Chandler v. District of Columbia, 13422.

• Citation: 404 A.2d 964
• Decision Date: 02 August 1979
• Docket Number: No. 13422.,13422.
• Parties: Patricia Z. CHANDLER, Appellant. v. DISTRICT OF COLUMBIA, Appellee.
• Court: Court of Appeals of Columbia District

404 A.2d 964

Patricia Z. CHANDLER, Appellant. v. DISTRICT OF COLUMBIA, Appellee.

No. 13422.

District of Columbia Court of Appeals.

Argued June 19, 1979.

Decided August 2, 1979.

Leonard I. Rosenberg, Washington, D. C., for appellant.

Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed, with whom Richard W. Barton, Deputy Corp. Counsel, and David P. Sutton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before KERN, GALLAGHER and NEBEKER, Associate Judges.

KERN, Associate Judge:

Appellant, administratrix and legal representative of her two deceased children, brought an action against the District of Columbia under the survival and wrongful death statutes.¹ The children had been killed by smoke inhalation when a fire broke out in their home on September 8, 1976.

Prior to that time the District, for financial reasons, had instituted a program closing a number of fire stations on a random, rotating basis. Appellant alleged that on the day of the fire the station nearest her home was closed pursuant to this program; that this closure constituted negligence on the part of the District, its agents and instrumentalities; and, that the closure was the direct and proximate cause of the deaths of the two children.

On the District's motion, the trial judge dismissed the suit for failure to state a claim for which relief could be granted on the grounds that the District is immune from civil suit for the results of the discretionary decisions of its officials. Whether the court correctly granted this motion is the issue on appeal.

Appellant concedes that the District now enjoys immunity if the actions in question were "discretionary," Wade v. District of Columbia, D.C.App., 310 A.2d 857 (1973) (en banc).² Appellant admits that the action she alleges to have been negligent, viz., the decision regarding the fire station closure program, was "discretionary." Yet she urges this court to abolish the "ministerialdiscretionary" test in the situation when a litigant alleges a "discretionary" governmental action is so unreasonable as to be arbitrary and capricious. For several reasons we reject appellant's argument and affirm.

First, this panel would not abolish the settled doctrine of sovereign immunity even if its survival in its present state was of questionable merit. Neither Wade, supra, nor Urow v. District of Columbia, 114 U.S.App.D.C. 350, 316 F.2d 351 (1963), may be overruled by a division of this court. See M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Moreover, the decisions concerning sovereign immunity in this jurisdiction have stressed circumspection in according changes in the doctrine, see, e. g., Spencer v. General Hospital of District of Columbia, 138 U.S.App.D.C. 48, 53, 425 F.2d 479, 484 (1969), undoubtedly in acknowledgement that the doctrine as it now stands forms a tentative dividing line between the legislative and judicial functions; and this appropriate caution is an additional consideration compelling the conclusion that a re-examination of the doctrine is a matter for the full court.

Even assuming that we were free to redefine the doctrine of sovereign immunity, the revision suggested by appellant is not appealing. One rationale for distinguishing discretionary functions is what defines them, viz., activities "of such a nature as to pose threats to the quality and efficiency of government in the District if liability in tort were made the consequence of negligent act or omission." Spencer v. General Hospital, supra, 138 U.S.App.D.C. at 51, 425 F.2d at 482. Thus, to prevent an unhealthy stasis in policy choices and decision-making, government bodies are immune from suits aimed at the results of those decisions. Appellant cites in rebuttal King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974).³ She argues that so long as individual officials, as distinguished from the government unit for which they perform, are immune from suit, governmental decisions will not be "chilled". However, an official whose actions ultimately result in judgments against his employer does not remain "immune" and cannot remain unaffected in his decision-making by the potential liability of the government for which he works.

Appellant's second argument has superficial appeal but does not overcome the other rationale for the continued vitality of sovereign immunity. Specifically, appellant reasons that since the implementation of policy decisions, or "ministerial" functions, is in fact subject to liability in order to encourage conscientious performance, then imposing some liability for "arbitrary and capricious" exercise of government discretion would also encourage reasonable decision-making. However, one of the purposes of imposing tort liability in the first place is to influence decisions so that their real social costs are taken into consideration when made even by public officials. See, e. g., Rieser v. District of Columbia, 183 U.S.App. D.C. 375, 563 F.2d 462 (1977). Appellant's argument fails to recognize that there are certain decisions made in the exercise of the discretionary functions of government for which there is no reason to believe a jury would render a sounder decision than those officials chosen, qualified, and prepared to make them. It is these that are labeled "discretionary" and which constitute policy decisions deemed immune from suit because there is no legal standard by which a judge or jury...