Jones v. State Highway Commission

Decision Date12 September 1977
Docket NumberNo. 60017,60017
Citation557 S.W.2d 225
PartiesJean JONES, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION, Defendant-Respondent.
CourtMissouri Supreme Court

James W. Jeans, Kansas City, Leon B. Seck, Harrisonville, for plaintiff-appellant.

John W. Maupin, Jefferson City, Bruce A. Ring, Counsel State Highway Commission, Jefferson City, for defendant-respondent.

SEILER, Judge.

Appellant Jones filed suit against the respondent state highway commission seeking damages for her personal injuries suffered in an automobile accident while traveling on one of the state's highways. The circuit court sustained respondent's motion to dismiss for failure to state a claim upon which relief could be granted based upon respondent's assertion of sovereign immunity as a bar to suit. Jones then appealed to the court of appeals, Kansas City district, which in turn transferred the cause on its own order to this court due to the questions of general interest and importance involved. Mo.Const., Art. V., § 10; Rule 83.02. On the same date that the instant case was argued, we also heard argument in three other cases where the defense of sovereign immunity against tort claims was advanced: No. 59958, Prewitt v. Parkway School District, 557 S.W.2d 232, a claim against a school district where plaintiff, who was entering the building to register for a night class, slipped on a wet spot in the school hallway; No. 60012, Wheeler v. St. Clair Hospital District, 557 S.W.2d 233, a claim against a hospital district for a death growing out of a hospital fire allegedly caused by the hospital's negligence and No. 60042, State ex rel. Racer v. Richardson, 557 S.W.2d 235, a malpractice claim against a county hospital by a patient.

The question presented is whether sovereign immunity against tort liability is to remain a defense to claims against various instrumentalities of the state, in the instant case the state highway commission.

The facts as alleged in appellant's petition are as follows: While driving southwardly and rounding a right hand curve on highway 71 in Jackson County, appellant's automobile left the road and went onto its irregular and uneven shoulder which was four inches below the roadway surface. While attempting to return to the road, appellant lost control of the automobile, which then veered across the highway to the right shoulder, struck a highway sign anchored in concrete, and rolled down the adjacent embankment, resulting in severe injury to appellant.

Appellant filed her petition in the circuit court in two counts. The first count alleged negligence in design, negligence in permitting the highway to remain in a dangerous and defective condition, and negligence in failing to warn of the dangerous and defective condition. The second count alleged that the dangerous and defective conditions of the highway's design and construction constituted a nuisance created and maintained by respondent.

We hold that sovereign immunity against tort liability is no longer a bar to such actions and reverse and remand for further proceedings.

This is not the first time we have faced the task of evaluating the argument and scholarship over the continued vitality and validity of the doctrine of sovereign immunity. Experience in the last three decades in other states shows wide support as a matter of public policy for a broad area of governmental tort liability, whether accomplished judicially or legislatively. For a review of the progress of abolition of governmental immunity see K. Davis, Administrative Law of the Seventies ch. 25 (1976 & Supp. 1977); Harley, P. and Wasinger, B., Governmental Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12 (1976); Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U.Ill.L.Rev. 919 (1966); Comment 36 U.Md.L.Rev. 653 (1977). 1

Our duty is to respond to the claims which come before us in a manner consistent with the principles embedded in our constitution, statutes, and judicial precedents. This requires, on rare occasions, as it does today, that we reject an earlier rule. 2 We conclude that it is the proper function of the court in applying the principles of a limited constitutional government to reject the rule of sovereign tort immunity and declare that the government shall be liable for its torts, consistent with the proposition that the government is not, in the American system, all powerful. This is in accord with the implicit principles manifested in the whole body of our existing positive law. We have thus determined that the dissent of Finch, J., filed in O'Dell v. School District of Independence, 521 S.W.2d 403, 409 (Mo. banc 1975), which thoroughly discusses the doctrine and the reasons for its abandonment, expresses the view we should now adopt. Accordingly, great reliance will be placed upon that dissent in the course of this opinion.

As did Judge Finch, we first address the question of whether the doctrine of sovereign immunity in tort is statutory or decisional, an inquiry crucial to the court's authority to abolish the doctrine under the proper circumstances. Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo. banc 1969). 3 We are led to the conclusion that our § 1.010, RSMo 1969, which adopted the common law of England prior to 1607, the fourth year of the reign of James I, did not adopt the English common law as a substantive statute, but rather as decisional law. Therefore, assuming arguendo that the doctrine of sovereign immunity appeared in English jurisprudence prior to the fourth year of the reign of James I, we nevertheless have the authority to alter or abrogate the doctrine. 4

The second issue is, of course, whether the doctrine should be altered or abrogated.

Six reasons offered by English common law and Missouri cases to justify the existence of the doctrine were examined and refuted. The first justification came from the early English cases in which it was said that a suit against a governmental unit such as a town or village was actually a suit against all members of the public, as at that time such governmental units did not have corporate or quasi-corporate existence and were without corporate funds to satisfy judgments. Great inconvenience to the public would result as defendants of means who were required to pay sought contribution from other members of the public. As was pointed out, 5 this argument has lost all forcefulness since today government units have a corporate or quasi-corporate existence and possess corporate funds.

Second, public policy as expressed in the early English cases held that it was better for the injured individual to bear a loss than the public which would then be forced to suffer an inconvenience. This concept was rejected by us in Garnier v. St. Andrew Presbyterian Church, 446 S.W.2d 607 (Mo. banc 1969).

Third, the often quoted maxim that the king can do no wrong has been offered frequently to justify the continued existence of the doctrine. Modern governmental entities cannot, however, lay claim to that inheritance. 6

The fourth justification declares that public officers are without authority to bind the sovereign without constitutional or statutory authorization. Moreover, the argument continues, any such ability to bind the sovereign would lead inexorably to the wasteful and dishonest dissipation of public funds. We cannot expect that plaintiffs in suits against governmental units will take on any particular personality trait any more so than plaintiffs in other tort actions. 7 Likewise, it cannot be expected that if government is to be subject to suit in tort that government employees will dishonestly dissipate public funds or disburse them in any fashion except in response to court judgments. Additionally we believe that government should both have the benefits of its agents' and employees' acts and the responsibility of them. The doctrine of respondeat superior, in short, should apply to government and its employees. 8

The fifth justification advanced is the trust fund theory. Its premise is that money which is appropriated to various governmental units is allocated to special purposes for which the funds are held in trust and that to use them to satisfy tort judgments would violate the trust. As we pointed out in Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599, 604 (Mo. banc 1969), which is cited and discussed on O'Dell, 9 supra, the rationale of this theory relates to satisfaction of a judgment, not with whether there is or should be a cause of action. It does not provide a sound basis for maintaining the doctrine of sovereign immunity.

The sixth justification is that without the doctrine, the financial stability of government will be threatened and the proper performance of government functions will be impaired. The response of Judge Finch, with which we agree, was twofold. 10 First, it is a proper purpose of government to stand responsible for its tortious conduct. Second, there is no empirical data demonstrating that the abrogation of the doctrine will substantially impair the financial stability of government to such an extent that there will be interference with the performance of governmental functions. In addition, the prospective application of the doctrine, infra, provides a transition period, giving time for financial planning to accommodate the change. Continuation of the doctrine is not justified on the basis that financial stability of government will be threatened or proper performance of its functions impaired. 11

We have witnessed a chipping and whittling away at the doctrine of governmental tort immunity by the Missouri courts as applied to municipalities. Through use of the "governmental-proprietary dichotomy", liability or non-liability of a municipality for its torts has come to depend upon the character of the act performed, not the nature of the...

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