Loughner v. Allegheny County

• Citation: 261 A.2d 607,436 Pa. 572
• Parties: Clara LAUGHNER, Administratrix of the Estate of Carol Ann Laughner, Deceased, Appellant, v. COUNTY OF ALLEGHENY.
• Decision Date: 30 January 1970
• Court: United States State Supreme Court of Pennsylvania

Page 607

261 A.2d 607

436 Pa. 572

Clara LAUGHNER, Administratrix of the Estate of Carol Ann Laughner, Deceased, Appellant, v. COUNTY OF ALLEGHENY.

Supreme Court of Pennsylvania.

Jan. 30, 1970.

Appeal No. 96 March Term, 1969 from Order at No. 1785 April Term, 1968, Court of Common Pleas, Allegheny County; Joseph Weis, Judge.

Louis J. Grippo, Louis C. Glasso, Pittsburgh, for appellant.

John David Rhodes, Thomson, Rhodes & Grigsby, Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

PER CURIAM.

Judgment affirmed.

ROBERTS and POMEROY, JJ., file dissenting opinions.

ROBERTS, Justice (dissenting).

Eleven years ago this Court stated: "The errors of history, logic and policy which were responsible for the development of this concept [of governmental immunity] have been clearly exposed, and thoroughly criticized." Morris v. Mt. Lebanon Township School District, 393 Pa. 633, 635, 144 A.2d 737, 738 (1958) (footnotes omitted). Nevertheless, this Court refused to remedy the situation, which was created by the courts themselves, ^* but instead called on the Legislature for help. Since then, a majority of this Court has continued to perpetuate the doctrine, while at the same time, it has continued to call on the Legislature for help. See, e.g., Supler v. North Franklin Township School District, 407 Pa. 657, 660, 182 A.2d 535, 537 (1962) ("[T]he change should be made by the Legislature and not by the Courts."); Stouffer v. Morrison, 400 Pa. 497, 502, 162 A.2d 378, 381 (1960) ("This case once again demonstrates the urgent need for legislative action.") (concurring opinion). Needless to say, the Legislature has not responded. Today, the majority of this Court has even stopped calling for help.

The doctrine of governmental immunity is constantly being rejected by other courts, and it is long past the time for this Court to do likewise. The list of cases in which the immunity has been rejected includes: Carrol v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969) (overruling McCoy v. Bd. of Regents, 196 Kan. 506, 413 P.2d 73 (1966), which held that it was up to the legislature to change the law); Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968) (citing cases); Brinkman v. City of Indianapolis, 231 N.E.2d 169 (Ind.Ct.App.1967); Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965) (holding no governmental immunity for county); Walsh v. Clark County School District, 82 Nev. 414, 419 P.2d 774 (1966) (reaffirming Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963), which abrogated immunity); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963); Haney v. Lexington, 386 S.W.2d 738, 10 A.L.R.3d 1362 (Ky.1964); City of Fairbanks v. Scheible, 375 P.2d 201 (Alaska 1962); Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962); Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W.2d 795 (1962); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959), cert. denied, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960); Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 60 A.L.R.2d 1193 (Fla.1957).

Since this case is being dismissed at the pleading stage, we do not know whether plaintiff can prove her cause of action. But reading the complaint, and the attached exhibit, in the light most favorable to the plaintiff, as we must, plaintiff has recounted a most shocking, and harrowing, story of negligence.

Plaintiff is the mother of Carol Laughner; she is seeking to recover in an action for wrongful death. In October of 1966, Carol came to the attention of the juvenile authorities for the first time when she took some sleeping pills at school and stated she wanted to commit suicide. Over the next seven months, the authorities attempted to deal with Carol by placing her, at various times, in the Allegheny County Detention Home and in the Gilmary School. In December, a Dr. Hiller diagnosed Carol as being somewhat emotionally unstable with a hysterical character disorder. Although psychiatric examinations were planned in January, they evidently were never undertaken. During this time, Carol frequently ran away from whatever facility she was in, boasted about her suicide attempt, and complained about severe stomach pains. In February of 1967, Carol drank some turpentine and refused the milk antidote. In March she reportedly took some quinine pills. Dr. Hiller again indicated that she had a hysterical character disorder and recommended psychological testing. The test was supposed to take place on March 16. It did not. On March 27, she swallowed a piece of glass and a tack. After this, there is some indication of a "psychological report" being filed with the juvenile authorities. The report indicated that the Job Corps was the best answer to Carol's problems.

On April 28, 1967, Carol was locked in her room at the Allegheny County Detention Home. The other girls were at supper and she was alone. With matches provided by an employee of the detention home, Carol set herself on fire. Infection and gangrene set in and on June 10, 1967, Carol died.

Dean Prosser has written:

"The 'prophylactic' factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive."

Prosser, Handbook of the Law of Torts 23 (3d ed. 1964).

By its decision today, the majority refuses to provide that "strong incentive to prevent the occurrence of harm." The county was under a duty to provide for Carol's care, yet we sanction the negligent way in which they provided that care. We refuse to use the historical tool at our disposal--tort law--to help prevent future abuses. Those who must accept the "benefits" of governmental action will continue to be faced with what Carol faced. And governmental units will be secure in their knowledge that they may act with impunity.

I see no way to justify such a result. This Court has already abrogated the doctrine of charitable immunity--despite the argument that only the Legislature could do so. See Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 520-21, 532, 208 A.2d 193, 209, 210, 216 (1965) (dissenting opinions). There is no jurisprudential difference between abrogating charitable immunity and abrogating governmental immunity. With charitable immunity rejected, I can see no reason for the majority's refusal to likewise reject governmental immunity. Not once since Flagiello was decided has the majority even attempted to distinguish the two immunities. See Harker v. D. & H. Building Wreckers, Inc., 429 Pa. 655, 241 A.2d 73 (1968) (per curiam without opinion); Husser v. Pittsburgh School District, 425 Pa. 249, 228 A.2d 910 (1967) (per curiam); Dillon v. York City School District, 442 Pa. 103, 220 A.2d 896 (1966); Graysneck v. Heard, 422 Pa. 111, 220 A.2d 893 (1966).

Surely this Court has permitted too many years to pass without correcting the injustices produced by its own doctrine. There is no reason to let more years pass, to let more injustices of this nature accumulate without correction.

I dissent.

POMEROY, Justice (dissenting).

This appeal is from an order of the lower court sustaining preliminary objections in the nature of a demurrer to a complaint seeking wrongful death and survival damages in two stated causes of action. The defendant's demurrer was based on its assertion that the doctrine of governmental immunity barred the plaintiff's recovery for any alleged negligence, and on that ground the lower court reluctantly sustained the demurrer.

The appeal is a direct attack upon the doctrine of governmental immunity as it is presently applied to the counties of this Commonwealth. Like challenges to that doctrine have been presented to this Court on numerous occasions in the past, always without success. The perseverance of the doctrine of governmental immunity is attributable to two separate factors: first, the belief of some that the doctrine of immunity is a sound and viable rule of law; and second, the belief, even among detractors of the rule, that if the rule is to be abrogated, such change should be effected by the legislature. I am persuaded that neither position withstands analysis. I would reverse the order of the court below sustaining the preliminary objections, and hold that the plaintiff is entitled to a responsive pleading and such further proceedings as may properly follow.

I.

It has long been the rule in this Commonwealth that a county is immune from liability for the tortious acts of its employees unless the alleged tort grows out of a "proprietary" function of the county or the county itself has consented to suit. ¹ I shall not here detail the origins of or the traditional justifications for that rule. Suffice it to say that the English origins trace to the position of the King in the feudal period and to the later identification of the King with the developing concept of sovereignty. The early bases for the rule of immunity have in more recent years given way to arguments of policy based on the belief that any governmental body, operating not for profit but for the public good, should not be financially liable for private injuries or subject to the difficulties which such liability would entail. Despite this shift in justification, the rule has long been subject to heavy and virtually unanimous attack by the commentators, ² and, as the dissenting opinion of Justice Roberts points out, in recent years many courts across the country have abandoned or modified the rule of immunity as...