*1 v. County. Appellant, Allegheny Laughner, 1969. October 1, March 25, 1969; reargued Argued O. J., Before Eagen, O’Brien, Cohen, Jones, Bell, JJ. Roberts Pomeroy, him ap- Louis 0. for Glasso, J. with Grippo,
Louis pellant. & him Rhodes Thomson, David Rhodes,
John appellee. for Grigsby, 30, 1970: January
Opinion Curiam, Per affirmed. Judgment Opinion
Dissenting Mr. Justice Roberts: “The Court stated: errors ago years Eleven which responsible were policy logic history, im- concept of this development [of clearly exposed, thoroughly have munity] Township Mt. Lebanon Morris criticized.” 2d 144 A. 633, 635, Pa. (footnotes omitted). this Court refused Nevertheless, remedy created situation, was Legisla courts but instead on themselves,* called *2 help. majority ture for Since then, has perpetuate continued the while at same doctrine, Legislature it has continued to call on time, for help. Supler e.g., Township North See, v. Franklin School Pa. District, 407 182 A. 2d 537 657, 660, 535, (1982) (“[T]he change by Legis should be made by courts.”); lature and not v. Morrison, Stouffer (“This (1960) 400 Pa. 162 A. 497, 2d 381 502, 378, again urgent legis case once need demonstrates for action.”) opinion). (concurring lative Needless to Legislature say, responded. Today, has not the ma jority stopped calling of this Court has even for help. governmental immunity
The
doctrine
is constant
ly
rejected
being
past
long
other
and it is
courts,
the time for this Court to do likewise. The list of cases
rejected
which
includes:
(1969)
Carrol v.
203 Kan.
Kittle,
574 2d P. 774 82 Nev. 419 District, 414, School
County
79
Rice
Clark
Nev.
County,
v.
(reaffirming
;
immunity)
2d 605
abrogated
P.
(1963),
382
253,
Ariz.
93
384,
Arizona Highway Commission,
v.
Stone
386 S.W.
v. Lexington,
107 (1963) ; Haney
P. 2d
381
Fairbanks v.
375
Schaible,
2d 738 (Ky. 1964);
Milwaukee,
v.
17
Holytz
(Alaska 1962) ;
P. 2d 201
v. Mounds
Spanel
115
2d 618 (1962) ;
2d
N.W.
Wis.
26,
2d
Minn.
118 N.W.
View
2d
Cal.
Muskopf Corning Hosp.
Dist.,
(1962) ;
Molitor v. Kaneland Community
P. 2d 457 (1961);
2d 89
cert.
(1959),
18 Ill. 2d
N.E.
Unit Dist.,
Hargrove
Dean Prosser has written: “The preventing quite factor future harm has been im- portant in the field of torts. The courts are concerned compensation with of the victim, wrongdoer. admonition of the When the decisions courts become known, defendants realize that they may strong held there of course in- liable, prevent centive the occurrence of the harm. Not infreqeuntly imposing liability one reason for is the purpose providing deliberate that incentive.” Pros- (3d 1964). Handbook of the Law of ser, Torts ed. By today, majority pro- decision refuses to “strong prevent vide that incentive to the occurrence county duty provide of harm.” The was under a yet negligent way Carol’s we sanction care, *4 they provided that care. We refuse to use disposal—tort help pre- historical tool at our law—to accept future abuses. Those vent who must the “bene- governmental action will fits” continue to be faced governmental And Carol faced. what with units will knowledge they in their act be secure impunity.
576 This to such a result. no way justify
I see
im
of charitable
the doctrine
abrogated
has already
the Legisla
the argument
munity—despite
Hospital,
v.
Flagiello
Pennsylvania
ture could do so. See
2dA.
209, 210,
208
193,
Pa. 486, 520-21,
417
no juris
There is
opinions).
216
(dissenting
charitable
abrogating
difference between
prudential
governmental
immunity.
and abrogating
I can
no reason
see
With charitable immunity rejected,
reject govern
refusal
likewise
for the majority’s
once
de
Not
since
was
immunity.
Flagiello
attempted
distinguish
even
majority
cided has
Harker
D.
Building
v.
& H.
immunities.
See
two
Surely injustices produced pass correcting without no more There reason let years own doctrine. injustices let more this nature accumulate pass, without correction.
I dissent. Opinion Pomeboy: Dissenting Mb. Justice an order of is from the lower court This appeal objections the nature of a sustaining preliminary wrongful death complaint seeking to a demurrer stated causes action. two damages survival on was based its assertion demurrer defendant’s barred the the doctrine alleged and on recovery any negligence, plaintiff’s lower court reluctantly sustained the that ground demurrer.
577 appeal upon The a direct attack is the doctrine governmental immunity applied presently as it to is challenges the counties of this Like Commonwealth. presented to that doctrine have always past, on numerous occasions without perseverance govern- success. The of the doctrine of separate is attributable fac- two tors: first, the belief of that some the doctrine immunity is a sound and viable rule and sec- law; among ond, even belief, detractors rule, change if abrogated, the rule tois such should be persuaded legislature. effected I am nei- position analysis. ther withstands I would reverse sustaining preliminary order the court below objections, plaintiff hold is entitled to a responsive pleading proceedings further may properly follow.
I.
long
It has
been the rule in this Commonwealth
county
that a
from
immune
for the tortious
employees
alleged
grows
acts of
unless the
tort
“proprietary”
out of a
county
function of the
or the
county itself has consented to
I
suit.1
shall not here
origins
justifications
detail the
the traditional
1
Liberties,
Fox v. The Northern
(1841);
See
3 W. & S. 103
City
Philadelphia,
Elliott v.
(1874) ;
Bucher
II. governmental A immunity conclusion that the doc- applied trine as now this Commonwealth is an un- 4 It should be noted that the abandonment of the rule of immunity presently applied as it is would an not be end to aU today urges judicial remedy “[N]o immunities. one that a injuries given govern- that result for all the from mistaken action, governmental the courts should or decide when political proper sphere nature is mistaken. The of a action of immunity question governmental will a vital remain even under indefensibly systems broad which relax still which pp. James, op. Indeed, Harper at prevails.” cit. 1612-13. most adopted modified the doctrine have a which have courts Supreme to that of the Florida similar limitation of rule impose liability it would not for “the exercise stated quasi-judicial, quasi-legislative judicial, or legislative or func- of Beach, supra 3) (note p. Hargrove Goooa v. Town 133. tions.” 580 the end rule law
satisfactory
not, however,
is
important question
for there is
further
matter,
in the doc
the present
time, change
whether, at
Not
should
come from the judiciary.
trine
properly
conceptual
withstanding
defects,
practical,
is
and it
it has been
immunity,
argued,
abroga
current official
of our
position
Court,
a
tion or modification
the rule is
decision properly
Dis
Dillon
York
School
left
legislature.
422
Supler
Pa.
It should also be noted that a court which lends undue to an regard outmoded rule of law that may by same action threaten the stability predictability of the law. Refusal frankly abandon a rule of law Which has withstood critical scrutiny or which been rendered anachronistic by the passage time and events itself breed uncertainty the law, giving from rise, case to to casuistic case, distinctions mitigate the rule’s but are effect, impossible apply any consistency. The governmental-pro distinction prietary developed by this and other courts 6 “Existing principles give present location, rules can our us bearings, longitude. our our latitude and The inn that shelters for night journey’s law, traveler, is not the end. like the must ready principle growth.” It for the morrow. must have a The Growth the Law. Cabdozo, truth, law, science, “In as a common must be for ever glory, flexible, progress; . . It is its true that it . and con- exigencies society; stantly expanding daily pre- with the it efforts; and loftier motives for new new it holds out sents degree excellence; unapproached ever an moves perfection, path never towards arrives in the onward Inaugural point.” Discourse as Dane ultimate Professor Story, 1829). (August Law *9 immunity governmental to curtail harshness a ra an delineation of doctrine is illustration. The governmental and tional and consistent line between proprietary and comm has eluded courts activities and is the line between such activities entators7 grow government likely to more still elusive as recently increasingly performs left services private policy Neither nor sector. reason is well served attempt to retain the rule of while our exceptions. grafting upon it inconsistent judiciary's I am tradi- In convinced that short, improving responsibility adapting tional particularly in of the common the area of law, doctrines original promulga- coupled with its role in the torts, judiciary tion of the indicate that the rule, proper agent change present in the a natural countervailing there are considerations of unless case, strength as to demonstrate unwisdom such a conclusion.
III. countervailing factors do exist and that That such governmental immunity any change in the rule legislature come from the should therefore closely argued grounds: principally on two related attempt whether determine exists when “The activity negligently by municipal is conducted test state or proprietary function has resulted it is of whether Morrison, complete Pa. confusion.” Stouffer opinion Cohen). (concurring of Justice 502-3, 2d 378 162 A. governmen- particular as functions classification “But difficult, proved be confused so proprietary has tal or disagreement, subject can little much of so has been said that the ‘rules which It has been ... here about said solving problem as sought are establish have courts Prosser, op. irregular governing verbs.’” French logical those p. 1005. cit. at peculiarly one the issue is which falls within
first, competence legislature; the institutional judicial upset proper reform second, would re- lationship judiciary legislature. between the and the grounds We shall consider these main two order. A. *10 proposition The that modification of the rule governmental immunity peculiarly is a matter within legislature’s competence appears the to based on be premises: legislative hearings three main first, fact-finding process or some other not available to the judiciary necessary intelligent are a condition of change; importance that the second, liability, especially requires terms a com cost, prehensive provided by only treatment which can be complexity statute; that the third, issue governmental liability requires kind of detailed pragmatic supplied by treatment which can be legislature.8 While is there some merit in each of positions, they analyzed, unpersuasive. these when are, premise, As to the first it has been said that the appraisal “courts could a make better of the com parative judiciary legislature abilities of the and problem government responsibility 8“[T]he solution of the complex undertaking permit partial an tort too to judicial piecemeal plaintiff reform which the seeks. Establishment comprehensive program legislation applicable of a to the Com sorely to all subdivisions is monwealth needed to deal effectively arising govern tort claims out of the conduct of Township Morris Mt. Lebanon activities.” School Dis supra trict, pp. 685-36. at “Only immunity legislature can deal with the field of all corporations aspects by municipal state, and school district of its comprehensive hearings enacting bill based on extensive supra p. investigation.” York Dillon v. 106. problem particular if consideration awith deal
to probabilities given, basis, on a selective were leg empirical be available data would that relevant judiciary.”9 While not to the committees islative problems be would of tort law of some consideration empirical data, relevant greatly use of enriched this cate problems fall into immunities I doubt principal are of concern gory. issues factual might potential of actions cost number and the abro brought against be counties should gated threat and the effect which safety inducing to institute counties have would employees need programs alert their or to Obviously, no local higher there are standard of care. Any studies matters. of these statistics as to either juris abandoning in other of the effect of surely well as to the courts as. are available dictions through legislature, their own research either adversary through or amicus counsel the efforts explore upon specific is be called curiae who in a of this sort the case I am satisfied sues. possibility *11 might to courts data unavailable that useful through brought hand the on the to bear issue be great significance. legislative process of not a matter is alone do not determine the data factual Moreover, Equally given rule of law. relevant are of a soundness challenged theory history of the rule and the and consequences any probable logical modification or peculiarly departure it. These matters are from or expertise, scope of court’s the relevant within reported juris decisions of all materials—the source literature—are critical the stuff of dictions deliberation. judicial research also, Cohen, See, “Hearing p. op. Peck, 279. on a Bill: oit. at (1952) ; Minnesota Law Review 34 Legislative Folklore?” Legisprudence,” 59 Vale Law Journal Cohen, Realism “Towards argued Secondly, comprehensive it is that a reform only accomplished by immunity may of the rule of legislature, position, is more, without argument against judicial partial not an reform. That comprehensive statutory can enactment set imposed liability forth the full each extent to be on type governmental not unit does entail a neces- as sary logical corollary par- position the further requires tial reforms be avoided; must that conclusion premise case-by-ease objec- a second reforms are grounds. any on tionable other some while Moreover, judicial decision is nature limited facts presented the case for limitation not decision, such without its it benefits, enables a court to “make slowly,” assessing evaluating haste both its ration- light ale and the effect decision in of un- experience. folding
Finally, it said that unlike statute, judicial opinion, public policy is a flexible tool of complexity and that the issue preferable renders means of reform. my position, in This understates the view, considerable specific abilities the courts to fashion rules and reme taking dies into consideration the distinctions between one flexibility case and another. It also overlooks techniques prospective inherent decisional overruling, might employ in a case of necessary acknowledge, sort.10 It is however, abandoning Some our sister states the rule of im munity prospective overruling mitigate have resorted what problems ever of reliance would arise from a break with its deci legislature speak past any or to sional enable its will before given Molitor new rule would be effect. See v. Com Kaneland supra Spanel District, munity 3; Unit at nt. Mounds View School supra (new applied at nt. 3 rule ease at bar and *12 legislative session); next as of the end the made effective Milwaukee, supra applicable (rule Holytz at nt. 3 case to occurring July 15, 1962; to aU torts after decision an- bar and prag- developing greater legislature’s freedom in
the problems govern- which solutions to hoc ad matic, might, legislature might entail. The filing special provisions for if establish it so chose, ordinary statute limitations, restrict notice, given against recovery a could had or limit the specified might limit; dollar unit to against nonjury trials all actions mandate also procedures negotia- municipality, detailed establish provide or for an administrative tions and settlement, liability. degree Not- determination the fact open withstanding flexibility to considerable properly judiciary, none of these remedies lie within powers. its greater pragmatic granting the re-
Nevertheless, legislature, need not to the one con- sources available body. that reform can come from that incompatible clude opinion and the are not statute tools categorize prob- public any given policy; need not one susceptible (or legislative judicial) to to lem as rule- making alone. the courts Rather General As- fruitfully joint sembly participants as are more seen governmental process, body being the efforts of each necessary complementary proper func- to, for, legislature tioning perforce of the other. The must interpret judiciary faithfully rely ap- to on the parent ambiguous to intent of define statutes, its stat- utory legislative fill the interstices of terms, judiciary provisions. Equally, should have no fear supplement, legislative implement, enactments which pronouncements. modify arguments above supe- that the I conclude legislature competence preclude do rior point 5, 1962). I to this device not June advocate it nounced flexibility more can be court there decision illustrate commonly supposed. than *13 judicial in action case be us; the before as now will fully keep- and in such action seems warranted noted, ing relationship proper legislature the with the between the courts.
B. Questions competence of institutional it aside, argued judicial be munity that modification of the rule of im upset proper relationship
would the between legislature respects. the judiciary the two First, legislature’s inactivity acquiescense the or in the face continuing application of this govern Court’s of the might doctrine be deemed to con adoption policy. stitute a tacit of that toAs that, pointed “Professor Hart has out [that] Constitu tion of the United States and each of the state con prescribe ways stitutions in which bills shall be failing come law, enact a bill is not one of them.”11 in view of Indeed, the courts’ traditional guardian role legisla of the common law, might forgiven assuming ture be for change, if it is judiciary, will come from warranted, and that unjust an by will rule be corrected its author.12 11Peck, op. p. 291, adverting Hart, cit. at “Comment on Making,” printed Legal Courts and Law in the Institutions To- day Tomorrow, 40, argument employed an Such at least one state proposals legislative to counter for reform of a common doc- law promulgated Detroit, trine first the courts. Williams v. (concurring ftnt. 2d 1 364 Mich. N.W. Black). opinion of Justice longer day escape come this can no “The will when an- swering question districts as to whether school are liable in litigation. as those in this circumstances announced tort under government hope other vain some branch will It is a strictly judiciary. Indeed, accept that of the task which indulge Legisla- improper hope in, say is an I would acceptance may readily found reasons Other than legislature’s area. failure to act legislators, press relative lack time available upon ing them their constituents demands made urgency many groups, organized issues other public require and the in law resolution, adequate personnel to as available staff and resource against legisla all which militate them are factors sist “Only the most of issues of tort consideration law. tive compelling likely capture legisla [the needs are *14 aphorism In these ture’s] circumstances, attention. legislature’s change is an a failure to enact a expression approval of it a the law stands is as prospects legislative patent fallacy.”13 for action by the law further diminished in the area tort are persons by aggrieved operation of the that the fact govern immunity scattered victims rule, i.e., negligence, are coherent or identifiable not a might group they so situated that mobilize themselves legisla collective voice heard and make their probability, legislation providing- In all remedial ture. governmental not be redress for victims torts would compensate past for hence retroactive so losses; press part on their for little incentive there is legislation. support for
I no find realistic conclusion that immunity policy legislature; governmental is the specific expression having by legis- no there judicial abolition of on rule issue, lature express any legisla- conflict with would policy. tive might argued
Secondly, however, it is judicial statesmanship for exercise an responsibility which resides over the courts.” will take ture District, supra, p. (dissenting opin v. York Dillon Musmanno). of Justice ion .”, op. p. cit. Keeton, . . Law Reform 1262. “Judicial abrogate long-settled ju to refuse since doctrine, might precipitate legislative dicial action counter-ac position interplay tion. Such a as an evil—the takes legislature—what of decisions and the courts things. inis fact the natural state Moreover, experience judicial of other states initia indicates reforming tive certain tort doctrines serve as impetus legislative subject an consideration of the ju example, matter. In California and Illinois, modifying abrogating dicial decisions legislative responses have induced which have upon recovery given statutory set conditions form liability.14 product the new In each the end case, judicial legislative of the chain of decision and enact ment has been a rule more restrictive than would have from resulted the court but less decision, prior restrictive than that existed to the relevant decision. The situation those states has been sum choosing marized Professor Keeton as “In follows: possible among open the best rules to them without transgression judicial of limits function, these courts rejection moved further toward of immunities than against could be sustained views whose force could be brought legislative *15 to bear arena. But in so do ing they legislative potent overcame a inertia, force delayed attempts that otherwise have would or defeated developments may at reform. Thus these be viewed as illustrating merely possibility not of clash between statutory creativity possibil decisional and also serving ity bring their combination to about re likely form that neither alone have would achieve.”15 p. 1681, 3267, seq., §1 Ann. See Stats. c. et Cal. West’s seq.; §810 and Local Government et Gov. Codes Governmental Immunity August Act, 13, 1965, Employees Act of Tort Laws seq. seq., (Smith-Hurd
p. 111. Stat. Ann. §1 et et §1 1966). .”, op. Continuity Keeton, p. . . cit. at 475. “Creative upon Assembly may, pass can,
That General acting subject preclude from does this longer no rationale and effects curtail rule whose assumption Similarly our to us. commend themselves common reform of the law of certain initiatives obligation implement from our free does not us legislature apparent of the should choose to intent subject. speak on the same gov- I
In unable to that the am believe conclusion, present expansive doctrine ernmental support, application I continued warrants believe of that doctrine in the first instance that reform begin properly Accordingly, I Court. must majority. respectfully from the dissent view Appellant. Commonwealth Lewis, 1969. Before November Submitted C. Bell, J., O’Brien, Roberts Eagen, Pomeroy, Cohen, Jones, JJ.