Kamau v. Cnty. of Haw.

• Decision Date: 24 January 1957
• Docket Number: NO. 3030.,3030.
• Citation: 41 Haw. 527
• Parties: ESTHER KEAKAOKALANI KAMAU, BY HER GUARDIAN AND NEXT FRIEND, JOSEPHINE KAMAU LOVELL v. COUNTY OF HAWAII.
• Court: Hawaii Supreme Court

41 Haw. 527

ESTHER KEAKAOKALANI KAMAU, BY HER GUARDIAN AND NEXT FRIEND, JOSEPHINE KAMAU LOVELL

v.COUNTY OF HAWAII.

NO. 3030.

Supreme Court of the Territory of Hawai‘i.

DONNA JANE CUSHNIE, A MINOR, BY HER GUARDIAN AD LITEM, MARY CUSHNIE

v.COUNTY OF HAWAII.

NO. 3031.

Argued November 21, 1956.

Decided January 24, 1957.

APPEALS FROM CIRCUIT COURT THIRD CIRCUIT, HON. MAURICE SAPIENZA, JUDGE.

Syllabus by the Court

Where a municipal corporation owns and controls a public park there is a duty imposed upon it to use ordinary care to keep such park in a reasonably safe condition for the public rightfully using it and it is immaterial that there is no charge for its use.

A municipal corporation operating a hospital is liable for the negligence of its servants and employees in the care and treatment of the patients of such hospital.

Where agents or servants of a municipal corporation are negligent in the performance of their duties so that damage results to an individual, it is immaterial that the duty being performed is a public one from which the municipality derives no profit or that it is a duty imposed upon the municipality by the legislature.

Stare decisis is a doctrine by which the supreme court keeps the other courts of a judicial system in line. It is a principle of policy and not a mechanical formula of adherence to the latest decision and was never intended to tie the hands of the supreme court and prevent it from correcting its own errors or making adjustments in the law to meet changing conditions or the needs of the people.

[41 Haw. 553]

Martin Pence (also on the brief) for appellee in Case No. 3030 and for appellant in Case No. 3031.

Yoshito Tanaka, County Attorney, Hawaii County, Territory of Hawaii (also on the briefs), for appellant in Case No. 3030 and for appellee in Case No. 3031.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY STAINBACK, J.

These two cases, numbers 3030 and 3031, were consolidated for argument as both involve a single question of immunity or liability of the County of Hawaii for the negligence of its employees.

In case number 3030 the plaintiff-appellee filed a complaint by her guardian and next friend in the third circuit court of the Territory of Hawaii alleging that the County of Hawaii, a municipal corporation, operated and maintained the Hilo Memorial Hospital for hire and reward; that on September 30, 1950, plaintiff's mother, Esther K. Kamau, was admitted to said hospital as a paying patient to undergo a certain operation, namely a Caesarean section; that after the operation a blood transfusion was required and in the process of analyzing her mother's blood one of the hospital employees negligently and carelessly typed and cross-matched the blood and supplied her mother with the wrong type of blood; that as a result of the wrong type of blood being administered to the said Esther K. Kamau, she suffered an anaphylactic reaction and died therefrom on said date.

In case number 3031 the plaintiff-appellant filed a complaint by her guardian ad litem for tort against the County of Hawaii, a municipal corporation, claiming that the County operated a public park known as the Kawaihae park, near Kawaihae, district of south Kohala, and employed one Victor Laau as caretaker and custodian; that the County had certain rules and regulations governing the activities of persons using the park, and one regulation was that no bonfire was allowed on the sand beach of the park; that there was a sign posted within the park to the effect that no bonfire was allowed on the beach, and the County provided stone fireplaces away from the sand beach where those using the park might build fires. Appellant stated as a first cause of action that Laau, although on duty on that day, did negligently permit a bonfire to be built on the sand beach and to burn for a period of some five hours, during which time it burned down to live coals covered with ashes, and that Donna Jane Cushnie, a child of two years of age, while running along the sand beach fell into the coals and was burned about the feet and left hand, resulting in pain and suffering as well as permanent injury to the fingers of the hand. A second and third cause of action stated substantially the same facts but alleged the negligence of the County in failure to keep the sand beach in a safe condition for play and for travel across.

In case number 3030 the defendant-appellant, County of Hawaii, demurred to the complaint on the ground that the operation of the Hilo Memorial Hospital was a “governmental” function and thereby it was immune from liability for the negligence of its employees.

In case number 3031 the defendant-appellee, County of Hawaii, demurred to the complaint on the ground that it did not contain facts sufficient to constitute a cause of action against the County, that the upkeep and maintenance of Kawaihae park was a “governmental” function and that, therefore, the County was not liable for the negligence of its employees in the exercise of such governmental functions.

The court overruled the demurrer in case number 3030 on the ground that operating a hospital and charging for its use was a “proprietary” function; in case number 3031 the court sustained the demurrer that the park was operated without charge and the operation and maintenance of a public park by the County of Hawaii was a “governmental” function.

An interlocutory appeal was allowed and duly perfected in each case.

The courts have stated time and again that a municipality is clothed with two-fold functions: (1) “governmental” and (2) private or “proprietary”; further, that in the exercise of the “governmental” functions a municipality is an agent of the State and in the exercise of these powers it is exempt from liability for its failure to exercise them or for the exercise of them in a negligent or improper manner, but that for negligence in the exercise of “proprietary” powers a municipality is liable for damages in the same manner as an individual or a private corporation.

Though the so-called “rule” that the municipality is liable for torts committed by its agents in the performance of its private or proprietary functions but is not responsible for torts committed in the performance of governmental functions is almost universally acknowledged -- it is a rare judicial opinion which does not pay homage to that formula -- the criteria are valueless.

But this “bifurcated” municipal corporation was not always the rule. In 38 Illinois Law Review 355, 356, in an article on Municipal Liability for Torts by Professor Leon Green, Dean and Professor of Law at Northwestern University School of Law, after pointing out that most States and the Federal Government have provisions through which recoveries can be had for tort claims against the State itself or the Federal Government, states: “But the overwhelming number of tort claims, which grow out of the activities of thousands of smaller units of government -- cities, towns, counties, boards and public corporate bodies generally -- are met with a broad immunity from liability except as the courts give them recognition through judicial decision. This immunity has been declared by many able judges to be without rational basis, if not the product of palpable error, yet few courts have had the courage to refuse it recognition or to modify it to any great degree. In cases here and there, nearly all courts have succeeded by doctrinal maneuver in by-passing the immunity. But this oblique method of dealing with the problem has brought about so much confusion in the decisions that litigation in the field has become a snare. Inasmuch as the courts have the same power to modify or deny the immunity altogether, as they had to create or give it recognition in the first instance, the problem is another one of many calling for a re-examination of their attitude towards the freedom of common law litigation.” (Emphasis added.)

The same article then points out that the early American decisions made no distinction between public and private corporations in consideration of corporate tort liability. In 1802, the case of Hooe v. Alexandria, 12 Fed. Cas. No. 6666 (U. S. C. C. 1802) held the city liable and its decision made no distinction between the tort liability of public and private corporations. The later cases follow this line until Bailey v. New York, 3 Hill. 531,38 Am. Dec. 669, “bifurcated” the municipal corporation. This case developed the dictum that a municipal corporation is liable only for the exercise of its “private” as distinguished from its “public” functions. Commenting on this dictum Professor Barnett said: “The distinction was reactionary and extremely unfortunate in that it limited the liability of municipal corporations to one class of functions in contradiction to the prevailing view (from which there was almost no dissent) that, logically and justly, applied the general principle of tort liability to all corporations alike, without distinction of functions.”

However, as we have noted, this doctrine became accepted generally.

As to what is a “governmental” function and what is a “corporate” or “ministerial” act of a municipal authority is a question on which there is a wide divergence of opinion. The cases are in hopeless confusion and even in the same jurisdiction impossible to reconcile. (Mark, Moo & Carter v. City & Co., 40 Haw. 338, 341.) The attempted distinction between “governmental” or “public” and “proprietary” or “private” activities of a municipality have been subjected to sharp criticism both by the courts -- including the Supreme Court of the United States and our own latest decision on this point ( Mark, Moo & Carter v. City & Co., supra) -- and by legal scholars generally. We cited a number of these in our latest decision above referred to.

In 34 Harvard Law Review 67 it is said “An examination of the cases shows the futility, not to say absurdity, of any such distinction between...