Governmental Immunity from Tort Liability in the United States

Introduction

In “Texas Jurisprudence 3rd”, §19: “A constitution is adopted with reference to existing laws that are not changed unless they are inconsistent with constitutional provisions.”

In Stone v. Ariz: “We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned. After a thorough re-examination of the rule of governmental immunity from tort liability, we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 109 (1963))

“In 75 A.L.R. 1196, a classic observation as to the sociological aspects of sovereign immunity appears which has
since been quoted with approval in several jurisdictions: “ (The whole doctrine of governmental immunity form
liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative
sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, ‘the King can do no wrong,’ should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.” (75 A.L.R. 1196 & Stone v. Arizona Highway Commission 381 P.2d 107, @ 109; Baker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, 482 quoted again in Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 94 (Ill. 1959)).

“It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state’s functions, an unjust burden will become graver and more frequent as the government’s activities are expanded and become more diversified.” (Hernandez v. County of Yuma, 91 Ariz. 35, 36, 369 P.2d 271, 272 (1962))

“Sovereign or governmental immunity began with the personal prerogatives of the King of England upon the theory that “the King can do no wrong,” and even though at a very early date in American history we overthrew the reign of the English King the doctrine somehow became entrenched in our judicial code. Professor Borchard has termed this phenomenon as “one of the mysteries of legal evolution.” (Hernandez v. County of Yuma, 91 Ariz. 35, 36, 369 P.2d 271, 272 (1962))

“Its survival (sovereign or governmental immunity) for such a great period of time in this country, where the royal
prerogative is unknown, has perhaps been even more remarkable, considering it has been universally criticized as
an anachronism with out rational basis. Most writers and cases considering this fact have claimed that its only basis of survival has been on grounds of antiquity and inertia.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 109 (1963))

“The first case in Arizona which held that the sovereign was immune from tort liability occasioned by the negligence of its agents was State v. Sharp, supra. Without examining any real basis or reason for sustaining this court stated: “As to this question it is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.” (State v. Sharp 21 Ariz. 426, 189 P. 632.)

This case set a precedent and other Arizona cases have since followed the rule without arriving at any basis other than that of stare decisis. (Stone v. Arizona Highway Commission 381 P.2d 107, @ 110 (1963)
Avery v. GBRA et al., – Appellant Appendix 6)

“In a 1957 case, The Colorado court stated: In Colorado ‘sovereign immunity’ may be a proper subject for discussion
by students of mythology but finds no haven or refuge in this court.” (Colorado Racing Com’n v. Rrushing Racing Ass’n. 136 Colo. 279, 284, 316 P.2d 582, 585 (1957))

However, this feeling was short-lived for three years later the same court invoked the immunity theory as to
the governmental functions of a county.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 111 (1963))

“The Florida court emulated Colorado, abolishing immunity as to governmental functions of municipalities on the ground that the Revolutionary War abrogated the doctrine that “the King can do no wrong” (Hargrove v. Town of Cocoa Beach, 96 So.2d. 130, 60 A.L.R.2d 1193, (Fla.1957)) and thereafter retreating to say that this did not apply to the state, its counties, or its county school boards” (Kaulakis v. Boyd, 138 So.2d 505 (Fla. 1962); Back v. McLean, 115 So.2d 764 (Fla.App.1960) and Stone v. Arizona Highway Commission 381 P.2d 107, @ 111 (1963))

“The city of Milwaukee case stated that even though the principal case only related specifically to a city, the
abrogation of the doctrine should be considered as total: “to all public bodies within the state: the state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state-whether they be incorporated or not” (14 115 N.W.2d 625 and Stone v. Arizona Highway Commission 381 P.2d 107, @ 112 (1963))

“After considering all the facets of the problem, we feel that the reasoning used by the California court in Muskopf v. Corning Hospital District, supra, has more validity and therefore we adopt it. The substantive defense of governmental immunity is now abolished not only for the instant case, but for all other pending cases, those not yet filed which are not barred by the statute of limitations and all future causes of action. All previous decisions to the contrary are specifically overruled.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 112 (1963) 17 Re: Larsen v. County of Yuma. Several of the cases relied on in Dunklee have been overruled by the Muskopf v. Corning Hospital District decision, supra).

“It has been urged by the adherents of the sovereign immunity rule that the principle has become so firmly fixed that any change must come from the legislature. In previous decisions (the latest being Lee v. Kunklee, supra)17 this court concurred in this reasoning. Upon reconsideration we realize that the doctrine of sovereign immunity was originally judicially created. We are now convinced that a court-made rule, when unjust or outmoded, does not necessarily become with age invulnerable to judicial attack. This doctrine having been engrafted upon Arizona law by judicial enunciation may properly be changed or abrogated by the same process.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 113 (1963))

“Under the theory of respondeat superior, the State itself as employer would also be liable.” (Stone v. Arizona Highway Commission 381 P.2d 107, @ 113)

Muskopf v. Corning Hospital Dist.

In Muskopf v. Corning Hospital Dist. Cal.Sup.Crt.1961: “After a re-evaluation of the rule of governmental immunity
from tort liability we have concluded that it must be discarded as mistaken and unjust.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 458)

“The rule of county or local district immunity did not originate with the concept of sovereign immunity. The first
case to hold that local government units were not liable for tort was Russell v. men of Devon, 100 Eng.Rep. 359. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was unincorporated there was no fund out of which the judgment could be paid; and “it is better that an individual should sustain an injury than that the public should suffer an inconvenience.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 459)

“The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. 247, 249. There the county was incorporated, could sue and be sued, and there was a corporate fund out of which a judgment would be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 459)

“None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In
fact, it does not exist. It has become riddled with exceptions, both legislative and judicial, and the exceptions
operate so illogically as to cause serious inequality.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 460 (1961))

“It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing
governmental immunities. Two basic arguments are made to deny the court’s power: first, that by enacting various statutes affecting immunity the Legislature has determine that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 461)

“The doctrine of governmental immunity was originally court made.” (Muskopf v. Corning Hospital District 359 P.2d 457 @ 461)