Vanderpool v. State, 672 P.2d 1153

Vanderpool v. State

672 P.2d 1153

Okla.

1983

Check Treatment

*1 Carpen- justify would reversal. tion which

ter P.2d Carpenter,

AFFIRMED. V.C.J., C.J., SIMMS,

BARNES, and IR- HARGRAVE, JJ.,

WIN, con- DOOLIN and

cur.

OPALA, J., I, dissents from Part concurs

in result in Parts II III. VANDERPOOL, Appellant, E.

Vera and the Okla-

The STATE of Oklahoma Appellees. Society,

homa Historical

No. 56939. Supreme Court Norman, by Ronald Incorporated W. John City, for July Horgan, appellant. W. Oklahoma 1983. Gen., Floyd Cartwright, Atty. Dec. Jan Eric Rehearing Denied Gen., Atty. Oklahoma

W. First Asst. Taylor, City, for appellees.

LAVENDER, Justice: from an order of appeal This is an summary granting trial court below, of Oklaho- favor of defendants Society. ma the Oklahoma Historical dispute. Appellant are not in The facts as an employed while plaintiff below Historical worker the Oklahoma office site known at a state historical Society to deliver a en route Fort Washita traversing message. While telephone a rock eye by grounds, she was struck Hog” operat- mower up by thrown a “Brush mowing employee while ed a fellow site, permanent resulting in on the weeds Plaintiff right eye. her sight loss protective in that a alleged negligence removed mower had been shield on the making the brush employee to be allowing objects hog defective *2 the entities within mower, of other rendering the thus propelled of unfit, highly unsafe and totally the mower damages from dangerous. Plaintiff seeks sovereign immunity of was The doctrine Society. The dis- the State and re- early England in and recognized first motion for granted trict defendants’ court the sued quired that could and dismissed the summary much permission. It was not so without his cause, govern- that the doctrine of holding law, king being above the a matter of the the Plaintiff immunity bars action. mental maxim, king “the can do in the embodied appeals. con- oft-expressed it was in the wrong,” as the part the courts were a of cept that nature, powers and duties purposes, The en- be used to government and could not Society are stat- the Historical Oklahoma against government the force claims —with- utory and are set forth govern- of that express permission out the appeal, For of this seq. purposes the ment. to say: suffice it way into the com- The doctrine found its acquire, oper- Society The is authorized to States, and in mon law of United personal property ate real and and maintain Mar- Virginia,1 v. Chief Justice in Cohens history relating to the pertaining and it in the United applied suits Oklahoma, to public, for the benefit of States, not be declaring that suits could same, charge to reasonable and purvey prosecuted against the feder- commenced empowered Society visitation fees. The its consent. government al without Subse- concessions, permits after grant leases or to was to quently, applied the doctrine bids, develop to an educa- competitive and doctrine to local applying states. the purpose service for program tion and entities, it early recognized was government histor- regarding Oklahoma publishing facts occupy a government local sig- of state sites, buildings property ic and liability character which affected dual charges may be nificance. Reasonable a hand it is subdivision tort. On the one made for the dissemination State, and endowed with Society is de- facts information. The or' charged govern- and political powers, agency clared to be an the State. On responsibilities. and mental functions the Mer- purchased Fort Washita hand, body, capa- a corporate other it is Oklahoma, Ardmore, rick Foundation private same acts as a ble of much the Colbert, Billie and Douglas 1962 from and capable of much the same corporation, and Society Historical deeded to the Oklahoma relations, not and special and local interests Washi- April, the Fort 1962. Since large. duality This at shared staffed, main- ta site has been historical attempted differentiation resulted by the Oklahoma His- operated tained and proprietary and between appropriations. state Society through torical functions, generally protected the first aspect particular tell that purpose Its is to not.2 generally the second military history —antebellum Meanwhile, governmen- expansion gen- Territory history in the Indian —to complexi- with its attendant tal functions public. eral of governmental gave plethora ties rise took purpose and function squarely in whose places agencies The case us before and of both on characteristics sovereign immunity issue the doctrine of attempts to grapple proprietary. Judicial viability us to reexamine impels and me- has a multi-addered to with what become efficacy of that doctrine as and uncer- State, has resulted in confusion dusa liability tort the counties Baldwin, Wheat.) 264, (6 Oklahoma 1. 19 L.Ed. 257. U.S. 272 P. 453 133 Okl. ed., Torts, 2d 2. Restatement of the Law of Hubbard, 895B; City of Purcell which have not abolished legal ing painfully apparent tainty all too not, manner, in some re- or have doctrine part of the scholars, inability on the its universal as an treated from guidelines definitive courts to evolve concept immutable of the law.5 between for the demarcation functions.3 proprietary has been more cautious Oklahoma While *3 governmental immunity from in its retreat of the of the soundness Reexamination tort, it has not as a bar to actions for been immunity in the concept governmental totally immune from inroads heretofore in expanded government role of light the the upon doctrine. reasons, has, the society for various today’s 1978, In the Oklahoma enact- unduly length- of which would enumeration Act ed the Political Subdivision Tort Claims from resulted in a retreat opinion, en this 151, extending politi- (51 seq.) O.S.1981 et by both and case concept legislatively the liability tort for loss result- cal subdivision law. its employ- from its torts or the torts of ing the Federal adoption In the by acting scope employ- within the of their ees Act, its Congress gave consent Tort Claims subject or duties to the limitations ment the to be sued in for the United States politi- in the Act. Included specified courts, governmental and waived its district are by the act mu- cal subdivisions covered or property, “for or loss of immunity, injury districts, and school counties nicipalities, neg- or caused the personal injury death town, school dis- city, trusts where a public or omission of ligent wrongful act beneficiary. is a county trict or acting while employee Government University Hospital In Hershel v. Foun- employ- his scope within office the dation,6 brought we ment, where the Unit- under circumstances immunity doctrine of State States, private person, if a would be ed lock-step for tort into with in claimant accordance liable to counties and as it doctrine act or place law the where the omis- engaged where each is municipalities 1346(b). Vari- 28 U.S.C. § sion oecured.” functions, holding that the thus proprietary imposing ous states have enacted statutes committed injuries is liable for tort on local general liability more or less functions. proprietary abrogating gov- and governmental may the idea the State repudiated We thus generally or under ernmental consent, express or not be sued without circumstances. prescribed implied. Supreme Court in In the Florida in- that in certain have further held We Beach,4 Town of Cocoa insures itself Hargrove case of where the State stances legislative authority liability no distinction under valid declared that there so, is waived immunity to do proprietary and between its insurance to the extent of implication that under and determined functions coverage.7 no municipality case had facts of that liability, presaging tort thus immunity from Gable v. Salvation in the case of While away law steady flow of case immunity of charitable the doctrine Army8 immunity and ab concept immunity was chal- not injury part, today, personal until in a rogating repudiated it in whole or lenged states, corpora- charitable against a brought includ- action than five there are more Rosedale, Miss., law, 421 See Pruett v. diversity see 6 5. in case 3. Illustrative (1982). 1156; 773; So.2d 1046 5 48 A.L.R.3d A.L.R.4th A.L.R.4th 899; 1288; 1084; 44 70 A.L.R.3d 46 A.L.R.3d Okl., (1980). 237 P.2d 6. 347; 927; 25 A.L.R.2d A.L.R.2d A.L.R.2d seq.; 160 A.L.R. 203; A.L.R.2d Development, Industrial Schrom v. Oklahoma 7. (Fla.1957). Okl. 4. 96 So.2d 8. 186 finding it is the foregoing, pow- light corporate within the

tion for activities this Court that: determination of its charita- accomplish on to ers carried did not hesitate this Court purposes, ble OR LOCAL GOVERNMEN- A STATE immunity where alleged strike down MONEY LIABLE FOR TAL ENTITY IS immunity was critical examination FOR INJURY OR LOSS OF DAMAGES on and unwarranted unjust found to be PROPERTY, OR OR PERSONAL INJURY favor. in its every postulated basis NEGLIGENT BY THE DEATH CAUSED governmental-proprie- We hold that OR OMISSION ACT OR WRONGFUL de- longer inquiry tary-function ENTITY OR ANY GOVERNMENTAL liability for tort as assessing terminative THE AGENT OF EMPLOYEE OR ANY in this State. government to all levels of WHILE ENTITY GOVERNMENTAL OF THE THE SCOPE ACTING WITHIN immunity The doctrine of *4 OFFICE, ENTITY’S GOVERNMENTAL it in line with bring to modified hereby IT FOR WHICH IS CRE- PURPOSE AND just the more perceive to be what we ATED, CIRCUMSTANCES UNDER is in con- view, which and that equitable ENTITY, IF A PRIVATE THE WHERE view prevailing generally with the formity PERSON, THE BE LIABLE TO WOULD of our courts highest determined WITH IN ACCORDANCE CLAIMANT sister states.9 Fote, 579, partial 200 N.Y.S.2d Weiss v. 7 N.Y.2d granting of a statute the absence 409, (1960); immunity, municipality has been held to 63 167 N.W.2d total a Dist., negligence in the same manner v. Park 224 N.W.2d 795 Kitto Minot be liable for its corporation person private the fol- (N.D.1974); or following as Dist., lowing cases: states Fry & Rec. 4 v. Park Williamalane Florence, 592, 575, So.2d Jackson v. (1971); 294 Ala. 320 Or.App. 648 481 P.2d Ed., (1975); Ayala Philadelphia Bd. of Pub. 68 453 Pa. v. Schaible, City v. of Fairbanks 375 P.2d 201 584, (1973); 305 A.2d 877 1962); (Alaska Beaudoin, 106 R.I. 562, v. 261 A.2d Becker 195, Phoenix, 427 P.2d 335 Veach v. 102 Ariz. (1970); 896 (1967); Fuentez, (Tex. 221 Beaumont v. 582 S.W.2d Admin, Oliff, (Fla. v. So.2d 484 Div. of 350 App. 1979); Civ. App.1977); Tacoma, 913, 2 Kelso v. 390 P.2d 63 Wash.2d Okamoto, 1, 525 P.2d Runnels v. 56 Haw. (1964); (1974); 1125 Weirton, (W.Va. Long v. 214 S.E.2d 832 795, State, 937 Smith v. 93 473 P.2d Idaho 1975); (1970); Milwaukee, 26, Holytz v. 17 Wis.2d 115 Comm’rs, Ind.App. Klepinger v. Bd. of 143 618 N.W.2d 155, (1968); 160 239 N.E.2d immu- Judicial abolishment Bloomfield, 203 v. 582 Goodwin N.W.2d municipalities nity has been de- as (Iowa 1973); following following states creed Parsons, 645, City 223 Kan. 576 Gorrell v. cases: (1978); Schaible, of Fairbanks v. 375 P.2d 201 (Ky. Haney Lexington, 386 S.W.2d 738 v. 1962); (Alaska 1964); Comm’n, Highway Shipping Arizona 93 Ariz. Stone v. Splendour & En Bd. v. of Comm’rs Co., Inc., 384, (1963); terprises (La.App. 381 P.2d 107 869 255 So.2d Bath, (Me.1976); 1971); v. 1269 Davies 364 A.2d Bath, Comm’n, (Me. 1976); Highway Davies v. 364 A.2d 1269 557 S.W.2d Jones v. Motel, Inc., Hoffert Inn Towne v. Owatonna (Mo. 1977); 225 220, (1972); 158 293 199 N.W.2d Manchester, 722, Minn. 332 A.2d Merrill v. 114 N.H. Comm’n, Highway Jones v. State 557 S.W.2d (1974); 378 1977); (Mo. 225 Dist., v. Park. 795 Minot 224 N.W.2d Kitto Anderson, 9, 187 Neb. 187 N.W.2d Webber v. (N.D.1974); (1971); 290 Beaudoin, 562, R.I. 261 A.2d Becker v. 106 Staggs, 879 Turner v. 89 Nev. (1970); 896 (1973); Weirton, (W.Va. Long v. 214 S.E.2d Manchester, v. Merrill 114 N.H. 332 A.2d 1975); (1974); Milwaukee, Holytz Wis.2d State, Hicks N.M. N.W.2d THE law herein have THE PLACE WHERE rules of enunciated would THE LAW OF OMISSION OCCURRED. ACT OR the various entities af- thereby. fected These are matters PROVIDED, HOWEVER, GOV- SAID sphere within the lie ENTITY IMMUNE ERNMENTAL IS invoke alone. We its consideration LIABILITY FOR ACTS FROM TORT presented, wheth- many problems including AND OMISSIONS CONSTITUTING er all of the some or A (a) THE EXERCISE OF LEGISLA- insulated unlimited tort lia- should be FUNCTION, TIVE OR JUDICIAL through comprehen- bility enactment AND specific sive or Tort Acts which limit Claims (b) THE EXERCISE AN ADMINIS- in- prescribe liability, their conditions TRATIVE INVOLVING FUNCTION loss, surance the maximum mone- THE DETERMINATION OF FUN- allowed, or, indeed, tary liability DAMENTAL GOVERNMENTAL the will People whether it is POLICY. expressed through PROVIDED, THAT AND FURTHER Legislature, immuni- THE REPUDIATION OF GENERAL statute, and the terms ty be established TORT IMMUNITY AS HEREINABOVE Ample and conditions time for thereof. SET NOT LI- FORTH DOES ESTABLISH these af- consideration of matters must be ABILITY FOR AN ACT OR OMISSION forded. *5 THAT OTHERWISE PRIVILEGED OR IS us, to the this Except as case before IS NOT TORTIOUS.10 shall be as to those opinion only effective rendering opinion, In this this Court is or causes of action which accrue claims oft-expressed of this mindful of the view A.M., after 12:01 October 1985. Great governmental Court that if the doctrine of Railway Northern Co. v. Oil & Sunburst abrogated, is to be such immunity totally Company, Refining 287 U.S. S.Ct. and not by Legislature should be done (1932). 77 L.Ed. 360 by having of this But the courts State.11 which judicially opinions come to the conclusions that All of this Court previous of immu- ex- recognized doctrine are in conflict the views herein present in its state under the case law nity hereby are overruled. pressed reason, is justice or longer supportable AND REMANDED. REVERSED in light overwhelming trend its Where recognition, duty our is clear. HODGES, DOOLIN, WIL- OPALA and exists, longer reason for the rule no SON, JJ., concur. that alone should toll death knell. V.C.J., SIMMS, part and dis- concurs is limited in its effect to the Our decision part. sents recognized judicially heretofore created is immunity doctrine of BARNES, C.J., HAR- and IRWIN and rendering as in any way not to be taken GRAVE, JJ., dissent. act of the Legislature ineffective IRWIN, Justice, dissenting: whether immunity area of passed. in effect or presently hereafter 15, 1983, this court As as March late recognized are aware of to the the doctrine of We and sensitive immu- sovereign and said if immunity effect that the immediate that comports ery. appears foregoing to be Enunciation of the rule is not to be Nixon with what seq. majority abrogating modifying hold- view. A.L.R.4th construed as or our Okl., City, ing in Nixon v. Oklahoma (1976) non-liability pertaining to of Dept. Spaulding of ex rel. 11. See including Okl., munici- sub-divisions Transp., Ruble v. 618 P.2d 397 palities exemplary damages, Transportation rea- Dept. for and the the State of Oklaho denying ma, forth for a recov- sons therein set this shall not be that act by except done “... it should be abrogated, is nity to be by authorizing payment the courts. Ru- Legislature by construed any agency Transportation the State Department ble v. making an thereof of damages.” money award immunity sovereign if my opinion enacted have been statutes Various it abrogated, should be done legisla- demonstrate Legislature If courts. and not Legislature immune remain the State tive intent abrogate sover- had wanted to gov- tort claims from suit on it would have done so. eign of these are: functions. Some ernmental respectfully I dissent. 151-170, “The Politi- O.S.1981, (A) §§ Act.” This cal Tort Claims Subdivisions 1, 1978, July effective became

legislation sovereign/governmental

and abolished districts, school municipalities,

immunity city, public where

counties, and trusts county is a benefi-

town, district or school institutions, instrumen- all their

ciary; and to the extent agencies,

talities 154 of liability contained George limitation on of the DEATH In the Matter contin- STROER, immunity the Act. Governmental Washington Jr. 154 limita- in excess ues to bar claims Petitioner, STROER, Anna Nell Legislature could have included tions. The this limited waiver the State in do. not to immunity but chose CORPORATION, PACIFIC GEORGIA 157.1-158.2, Liability Insurer, (B) §§ and Workers’ Com- Risk Own *6 motor vehicles Court, Respondents. for State-owned Insurance pensation 157.1 and 158.1 equipment. Sections No. 58793. provisions: contain identical Supreme Court immunity of such “... agency shall be

department or state Oct. amount only the extent waived 20, 1983. Rehearing Denied Dec. depart- Such of insurance purchased. be liable for agency ment state insurance is

negligence only while such

force, ex- case in amount but coverage

ceeding the limits of

insurance.” 20f-20h, pro-

vide for the Defense in Performance Of- Employees Sued requires the legislation

ficial Duties. This staff at-

Attorney agency or state General who are state officials

torneys to defend

sued causes of action duties. Under

performance official litigation paid 20h(A), the cost of the Evidence Attorney

out of the General’s However, 20h(B) pro- contains this

fund.

viso: