Oroz v. Board of County Com'rs of Carbon County

• Decision Date: 15 March 1978
• Docket Number: No. 4787,4787
• Citation: 575 P.2d 1155
• Parties: Juan Miguel OROZ, Appellant (Plaintiff below), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF CARBON, Appellee (Defendant below), and David H. Hayes (Defendant below).
• Court: Wyoming Supreme Court

Page 1155

575 P.2d 1155

Juan Miguel OROZ, Appellant (Plaintiff below), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF CARBON, Appellee (Defendant below), and David H. Hayes (Defendant below).

No. 4787.

Supreme Court of Wyoming.

March 15, 1978.

Kermit C. Brown of MacPherson, Golden & Brown, Rawlins, for appellant.

John L. Hoke, Deputy Carbon County Atty., Rawlins, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS, and ROSE, JJ.

GUTHRIE, Chief Justice.

This is an appeal from a judgment of the district court which dismissed a claim based upon negligence asserted against Carbon County, Wyoming. Appellant, plaintiff below, brought an action to recover for injuries suffered in an automobile accident occurring as a result of a collision between appellant's car and David H. Hayes on a county road in Carbon County. The original complaint named only David H. Hayes, the operator of the other vehicle, as a defendant. Hayes, then, as a matter of defense, asserted the negligence of Carbon County; and plaintiff filed an amended complaint joining the county, asserting its negligence, and based upon the fact that the county had allowed a grove of willows along the road to grow and obscure the intersection so that plaintiff could not see the approaching car of defendant on the intersecting road. In response thereto, Carbon County, in its answer, joined a motion to dismiss upon the ground that the Board of County Commissioners of Carbon County was immune from suit in the performance of any governmental functions and that it was not covered by insurance which would cover liability in the operation and maintenance of its county roads.

Upon hearing of this motion, the trial court, which had converted this motion into a summary judgment proceeding by virtue of its reliance upon interrogatories and other matters in the file, found that appellee was not covered by any liability insurance and held that it had immunity from liability because it was a governmental agency. A final judgment was entered for the county with a determination that there was no just reason for delay under Rule 54(b), W.R.C.P.

This case, then, poses directly the question, Is Carbon County immune from suit and liability for a tort caused by its negligent maintenance of a county highway?

In light of the frequent occurrence with which this question of immunity has been submitted to this court, and a review of the rapid changes which have taken place in this area, it now seems imperative that we re-examine and settle the applicability of the doctrine of governmental immunity in this jurisdiction as it applies to counties.

Although we recognize that a reconsideration of this rule may appear to do violence to the doctrine of stare decisis, we are unable in this case, as we were in Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, 1341, to use the doctrine "as a justification for the continuance of an unfair and improper rule which operates to the detriment of those who may suffer tortious injury" under these circumstances.

It is rather commonly accepted that the doctrine of municipal, county or local district immunity from tort as applied by the courts found its genesis in Russell v. The Men of Devon, 2 Term.Rep. 667, 100 Eng.Rep. 359 (1788). See Collins v. Memorial Hospital of Sheridan County, supra; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 91, 359 P.2d 457, 459; Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 132, 60 A.L.R.2d 1193; Haney v. City of Lexington, Ky., 386 S.W.2d 738, 739, 10 A.L.R.2d 1362; Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378, 380; Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877, 879; Long v. City of Weirton, W.Va., 214 S.E.2d 832, 851; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 620; Prosser, Law of Torts, § 131, p. 978 (4th Ed.); cf., Jivelekas v. City of Worland, Wyo., 546 P.2d 419, 425. Under this view, municipal immunity cannot be held to be a legislative rule by virtue of § 8-3-101, W.S.1977, as was held in Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, rehearing denied 340 P.2d 759.

This court has heretofore noticed and commented upon the inequities and hardships which followed the application of this doctrine, but we have withheld our hand because of the view that the doctrine somehow originated before 1607, and enunciated instead our helplessness in the face of the assertion that this was a legislative rule, Lutheran Hospitals and Homes Society of America v. Yepsen, Wyo., 469 P.2d 409, 410, and cases cited therein. This is an evasion of judicial responsibility. Since the rule is a creature of the courts, we not only have the power but the duty and responsibility to re-examine the efficacy of such an anachronistic doctrine in modern day society, Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795, 803.

Although at one time there was a clear majority of jurisdictions which recognized the application of the doctrine of immunity of states and local governmental entities, it would appear that this is no longer the case, and there is a steady march to eliminate it. ¹ The appendix to Hicks v. State, supra, indicates that as of March 30, 1973, there were 21 states which had abolished it while 9 states have partially abolished it. Additionally, that court called attention to the fact that 3 states thereafter, and prior to the issuance of that opinion, abolished immunity in some form, ² which indicates at the date of the Hicks decision there were 34 states which have taken such action. We also take notice that New Hampshire judicially abolished municipal immunity, ³ and Missouri in a recent case, being Jones v. State Highway Commission, Mo., 557 S.W.2d 225 (decided September 12, 1977), judicially abolished immunity of the state and governmental subdivisions. This would now make a total of 36.

This writer is familiar with no other area of the law which has been so exhaustively discussed, both by way of decision and legal writing. Its repetition in this opinion could serve no good purpose, and we incorporate herein those authorities mentioned in Jivelekas supra, 546 P.2d at 426-428. ⁴ Jones v. State Highway Commission, supra, contains a detailed and logical discussion of the asserted reasons for the retention of this doctrine, and proceeds to demolish them. ⁵

A good summary of the reasons for removing this doctrine from our law appears in Muskopf v. Corning Hospital District, supra, 11 Cal.Rptr. at 92, 359 P.2d at 460:

"The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia. (Citations.) It has been judicially abolished in other jurisdictions. (Citations.)"

See also generally 2 Harper and James, The Law of Torts, § 29.3, pp. 1610-1613 (1957); Prosser, Law of Torts, § 131, pp. 977-987 (4th Ed.). The origin of this doctrine of immunity has been styled as "one of the mysteries of legal evolution," Borchard, Governmental Responsibility in Tort, 34 Yale L.J. 1, 4.

The Congress of the United States, in 1946, waived the immunity of the United States in tort actions and authorized recoveries therefor, 28 U.S.C.A. §§ 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680, which is clearly a recognition by Congress of the unfair and inequitable consequences flowing from an enforcement of such doctrine.

We hold that the immunity from tort liability heretofore judicially conferred upon counties (municipal corporations, school districts, and other subdivisions of government) ⁶ is abrogated. Henceforth, the rule is liability the exception is immunity, Holytz v. City of Milwaukee, supra. The removal of immunity, however, does not mean that a governmental entity is liable for all harm that results from its activities. It does not impose absolute or strict liability, but merely subjects it to the same rules as private persons or corporations if a duty has been violated and a tort has been committed. It places the onus on the governmental body under the doctrine of respondeat superior for injuries negligently caused by its agents, servants and employees in the course of their employment, Jones v. State Highway Commission, supra, 557 S.W.2d at 230; Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286, 288; Merrill v. City of Manchester, supra, 332 A.2d at 384. This decision, however, is not to be interpreted as imposing liability upon a governmental body for acts or omissions in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions, Hargrove v. Town of Cocoa Beach, supra, 96 So.2d at 133; Holytz v. City of Milwaukee, supra, 115 N.W.2d at 618. We herein specifically reverse all prior decisions of this court which hold or suggest that a county or other such political subdivision has or enjoys an immunity from tort liability.

Arguendo, even if we were to adhere to the view of Maffei, that it was adopted as a part of the common law, we might possibly apply the rule enunciated in Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 792, 166 A.L.R. 1329, which suggested that the principles of the common law were adopted only so far as they fit into "our circumstances, state of society, and form of government." This theory is suggested and employed by the New Mexico Supreme Court in Hicks v. State, 88 N.M. 588, 544 P.2d 1153, 1155, and certainly counties and other municipal corporations as we know them today were unknown in 1607; nor could there have been any reasonable contemplation of our present society by the judges at that time.

The final question herein is the application of this decision. The court is fully cognizant that a long reliance has been placed upon the rule of immunity and that it will raise certain problems which must be considered and proper arrangements made. Based upon these considerations, the doctrine of governmental immunity...