Hardgrave v. State ex rel. State Highway Dept., 4660

• Decision Date: 17 February 1964
• Docket Number: No. 4660,4660
• Citation: 80 Nev. 74,389 P.2d 249
• Parties: Rose HARDGRAVE, Appellant, v. The STATE of Nevada, on the relation of the STATE HIGHWAY DEPARTMENT, Respondent.
• Court: Nevada Supreme Court

Page 249

389 P.2d 249

80 Nev. 74

Rose HARDGRAVE, Appellant, v. The STATE of Nevada, on the relation of the STATE HIGHWAY DEPARTMENT, Respondent.

No. 4660.

Supreme Court of Nevada.

Feb. 17, 1964.

Nada Novakovich, Reno, for appellant.

Harvey Dickerson, Atty. Gen., and Gabe Hoffenberg, Chief Deputy Atty. Gen., Carson City, for respondent.

McNAMEE, Justice.

Hardgrave's complaint alleges in substance that the State allowed State Highway Route 28 to be negligently constructed and as a result insufficient drainage was provided; that the State assumed control of and responsibility for the condition of said highway and the duty of keeping the same in a safe condition for ordinary travel; that the State negligently permitted ice which had accumulated on the highway to remain thereon; that the State knew or had reason to know of the slippery, icy, unsafe, and dangerous condition of the highway. 'That on the 16th day of January while standing on the shoulder of said highway and off of said highway, plaintiff was struck and thrown a distance of approximately thirty (30) feet by an automobile being then and there driven by one Robert E. Forte which automobile was caused to skid by reason of and as a direct and proximate result of the ice on said highway.' Hardgrave sustained personal injuries and seeks damages therefor.

Pursuant to NRCP 12(b) the State moved to dismiss the action for failure of the complaint to state a claim upon which relief can be granted, in that the State cannot be sued without its consent, that consent has not been given, and that the State has in no manner waived its sovereign immunity so as to permit this action to be brought against it.

The motion to dismiss was granted and this appeal is from the order of dismissal.

In Rice v. Clark County, 79 Nev. 253, 382 P.2d 605, we refused to allow a county to assert the defense of sovereign immunity so as to relieve it from liability for negligence in operation of roads. In that case we stated: 'We hold merely that sovereign immunity does not extend to counties so as to relieve them for their negligent operation of roads.' The use of the word 'extend' implies that there is some sort of sovereign immunity. We are now asked to determine whether the State under the doctrine is immune from liability for its negligent operation of roads.

Nev.Const. art. IV, § 22, provides: 'Suit against state. Provision may be made by general law for bringing suit against the State as to all liabilities originating after the adoption of this Constitution.'

Gurley v. Brown, 65 Nev. 245, 193 P.2d 693, concerned the liability of the members of the city council as individuals for negligence while performing a governmental function. This court there stated (65 Nev. at page 250, 193 P.2d at page 695): 'Conceding that the immunity of the state and its political subdivisions often results in injustice and leaves an injured person without right of redress, it is too strongly ingrafted in our jurisprudence to be questioned at this time, except in those cases in which the immunity is waived. The State of Nevada has never waived such immunity * * *.'

Hill v. Thomas, 70 Nev. 389, 270 P.2d 179, also recognized that the State was immune from suit except in those cases in which the immunity is waived, and held that the legislature in enacting the bond trust fund act of 1937 by implication waived the State's immunity and has given consent to suit against it. But as stated in that case, its consent to suit against it is on official bonds only. By virtue of the bond trust act the State of Nevada has become surety on all official bonds in this state.

This complaint does not purport to be an action on any official bond. The State is not herein being sued in the capacity of a surety on a bond. ¹ Appellant argues however that the State, by the enactment of the bond trust act, has waived its general immunity to suit. In enacting this act the legislature merely intended to subject the state and the bond trust fund to the same obligations as surety as had theretofore been imposed upon private sureties. Its waiver of immunity went no further. Hill v. Thomas, supra.

Appellant contends that even if the state bond trust fund act does not in itself constitute a general waiver of state immunity from suit, the State now can be sued by reason of the 'law' established by our decision in Rice v. Clark County, supra. This, she maintains is the type of 'general law' referred to in Nev.Const. art. IV, § 22.

As heretofore stated the decision in that case holds only that sovereign immunity does not extend to counties so as to relieve them from their negligent operation of roads. It established no 'general law' with respect to the liability of the State. Moreover all of Article IV pertains to the legislative department. Sections 20 and 21 thereof relate to special and general laws. We construe the words 'general law' as used in Section 22 to mean a general law passed by the legislature.

In Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, the action was against a hospital district. The California Supreme Court would not permit the defense of governmental immunity to stand, but it was expressly noted therein that '[t]he rule of county or local district immunity did not originate with the concept of sovereign immunity.' The Nevada Constitution recognizes that concept when it provides that provision may be made by general law for bringing suit against the state. Although California has a similar constitutional provision, the court in Muskopf held that it 'provides merely for a legislative consent to suit.' If that is what it means, the obvious implication is that without such a consent the sovereign cannot be sued. Furthermore the legislative consent to sue was present in Muskopf.

In Rice v. Clark County, supra, the applicability of Article IV, § 22, to the facts of that case was neither raised nor was the question raised whether the legislature in its enactment of NRS 244.245 and 244.250, statutes which provide the conditions for filing suits against a county, constituted a waiver of any immunity a county might otherwise have had.

The action of the trial court in granting the motion to dismiss was proper.

Affirmed.

BADT, C. J., concurs.

THOMPSON, Justice (dissenting).

The appeal involves the rule of governmental immunity from tort liability. The claimant (appellant) asks that we abolish the doctrine by judicial act, asserting all of the reasons expressed in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and particularly relying upon the recent decision of this court in Rice v. Clark County, 79 Nev. 253, 382 P.2d 605. The state's (respondent's) opposing view is founded on two premises. Initially it argues that Nev.Const. art. 4, § 22 ('Provision may be made by general law for bringing suit against the State as to all liabilities originating after the adoption of this Constitution.') precludes a judicial abrogation of the immunity doctrine and, second, it contends that the principle of stare decisis should control in a suit against the state. Taylor v. State and Univ., 73 Nev. 151, 311 P.2d 733; Hill v. Thomas, 70 Nev. 389, 270 P.2d 179.

It seems to me that the rule of governmental immunity from tort liability should be abolished in this state once and for all. In expressing this view, I am cognizant of the need to practice judicial restraint in areas reserved for legislative control. However, for the reasons hereinafter stated, I do not believe that the constitutional provision was intended to, nor does it, preclude judicial intervention in this area. Nor should stare decisis give us concern when the rule of law under consideration is out of step with the society in which we live. The desire for predictability in the law (which is, perhaps, the best reason for a judicial decision to be controlled by precedent) must, in this instance, bow to the reasonable demand that injured people be given an equal opportunity to ask for and receive justice in our courts without penalty due to the tortfeasor's identity.

Adherence to stare decisis in dealing with the immunity of the state and its political subdivisions is a tribute to confusion and not to certainty. Many proofs are available. Hill v. Thomas, supra, held that the enactment of the bond trust fund act was an implied consent by the state to suit. The claimant was, therefore, not precluded from suing the state as surety on an official bond given for his benefit. Yet, in Taylor v. State and Univ., supra, appropriation of money to the University, some of it being used to purchase liability insurance, was deemed not to be an implied consent to suit. There the claimant was barred. It strikes one as strange that the state may be liable if there is a surety bond to indemnify the plaintiff, but immune if there is merely an insurancy policy purchased expressly for his benefit.

The pattern of inconsistency is quite noticeable in the court's treatment of the public road cases. A city, having exclusive control of its streets, may be liable for the breach of a common law duty to make them safe for travel, if the legislative act (city charter) does not expressly exempt the city from liability. Pardini v. City of Reno, 50 Nev. 392, 263 P. 768; McDonough v. The Mayor and Aldermen of Virginia City, 6 Nev. 90; Barnes v. City of Carson, 33 Nev. 17, 110 P. 3. Recently, liability was extended to embrace the county. Rice v. Clark County, 79 Nev. 253, 382 P.2d 605. The majority opinion in today's case precludes state liability. The rule of governmental immunity from tort liability, and the concept of a governmental (as distinguished from a proprietary) function is involved whether suit be brought against city, county or state. The rule was not discussed in the city cases cited; it was rejected in Rice v. Clark County, supra, and allowed to intervene and control today's case.

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