. 25.01 at Pocket § at § 25.07 upon The literature of attack the inade- Muskopf Hospital District, Corning injustices quacies and found- Cal.Rptr. 89, P.2d 55 Cal.2d “governmental-proprietary” ed ; Lipman (1961) Brisbane Ele 457 mentary distinction is as it unan- as extensive District, 55 Cal.2d School Davis, swerable. like other Professor Cal.Rptr. P.2d 465 critics, respectable can summon the most Davis, supra at 3 The eases are discussed authority for 25.01, pp. his assertion that that dis- note 3 § 98-101 probably Part). tinction “is one of the most un- Pocket question Elgin may Court held that acts be deemed capacity, then would, character,” discretionary “were This effected abolition. have public only is a in- that, but because there vital however, true not be judg- jurisdiction independent terest in the “free of the earlier cases this officials, the ment” of school dis- by which, without referred sought statute, trict there sued was court counte- aid answerability mune.5 of the District nanced the though there even tort Government regarding Elgin determinative or omis- the act here, do nor less than we neither more clearly con- complained of was sion growing has been done number of performance text customarily state courts which cate- characteristically of one of gorized having “abolished” By we can this standard functions. Davis, supra in tort. K. See “abolished” said sig- Perhaps 25.01. ago, long either obtuse to have been nificantly, nothing essentially we do dif- perennial in- uncomprehending in our or ferent in kind from what was done only could cantations jurisdiction long occasion in this before should do that. Elgin. expose We do not is, Pro- presumably, every The truth Government in tort for Bazelon, Davis, Judge resulting injury fessor conceivable from the all mean performance California of its functions. they speak thing of abolition when same reaffirm, purpose do for the We abrogation, re- is the total and that malpractice in a of medical a claim jection concept the classifica- *5 “governmental” position in hospital, of we took function as the tion a ends, inquiry repeat, into begins, was, not with rather than the we —which permit- jurisdiction precedent tort should be this whether a action out in —that against automatically public entity. out of plaintiff proceed a is not to a ted appears the in Mus- it in court California Court whenever The by govern- grew the kopf “[abrogation jury of out said that school, hospital, immunity or in a not mean that the of or a does mental activity carried of is result the course other liable for all harms state govern activities”; by and, a in the com- on the District because from its there Lipman, panion In these self-same activities case of it observed ment. holding Muskopf considerations “that wise was far from are situations where readily suggest immunity public policy the public body the will where undesirability subjecting discretionary conduct Lipman Congress addresses to suit.6 officials is involved.” Until “Liability Lipman of Public Entities.” Oal. a claim for defamation involved seq. (West 1964). brought against et § a school district Gov’t Code may generally the statute The scheme of certain of its officers. district abolishing common law be as all offi- described immune from suit because the held liability acting discretionary whether entities tort for in role cers were “proprietary” complained the function in of were when the words by prescribing “governmental,” permitted uttered, to suit was against in proceed which such statute those circumstances liability may officer-defendants be- scope they asserted. of their cause exceeded authority making the to in statements remarked, Urow, press. As although There, just Lipman case. Muskopf such a occasioned a com- anything incapacity immunity prob- professing study do prehensive by about the District Government’s Law Revision Com- lem the California . munity in tort in the absence of Con- enact- mission which eventuated analyzed Legislature gressional action, hy we the claim ment the California “discretionary— presented thorough-going statute in terms 1963 of a comprehensive today journey itself to a to iden- effort reach we the case liability tify is, thus, foundations the District Government not particularly, beginning for the courts will be unlike the of the one initiated elsewhere, they doing Congress here, the Federal judgments. discriminating make these Government. See, Fote, g., e. N.Y.2d Weiss judgment of the District 200 N.Y.S.2d N.E.2d 63 reversed and the case remanded with di- complaint. rections to reinstate the argument appellee To the It is so ordered. Congressional ac that we should await tion, the is that the issue is answer banc, power As, PRETTYMAN, of our one act. en Senior Circuit (concurring): hereby provide we a formal interment “governmental-proprietary” test of oppose possible emphasis with all immunity, purpose flout no we visible suggestion attempt the court policy bury Congress rather, only but, sovereign eliminate from offspring one of our own whom we —one among the defenses available to the Gov- illegitimate periodically well treated as jurisdic- ernment in tort cases Elgin. advance As to the tion. I think that be a matter do, stay of what we we see no virtue in legislative policy judicial than a ing Congress our hand until chooses question. But the of the local recognize formally changed that we have municipal corporation long direction we course that set agents torts committed it or its ago. performance the course of the of duties It is said that should we heed the fail- imposed by quite statute is a different ure of to include the District thing. sovereignty It does involve of Columbia under the Federal Tort sense; problem the classic it is a con- seq.) Claims Act et U.S.C. cerning municipal functions and the lia- sign legislative purpose of a bility therefor. why I see no reason tort maintain for the District apply should not construe and vigor. nothing in full But there latter. legislative record of that statute to *6 I say am authorized to that Senior Cir- purpose, indicate such a and the omission Judge cuit DANAHER concurs in the logically theory explicable is as on the foregoing statement. that was satisfied with de- the veloping juris- state of the law in this WRIGHT, Judge, Circuit with whom which, diction seen, as we have was not Judge joins, Chief BAZELON concur- rejections purely “gov- without its ring : that, ernmental” test. To the extent Elgin alleges here, recognize signifi- Appellant he, pay- and we the that ing discretionary patient, injured by negligent cance in the factor was availability performance upon determination discography of im- him of a munity, operation by place Hospital. we of im- note central D.C. General His given portance by Congress suit pleadings has to this ele- been dismissed on ment in the Tort Claims Act.7 The reliance on this end court’s Calomeris de- test, regulation, ministerial” and concluded execution of a statute or subject regula- District should not be to suit whether or'not such statute or any valid, upon event. tion be or based the exer- performance cise or or the failure to among exceptions liability 7. First perform discretionary exercise or provided by 28 U.S.C. 2680 is the fol- duty part function or on the fed- of a lowing : agency employee eral or an “Any Gov- claim based an act or ernment, employee whether or not the discretion omission of an of the Gov- ernment, exercising care, due involved be abused.”

485 tinguish cisión,1 the District between activities held that inherently operates nature, hos- which Columbia merely supplant par- “governmental” than pital and those which as a function, workings im- private and hence allel “proprietary” sector. negligence. liability for its rule makes a “vertical” classifica- mune activities, excellent agree McGowan’s tion of in the sense that broad I with Elgin holding spheres our decision opinion of official edu- concern —such as cation, police protection, be overruled requires Calomeris and fire hos- go activities, gar- appellant pitals allowed here be and that and other health suggest bage collection, further trial. I maintenance of streets sidewalks, way sewage, road to com- provision on the station is but plete rejection sov- electricity transportation— water, of the doctrine immunity. ereign “governmental” are each either labeled “proprietary.” a service clas- Once “governmental,” city sified mune from for torts committed decided, a was At the time Calomeris provision serv- on level cases had established line of substantial ice. general proposition municipalities, “government- Columbia, other like distinction between gov- ex- “proprietary” for torts committed functions of liable al” and “proprietary,” purposes its of tort ercise ernment “governmental,” universally func- of its the exercise almost condemned. been “govern- outline, Harper bare tions.3 In In the words of and James: attempts mental-proprietary” satisfactory to dis- rule test has been devised “No Columbia, restricting negligence,” hold v. District without 1. Calomeris (1955). ing street maintenance. Id. at Columbia, District of Johnston v. Columbia, District of U.S. v. 19, 6 L.Ed.2d 75 S.Ct. App.D.C. F.2d 152 municipal im the Court restricted * * * Columbia, App. munity quasi to “duties v. District of 3. Roth ; judicial nature, involving (dictum) Brown v. the exercise D.C. 323 large Columbia, App.D.C. judgment deliberate discretion District of ** 20-21, (1907) ; L.R.A.,N.S., District of Id. at 6 S.Ct. at Caton, Tyrell, App.D.C. Finally, v. v. Columbia Columbia May, ; App.D.C. (1914) District of ; (1933) App.D.C. held liable for maintenance 68 F.2d App. general principle the streets Loube District of (1937) ; adopting general selecting “[i]n 92 F.2d 473 Wilson D.C. improvement, plan such, example, system, the munici as a sewer F.2d 44 *7 corporation judicial jurisdiction pal However, exercises discre cases in this carrying plan applying tion, in out the it acts the but no means unanimous ministerially, perform “governmental-proprietary” must the work distinction. and reasonably involving in a safe skilful manner.” the case the District’s and first Supreme tort, Id. 104-105. the Court Further, exceptions recog- negli- municipal have been for found no governmental bridge; the rule of to gent it dis- nized construction of maintenance, munity “legislative” tinguished in the case of street or between Columbia, city powers “discretionary” 89 U.S. and Smith v. 7, (1951), duty.” App.D.C. clearly “specific and and defined its Washing- Corporation Weightman where the tort could be classified in cases “nuisance,” 50, (1 Black) 39, ton, Roth v. District of as a L.Ed. U.S. supra. Columbia, (1861). The “street mainte- In Barnes v. District of exception effectively Otto) 540, isolated 23 L.Ed. nance” Supreme precedents Court which found the District earlier the Court bridges happened and streets to involve maintenance of liable for municipal principles proposition general street, stated vilhich and stated the general responsible city terms. is for its mere that “a government distinguishing from for should insulate the proprietary compensating functions.” And Professor the victims of tortious argued: [proprietary- providing “The conduct in Davis the service. probably governmental] distinction is criterion second is advanced unsatisfactory known one of the most provided whether the “tradi- service * * Supreme *.”5 The the law tionally” governmental.9 all the Since “ ‘non-govern- Court has referred performed by municipalities functions ‘governmental’ quagmire that mental’— has be, could and at one time or another have long plagued the law been, private sector,10 left corporations,” the 6 has condemned means no more than that are more cities “inherently unsound.” distinction as likely paying to be held immune from they logic torts of it their There is on the face little areas long “governmental-proprietary” police been distinc- active—like protection note, fire Harper tion. As two James areas of —than put recent criteria are most often forward concern. The be- rationale marking “grandfather ap- hind boundary two such between the clause” proach mystery.11 concepts.7 remains first is whether service performed good or for Dissatisfaction with the of mu law profit municipality cri-—a nicipal immunity solely does rest usually in- terion which quiry reduces illogic of the distinctions made attempts whether the area. It stems further from discontent by levy- to cover the costs the service concept with whole aof sov broad ing charge for it.8 The criterion is un- ereign immunity tort, whether for satisfying. apparent why It is not local, governments. state national government pays fact that a for a serv- New doctrines the law have sustained general revenues, ice out tax voluminous, such searching nearly charge tax) falling (or than out of a principle unanimous attack as directly service, using governments those respond should in dam Harper James, 4. cited, 2 F. & F. The Law of therein seem would to relieve (1956). 29.6 at Torts binding precedent. Harris of force as a Davis, 5. 3 C. Harper K. Administrative Law James, 4, 7. F. & F. (1958). Treatise at 460 § 25.07 at 1621-1623. Towing States, 6. v. United City Indian Co. Lawrence, Bolster Cf. 61, 122, 65, L.Ed. 48 390, 387, U.S. 722, 724, Mass. 114 N.E. L.R.A. (1955). Brush v. 1917B, Commissioner (1917). Cf. Revenue, Internal U.S. City Boston, Hill Mass. Cf. These S.Ct. L.Ed. expressions “pro of discontent with prietary-governmental” Seasongood, Municipal Corpora- distinction would 10. See precedential Objections seem remove whatever tions : to the Governmental throught might placed Proprietary Test, constraint 22 Va.L.Rev. power police on our abolish it Harris v. 914-915 : “The London 41 S. force was not established until It years Ct. 65 L.Ed. 1146 in which companies not a hundred fire since Supreme arguably applied voluntary.” generally private were distinction Moreover, of Columbia. Davis, 11. In addition to the works of contem Court’s already Harper Seasongood & James and porary policy leaving matters of local *8 noted, representative among the volu- resolution, law to court for final see governmental- minous criticism of Interpretive Corp. Universal Shuttle v. Borchard, proprietary distinction are Washington Metropolitan Area Transit Liability Tort, Government in 34 Yale Comm., 186, 196, 354, 129, 134-143 & L.J. and Fuller opin (1968) (dissenting 21 L.Ed.2d 334 Municipal Op- Casner, Liability Tort in Douglas), 437, eration, (1941). ion Mr. Justice and cases 54 Harv.L.Rev. 443

487 cepts ages principle has risk and cost distribution alloc torts.12 The foi’ their without basis ation.16 and found been examined po interpreted, history properly performing When in the course policy. theory, or in sound litical governments lawfully their ac- functions goods they services, quire ex- immu notion that The pected pay one No has ever costs. nity properly tort derives given argument adequate why the an principle English that “the law common governments not same should fortiori wrong” King shown do no has been can pay performing the costs when reading hist erroneous rest on an wrongfully injure they same functions ory.13 public funds are notion people. innocent purpose redress not for the collected ing wrongdoing, can sovereign and hence official mu The doctrines of purpose, rests expended for by judges not nicipal made were logic specious Legisla part circular the same of the common law.17 rejected by the courts generally imposed which has been im tures have immunity.14 And they the area of charitable munity; more often finally “it. conclusion piecemeal bald limited it in fashion where sus egregious an individual should particularly better was felt injury However, only should impolitic.18 tain than that an since 15 runs counter suffer inconvenience” 1955 —the date of Calomeris —that principle bemoaning traditional tort stopped both the courts have bad wrong they vis-a-vis the innocent victim in the first doctrines which created pay, begun con place,19 doer tort should and modern and have the serious task Borchard, See, g., 12. Lia e. Government District of Colum- District. Calomeris v. Tort, 1, 129, bility supra bia, 1, 229 34 Yale L.J. at Note 96 ; (1924r-1925) Borehard, 366, Governmental But no such in- 226 F.2d at 268. Tort, Responsibility VI, legisla- appears Yale L.J. 36 from the face of the tent (V), (VI) (1926-1927) ; I, tion, showing made of has been legislative 25.01; Davis, supra 5, history. Note § K. O. intent such an Harper James, supra interpretation that, plausible & F. Note 4. F. Congress passim. enacting FTCA, eh. simply local law concerned with 12, supra See, g., Borehard, 13. Note e. District. 1, Yale L.J. at 17-41. has statu- 18. The District of Columbia James, See, g., Harper 14. F. & e. F. torily automobile waived 1611-1612; Presi at Note cf. employees within torts committed Georgetown Col Directors of dent and lege Hughes, scope employment. 1 of their D.C. U.S.App.D.C. 123, v. provides (1967). It further § Code (1942) J.). (Rutledge, F.2d 810 against Dis- for settlement claims Eng. Devon, arising negligence 15. Russell v. The Men of trict out of Rep. “irrespective employees, negligence or such whether such occurred Harper James, supra & See 2 F. F. performance of a acts were done in the municipal Corning 1612; Muskopf Note at governmental function or a Hospital District, 11 Cal. Cal.2d * * said District D.C.Code (Traynor, Rptr. 89, P.2d 457 provision 902(a) (1967). This ).J. against authorizing suit construed generally Borehard, supra 17. See Note police negligence of a 1; Muskopf Corning 36 Yale L.J. cf. in Harbin District of officer Hospital District, supra 16, Cal. U.S.App.D.C. F.2d 950 Rptr. 89, P.2d at 461. No imposes sovereign im statute sovereign referred to Calomeris we munity. past argued In the courts have dying immunity as “an obsolescent failing include doctrine,” legislature left it to Tort within the terms the Federal Act, Johnson, it. 96 eliminate or reform D. see Douffas v. Claims D.C., F.Supp. 226 F.2d meant maintain the *9 488 reforming decade, them. In the last tical broad classification of areas of ac- highest sanitation, courts at least 12 states tivity education, sick, care of — broadly abrogated “governmental” “pro- have etc.—as prietary,”

tort of the cities or the states or both.20 distinction was a hor- new izontal fewer states traditional one which cut across these broad explicitly areas, particularity munities been reaffirmed.21 and looked with more complained at the act or omission of as jurisdiction, In this the movement negligent. injury proximate- Where the against sovereign —here —im- ly resulted from a deliberate choice in munity expression in the found policy, the formulation of official char- alleged Elgin, per- plaintiff case.22 In “degree by high acterized of discretion by negli- injury sonal fall from a caused particular judgment involved gent construction or maintenance 26 governmental act,” re- would playground school. The at his inquire recognized main. To into such decisions in of schools had “governmental” regarded might been func- a tort “jeopardiz[e] suit jurisdictions.23 tion in this as in other quality government efficiency it- 27 characterization, dispute It did not self,” endanger the creative exer- but rather distinction reformulated the political judgment cise of discretion and between areas in which the through inhibiting po- “the influence tort and areas in immune in legal liability tential asserted with the may 28 be liable. advantage hindsight.” oth- On the hand, injury er where was inflicted Drawing cases,24 recent two by negligent acts or official omissions “govern- court discerned a shift from a other pub- than in the formulation of mental-proprietary” “discretionary- to a lic ministerial” distinction.25 Where the —“ministerial acts”— previous distinction had on a rested ver- could be asserted. Thus “the execu- Hargrove Beach, 20. v. Town Cocoa The cases on both sides are collected Fla., 130, 96 So.2d 60 A.L.R.2d Davis, supra 1193 and summarized in 3 K. C. (1957) ; Community 5, Molitor Kaneland v. Part). Note 25.04 Pocket 302, 11, Unit District No. 18 Ill.2d 163 Supra 22. Note 2. 89, (1959); N.E.2d 86 469 A.L.R.2d McA Mularchuk, Tyrrell, 172, supra ndrew 23. v. of Columbia v. N.J. 820, (1960) ; A.2d 88 A.L.R.2d Note 3. Muskopf Corning Hospital District, v. Columbia, 24. Booth v. District of 100 U.S. supra 16; City Note Williams v. App.D.C. 32, (1956) (Dis 241 F.2d 437 Detroit, 231, 364 Mich. N.W.2d general trict not liable for failure (1961) ; Holytz City Milwaukee, provide adequate system, may sewer 26, 115, (1962) ; 17 Wis.2d N.W.2d 618 inadequate be liable for construction Spanel v. Mounds View School District sewer) ; Urow v. 621, 279, No. Minn. N.W.2d 795 U.S.App.D.C. 350, 351, 316 F.2d (1962) ; Highway Stone v. Arizona Com denied, 826, 69, cert. S.Ct. mission, 384, 93 Ariz. 381 P.2d 107 (city (1963) 11 L.Ed.2d 59 not liable for (1963) ; County, Rice v. Clark 79 Nev. provide light failure traffic because 253, (1963) ; Haney 382 P.2d 605 “essentially legislative”). decision City Lexington, Ky., 738, 386 S.W.2d 25. ; (1964) City v. District A.L.R.3d 1362 Kelso v. 2, U.S.App.D.C. Tacoma, 118, at 63 Wash.2d 390 P.2d (abrogation partly F.2d at 154. based on statute). U.S.App.D.C. 26. 119 at at See, g., 21. Turnpike e. Nelson Maine Authority, 174, 184-186, 157 Me. 27. 119 337 F.2d at (1961); A.2d State of Utah By Through & Road Commission v. Park er, (1962) ; Utah 2d P.2d 28. 119 337 F.2d at Valley Hospital, Clark v. Ruidoso-Hondo 72 N.M. P.2d *10 public hospital ployed than or the its formu- doctor from policy as distinct of tion counterparts. private for their could of Columbia lation,” care duty of reasonable be held long enforced had which against courts II private associa- individuals and Although I that convinced am tions.30 precedent four-square re- a stands as quiring us, re- my view, principle of I before in the case reversal my al- appellant in this case be quires that it marks the view should add that beginning alleged proceed to trial. He to the end lowed rather than upon negligently performed appellee municipal immu- our of that of reform nity. law resulting in operation, discography Elgin felt recent him a court in that injuries. personal his is panel Thus of this constrained serious commonplace decisions single of considering act tort im- suit for it from munity whether the re- malpractice. does not He medical of the District Columbia entirely abrogated.31 taken quire decisions Thus the us to review should be category preserve responsible required officials court felt “governmental” “discretionary” Those health. area here, policies, not in from are immune which which were to be held acts damages patients appellant accepting duty like rea- include for a breach of opera- performing hospital, at the care. sonable pol- type upon them. That tions of this icy Concurring Chief Elgin, Appellant applied in this case. “a noted the decision took Bazelon carrying it alleges in the course modernizing step toward useful hospital failed out the medical staff sovereign immun archaic doctrine imposed of due care meet the standards by point went on to out He ity.”32 pro- law medical local tort rigid retaining classification “[i]n complaint here is Thus the fession. eases, however, it harbors seeds execution, our of kind which fault presently char same arbitrariness which year. many times a courts evaluate He would acterizes doctrine.”33 Elgin, meaning such faults Within degree preferred discre subject re- hence ministerial, are performance tion to officials left dress tort. merely of their one factor duties be say weighed performance of “reasonable that the the calculus This not to judg- care.” not involve does point is that ment and medical, discretion. Judge Bazelon’s I believe Chief governmental, judgment and proper is the one. flexible rule common discretion involved. The gov- entirely any special would abolish normally applied malpractice, law of There ernmental tort. already hospitals, private doctors determination would then remain the grants leeway properly left for ex- causing which actions stringent pert relatively judgment in the private injury It is clear were tortious. upon plaintiffs requirements imposes Almost that not all of them can be. every injury negligence government No further medical suits. act of involves someone, yet a tort “it is not leeway required publicly em- U.S.App.D.C. 118-119, at 117 n. 31. 119 29. F.2d at n. at 154-155. Elgin rep- 30. The substantial break F.2d at 32. 119 “governmental- old resented with proprietary” Da- distinction led Professor among Ibid. vis to list it those decisions abolish- immunity. Davis, ing 3 K. C. Part). 25.01 Pocket govern.” It is in draw- ing and non- the line between tortious injuries

tortious action that official important

courts take can account *11 Elgin. factors the court referred the two

The distinction between views Elgin

is more than a semantic one. The

position easily rigidify into rule could agency an time an official or injuries

adopts “plan,” arising from itself, plan distinguished

negligent execution, compen- cannot

sated in tort.35 want to I would not take position

the flat paying immune from the conse- every quences policy, adoption neglectful policy might

however bodily security property or the

those affected it. any case, it seems to me clear that “discretionary-minis-

whether under the principle ju-

terial” made the law this Elgin, regime

risdiction in or under a

recognizing tort, appellant here should be allowed day against his in court D.C. General

Hospital.

UNITED STATES of America GILBERT, Appellant.

Kermit N. Jr.,

No. 23711. Appeals

United States Court of

District of Columbia Circuit.

Decided Dec. States, plan result, Dalehite United 346 can see District supra Caton, L.Ed. Note opinion (dissenting App.D.C. of Mr. Justice Jack- For 104-107. a similar dis son). opposite reaching result, tinction see Urow v. District 35. For a discussion of difference be- opinion my dissenting negligent plan tween a case, plan, concluding execution of negligence part even where the F.2d at 353.