Bergner v. State

• Decision Date: 25 February 1957
• Citation: 144 Conn. 282,130 A.2d 293
• Parties: Alfred C. BERGNER, Administrator (Estate of Helen L. Bergner), v. STATE of Connecticut. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 293

130 A.2d 293

144 Conn. 282

Alfred C. BERGNER, Administrator (Estate of Helen L. Bergner), v. STATE of Connecticut.

Supreme Court of Errors of Connecticut.

Feb. 25, 1957.

William S. Zeman, Hartford, with whom was Morgan M. Kline, Hartford, for appellant (plaintiff).

Thomas J. Conroy, Asst. Atty. Gen., with whom, on the brief, were John J. Bracken, Atty. Gen., and Raymond J. Cannon, Asst. Atty. Gen., for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

BALDWIN, Associate Justice.

The complaint in this action alleges that the plaintiff's decedent, while walking along a corridor in a building of the Norwich State Hospital on February 14, 1954, fell because of a slippery floor and sustained injuries which resulted in her death. It charges the defendant state of Connecticut, which maintained the hospital, and its servants and agents, with negligence and with creating and maintaining a nuisance. Consent to the bringing of this action against the state was given by special act of the General Assembly at its 1955 regular session. 27 Spec.Laws, p. 277, No. 346. The defendant filed an answer denying the allegations of negligence and nuisance. It also filed two special defenses, the first alleging contributory negligence and the second that the defendant in maintaining the hospital 'was acting in the exercise of a governmental duty, and, therefore, governmental immunity applies.' The plaintiff demurred to the second special defense on the ground that the defendant, by enacting the special act authorizing the bringing of this action, had waived the defense of governmental immunity. The trial court overruled the demurrer and the plaintiff has appealed from the judgment rendered when the plaintiff refused to plead further. The ground of the demurrer raises the question whether the state, in this action authorized by statute, can raise the defense of governmental immunity.

The special act reads as follows: 'Alfred C. Bergner, administrator of the estate of Helen Louise Bergner, is authorized to bring suit against the state on his claim for damages arising out of accidental injuries suffered by Helen Louise Bergner on February 14, 1954, at Norwich State Hospital, and subsequent death. Such action may be brought to the superior court of Hartford county on or before January 1, 1956. Said action shall be tried to the court without a jury and no interest or costs shall be included in any judgment against the state, and all legal defenses are reserved to the state.' 27 Spec.Laws, p. 277, No. 346.

The basic claim of the plaintiff is that this legislation not only gives a right of suit but also surrenders the defense of governmental immunity from liability. The defendant claims that only a right of suit is conceded. It is a well-established rule of the common law that a state cannot be sued without its consent. Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468, and cases cited. This rule has its origin in the ancient common law. The king, being the fountainhead of justice, could not be used in his own courts. 1 Pollock & Maitland, History of English Law (2d Ed.) pp. 514-518. However, the king as the source of justice could not well refuse to redress the wrongs done to his subjects. Consequently, a procedure was developed whereby the subject, by bringing a petition to the king and securing his accession, could litigate his claim in the courts. 9 Holdsworth, History of English Law, p. 8. While a petition lay for a wide variety of actions, mostly proprietary in nature, it did not lie for torts because of the hoary maxim 'The king can do no wrong.' Street, Governmental Liability, p. 2; Feather v. The Queen, 6 Best & Sm. 257, 295, 122 Eng.Rep. 1191. Why legal principles spawned in feudal England should be the common law of this republic we cannot tell. Suffice it to say that they are. Justice Holmes wrote: 'A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.' Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834; see The Western Maid, 257 U.S. 419, 432, 42 S.Ct. 159, 66 L.Ed. 299; United States v. Lee, 106 U.S. 196, 206, 1 S.Ct. 240, 27 L.Ed 171; Briggs v. Light-Boat Upper Cedar Point, 11 Allen 157, 162, 93 Mass. 157, 162. This states the basis for the adaptation of the principles of governmental immunity to the American concept of government.

From this history we see that there apparently were two principles at the foundation of the proposition that the king, and subsequently the state, could not be sued without consent. One was sovereign immunity from suit and the other was sovereign immunity from liability. The latter has been applied to municipal corporations, which, as creatures of the state, are not liable under the doctrine of respondeat superior for the negligence of their officers, servants and agents in the performance of governmental functions. Hewison v. City of New Haven, 37 Conn. 475, 483; Jewett v. City of New Haven, 38 Conn. 368, 386; Judson v. Borough of Winsted, 80 Conn. 384, 386, 68 A. 999, 15 L.R.A.,N.S., 91; Pope v. City of New Haven, 91 Conn. 79, 80, 99 A. 51, L.R.A.1917B, 1239; 18 McQuillin, Municipal Corporations (3d Ed.) p. 133; 4 Dillon, Municipal Corporations (5th Ed.) § 1655. These cases are distinguishable from those wherein a municipal corporation has been held liable for its positive act in creating a nuisance. Hoffman v. City of Bristol, 113 Conn. 386, 389, 155 A. 499, 75 A.L.R. 1191; Prifty v. City of Waterbury, 133 Conn. 654, 657, 54 A.2d 260; see Beckwith v. Town of Stratford, 129 Conn. 506, 29 A.2d 775. The distinction between immunity from suit and immunity from liability appears to have been recognized in State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028, and State v. Anderson, 82 Conn. 392, 394, 73 A. 751. The great majority of the courts of other jurisdictions make this same distinction and hold that a statute granting consent to sue the state merely provides a remedy to enforce such liability as the general law recognizes. State v. Miser, 50 Ariz. 244, 257, 72 P.2d 408; Manion v. State Highway Commissioner, 303 Mich. 1, 19, 5 N.W.2d 527; Minty v. Board of State Auditors, 336 Mich. 370, 394, 58 N.W.2d 106; Stewart v. State Highway Commission, 166 Miss. 43, 48, 148 So. 218; Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268, 271, 30 A.2d 1; Smith v. State, 227 N.Y. 405, 409, 125 N.E. 841, 13 A.L.R. 1264; Jack v. State, 183 Okl. 375, 376, 82 P.2d 1033; Campbell Building Co. v. State Road Commission, 95 Utah 242, 252, 70 P.2d 857; Columbia Steel Co. v. State, 34 Wash.2d 700, 712, 209 P.2d 482; 49 Am.Jur. 315, § 98; 81 C.J.S., States, § 215, p. 1307.

The question whether the principles of governmental immunity from suit and liability can best serve this and succeeding generations has become, by force of the long and firm establishment of these principles as precedent, a matter for legislative, not judicial, determination. In Adams v. City of New Haven, 131 Conn. 552, 556, 41 A.2d 111, and Lambert v. City of New Haven, 129 Conn. 647, 649, 30 A.2d 923, we questioned the power of municipal officers to waive the defense of governmental immunity where the municipality was insured. The legislature has, in fact, long since begun to whittle this defense away. For example, there are the statutes allowing recovery against towns and highway commissioner for defective roads and bridges; Cum.Sup.1955, §§ 1180d, 1193d; and against the state for the negligent...