Campbell v. State

Decision Date27 May 1971
Docket NumberNo. 869A141,No. 1,869A141,1
Citation269 N.E.2d 765
PartiesDewain CAMPBELL et al., Appellants, v. STATE of Indiana, Appellee
CourtIndiana Appellate Court

Bayliff, Harrigan, Cord & Maugans by J. Conrad Maugans, Kokomo, for appellants.

Theodore L. Sendak, Atty. Gen., Thomas C. Mills, Mark Peden, Deputy Attys. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Plaintiffs-Appellants sustained personal injuries as a result of a head-on collision with an automobile in appellants' lane of travel upon a state-maintained highway. The plaintiffs' suit was filed against the state alleging negligence in that after repaving the highway:

'5. The Defendant was guilty of the following acts and omissions, each of which was the proximate cause of the injuries and damages to the plaintiffs:

'a. Defendant carelessly and negligently failed to mark with a yellow line the aforesaid State Road 221 where it was unsafe to pass;

'b. Defendant carelessly and negligently failed to install no passing signs along said State Road 221 or any other signs indicating to the traveling public that said public highway was unsafe for passing as aforesaid.'

Appellants also alleged that the road as maintained constituted a nuisance. The State's motion to dismiss, based upon the doctrine of sovereign immunity, was sustained. This appeal emanates from the overruling of appellants' motion to correct error in which the trial judge opined:

'Court agrees that in Indiana the state does not enjoy sovereign immunity from liability for torts. Also, neither counties nor the state enjoy such immunity as to their 'Proprietary activities.' However, all the existing and controlling precedents are to the effect that the State does enjoy sovereign immunity as to its governmental functions and activities. In my view, the construction and maintenance of state highways is governmental function of the state, not a proprietary function.

'It may well be, as the plaintiffs contend, that the Indiana Supreme Court is moving in the direction of abolishing all such immunities, but unless and until it does, it is this Court's function to apply the law as it exists. Therefore, the plaintiffs' motion to correct errors is overruled.'

The trial judge correctly, we believe, indicated that major shifts from ancient legal doctrine have eroded the original sovereign immunity concept. The very specific question, however, to be answered by this court is: Does the state enjoy immunity from liability for personal injury caused by its negligent acts of omission in the maintenance and repair of state highways?

The doctrine of sovereign immunity, or rex non potest peccare, was implanted in the English common law in the case of Russel v. Men of Devon (1788), 2 T.R. 667, 100 Eng.Rep.R. 359, and has remained viable if not unchallenged until relatively recent times. See Perkins v. State (1969), Ind. 251 N.E.2d 30; Klepinger v. Bd. of Com'rs County of Miami (1968), 143 Ind.App. 155, 239 N.E.2d 160; and Brinkman v. City of Indianapolis et al. (1967), 141 Ind.App. 662, 231 N.E.2d 169.

As to municipalities, total abrogation of immunity was suggested in the Brinkman case, supra:

'It is doubtful whether the purposes of tort law are well served by either the immunity rule or its exceptions. After careful consideration we are of the opinion that the doctrine of sovereign immunity has no proper place in the administration of a municipal corporation.' 231 N.E.2d 169, 172.

More recently, however, the highest court of this state has suggested that at least as to the state, sovereign immunity remains a valid concept even though its application may be limited. Judge Arterburn's opinion in the Perkins case, supra, stated:

'There may be some logical reason why a government should not be liable for its governmental actions and functions.' 251 N.E.2d 30, 35.

We do not here choose to speculate upon what reasons if any may exist for the continued application or misapplication of the traditional governmental-proprietary distinction. Nor do we deem it within our appellate prerogative to judicially abolish sovereign immunity in its entirety. We feel compelled to recognize and honor the aforementioned governmental-proprietary distinction without editorial comment upon its logic or efficacy. Accordingly, we address ourselves to appellants' contentions within the framework of the functional distinction last above mentioned.

Appellants' contention that the state is liable to suit in this cause is constructed upon the framework of the Perkins, Brinkman, and Klepinger case, supra. Such reliance on the part of appellants is understandable and represents a responsible advocative position. This court, however, cannot adopt that position without also adopting the premise set forth in the Klepinger case that maintenance or repair of streets, highways, or roads is a proprietary as opposed to a governmental function. None of the cases cited by appellants in support of this premise set forth any rationale which is convincing to this court. Those cases, including the Klepinger case, merely state the conclusion that bridge or highway maintenance is proprietary without persuasive supportive reasoning.

The Klepinger case relies upon Flowers v. Bd. of Comr's of Vanderburgh County (1960) 240 Ind. 668, 168 N.E.2d 224, to support the 'proprietary' conclusion. The Flowers case, however, involved an injury sustained at a skating rink operated in a county-owned park where skating was permitted upon payment of an admission fee. It, therefore, is akin to the Perkins case which also involved an obviously proprietary function, but neither case lends foundation to the matter-of-fact and otherwise unsupported statement that highway repair is a proprietary function of the state.

To be sure, there are earlier cases in Indiana which attempt to give reason and vitality to the 'proprietary' attribute of street or highway maintenance. See City of Kokomo v. Loy (1916) 185 Ind. 18, 112 N.E. 994.

From the City of Kokomo case above cited, it appears that historically the demarcation from governmental activity and immunity took place when the municipality or county departed from educational, police, fire protection, poor relief, legislative or public health activities. In 1971 we see no need or justification for the artificial distinction. The protection from crime, fire, disease and ignorance is only to a degree more important than the movement of countless motor vehicles in commerce upon the highways of the states of this nation. To be sure, the earlier classified activities evoke a more visceral reaction when jeopardized or threatened than does a more 'taken for granted' governmental obligation such as highway maintenance. We see no more reason to absolve the school system from liability should one of its teachers negligently injure a pupil than to absolve the State from liability should its highway department fail to install a sign or warning lines at a hazardous point in the highways system.

We hold that there is a governmental obligation on the part of the State of Indiana in 1971 to maintain and repair its public highways. See City of Wooster v. Arbenz (1927) 116 Ohio St. 281, 156 N.E. 210. To the extent, therefore, that Klepinger v. Bd. of Com'rs County of Miami, supra, is inconsistent, the latter case is hereby overruled.

Because governmental duties and obligations are much more inclusive in the 1970's than in the 'good old days,' we readily recognize the occasional difficulty in relegating some governmentally conducted activities to a proprietary or a governmental pigeonhole. Some such activities appear to fall somewhere in-between or to contain elements or attributes of each such categorized function, e.g., a governmental water utility for fire protection as well as for private consumption. As stated in Brinkman v. City of Indianapolis, supra:

'The governmental-proprietary rule, however, often produces legalistic distinctions that are only remotely related to the fundamental considerations of municipal tort responsibility. As for example, it does not seem to be good policy to permit the chance that a school building may or may not be producing rental income at the time, determine whether a victim may recover for a fall into a dark and unguarded basement stairway or elevator shaft. Neither does it seem to be good policy to find that a municipal garbage truck is engaged in a nonimmune proprietary function when enroute from a wash rack to the garage while the same truck is engaged in an immune governmental function when enroute to a garbage pickup.' 231 N.E.2d 169, 171.

See also City of Kokomo v. Loy, supra, at 185 Ind. 23-24, 112 N.E. 994.

Notwithstanding an occasional circumstance which makes application of any standard or definition difficult, we nevertheless feel that a workable definition of the 'governmental' function was set forth in Cobia v. Roy City (1961) 12 Utah 2d 375, 366 P.2d 986, 988:

"The most general test of governmental function relates to the nature of the activity. It must be something done or furnished for the general public good, that is, of a 'public or governmental character', such as the maintenance and operation of public schools, hospitals, public charities, public parks or recreational facilities. In addition to the above mentioned general test these supplemental ones are also applied: (a) whether there is special pecuniary benefit or profit to the city and (b) whether the activity is of such a nature as to be in real competition with free enterprise."

We hereby adopt such definition in Indiana and hold that the maintenance and repair of state highways falls squarely within such definition. A similar test was well stated in Millar v. Town of Wilson (1942) 222 N.C. 340, 23 S.E.2d 42, and quoted in Clark v. Scheld (1961) 253 N.C. 732, 117 S.E.2d 838:

'Any activity of the municipality which is discretionary, political, legislative or public in...

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