Davies v. City of Bath

• Citation: 364 A.2d 1269
• Parties: Edith A. DAVIES v. CITY OF BATH.
• Decision Date: 12 October 1976
• Court: Supreme Judicial Court of Maine (US)

Page 1269

364 A.2d 1269

Edith A. DAVIES v. CITY OF BATH.

Supreme Judicial Court of Maine.

Oct. 12, 1976.

As Amended Nov. 30, 1976.

Carl O. Bradford, H. Denton Bumgardner, Freeport, for plaintiff.

Hart & Stinson, P. A. by Carl W. Stinson, Bath, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, ^* POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

This is an appeal from granting defendant's motion for summary judgment. We sustain the appeal and remand for further proceeding.

The parties agreed that the plaintiff is the owner of real property in the City of Bath, that the defendant municipality owns and legally operates a public sewerage system. It was further agreed that a sewer main ran under the northeasterly corner of the plaintiff's house and on December 13, 1973, water from that main erupted through the basement of the house causing substantial damage. The plaintiff, not being able to maintain an action under 30 M.R.S.A. § 4353 ¹ because she had not paid for connecting with the public drain, premised her cause of action on defendant's negligent maintenance of the sewer main. Although the negligence was denied, the Justice below granted the motion for summary judgment in favor of the defendant. holding that 'the doctrine of municipal immunity is a complete defense to this action.'

Once again we must consider the viability of the doctrine of governmental immunity.

In recent years we have expressed our displeasure with this rule and the substantial injustices which result from it, and have said:

'We may agree that sovereign immunity from tort liability has served its usefulness and ought to be destroyed.'

Nelson v. Maine Turnpike Authority, 157 Me. 174, 186, 170 A.2d 687, 693 (1931).

However, the Court in Nelson declined to abrogate the rule because complex issues of State policy were involved which were more appropriately left to the discretion of the Legislature.

In Bale v. Ryder, 286 A.2d 344, 345 (Me.1972), we carefully traced the supposed origins of the doctrine and concluded that

'application of the so-called doctrine has been incorrect and its application cannot withstand the test of logic.'

See also Jivelekas v. City of Worland, 546 P.2d 419 (Wyo.1976).

Despite our clear repudiation of the rule in Bale, we once again refused to impose tort liability on a municipality because:

'We do not hold the purse strings. We have no power to levy taxes or otherwise provide funds to meet liability which would result from a decision abrogating the immunity doctrine. The Legislature has the power, the capacity and the administrative machinery for conducting investigations and for giving consideration to several plans which could be advanced to solve the problem with relatively minor impact upon the municipal treasury.'

Bale v. Ryder, 286 A.2d at 348.

Our decision in Bale was certified on January 21, 1972, three days before the 105th Maine Legislature met in special session. No attempt was made to address the problems created by the doctrine of governmental immunity during the 1972 special session, nor did the regular session of the 106th Maine Legislature ² take any action.

On July 31, 1973, we certified our decision in Bartashevich v. City of Portland, 308 A.2d 551 (Me.1973), in which we once again refused to impose tort liability on a municipality because

'we still believe(d) that a reasonable time should pass in which legislative thought (could) crystalize on the best methods of resolving the problems which may face municipalities with the abolition of the doctrine before we consider whether, absent some affirmative action, we should assume the responsibility of abrogating this court made legal rule.'

308 A.2d at 552.

The 106th Maine Legislature failed to take any action during its 1974 special session. ³ In 1975 the 107th Maine Legislature considered L.D. 1568 (H.P. 1297) which would have repealed and replaced 14 M.R.S.A. § 157 relating to tort liability of governmental agencies. The proposed bill would have imposed liability for actions against the State arising out of the use, ownership, or operation of a motor vehicle up to $100,000, or to the extent of insurance coverage if it exceeded $100.000, and it would have imposed liability on all governmental units for any tortious conduct to the extent of insurance coverage. The proposed statute would also have affirmed the doctrine of governmental immunity except as expressly modified by statute. A majority of the committee on Judiciary reported that the bill 'Ought to Pass,' but the Senate accepted the minority 'Ought Not to Pass' report. ⁴ The Legislature failed to take any further action during its special sessions in 1976.

If the Legislature had enacted L.D. 1568 in 1975, we would accede to the clear affirmation of governmental immunity and would continue its application as modified by statute. Although we may question the efficacy of a policy that allows a municipality to determine the extent of its own liability, it is not our duty to judge the wisdom of legislative enactments. Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn S.P.A., 320 A.2d i47, 257 (Me.1974).

Although the Legislature failed to adopt the common law rule of governmental immunity in 1975, we must determine whether the prior enactment of various exceptions to the doctrine and of special bills waiving State immunity in individual cases has transformed governmental immunity from a court-made rule ⁵ to a legislative policy.

The Legislature has enacted a number of provisions which waive or abolish governmental immunity in certain specified cases. 14 M.R.S.A. § 157 abolishes immunity to the extent of insurance coverage in all civil actions arising out of the use, ownership or operation of a motor vehicle against the State, a political subdivision or a quasi-municipal corporation. While it is arguable that the enactment of such a statute evidences a legislative intent to adopt the judicial doctrine of governmental immunity, ⁶ we recognized in Blier v. Inhabitants of Town of Fort Kent, 273 A.2d 732, 737 (Me.1971), that

'the true sense of the law of the enactment as a whole was solely to curtail the judicial doctrine and to cut down the defense of governmental immunity to the extent of insurance coverage in tort claims arising out of the operation of motor vehicles . . ..' (Emphasis supplied.)

Likewise, other statutes which allow actions against the State or against municipalities were enacted in the face of the judicial doctrine of governmental immunity and were intended to curtail the doctrine's harsh effects rather than to affirm it for all other tortious conduct. See e. g., 23 M.R.S.A. §§ 3655-58 (dealing with the liability of counties and municipalities for damage caused by defects in any highway, townway, causeway or bridge); 23 M.R.S.A. § 1451 (dealing with the liability of the State to towns and counties for judgments recovered against them as a result of defects in state and state aid highways to the improvement of which the State has contributed). Particularly appropriate to the present case is 30 M.R.S.A. § 4353 (see n. 1, supra), which imposes liability on a town for damages caused to a person who has paid for connecting with a public drain. The defendant argues that the Legislature intended to 'limit' municipal liability for damage arising from drains to only those people who have paid for connection. However, the public drain statute was enacted in order to ameliorate the harsh effects (as was the case in Blier) of the application of the doctrine of governmental immunity and cannot be held to affirm the doctrine in any sense. Justice Traynor disposed of the same argument on the occasion of the abolition of governmental immunity in California:

'We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated re-enactment of a statute. . . . Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most. Defendant would have us say that because the Legislature has removed governmental immunity in these areas we are powerless to remove it in others. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas.'

Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 93, 359 P.2d 457, 461 (1961).

The legislature in Maine has also traditionally passed resolves which allow tort actions to be brought against the State. These resolves normally are limited to specified individuals for specific actions and generally set a maximum level of recovery. ⁷ Again, these enactments are intended to limit the judicial doctrine of governmental immunity and they cannot be viewed as legislative affirmation of it. Blier v. Inhabitants of the Town of Fort Kent, supra.

No purpose would be served here by restating our reasons for holding that governmental immunity is no longer a rational judicial doctrine. See Bale v. Ryder, supra. Throughout the United States, the doctrine has been so discredited that an overwhelming majority of jurisdictions has abolished it either by judicial decision ⁸ or by statute. When the conditions of society change to such an extent that past judicial doctrines no longer fulfill the needs of a just and efficient system of law, we should not be bound by the constraints of stare decisis. As we noted in Moulton v. Moultion, 309 A.2d 224, 228 (Me.1973),

"state decisis' will ultimately become a self-defeating principle if, in functioning to achieve stability in the law, it operates so inflexibly as to deny to judges the power to move ahead amidst the onrushing currents of change in the present when, in standing still restrained by the bonds of the past, they must...