Haney v. City of Lexington

• Decision Date: 22 May 1964
• Citation: 10 A.L.R.3d 1362,386 S.W.2d 738
• Parties: Ruby HANEY, Administratrix of the Estate of Alene Faye Haney, Deceased, Appellant, v. CITY OF LEXINGTON et al., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 738

386 S.W.2d 738

10 A.L.R.3d 1362

Ruby HANEY, Administratrix of the Estate of Alene Faye Haney, Deceased, Appellant, v. CITY OF LEXINGTON et al., Appellee.

Court of Appeals of Kentucky.

May 22, 1964.

Dissenting opinion June 5, 1964.

Rehearing Denied March 5, 1965.

Darrell B. Hancock, Fowler Rouse, Measle & Bell, Lexington, for appellant.

Charles R. Zimmer, Richard S. Smith, Lexington, for appellee.

MOREMEN, Judge.

Alene Faye Haney, age seven, met her death by drowning in the Woodland Park swimming pool in Lexington. The administratrix of her estate filed suit against the City and alleged that the child's death was caused by negligent operation of the pool by the City of Lexington. The City defended on the ground that maintenance and operation of parks and recreational facilities are classified as governmental--not proprietary--functions and, therefore, a municipal corporation is not liable for the results of negligence in the operation of such facilities. The circuit court, under ample authority, dismissed the complaint. See V. T. C. Lines, Inc. v. City of Harlan, Ky., 313 S.W.2d 573; Baker v. City of Lexington, Ky., 310 S.W.2d 555; and City of Louisville v. Pirtle, 297 Ky. 553, 180 S.W.2d 303.

So, once again, we are called upon to examine this legal anachronism of municipal immunity from liability for tort. In 41 N.C.L.Rev. 290, 291 (1963), this is said:

'There is probably no tenet in our law that has been more universally berated by courts and legal writers than the governmental immunity doctrine. The criticisms are wide-ranging and highly vaired. Some common examples are: that it is unfair to impose upon the individual the burden of his damage, rather than upon the entire community where it justly belongs; that by denying a remedy for a wrong, the doctrine results in the deprivation of life, liberty, and property without due process of law; and that the doctrine runs counter to a basic concept underlying the law of torts, that, is that liability follows negligence.'

We pointed out in V. T. C. Lines, Inc. v. Harlan, Ky., 313 S.W.2d 573, that this Court in late years has accepted the theory with reluctance and has seized upon almost any excuse, however flimsy, to grant relief to any person harmed by negligence of a municipal corporation. The acceptance or use of a theory does not prove the truth or validity of the rule of law it supports. If its worth has been proven by extended experience, we can be content with that theory. But when a theory supporting a rule of law is not grounded upon sound logic, is not just, and has been discredited by actual experience, it should be discarded, and with it, the rule it supports. As stated in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, 460, 'The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia.'

Even the origin of this doctrine contains some elements of the mysterious. Some writers assume that it is a direct outgrowth of the divine right of the king who could do no wrong. But insofar as municipal or county or local district communities are concerned, it is generally agreed that the application of the immunity doctrine grew out of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1788), which involved a tort action against an unincorporated county. In the Muskopf case this analysis of Men of Devon was made:

'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.' 100 Eng.Rep. 359, 362. 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 could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.'

It is equally hard to determine how this doctrine became imbedded in the law of our Commonwealth. Apparently we started without it because in Prather v. City of Lexington, 52 Ky. (13 B.Mon.) 559, 560 (1852), this was said:

'Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But, as a general rule, a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable, it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation on the subject to which they relate. (Thayer v. Boston, 19 Pick. 511.) It has also been held that cites are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit. (Ross v. City of Madison, 1 Smith 98; Mayor of Memphis v. Lasser, 9 Humph., 757.) And where a city corporation is bound to keep the streets and sewers of the city in proper repair, it is liable to damages if any person be injured by its neglect to have such repairs made. (The Mayor, etc. v. Furze, 3 Hill, 612; Mayor of Linn v. Turner, Cowp., 86.)' Recovery was denied in the foregoing case, however, because the Court determined there was no duty imposed upon a municipal corporation to protect against mob violence. (To remedy this condition a statute fixing liability upon the city was enacted. KRS 411.100.)

We will not trace the history of the attempt of the courts to lessen the severity of the rule of municipal immunity. It is sufficient to say that courts made distinctions between functions of the municipal corporation that purportedly were governmental or public and those thought to be proprietary or private, denying liability in the case of governmental functions, but imposing it in situations involving proprietary actions. At most, the distinctions seem to be contrived and without sensible basis. That which was proprietary in some states was deemed governmental in others. See Annot. 60 A.L.R.2d 1198, 1204 (1958).

The distinction we have made in this state has not resulted from uniform thought. As early as 1910 this Court stated: 'It must be admitted that many of the distinctions that this court, as well as other courts of last resort, have made between what are designated the public and private powers, duties, and liabilities of municipal corporations, are difficult to understand.' Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A.,N.S., 169. For instance, a city is liable for negligent failure to maintain its streets in a reasonably safe condition for public travel, Lampton & Burks v. Wood, 199 Ky. 250, 250 S.W. 980. It is not responsible for negligent acts which might occur when those same streets are sprinkled with water or oil. Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184; and City of Georgetown v. Red Fox Oil Co., 228 Ky. 599, 15 S.W.2d 489. Nor is the city liable for injuries resulting from defects in a pathway (bridle path) located exclusively within a city park. City of Louisville v. Pirtle, 297 Ky. 553, 180 S.W.2d 303. The act of constructing a sewer is governmental in nature, with no liability, Smith's Adm'r v. Commissioners of Sewerage of Louisville, 146 Ky. 563, 143 S.W. 3, 38 L.R.A.,N.S., 151, but afterwards, if a negligent act of the city causes the basement of a connecting residence to be flooded, the city is responsible in damages. Board of Councilmen of City of Frankfort v. Buttimer, 146 Ky. 815, 143 S.W. 410. When a city owns and operates a cemetery, it functions in a proprietary capacity. City of Hopkinsville v. Burchett, Ky., 254 S.W.2d 333. When it operates a park, the action is governmental. Baker v. City of Lexington, Ky., 310 S.W.2d 555. We see no reason to belabor this point. We believe that all of these contrived devices resulted from the fact that the courts for many years have been repelled by the injustice of the rule of municipal immunity and have attempted to soften its harsh application by seeking a few escape hatches.

The reason the courts have denied their logical impulses and have continued to enforce an unfair rule of law is because they have been nurtured and sustained by another ancient and firmly fixed doctrine, that is, stare decisis et non quieta movere--to adhere to precedents and not to unsettle things which are established. But when established things are no longer secure in a fast changing world, the courts should re-examine the precedents and determine if they provide a proper standing under present conditions.

The Supreme Court of Florida, in 1957, was the first to pierce the armor of municipal immunity. The reason for that action may be found in the well-reasoned opinion in Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193. In 1959, the Illinois Supreme Court, in Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469, abolished the immunity from tort liability enjoined by school districts. In that opinion are cited many cases and articles which demonstrate the incongruities resulting from attempts to fit particular conduct into one of the categories known as 'governmental and proprietary.' In January 1961, the Supreme Court of California, in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, rejected the doctrine of governmental immunity from tort liability. There, also, may be found a detailed analysis of the reasons why the doctrine arose and the reasons for its...