Kelso v. City of Tacoma, 36625

CourtUnited States State Supreme Court of Washington
Citation63 Wn.2d 913,390 P.2d 2
Decision Date05 March 1964
Docket NumberNo. 36625,36625
PartiesDavid C. KELSO and Wilhelmina S. Kelso, his wife, Appellants, v. CITY OF TACOMA, a Municipal Corporation, Respondent.

Page 913

63 Wn.2d 913
390 P.2d 2
David C. KELSO and Wilhelmina S. Kelso, his wife, Appellants,
CITY OF TACOMA, a Municipal Corporation, Respondent.
No. 36625.
Supreme Court of Washington, En Banc.
March 5, 1964.

[390 P.2d 3] Sterbick, Manza, Moceri & Sterbick, Tacoma, for appellants.

Brethorst, Fowler, Bateman, Reed & McClure, Seattle, for respondent.

Page 914

John P. Tracy, Jr., City Atty., Howard A. Anderson, Theodere R. Fournier, and LeRoy C. Kinnie, Spokane, for City of Spokane and Assn. of Wash. Cities, amicus curiae.

HUNTER, Judge.

The plaintiff (appellant), Wilhelmina S. Kelso, was injured in an automobile collision with a vehicle owned by the defendant (respondent), City of Tacoma, on August 30, 1961. At the time of the accident the vehicle was being operated on the streets of Tacoma by Officer Fred D. Mulholland, who was on duty and acting within the scope of his employment as a police officer for the City of Tacoma. The plaintiff appeals from a judgment of dismissal entered upon a motion for summary judgment.

The sole question in this case is whether a municipal corporation, a subdivision of the state, retains governmental immunity for the tortious acts of its agents while performing a governmental function in view of RCW 4.92.090 wherein the state consents to be sued for its tortious conduct.

The doctrine of governmental immunity springs from the archaic concept that 'The King Can Do No Wrong.' We listed categorically reasons in support of the doctrine in Hagerman v. Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110 (1937):

'* * * (1) The state is sovereign, and the municipality is its governmental agency; since the state may not be sued without its consent, therefore its agent cannot be. (2) The municipality derives no pecuniary benefit from [390 P.2d 4] the exercise of public functions. (3) Members of municipal departments in the exercise of public governmental duties are agents of the state and not of the city, and hence the doctrine of respondeat superior has no application. (4) It is necessary for the proper performance of governmental functions that a municipal corporation should not be liable for the negligence of its agents. (5) Municipalities should not be liable for torts committed in the performance of duties imposed by the Legislature, but only for those voluntarily assumed under general statutes. And (6) taxes raised for specific governmental purposes should not be permitted to be diverted to the payment of damage claims.'

All of these reasons have been subjected to vigorous attacks. Many courts and text writers have branded the doctrine a creator of injustice, asserting that the entire

Page 915

burden of damage resulting from the wrongful acts of the government has been imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any single individual, and where it properly belongs. The criticism directed toward the doctrine is characterized in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962):

'There are probably few tenets of American jurisprudence which have been so unanimously berated as the governmental immunity doctrine. This court and the highest courts of numerous other states have been unusually articulate in castigating the existing rule; text writers of law reviews have joined the chorus of denunciators. Some examples of the condemnation are here presented.'

See Abolition of Sovereign Immunity in Washington, 36 Wash.L.Rev. 312 (1961); Leflar & Kantrowitz, Tort Liability of the States, 29 N.Y.U.L.Rev. 1363 (1954).

This court has consistently held that the doctrine of governmental immunity is a matter of state policy which can be changed only by the legislature. This established pronouncement was recently stated in Kilbourn v. Seattle, 43 Wash.2d 373, 261 P.2d 407 (1953). We said:

'Appellant strenuously urges that the rule of immunity from liability for negligence by a municipal corporation while engaged in the exercise of a governmental function should be changed, and cites numerous authorities.

'This argument has been considered by this court and rejected. In Hagerman v. City of Seattle, 1937, 189 Wash. 694, 66 P.2d 1152, 1154, 110 A.L.R. 1110, we recognized that all of the reasons for such immunity had been subjected to vigorous attack, but said that

"* * * the doctrine has become fixed as a matter of public policy, regardless of the reason upon which the rule is made to rest, and * * * any change therein must be sought from the legislature.'

'That opinion was written almost sixteen years ago. A review of cases and legal literature dealing with the governmental immunity defense in the intervening years offers convincing evidence of a growing demand for legislation that would require municipal corporations, if not the state itself, to bear the same responsibility for their negligence

Page 916

as do private corporations; but it is generally recognized, as we indicated in the Hagerman case, supra, that the rule of governmental immunity has become so firmly fixed as a part of the law of municipal corporations that it is not to be disregarded by the courts until the legislature announces a change in public policy.'

The legislature made this announcement of a change in the public policy of Washington by enacting Laws of 1961, chapter [390 P.2d 5] 136, § 1 (codified as RCW 4.92.090). It reads as follows:

'The state of Washington, whether acting in its governmental or proprietary capacity, hereby consents to the maintaining of a suit or action against it for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. The suit or action shall be maintained in the county in which the cause of action arises: Provided, That this section shall not affect any special statute relating to procedure for filing notice of claims against the state or any agency, department or officer of the state.'

The defendant contends this statute is in derogation of the common law and must be strictly construed; that only the liability of the state has been affected and not its political subdivisions.

The common-law right of sovereign immunity is not in the municipality but in the sovereign from which the immunity is derived. In Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581 (1953), we cited with approval City of Seattle ex rel. Dunbar v. Dutton, 147 Wash. 224, 265 P. 729 (1928), and Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A.,N.S., 251 (1912), as follows:

"Municipal corporations enjoy their immunity from liability for torts only in so far as they partake of the state's immunity, and only in the exercise of those governmental powers and duties imposed upon them as representing the state. In the exercise of those administrative powers conferred upon, or permitted to, them solely for their own benefit in their corporate capacity, whether performed for gain or not, and whether of the nature of a business enterprise or not, they are neither sovereign nor immune. They are only...

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    ...been enacted in the light of existing judicial decisions that have a direct bearing upon it.” Kelso v. City of Tacoma, 63 Wash.2d 913, 917, 390 P.2d 2 (1964). For example, in 1902, our Supreme Court held that a statute passed in 1895 dictating the proper forum for claims against the State d......
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