Elgin v. District of Columbia, 18238.

• Decision Date: 20 August 1964
• Docket Number: No. 18238.,18238.
• Citation: 119 US App. DC 116,337 F.2d 152
• Parties: Charles B. ELGIN, Sr., Individually and as Next Friend of John Elgin, a Minor, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

119 US App. DC 116, 337 F.2d 152 (1964)

Charles B. ELGIN, Sr., Individually and as Next Friend of John Elgin, a Minor, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 18238.

United States Court of Appeals District of Columbia Circuit.

Argued May 18, 1964.

Decided August 20, 1964.

Mr. James R. Treese, Washington, D. C., with whom Messrs. Thomas S. Jackson, Robert M. Gray, and John L. Laskey, Washington, D. C., were on the brief, for appellant.

Mr. John R. Hess, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee.

Before BAZELON, Chief Judge, and BASTIAN and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

In this litigation, liability in tort is claimed to have accrued by reason of an accident which occurred while John Elgin, a minor and a full-time student at a public school owned and operated by the District of Columbia, was engaged in a required recreation program on the school playground. He fell into a depressed areaway immediately adjacent to the playground, which areaway itself surrounded the basement of the school building. The complaint, in one count, alleged that the fall was the result of the District's negligence in failing either to provide, or to maintain properly, an adequate railing or other safeguard around the depressed areaway or to warn of the resultingly dangerous condition, or in exposing Elgin to this dangerous condition through mandatory participation in activities likely to result in injury because of it. A second count in the complaint, relying upon the same factual allegations, sets forth a claim of nuisance. The District Court, upon motion prior to trial, dismissed the complaint, presumably upon the ground that the doctrine of municipal immunity precluded recovery.¹ This appeal seeks, through reversal of that action, an opportunity to prove the allegations of the complaint at a trial.

Three points are urged upon us as warranting such reversal. One is a plea that we join the growing number of courts which have put an end to the shelter from tort liability afforded to municipal governments by the immunity doctrine. For the reasons set forth in the margin, we do not deal with the merits of this proposal.² A second is an argument that, whatever the vulnerability of the negligence count in the complaint, the second count, stated in terms of nuisance, is good under the long-standing exception to municipal immunity for this kind of wrong. Although a superficial examination of this contention suggests that the facts alleged appear to fall short of the common law concept of nuisance, we do not deal with the matter definitively in view of the disposition we make of the third issue raised on this appeal.

I

This third contention, which was the one principally pressed upon us as upon the court below, derives from the familiar learning with respect to the differentiation in functions performed by a municipality. Almost from the very moment of creation by the courts of an immunity initially resting upon the ancient dogma that the king can do no wrong, the judges have been alert to insist that the king be acting as such at the time injury occurs. With kings replaced by city councils as the embodiments of the grace by which men permit themselves to be governed, this alertness was verbalized in somewhat different terms, but the core of the judicial insight remained the same. It is, we believe, essentially this: If a king, or a city council, is to do the job of governing well, then there is something to be said for withholding the threat of answerability in damages for at least some of the actions and decisions which governing necessarily entails. He who rules must make choices among competing courses of action and in the face of conflicting considerations of policy. The capacity and the incentive to govern effectively are arguably not enhanced by the prospect of being sued by those citizens who may be adversely affected by the choice eventually made. Thus it has been thought wise to sweep this restrictive cloud from the horizon and to let those responsible for the conduct of public affairs calculate their courses of action free of this intimidating influence. By the same token, in those areas of governmental action where the reason for the rule does not apply, the rule itself is disregarded.

This is, in our view, the origin and the present significance of the exception to municipal tort immunity rooted in the contrasting of "governmental" functions, as to which immunity is assumed to obtain, with those said to be of a "proprietary" nature, where it does not. It is not a useful exercise to catalogue the many cases in this and other jurisdictions where the distinction has purported to be drawn. They frequently defy logical classification, and they reflect varying, and often inconsistent, rationalizations, as might be expected in an area where there is a growing conviction that a strict rule of immunity from liability has outlived its time. We do think it significant that, in the traditional formularization of the opposed concepts as "governmental" and "proprietary," there has been an increasing tendency to substitute "ministerial" for "proprietary." This sounds upon our ears as the knell of the old rationale, which was stated in terms of activities customarily associated with government as compared with those ordinarily carried on by the private sector of society. This was, at best, a tangential articulation of the most sensible support to be found for the immunity grant; and the use of the word "ministerial" both eliminates any continuing utility it might have and focuses attention upon a sharper and more satisfying analysis.

That analysis is more concerned with trying to distinguish between the functions performed within an area of readily recognizable governmental responsibility, than with undertaking to define precisely where the boundaries of that area lie. And, with such functions so identified and differentiated, it next inquires whether an injury inflicted as a consequence of one of such functions can be subjected to judicial redress without thereby jeopardizing the quality and efficiency of government itself. "Ministerial" connotes the execution of policy as distinct from its formulation. This in turn suggests differences in the degree of discretion and judgment involved in the particular governmental act. Where those elements are important, it is desirable that they operate freely and without the inhibiting influence of potential legal liability asserted with the advantage of hindsight. To the extent that the rule of municipal tort immunity continues to serve any useful purpose, this would appear to be that purpose; and its illumination in any given set of facts has been, and is, sought through the function-discriminating exception.

There is nothing new about this approach in this jurisdiction. Indeed, it was clearly reflected in the court's opinion in Urow, supra. There the negligence attributed to the District of Columbia was the failure to locate a traffic control device at a particular intersection, resulting, so it was said, in the death of appellant's decedent. The court, in addition to rejecting the invitation to reconsider the doctrine of municipal tort immunity, noted that the D. C. Commissioners had been entrusted with a discretionary authority to locate traffic signals at such places as they might deem advisable. "The establishment of such a general traffic control plan," said the court, "is essentially legislative in character and is the result of the Commissioners' exercise of discretion and judgment." The court went on to hold that a claim of negligence in this context of governmental discretion was wholly inadmissible, whatever view one might take of municipal tort immunity; and it sustained a dismissal of the complaint without trial.

The very last sentence of this court's opinion in Urow referred to "a ministerial as distinguished from a discretionary function," presumably reflecting its belief that this is a terminology to be preferred over the traditional governmental-proprietary dichotomy. And the implication is strong in the opinion that, again without reference, as the court put it, to "whatever defects there may be in the doctrine of municipal immunity from tort liability," such liability might well attach in other — and non-discretionary — circumstances.

A case of such nature is not far to seek in the court's recent history. Judge Prettyman, writing for the court in Booth v. District of Columbia, 100 U.S. App.D.C. 32, 241 F.2d 437 (1956), reversed a directed verdict for the District upon the plaintiff's opening statement and remanded for trial a claim of negligent failure to maintain the streets in safe condition. The fact that two theories of negligence were advanced in that case, and resolved by the court in different ways, serves to cast in clearer outline the distinction between ministerial and discretionary functions. The plaintiff had been injured when her car had been caught in an intersection in a sudden current of flood water. Her first theory of negligence was that the District's culpability lay in failing to plan and provide an adequate sewer system. The court said there could be no recovery on this basis, relying upon Johnston v. District of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed. 75 (1886), where the Supreme Court, noting that the planning and adoption of a sewer system is heavily fraught with discretionary determinations, held the District immune from liability on a similar claim. But Judge Prettyman characterized Johnston as also recognizing "that a municipality may be liable for negligence in the construction of a sewer in accordance with the general plan or for negligence failure to keep that sewer in good repair"; and he went on to hold, in respect of plainti...