Evans v. Board of County Com'rs of El Paso County

• Decision Date: 22 March 1971
• Docket Number: No. C--10,C--10
• Parties: Vivian EVANS, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 968

482 P.2d 968

174 Colo. 97

Vivian EVANS, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO,

Defendant-Appellee.

No. C--10.

Supreme Court of Colorado, En Banc.

March 22, 1971.

Quigley, Wilder & Palermo, P. C., Richard V. Hall, Colorado Springs, for plaintiff-appellant.

Tilly & Graves, William H. Haring, Ronald O. Sylling, Denver, for defendant-appellee.

GROVES, Justice.

The parties appear here in the same order as in the trial court. The plaintiff alleged that while en route to jury duty she sustained a personal injury as a result of carelessness on the part of the county commissioners in permitting the concrete steps at the El Paso County Courthouse to deteriorate and to constitute a dangerous hazard. The court on motion dismissed the complaint under the doctrine of governmental immunity. We reverse and depart from that doctrine.

In opinions announced contemporaneously with this one, the majority of this court is rejecting the doctrines of governmental immunity of school districts (Flournoy v. School District No. 1 of Denver, Colo., 482 P.2d 966), and sovereign immunity of the State of Colorado (Proffitt v. State of Colorado, Colo., 482 P.2d 965). We use this opinion as the vehicle to express our views not only with respect to the instant matter but also as to the other two cases.

The majority opinion in Tesone v. School District No. Re--2, 152 Colo. 596, 384 P.2d 82 (1963), upheld the doctrine of governmental immunity. A concurring opinion there commenced as follows:

'I concur in the (majority) opinion * * *. In view of the fact that (the justice) in his dissenting opinion has once more seen fit to advocate that we should overrule the considered opinions of this court in at least forty cases extending over a period in excess of eighty-five years, I must again direct attention to certain fundamental principles which I believe would be ignored or violated if a majority of this court were to follow the course suggested by said dissent.'

Nevertheless, the majority of this court has now concluded not to follow those 'fundamental principles.'

One finds a certain sameness in many of the opinions of the appellate courts in the various states which, as here, overturn the doctrines of sovereign and governmental immunity, and in the dissents to those opinions which uphold the doctrines. ¹ One finds frequently a refutation of the proposition that the doctrines came from the common law. It is stated that the doctrine of sovereign immunity was not part of the common law, I.e., that there could be a petition of right under which the sovereign was in effect sued; ² or that the doctrine that the King (an individual) can do no wrong is not a proper basis for a declaration that a corporate state should have sovereign immunity; ³ or that Russell v. The Men of Devon, 100 Eng.Rep. 359 (K.B. 1788) (which so many times has been cited to show that the common law recognized the doctrine of governmental immunity) is no authority for application of the doctrine to political subdivisions, including municipal corporations, since Men of Devon was an action against the population of an unincorporated town.

It is possible that sovereign immunity as we know it stems in large part from the transformation in the English kingship, including augmented powers and divine and transcendental characteristics, which was occasioned by the Tudor monarchs, particularly Henry VIII, in pursuit of such ends as the split of the Church of England from the Church of Rome and the unity of temporal and spiritual life in England. ⁴ The monarchical philosophies invented to solve the marital problems of Henry VIII are not sufficient justification for the denial of the right of recovery against the government in today's society. Assuming that there was sovereign immunity of the Kings of England, our forebears won the Revolutionary War to rid themselves of such sovereign prerogatives. ⁵

Frequently there has been mentioned the injustice and inequity--even absurdity--of having recovery for negligence against individuals and against firms for negligence of their employees, but no recovery against governmental units for the negligence of their employees. ⁶ We see mentioned in the cases the incongruity of recovery against a municipality when it is engaging in a proprietary function for negligence of its employees, but no recovery if the employee--just as negligent--is engaged in a governmental function. ⁷ It has been thought that the existence of legislatively authorized insurance for torts of governmental officers is inconsistent with continued insistence upon immunity. ⁸ It has been repeatedly stated that the doctrines of sovereign and governmental immunity have been made by the courts and, when it appears that these rules were wrong when made and wrong currently, the courts should abolish the rule. Some courts and writers, while not wishing to state that the older decisions were wrong when decided, take the position that the intervening vicissitudes of society have necessitated a change in the law. ⁹ We agree with these points of view. While there is a temptation to expound on them at length, they are so well--and ofttimes eloquently--discussed in many of the authorities to which attention has already been directed in footnotes that our comments will not be extended.

It can be stated frankly that this decision casting aside stare decisis results from a different philosophical outlook in the minds of the majority of the court today than was in the minds of the majority of the court as it pronounced and re-pronounced the doctrines through the past many years. Obviously, there is ample authority to continue application of the doctrine, and there is an abundance of authority to overturn it. A majority of us simply think that the doctrines are causing too great a degree of injustice.

The first session of the Legislative Assembly of the territory of Colorado declared that the common law of England, so far as the same is applicable and of a general nature, should be the rule of decision in this state. It has been previously argued that the doctrines of immunity were not a part of the common law. ¹⁰ Furthermore, the manner of the establishment of the doctrines in Colorado demonstrates to us that they were constructed on a not too substantial foundation. The first Colorado case to establish governmental immunity was Board of Commissioners of El Paso County v. Bish, 18 Colo. 474, 33 P. 184 (1893). The first Colorado case to declare sovereign immunity of the state was In Re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 P. 1088 (1895). We mention somewhat parenthetically that in some of the briefs it is stated or assumed that Bish was the first case on the subject of governmental immunity. We note, however, that the doctrine was somewhat of a stranger in the minds of the justices of this court prior to 1893. ¹¹

In Bish the rule of governmental immunity was declared in the following language:

'The rule that counties are not liable for torts, in the absence of statute, is universally acknowledged; and the great weight of authority is in favor of the conclusion that even when a duty is imposed by statute the county is not liable for failure to perform it, in the absence of express provision creating such liability. The cases sustaining the latter conclusion are so numerous that space will not permit of their citation in this opinion. They will be found collated, in part, in the notes on page 364 of the fourth volume of the American and English Encyclopedia of Law, and also in note 1, p. 303, of Cooley's Constitutional Limitations.'

In Justice Hall's dissent to Liber v. Flor, 143 Colo. 205, 353 P.2d 590 (1960), he pointed out a distinct lack of favorable impression from reading the cases collated on page 364 of the fourth volume of American and English Encyclopedia of Law. He noted that 'the court (in Bish) made no effort at analysis of the problem presented in light of the constitution or reason.'

In the case of Constitutionality of Substitute not even questionable authority was cited. All of the comments regarding sovereign immunity in that opinion are as follows:

'After as careful and full an investigation as we have been able to give, we answer that none of the provisions of the constitution referred to will be violated by the enactment into law of the bill in question. We recognize the doctrine that, without constitutional or legislative authority, the state in its sovereign capacity cannot be sued. No such authority exists in this state. This being so, no liability upon contract or tort, if any there be, can be enforced against the state in any of its courts.'

It might be said that in Bish and Constitutionality of Substitute the doctrines were pulled out of rather thin air. These two cases constitute the foundation, and the bricks of the doctrinal wall were laid upon them. Pitkin County v. Ball, 22 Colo. 125, 43 P. 1000 (1896), was the next case on governmental immunity. Two texts were cited but the only case upon which the opinion was predicated was Bish. Then came Board of Commissioners v. Adler, 69 Colo. 290, 194 P. 621 (1920), where Bish was the only case cited on governmental immunity. In Richardson v. Belknap, 73 Colo. 52, 213 P. 335 (1923), Bish was the only case cited on the issue. In Newt Olson Lumber Company v. School District No. 8, 83 Colo. 272, 263 P. 723 (1928), the cases cited were Bish, Richardson, and Florman v. School District No. 11, 6 Colo.App. 319, 40 P. 469 (1895). In Florman the court held that the school district could not be garnisheed, but the money could be reached in equity. The only cases cited on governmental immunity in School District No. 28 v. Denver Pressed Brick Co., 91 Colo. 288, 14 P.2d 487 (1932), were from those just listed. The list of cases sustaining governmental immunity continues in the same theme, I.e., always predicated upon earlier case...