*1 20,293. No. al., et Tesone, minor, P. Gerald County. Boulder Re-2, District
School No. (384 82) [2d] July 29, Decided 1963. Roger Mr. Mr.
Messrs. Williams E. & Zook, Stevens, for John G. error. plaintiff Taussig, Jr., Messrs. Hutchinson for defendant Hutchinson, & error.
En Banc. Day delivered the of the Court. opinion Mr. Tesone, through This action Gerald P. his by minor, friend and the father individually, father next Re-2 in the of Boul- County District No. against School der, injuries alleged seeks in tort damages to recover bas- Gerald practicing have been while sustained High Colo- Louisville, ketball in the Louisville School rado. complaint, ruling that
The trial court dismissed *2 State subdivision of the defendant District as a School liability the under what immune from of Colorado is pronouncements this of be settled found to court the City holding in that the court. Plaintiff in error admits County 1, 351 P. Madison, Denver 142 Colo. v. (2d) Flor, Liber v. 143 and the later 826, case ruling (2d) precluded 590, trial court from P. present holding up otherwise, that such constitutes day urged these cases law in Colorado. It is overruled. pronouncement
This under the decline do we “It case, said, Madison wherein we is not within province government branch of the principles change long thus to established law. This * * *” legislature the function judgment is affirmed. specially concurs. Justice Moore Mr. and Mr. Chief Justice Hall Frantz, Mr. Mr. Justice Pringle dissent. specially concurring. Justice Moore
Mr. opinion Day. I concur in the of Mr. Justice In view of the fact that Mr. Chief Justice Frantz in his dissent- ing opinion has once seen fit to advocate that we should overrule considered of this court forty extending period at least cases over a excess again eighty-five years, I must cer- direct attention to principles tain fundamental would be believe ignored majority or violated if this court were suggested by dissent. follow the said course reject now It is asserted that we should the doctrine, jurisdic- firmly in the law of heretofore municipal corporations are not liable for the tion, negligent their committed in dis- acts of servants governmental
charge As are of duties which nature. already indicated, in of cases far too numerous mention upheld detail this doctrine ever State since doc Indeed was admitted to the Union. Colorado trine was approved by majority three single separate Colo occasions in a recent volume of single namely Reports, year, and in rado approved each case occasions, and in on four dissenting arguments opinion advanced in the instant majority rejected by presented court. were cogent why been, should have reasons Some majority opinions rejected set forth in the were, P. v. Madison, Denver 142Colo. we refer. to which (2d) 590; Flor, 826; Liber Berger (2d) 609; 353 P. 246, Faber v. 143 Colo. Colorado, Dept. Highways, 612. 143 Colo. opinion no court has it ever been held that In *3 governmental nonliability agency of a the rule of for the performance negligent gov- in acts of servants the any degree modi- duties, in whatever ernmental the discarded or minimized. Sentences from fied, lifted dealing opinions ex contractu context with actions in slightest do not have to situations which the resemblance given the be actions, issues involved in cannot the tort dissenting The for brethren effect which contend. that, the “There re- contained in dissent is thus statement subject. unquiet a the Where vealed condition of flux on rocking sailing, now the had it is once smooth support along one is in waters,” in troubled without dealing ac- numerous decisions tort Colorado only justification by in dicta and obiter tions, can find deciding rights and contractual based on actions made reference is obiter dicta to which liabilities. The bearing upon any slightest aris- the issue does have upon negligence, damages ing and for in action based pertinence necessarily actions the thereof is limited to upon based contract. liability repeatedly held that if is
We arise against governmental agency negligent a for acts engaged governmental li- its servants a this function, in ability, must heretofore unknown state, law this legislative government. a be creation branch repeat again judiciary I that it is not the function of instability to create confusion and law, settled well province judges apply nor is it within to refuse to firmly principles simply of law those because judge’s philo- rules do not conform to the individual sophical notion as to what should be. respectfully
I that there submit comes a time when minority recognize should that an issue of law has been decided this state, that the rule of stare de- applicable given recognize cisis is situation. proper
under some it circumstances for a court to previous overrule under decision and has indicated proper what circumstances to do so. None given the reasons as a basis court’s heretofore for the overruling previous present action in decision generally case. The instant reasons which are ac- ceptable governed by as a basis for refusal to be rule of stare decisis are considered in Mountain States Telephone Telegraph Company City County al., et Denver, P. 397, and cases there cited. dissenting opinion People quotes Schaefer, following language:
“With reference to of stare decisis which say the administratrix relies, suffice it to is not the first nor time, will it we, last, obligated reasons, definite and valid have felt over- * * *” *4 rule a former decision. quotation abruptly stops. opinion Here the But in the paragraph, citing referred the to after authorities, perpetuate tinues: “Courts are not bound to errors mere- upon ly ground previous the a that erroneous decision given question. wrong, has been rendered on a If it is long continued, should not be unless it has been the so upon that and action, extent, rule relied to such an greater injury injustice reversal, a and will result though wrong, than it.” observe and follow to places emphasis phrase on “nor dissent the the
The emphasis place be I will it any last.” If were to the probably portion statement I selected of the full and would underscore the statement “for definite disregard valid reasons” stare “definite” and “valid” decisis. reasons which are Those readily appear present are not as will case, the instant reading paragraph of decisions in the last cited People opinion and substan- v. Schaefer, Tele- States other cases in Mountain tial number of phone cited Telegraph Company, supra. and dissenting opinion concluding statement points up I Frantz the area in which Mr. Chief Justice part company respectfully asserted, him. It with is there join “I of states which would Colorado ranks immunity.” (Five repudiate the doctrine action.) have taken As states seem to matter pleased might opinion Colo- be individual also see “repudiate” result if that However, brought doctrine. rado by be is to reached it should be about charged government with branch of which is creating rights legislative liabilities, duties existing amending changing not It should law. ju- usurpation part accomplished by legisla- belonging exclusively diciary power government Article in violation of branch of tive provides: constitution, III of the * * “* charged person persons or collection of and no belonging powers properly one with exercise power any properly departments be- exercise these shall *” * * longing others, either policy. public We not arbiters of Courts are govern- dealing considerations, here age sociological old mental, otherwise with which freight- sovereign immunity in tort actions is doctrine of *5 any ed. Whatever views of us entertain as to philosophical historical or worth, we here are limited both law and conscience to the function of faithfully interpreting applying find law as we usurp legislative establishing power it. We cannot of public policy. interesting
It to note that several sessions of legislature state minority have convened since a opened members of this court the war on governmental immunity upon negligent in actions based acts of of the servants state. In Madison, Denver v.
(January 1960) dissenting opinion di- was filed which personal rected attention to the belief author that: melancholy temper “It is a distortion of the in- our immunity gained stitutions that the doctrine of ever ac- ceptance. Sovereign immunity just uncongruous as way government speaking squared to our as cir- * * recognition cle. The reasons for its are baseless, This judge’s was an opinion. honest statement of one legislature, But the which was then in session, impressed thereby legislatures and the several which yet impressed have since convened have not “squared argument circle” or rea- other subsequent dissenting which ons have been advanced in being grounds “repudiation” rule. Although legislature question has considered exceptions application and has made to of the rule in consistently agree certain cases, it has refused general changed. rule should There are substantial arguments available to those who favor a continuance the well established rule with which the members of the legislature thoroughly though Even familiar. these arguments persuade do not the dissenters in this case they carry weight sufficient with the members of legislature prevent repeal “repudiation” or today. legislative as it exists When successive sessions go amending doing away come and without with the county rule; through when hundreds of commissioners organization change; their when the work resist districts members of the countless boards school throughout directly affected would be state retrospectively; change operate in the law would *6 heavy majority and the of board members when such “repudiation” opposed many of to their constituents concepts public policy; grounded of the rule on well certainty man- is so that can be said with how ifestly “unjust” it the an “anachronism” that or that it is such usurp powers do judiciary legislative and the should away with it? the majority taken members usurp
position the function thus that the court not will government. re- legislative We have arm the of the peatedly “It is matter, with reference to said province the branch of within not government the principles long change thus to established *”** legislature. of law. This is function supra. Madison, Denver v. in the course of action advocated
I can characterize “judicial legislation.” terms the dissent in no other than legislature to do the has failed that The fact that do, should members this court it some does not transfer the believe judiciary authority legislative to conform the individual alter the law to to to judges they think law what with relation to be. a course would destruc- should Such result concept “government our fundamental tion of “government by man, law,” and substitute uncertainty confusion men.” would appel- few Endless result, be the and with each new arrival previously late bench well rules would subject to re-examination determine whether judge “squared” with the motion of new to what law should be. Frantz Mr. Chief dissenting: evolutionary; The common law of America is is not it growth, going static and immutable. It is constant changing through adapting itself to mutations refining By improving doctrine. ditions and in very justice. perfection achievement nature, it seeks reshape
Thus it ancient has been said that courts present them rules of the common so as to fit law verily, duty keep common conditions; it is their changes wrought by law abreast of Courts should time. molding principles not be meet averse to common law experience Indeed, the dictates of and observation. it said commentary sad can be common law if it profit by experiences it and obser- cannot past present vations of the and that thus the shall al- ways irrevocably past. be controlled
One of the “that oldest maxims of common ceased, where the reason of the rule ceased the rule also logically and it followed when it occurred to *7 particular courts that a upon had never been founded support reason, and that no reason in existed perhaps thereof, that rule ceased, likewise and another sprang up place in its which was based reason justice and as Funk States, then conceived.” United 290 U.S. 54 S.Ct. 78 L. 369; Ed. Ketelsen v. v. v. Biggerstaff Stilz, 184 Ind. 423. N.E. See Zimmerman, Rains, 1094; Rains Legal 740; “Collected Papers,” p. Holmes, 187; “The Nature of the Judicial p. History Process,” Cardozo, 152; “A Concise of pp. Perhaps Law,” Common Plucknett, 2nd Ed., 272-274. following excerpt from Funk States, v. United concerning contains the classic statement constant evolution of the common law: capacity growth
“To change concede this for and in by drawing inspiration the common every law ‘its justice,’ fountain say and at the same to time country the courts of perpet- are forever bound to n by every such uate as, its rules test, are reasonable just, have once we nor because found adopted be neither wise to and institutions as to our situation them suited in deny common particular at a law time, is capacity ‘flexibility place adoption a and the growth its peculiar adaptation’ boast ‘the which was and origin.” place system in its excellence’ respectfully suggest Court confreres on this decisis, consideration of the doctrine of stare in recogniz- concepts: keep that in we between balance sight ing lose decisis the merit we stare importance healthy growth com- in inherent decisis mon growth stare law. As between resort justice, there which effectuates dragging ascertained should that a no of feet once justice dispensation true advance can science of law be achieved. very subject the evo- under consideration reveals lutionary process Court common law as this performed day by day. its duties
All doc- will concede that there a time when the was unanimity sovereign immunity applied trine of by constituted the members of this Court as then during involving cases then before it. But the doctrine much criticized the last the doctrine has been decade by apparently it had Indeed, members Court. by cases. discarded banc the doctrine three en decisions reject insofar contrac- Certain members tual that theory involved, relations with on the state given the state has consent to suit contract contracting party. the other unquiet There is thus a condition of flux revealed *8 subject. had doctrine sail- Where once the smooth ing, along rocking troubled waters. it now acting this en banc decided case
In 1952 Court Boxberger Highway Department, 438, v. State 126 Colo. (2d) 1007. decision 250 P. was unanimous. It was The rights citizen there of a remain the same said “the govern- they an individual whether collide with or a 605 wisely tribunals were ment, and being rele- correct such matters without the individual gated except remedy position of no to the other legislature, appeal maybe as all to a to no avail, sovereign people, under citizens, are, fact, or the government.” our desirable form again sovereign immunity con Dept. Flying Colorado Inc., sidered in Ace v. Service, (1957). Agriculture, (2d) Three 136 314 P. 278 19, Colo. revealing diversity views written, were majority among could Court. No the members of the Court in act the voice of the marshalled to as be disposition of that case. opinion in released its later the Court
Two months Racing Rac- Commission Brush case of Colorado v. (2d) en ing 136 Colo. 316 P. Association, by cited cases banc decision in which was said of re- “are outmoded State of Colorado that pronouncements ‘sover- Court. In Colorado cent eign subject immunity’ may proper for discussion refuge mythology haven finds no students of but archaic decried “the State’s Court.” We tention.” year in an en banc a half later the Court
A participating, Day case opinion, decided (2d) Currigan, 740 442, 334 P. v. Stone Colo. sovereignty (1959). “doctrine We there said lingers only memory on. in Colorado is in limbo, Sequiturs from that emanated the doctrine such ‘immunity paying ‘immunity interest,’ from suit, ‘immunity limitations,’ etc., from the statute of non-sequiturs.” of the doctrine become the demise majority held four cases in which the
Then followed applicable immunity was still in tort (2d) 826; Denver v. P. Madison, cases. Faber 590; Liber v. Flor, Dept. Berger Colorado, 609; 143 Colo. *9 (all handed 246, 353 P. 143 Colo. Highways, 1960). down in immunity prevail sovereign in Should the doctrine of sovereign today? believe To those who Colorado law, part immunity adopted common a was as changed toas propose so have I that conditions today. believe who To make it anachronism those an place common proper American it never had my (and opinion, several as shown I am of this proposal cited), my no does cases above dissents in the violence. sovereign immunity awas who believe
To those point part difference out the vast law, common of our compared they today as as in conditions exist being be no seemed at the time there those application In former doctrine. over the tention governed days theory best were the the least Certainly governed both as a fact. was effectuated a minimum the federal and state levels there aspects. citizens in control the lives over all government today touch the activities of But every phase life. These activities of a citizen’s expansive they affect more become hardly activity all citizens. There is lives of control exercised colored some citizen which is not by government. considering very involves now case that arewe existing wholly those different
circumstances subject immunity sovereign dis- was first the when Compulsory education of this Court. cussion Today days early of Colorado. was unknown go they reach school until sixteen children must parent years age. choice Neither nor child there hazards at in the matter. Whether exist pupil assigned differ- makes no school to which injured by hazards, If a child is reason of such ence. helpless parents and child because of right they immunity action where or have compulsion? species pupil attends under sovereign immunity is com- It is belief that firm today pletely exist of tune with conditions out *10 phases governmental activity creeps all where into thereby a sarily neces- freedom citizen’s life and citizen’s myriad chances so that shrinks there being injured by government were when there than sovereign swaddling immunity clothes was a doctrine in in this state. principles go way should
This other doctrine English usefulness or old law which outlived their change. by became should which outmoded reason of It go way principles compurgation, feoff- of such corporal that a husband inflict ment, punishment import- upon primogeniture, wife, his by wergild, documents, ance of attornment seals fallen to mention have tenants, but few doctrines that wayside evolutionary progress common law. respect
This Court has said in decisis that stare important beyond ques- “above and all this is the more being right, particular tion of and unless there is some why ruling reason erroneous be followed no should reversing court should be been when it has above itself clearly demonstrated has made a in one that it mistake * * precedent of its case *; conclusions in such blindly simply should not be followed it has because Imperial Company been announced.” Securities Morris, Pac. 1160.
I am in accord with the statement this Court People (2d) Denver, ex rel. v. 243 sovereign immunity. and believe it sustains view universally recognized that, “it The Court said notwithstanding rule of stare decisis and the inclina- precedent, tion to follow the courts of last resort have serving power, duty, and it is their sometimes justice, depart previously the interests rules (Emphasis supplied.) decision.” Cooper Comm’rs, See 131 Colo. 279 P. Motors v. 685. opin- excerpt say from an “Amen” to a devout People Schaefer, case of
ion of this Court in the 420: “With reference to Colo. of relies, which administratrix stare decisis say will nor time, this is not the first suffice it to and valid rea- last, we, he for definite obligated decision.” sons, have felt to overrule former (Emphásis supplied.)
During Court the members of this decade the last spoken many tongues regarding have immunity. The Court has nor individual not, wholly statement consistent members, subject. me condition To this unsettled views on symptomatic evolutionary process- —-a — *11 regarding the law unsound condition in ferment truly typical its so of the common and which is law, greatest glory. concerning fondly hope that a strabismal outlook
sovereign immunity day overcome; that will some sovereign theory im- those subscribe to the that who recognize munity part more law will that our frequently governments impinge citizens individual governments hurt chances there are for necessity governments citizens, therefore subject injuries. liability for must become immunity been under attack in Governmental during years. mori- number of states last few It is bund dead as result of decisions in states Oddly enough, opin- recently weighed its merits. persuasive au- have been used as ions of this Court by repudiating thority for as revealed doctrine, reading Muskopf Corning Hospital 55 Cal. District, v. (2d) Spanel (2d) (1961); 359 P. 457 Mounds 211, v. (2d) View 264 District, 279, School Minn. 118 N.W. 795 609 Highway (1962); 93 Ariz. Commission, Arizona Stone v. (April 1963). (2d) 107 384, Hargrove Cocoa Town v. In 1957 case of (2d) (Fla.) (2d) 1193, 60 A.L.R.
Beach, 130, 96 So. past regarding the break with the serious recent first immunity The Court was made. doctrine of consistency “[¿judicial virtue reasoned loses injustice.” degraded vice of Since when it is repudiated in a number then the has been Community jurisdictions. Unit Molitor Kaneland v. (2d) (2d) 86 District No. 18 Ill. N.E. Muskopf (2d) (3rd) (1959); A.L.R. 469, N.C.C.A. Corning supra; City Hospital Williams v. District, v. City (2d) Holytz Detroit, 1; 111 N.W. v. Mich. 618; 17 Wis. N.W. Milwaukee, supra; Spanel View Stone District, v. Mounds School Highway supra. Commission, Arizona speak eloquently I believe most cases these logic rejecting governmental and with irresistible immunity. temptation to resist It is difficult quote Perhaps opinion from these decisions. Judge Traynor, spoke Supreme as he for the Court of Hospital Muskopf Corning California in the case of persuasive. District, most Supreme Forthrightly it is declared the California “[ajfter gov- Court that re-evaluation of the rule immunity liability ernmental tort we have cluded that must be discarded as mistaken and un- just.” repudiating Traynor
In doctrine, thus ob- “[tjhe governmental immunity served that rule of tort is an anachronism, *12 basis, rational has without only by existed the force inertia.” according Surprisingly, Judge Traynor: “At the earliest common law the doctrine of ‘sover- produce eign immunity did not it the harsh results does today. It was a that allowed substantial It relief. began personal prerogative king, gained as the concepts, metaphysical century
impetus from sixteenth misreading ancient been based on have completely only rarely had the effect maxim, and denying compensation. United How it became and state a rule that States the basis for federal governments has answer for their torts did not have ” legal mysteries evolution.’ ‘one of the called application particular quotation to the theme This Early doctrine rare was so use of of this dissent. today, federal effect, adverse but as to little government touching phases citizen’s all of a and state unjust and harsh effect. life, does have an Judge Tray- the comment of Of additional interest is origin part American nor that the doctrine’s “legal mystery common law is so obscure as to be evolution.” join which
I have Colorado the ranks states would immunity. repudiate Various repudiation. adopted Some decisions reasons are adopt these but all indi- more of reasons, one or present day is an America the doctrine cate that anachronism. ripen something unjust into
An error does not right merely repeatedly committed. Stare because legal thus enshrined false idol to decisis Forty less decisions, bend more or knee. refuse to enunciating erroneously (I them), counted have never genesis having and raison d’etre in abso- a doctrine foreign govern- concept wholly way lutism, to our by repetition inject do doctrine with ment, “figs gather vitality validity. off One does not thistles.”