Brown v. City of Omaha, 36846

• Decision Date: 30 August 1968
• Docket Number: No. 36846,36846
• Citation: 160 N.W.2d 805,183 Neb. 430
• Parties: Barbara BROWN, Appellant, v. CITY OF OMAHA, Appellee.
• Court: Nebraska Supreme Court

Page 805

160 N.W.2d 805

183 Neb. 430

Barbara BROWN, Appellant, v. CITY OF OMAHA, Appellee.

No. 36846.

Supreme Court of Nebraska.

Aug. 30, 1968.

Syllabus by the Court

Cities and all other governmental subdivisions and local public bodies of this state are not immune from tort liability arising out of the ownership, use, and operation of motor vehicles.

Lathrop & Albracht, Daniel G. Dolan, Omaha, for appellant.

Herbert Fitle, City Atty., James Fellows, Frederick A. Brown, Edward M. Stein, Walter J. Matejka, Allen L. Morrow, John B. Abbott, George S. Selders, Jr., Theodore J. Clements, Terrence J. Ferguson, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

McCOWN, Justice.

This is an action at law against the City of Omaha, a municipal corporation, for personal injuries allegedly sustained by the plaintiff as the result of the negligence of a policeman in the operation of a police patrol car. The city filed a demurrer based upon governmental immunity from liability for tort actions. The demurrer was sustained by the trial court and the plaintiff has appealed. The issue is whether the traditional rule of governmental immunity from tort liability should be adhered to.

Sovereign immunity has been said to stem from the concept that 'the King can do no wrong.' The traditional judicial translation of this concept proceeds on the basis that it is better that a citizen injured by the negligence of the governmental entity should alone suffer the loss rather than the 'sovereign' governmental unit. This court long ago adopted the traditional common law view that a public entity engaged in governmental activities is not liable for negligence. Immunity has been 'based upon a public policy which subordinates mere private interests to the welfare of the general public.' Gillespie v. City of Lincoln, 35 Neb. 34, 52 N.W. 811, 16 L.R.A. 349. Why the 'sovereignty' doctrine was ever extended to municipalities and local governmental units 'is one of the mysteries of legal evolution.' Borchard, Government Liability in Tort, 34 Yale L.J. 1, 4 (1924).

Even under the traditional common law rule of immunity, activities of a municipal corporation which are judicially classified as 'proprietary' rather than 'governmental' in nature were not immune. Greenwood v. City of Lincoln, 156 Neb. 142, 55 N.W.2d 343, 34 A.L.R.2d 1203. This concept has recently been extended to the state itself. See, Stadler v. Curtis Gas, Inc., 182 Neb. 6, 151 N.W.2d 915.

The rationale behind the 'governmental-proprietary' distinction is that when a public entity is involved in a governmental function, it is immune from tort liability, but when involved in a proprietary function, it loses its cloak of immunity. Under this rule, the citizen who has been negligently injured by a vehicle of the city water department may recover, but the citizen who has been negligently injured by a vehicle of the city health department of the same city cannot recover. Such distinctions defy logical explanation.

Particularly during the past 10 years, judicial opinions in increasing volume have pointed out the fact that the reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society. The rule is today no longer just, reasonable, nor defensible. The judicial attack on the traditional rule of governmental immunity has resulted in judicial abrogation of the doctrine in several states. See, Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130, 60 A.L.R.2d 1193; McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Stone v. Arizona Highway Comm., 93 Ariz. 384, 381 P.2d 107. See, also, Hink and Schulter, Some Thoughts on the American Law of Governmental Tort Liability, 20 Rutgers L.Rev. 710 (1966); A Comment on Government Tort Immunity in Kansas, 16 Kan.L.Rev. 265 (Jan. 1968).

The major conflict is no longer whether the traditional doctrine of governmental immunity from tort liability is obsolete and unjust, but, instead, lies in the area of the responsibility and power of the courts to reform it. For a discussion of the relative responsibility of courts and legislatures in this area, see, The Role of the Courts in Abolishing Governmental Immunity, Duke L.J. (1964), 888; Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn.L.Rev. 265.

Many courts in the past have held that any change in the doctrine of governmental immunity must be made by the legislature and not by the courts. More recently, although recognizing that the doctrine of governmental immunity was a court-made rule and of judicial origin, some courts have nevertheless refused to abrogate or modify it because of the fact that the doctrine has been adhered to for many, many years. See, for example, Boyer v. Iowa High School Athletic Assn., 256 Iowa 337, 127 N.W.2d 606.

'The dozen or so state supreme courts that have recently abrogated the immunity doctrine have recognized that an unjust and irrational principle cannot be allowed to persist on the hollow ground that changing an antiquated rule is a job for the legislature.' 16 Kan.L.Rev. 265 at page 273.

Section 49-101, R.R.S.1943, provides: 'So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska.'

In State ex rel. Johnson v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232, this court held: 'The courts have power to modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.' This court cited with approval the reasons for the soundness of that rule: 'The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. One of its oldest maxims was that where the reason of a rule ceased, the rule also ceased, and it logically followed that when it occurred to the courts that a particular rule had never been founded upon reason, and that no reason existed in support thereof, that rule likewise ceased, and perhaps another sprang up in its place which was based upon reason and justice as then conceived. No rule of the common law could survive the reason on which it was founded. It needed no statute to change it but abrogated itself.'

Another reason sometimes relied on as supporting noninterference by the judiciary in the field of governmental immunity is the contention that the Legislature has preempted the field. The legislation in Nebraska dealing with removal of governmental immunity is extremely limited, and could properly be said to represent only a few isolated areas of a very large field. Justice Traynor of California effectively responded to the preemption argument in the following language: 'We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated re-enactment of a statute * * * Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most. Defendant would have us say that because the Legislature has removed governmental immunity in these areas we are powerless to remove it in others. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas.' Muskopf v. Corning Hospital Dist., supra. It should be pointed out also that at the time of the California decision, California had far more legislation on the subject than there is in Nebraska.

We are convinced that the rule of governmental tort immunity is of judicial or common law origin, and that this court has power to modify it in the absence of legislative action to the contrary.

Both the Legislature and this court have power to act to change the doctrine and it may well be that the Legislature will have the ultimate word. This would seem to be a poor reason to avoid the court's obligation to modify the common law to serve the requirements of justice in a modern society. We ought not to thrust upon the Legislature the sole responsibility for injustice on the ground that, 'Thus it was said in the reign of Henry IV,' nor even on the ground that any change would constitute the traditionally condemned heresy of judicial legislation.

We must recognize, however, that the doctrine of governmental immunity from tort liability underlies a very broad field and that the legislative process and procedures can be more effectively applied to a comprehensive solution, while the court's processes and procedures are more effectively directed to a solution more narrowly limited to specific facts framed in litigated cases. Any modification ultimately shaped by this court should be limited to torts and should not be construed as imposing liability on any governmental body in the exercise of what might be termed 'ministerial or discretionary functions' nor on the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions. See Holytz v. City of Milwaukee, supra.

The nature of the activities and the harm, fiscal consequences, in general, analogies in private law, the public interest in effective, efficient governmental...