Kitto v. Minot Park Dist.

• Citation: 224 N.W.2d 795
• Decision Date: 05 December 1974
• Docket Number: No. 9030,9030
• Parties: Virginia L. KITTO, as surviving mother of Jeffrey Kitto, Deceased, and as special administrator of his Estate, Plaintiff/Appellant, v. MINOT PARK DISTRICT, Defendant/Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 795

224 N.W.2d 795

Virginia L. KITTO, as surviving mother of Jeffrey Kitto Deceased, and as special administrator of his Estate, Plaintiff/Appellant, v. MINOT PARK DISTRICT, Defendant/Appellee.

Civ. No. 9030.

Supreme Court of North Dakota.

Dec. 5, 1974.

Rehearing Denied Dec. 30, 1974.

Syllabus by the Court

1. The doctrine of governmental immunity from tort liability has outlived its usefulness as a just instrument of governmental policy. It is an historical anomaly that prevents citizens from recovering for wrongs done them by their own government.

2. The doctrine of governmental immunity has a judicial basis and has been modified by judicial action.

3. There is a well-established legal distinction between the sovereign immunity of the state and governmental immunity as applied to other political subdivisions.

4. The doctrine of governmental immunity is not mandated by our state constitution.

5. Legislative action taken with respect to governmental immunity indicates an intent to restrict rather than sustain the doctrine.

6. The doctrine of governmental immunity is abolished and governmental bodies, other than state government, are subject to suit for damages to individuals injured by negligent or wrongful acts or omission of their agents and employees, whether engaged in a proprietary or governmental function.

7. In order to minimize confusion and avoid injustice for those relying upon previous decisions of this court, this decision shall apply to the parties to this action and those causes of action arising fifteen days after adjournment of the Forty-fourth Legislative Assembly of the State of North Dakota.

8. Under this decision no tort actions will lie against governmental units for those acts which are discretionary in character, including those traditionally deemed legislative or quasi-legislative, judicial or quasi- judicial.

Pringle & Herigstad, P.C., Minot, for plaintiff/appellant.

Bosard, McCutcheon, Kerian, Schmidt & Holum, Ltd., Minot, for defendant/appellee.

Allen I. Olson, Atty. Gen., and Gerald W. Vande Walle, Asst. Atty. Gen., Bismarck, amicus curiae.

JOHNSON, Judge.

Jeffrey Kitto, age 12, was rescued from drowning in a duck pond within Theodore Roosevelt Park in the City of Minot, on June 25, 1970. However, as a result of his near-drowning, Jeffrey remained in a coma for some twenty months and subsequently died. His mother brought action against the Minot Park District for damages, consisting of medical and funeral expenses, loss of services and companionship, pain and suffering. Mrs. Kitto alleged that the fence around the pond had been removed and that the unguarded, unfenced pond constituted an unsafe condition and an attractive nuisance for young children. Upon motion of the park district, the district court granted summary judgment against Mrs. Kitto on the ground that the park district had no liability insurance and was otherwise immunize from tort claims under the previous decisions of this court.

This case presents us with the question of whether the legal doctrine of governmental immunity from tort liability to individual citizens should be sustained in North Dakota. With the limitations set forth in this opinion, we overruled Fetzer v. Minot Park District, 138 N.W.2d 601 (N.D.1965), and other decisions supporting this doctrine, ¹ and hold that governmental bodies, other than the state government, are subject to suit for damages to individuals injured by the negligent or wrongful acts or omissions of their agents and employees. In so doing we join a veritable host of courts which have abolished this doctrine. ² We retain no distinction between governmental and proprietary functions.

I.

There is near unanimity of opinion among respected legal scholars and recent judicial opinions that the doctrine of governmental immunity has outlived its usefulness as a just instrument of governmental policy. The New Mexico Supreme Court offered a classic critique:

"It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, 'the King can do no wrong', should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be 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 individual, and where it justly belongs." Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, 482 (1943).

This court has also recognized the injustice that this rule perpetrates. ³ In Anderson v. Board of Education, 49 N.D. 181, 190 N.W. 807, 811 (1922), the court's reliance upon state decisis had this effect:

'It is regrettable, indeed, that William Anderson lost his life in the circumstances mentioned, that his mother has sustained an irreparable loss, and that, while it is a maxim of law that for every wrong there is a remedy, that maxim does not seem to hold true in this and similar cases. While the plaintiff's loss is a real one and the damages suffered by her are no doubt substantial, the law affords her no remedy. The law, in effect, says to her: You alone must bear this burden; that, even if substantial damages might in some small measure assuage the great burden imposed upon you, through no fault of yours, nevertheless, in order to protect the public, you, widowed though you be, must bear the burden alone.'

In considering the doctrine of governmental immunity it is well to examine its origin. This is one of those legal points on which, as Justice Holmes observed, 'a page of history is worth a volume of logic.' The case to which legal scholars point as the source for this principle is the English decision of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788). The court there refused recovery against an unincorporated county. As the case title indicates, there was no legal entity established and suit was brought against the citizenry. The court was fearful of an 'infinity of actions' and concerned with the absence of a fund out of which to pay any judgment. Priority was given to the government over the individual. In 1812 a Massachusetts court, relying upon the Russell decision, held that an incorporated county was immune from liability for the tortious acts of its employees. Mower v. Leicester, 9 Mass. 247. Though the political subdivisions now had corporate powers, funds, tax authority, and substantial obligations and activities, the Mower case became the common law of the various states with few exceptions. By an interesting quirk of legal history, the English courts subsequently allowed tort actions against municipalities and school districts. ⁴ The question of governmental liability in tort was considered in 1884 by the Supreme Court of the Dakota Territory. In that case a verdict of $1500 for a broken leg was sustained against the City of Grand Forks. The court held that municipal corporations were liable for lack of reasonable care in maintaining their streets and highways. Larson v. City of Grand Forks, 3 Dak. 307, 19 N.W. 414 (1884). Subsequently, in 1893, the question was presented to the Supreme Court of North Dakota in a suit against the City of Fargo. Citing the Larson case, the court held that municipal corporations were liable for their wrongful acts even without an express statute authorizing suit. Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506 (1893). The first case denying governmental liability was the case of Vail v. Town of Amenia, 4 N.D. 239, 59 N.W. 1092, 1094 (1894). It was there held that municipal corporations are liable in tort, as recognized by the Ludlow case, but, quasi-municipal corporations, such as counties, townships, towns and school districts, are not. The court made an apt observation concerning the source for the immunity rule:

'It may be true, and we think is true, that the case of Russell v. Men of Devon, 2 Term R. 667, so often cited as the source of the doctrine of nonliability of quasi municipal corporations for injuries resulting from defective bridges or highways, never was intended to be authoritative further than that the inhabitants of a certain territory designated as a county, but not incorporated, and having no corporate purse, could not be held liable for such injuries, and that the case is not an authority for nonliability of counties in this country, where counties are incorporated and have a corporate purse.' 59 N.W. 1094.

Chief Justice Bartholomew noted, however, that the townships were then in the process of settlement and that a substantial judgment against a sparsely populated town or township could cause financial distress and retard its further development and settlement. In those circumstances it was thought appropriate that the individual should suffer rather than the public.

In subsequent cases the governmental immunity concept was mitigated by holding the governmental units liable for taking or damaging property without compensation. Township of Noble v. Aasen, 8 N.D. 77, 76 N.W. 990 (1898). A further modification of the liability of cities was introduced in the 1917 case of Montain v. City of Fargo, 38 N.D. 432, 166 N.W. 416, L.R.A.1918C 600. 'Governmental' functions as opposed to 'proprietary' or private functions were found to be immune from tort. Later cases provided a further modification of the immunity doctrine by recognizing liability for maintaining a public nuisance or an attractive nuisance. See Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953); Moulton v. City of Fargo, 39 N.D. 502, 167 N.W. 717, L.R.A.1918D 1108 (1918).

The first reference to a constitutional basis for immunity suit for governmental units was in 1924 in an action against the state, ⁵ and the first reference to a constitutional basis in the case of a...