Rice v. Clark County

• Citation: 382 P.2d 605,79 Nev. 253
• Decision Date: 27 May 1963
• Docket Number: No. 4588,4588
• Parties: Juanita RICE, Special Administratrix of the Estate of David H. Ormont, Deceased, Appellant, v. CLARK COUNTY, a political subdivision of the State of Nevada, Hariey E. Harmon, Arthur Olsen and Clesse M. Turner, individually, and as the Clark County Commissioners, Press Lamb, individually, and as Superintendent of Roads of Clark County, Respondents.
• Court: Supreme Court of Nevada

Page 605

382 P.2d 605

79 Nev. 253

Juanita RICE, Special Administratrix of the Estate of David H. Ormont, Deceased, Appellant, v. CLARK COUNTY, a political subdivision of the State of Nevada, Hariey E. Harmon, Arthur Olsen and Clesse M. Turner individually, and as the Clark County Commissioners, Press Lamb, individually, and as Superintendent of Roads of Clark County, Respondents.

No. 4588.

Supreme Court of Nevada.

May 27, 1963.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, for appellant.

Edward G. Marshall, Dist. Atty., and Charles L. Garner, Chief Deputy Dist. Atty., V. Gray Gubler, Las Vegas, for respondents.

McNAMEE, Justice.

This is an action to recover damages for the wrongful death of one Ormont brought by his special administratrix against several defendants. Appeal is from the judgment of dismissal entered in favor of the above-named respondents.

Three questions are presented on this appeal:

1. Were the respondents entitled to a dismissal on the ground of governmental immunity?

2. Is the presentation of an unaudited claim to the county auditor a condition precedent to instituting a suit against the county upon such claim?

3. Is a misjoinder of parties a cause for dismissal of a cause of action?

If any of the above three questions can be answered in the affirmative, the judgment of the trial court must be affirmed.

As to the first question we are required to determine whether the doctrine of sovereign immunity in so far as it applies to counties and county officials in the construction and maintenance of public roadways should be repudiated.

It is conceded that the weight of authority sustains county immunity when the county is acting in its governmental capacity, and likewise, the weight of authority establishes the rule that the maintenance of roads and highways by a county is a governmental function.

We recognized the rule that a county cannot be sued without legislative consent in McKay v. Washoe General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78. But in Granite Oil Securities v. Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069, we held that the rule has no application when a county acts in a proprietary capacity, and in Hughey v. Washoe County, 73 Nev. 22, 306 P.2d 1115, this court reversed an order of dismissal against the county apparently for the same reason, although no mention was made whether or not the county was acting in its proprietary capacity.

With respect to cities in their operation and maintenance of streets, a different rule has been followed in this state.

In McDonough v. Mayor etc., of Virginia City, 6 Nev. 90, 93, the city was held subject to liability for its negligent construction of an intersection of two of its public streets. A state statute provided that the city had power to lay out, extend, and alter its streets. The court there said that the language conferring this power is permissive. 'But although it is thus left optional with the city to open streets * * *, still if it undertake to do it, the act must be done with that degree of care for the rights and personal safety of individuals which natural persons are required to exercise under similar circumstances.'

In Barnes v. City of Carson, 33 Nev. 17, 43, 110 P. 3, 4, where the city had been given a similar discretionary power as to its streets, this court said: 'When it was established upon the trial that the excavation was made in the street by the city and negligently left in the nighttime without proper lights to indicate the same, and that by reason thereof the plaintiff was injured, there was nothing left for the court and jury to determine but the amount of damages.'

To the same effect is the case of Pardini v. City of Reno, 50 Nev. 392, 400, 401, 263 P. 768, 770, 771, where the court held the duty of the city, implied from the grant of exclusive control over its streets, 'is not a public duty owing to the public alone, but a private, corporate duty * * *. The immunity extended to legislative or discretionary acts of a municipal corporation does not apply to corporate acts of a purely ministerial character.' Thus for the first time this court based a city's liability on the ground that its maintenance of streets constitutes a proprietary function.

In Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040, the liability of the city for negligently allowing an obstruction to remain on a highway was upheld without any discussion of municipal immunity.

Whether the existing rule in this state imposing liabilities upon cities for injuries resulting from their failure to keep streets in a reasonably safe condition is based on the theory that the duty to keep streets safe is a corporate or proprietary duty, or whether the duty is considered governmental and liability is regarded as an exception to the general rule of nonliability for acts done in the exercise of governmental duties, the result in either case is the same.

We are now asked to extend this liability to counties maintaining roads under powers similar to those granted to the cities.

N.R.S. 244.155 provides: 'The board of county commissioners shall have power and jurisdiction in their respective counties to lay out, control and manage public roads, turnpikes, ferries and bridges within the county, in all cases where the law does not prohibit such jurisdiction, and to make such orders as may be necessary and requisite to carry its control and management into effect.'

N.R.S. 403.090 states: 'The board of county highway commissioners shall have exclusive control of all matters pertaining to the construction, repairing and maintaining of public highways, roads and bridges within its county.' ¹

Under the decision of McDonough v. Mayor etc., of Virginia City, supra, such a grant of power was held to be permissive rather than mandatory, and if a city exercised its discretion to exercise such powers, it would become liable for its negligence in so acting.

Is there any logical reason why on the one hand a city should be liable for its negligent construction or maintenance of its public roadways and a county under the same or similar grant of power should not? We could easily supply an affirmative answer by holding that a county in the operation of its roads and highways acts in a corporate or proprietary capacity as was said with respect to the City of Reno in the Pardini case. Then under the authority of Granite Oil Securities v. Douglas County, supra, liability of the county necessarily would follow.

We prefer, however, under the circumstances of this case to say that sovereign immunity does not extend to counties whether the operation of roads is considered a governmental or a proprietary function. See Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618.

Although this court in Taylor v. State and University, 73 Nev. 151, 311 P.2d 733, held that the state was immune from liability for negligence, we recognized that the rule of sovereign immunity has been severely criticized.

In Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579, 581, 583, 584, the action was against both the City of Billings and the County of Yellowstone. In holding that cities and counties stand in the same relation to the traveling public with respect to the care of highways and liability for injuries thereon, the court said: 'First, as to the differentiation between cities and counties, it is correctly said: 'The reason of the rule which, in many cases, charges a city * * * with liability and, under the same conditions of fact, exonerates a county, is artificial and is to be sought for in historical sources; it is not supported by legal reason or analogy.' 5 Thompson on Negligence, 302. The basis for the exemption of counties, originally, being lack of corporate existence and want of power to raise corporate funds, where counties are, by law, made public corporations and empowered to raise funds, 'the reason for the rule ceases and the rule ought to fall with it; * * * it does not seem a sufficient answer to this argument to say that counties are political subdivisions of the state, for cities are political subdivisions * * * as fully as counties are, and in this respect, the keenest vision can discover no difference between the two classes of public corporations.' 1 Elliott on Roads & Streets (4th Ed.) § 599.

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'Being unembarrassed by any former opinion of this court on the question directly before us for determination, we discard precedent and refuse to perpetuate the error of other courts throughout the Union * * *.'

To soften this blow, however, the Montana court unhappily added: 'In repairing the highway, the county was acting voluntarily and in its proprietary capacity, and not under the mandate of the statute to keep the highways in repair.'

In 1961 the California Supreme Court decided the case of Muskopf v. Corning Hospital District, 55 Cal.2d 211, 213, 11 Cal.Rptr. 89, 90, 359 P.2d 457, 458. The plaintiffs contended that operating a hospital is a proprietary function of government. In holding the defendant liable for negligence that court refused to base its action on such dubious ground, and stated: 'After a reevaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.'

The case of Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz.1963), abolished the rule of sovereign immunity in Arizona. The supreme court there said:

'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.'

In this...