Papenhausen v. Schoen, 48100.

• Decision Date: 23 June 1978
• Docket Number: No. 48100.,48100.
• Parties: Virginia Rae PAPENHAUSEN, et al., Appellants, v. Kenneth SCHOEN, et al., Respondents, William McRae, et al., Respondents, Vera Likins, et al., Respondents, Richard Mulcrone, et al., Respondents, State of Minnesota, Respondent.
• Court: Minnesota Supreme Court

268 N.W.2d 565 (1978)

Virginia Rae PAPENHAUSEN, et al., Appellants, v. Kenneth SCHOEN, et al., Respondents William McRae, et al., Respondents Vera Likins, et al., Respondents Richard Mulcrone, et al., Respondents State of Minnesota, Respondent.

No. 48100.

Supreme Court of Minnesota.

June 23, 1978.

Douglas, Jaycox, Trawick & McManus, Bruce C. Douglas, Minneapolis, for appellants.

Gary Hansen, Sp. Asst. Atty. Gen., Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Barbara D. Gill, Joseph B. Marshall, Michael R. Saeger, Richard G. Evans, Sp. Asst. Attys. Gen., St. Paul, for respondents.

Heard before TODD, SCOTT, and GODFREY, JJ., and considered and decided by the court en banc.

TODD, Justice.

This is a tort action arising out of an aggravated assault and rape committed by an escapee from the Anoka State Hospital (the state hospital) on May 25, 1976. The plaintiffs include the rape victim and members of her family. The complaint alleges negligence in the transfer of the inmate from the St. Cloud Reformatory (the reformatory) to the minimum-security facility at the state hospital. The State of Minnesota and a number of state officials are named as defendants. On motions for summary judgment, the individual defendants raised the defense of discretionary or quasijudicial immunity, and the state invoked the doctrine of sovereign immunity. The district court ruled in favor of all defendants. We affirm.

In January 1973, Charles A. Dion pleaded guilty to a charge of burglary in district court. It appears that in the course of the burglary he attempted to rape a woman he encountered on the subject premises. Dion was sentenced to a prison term not to exceed 20 years and was incarcerated at the reformatory. Pursuant to its normal procedure, the Minnesota Corrections Board (the parole board) made an annual review of Dion's file in 1974 and 1975, denying his request for parole on each occasion. Included in Dion's file was the report of a consulting psychiatrist at the reformatory recommending that Dion be transferred to the state hospital for treatment.

Early in 1976, the parole board determined that the possibility of paroling Dion to the state hospital warranted further examination. Dion was subsequently interviewed by Dr. Victor Romero (a staff psychiatrist and medical chief of the Vail unit at the state hospital) and two other staff members. Dr. Romero also reviewed the psychiatric reports in Dion's file. Because of the apparent disparity of professional opinion on the question of whether Dion was mentally ill, Dr. Romero refused to accept Dion at the state hospital on a permanent basis. Instead, he agreed to take Dion for a 1-month evaluation period at the state hospital.

In accordance with Dr. Romero's proposal, the parole board on May 6, 1976, granted Dion a 30-day "medical parole" to the state hospital. Dion arrived at the state hospital on May 14, 1976. The state hospital is known as an "open hospital," where patients are free to move about on the grounds as they please. No special effort was made to place Dion in more secure quarters because he exhibited no signs of psychosis or hazardous behavior. Also, no instructions were received from the reformatory specifying secure quarters for Dion, and only a relatively small space is available for such purposes at the state hospital.

Dion "escaped" from the state hospital on May 25, 1976, and assaulted and raped Virginia Rae Papenhausen. On August 6, 1976, Dion pleaded guilty to criminal sexual conduct in the first degree and aggravated assault.¹ Virginia, her husband, and her son (through his father as guardian) bring this tort action for damages. All three have alleged that they have suffered injury as a result of the negligent acts of state officials in allowing Dion to be transferred to a minimum security facility.²

Plaintiffs' complaint names the State of Minnesota and 15 state officials as defendants. The individual defendants include the commissioner and deputy commissioner of corrections; the superintendent and associate superintendent of the reformatory; the five members of the parole board; the commissioner, deputy commissioner, and an assistant commissioner of public welfare; the administrator and assistant administrator of the state hospital; and Dr. Romero. At the trial court level, the individual defendants were divided into several groups, each of which was represented by a member of the attorney general's staff.

All individual defendants answered plaintiffs' complaint and moved for summary judgment. A hearing on the motions was held in February 1977. At plaintiffs' request, the hearing was continued until April 28, 1977, to give plaintiffs an opportunity to discover the information necessary to oppose the motions for summary judgment. In the interim between the hearings, the defendant State of Minnesota also moved for summary judgment. Following the April 28 consolidated hearing, the district court, on June 14, 1977, granted defendants' motions for summary judgment. Plaintiffs bring this appeal.

The issues before us are:

(1) Does the doctrine of sovereign immunity bar this tort action against the State of Minnesota?

(2) Was the district court correct in granting summary judgment for several of the individual defendants on the theory that they had no material connection with the alleged negligence?

(3) Were the remaining individual defendants entitled to summary judgment based on the doctrine of discretionary immunity?

1. The district court granted summary judgment in favor of the state on the theory that the state's sovereign immunity barred plaintiffs' tort action. While we abolished the sovereign immunity doctrine in Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975), the events giving rise to this litigation occurred on May 25, 1976, before the Nieting decision became effective. As a result, this case must be decided under the law of sovereign immunity as it existed before Nieting. By now it is hornbook law that for the purpose of determining the state's tort liability, a distinction is drawn between "governmental" and "proprietary" activities. Tort liability does not attach to the execution of governmental functions, while the negligent performance of proprietary activities subjects the government to liability coextensive with that of a private tortfeasor.

Prior to 1976, this court had on several occasions applied the governmental-proprietary distinction to political subdivisions within Minnesota but had never done so with respect to the state itself. In Susla v. State, Minn., 247 N.W.2d 907 (1976), however, we found it appropriate to adopt the same standard for determining the state's tort liability, stating:

"We can conceive of no justification for applying the governmental-proprietary distinction to the activities of local governmental units in tort cases but not to the activities of the state, especially when it has been applied to the activities of the state in contract cases. Thus, we hold that the sovereign immunity of the State of Minnesota from tort liability, as it existed up to the effective date of the Nieting decision and L.1976, c. 331, did not extend to suits on torts committed in its proprietary capacity." Minn., 247 N.W.2d 910.

Relying on the Susla decision, the state argues that it is liable in tort for the negligence, if any, of the hospital or prison officials in this case only if the operation of those institutions is proprietary in nature. In the state's view, the reformatory and the state hospital are strictly governmental institutions, the operation of which cannot subject the state to tort liability. In response, the plaintiffs make two arguments.

Plaintiffs first contend that the legislature impliedly abolished the doctrine of sovereign immunity on April 21, 1976, before the state's alleged negligence in this case occurred. This argument is based on the action taken by the legislature following this court's decision in Nieting v. Blondell, supra. At the time the Nieting decision was filed, Minn.St.1974, § 3.66 et seq. made provision for a state claims commission to hear and rule on certain claims made against the state. In response to Nieting, the legislature during its 1976 session enacted a new tort claims act to take effect on the operative date of the Nieting decision — August 1, 1976.³ As part of the same bill, the legislature repealed the provisions which had established and governed the state claims commission.⁴ Unlike the new tort claims act, however, the repealer abolishing the claims commission took effect on the day following its enactment. As of April 21, 1976, therefore, the commission ceased to exist.

Plaintiffs urge that because the old statutory scheme was repealed before the new tort claims act took effect, a 3-month gap occurred in the statutory coverage. The alleged effect of this gap was to leave remediless persons, like plaintiffs, having tort claims arising during the 3-month period. As a consequence, it is argued, the repealer should be construed as an implied legislative acceleration of the elimination of sovereign immunity. If plaintiffs' reasoning is accepted, then the rule of sovereign immunity must be deemed abrogated as of April 21, 1976 — more than a month before plaintiffs' claims arose.

Contrary to plaintiffs' assertion, however, the elimination of the state claims commission did not deprive them of a remedy other than a standard tort action. Indeed, it appears that at the time when the commission was formally abolished, it had been inactive for a number of years. During that time, the commission's function was performed by the Joint Senate-House Claims Subcommittee. This legislative committee hears claims and introduces special bills in the legislature for the purpose of compensating qualified claimants. We have reviewed each of the provisions which was repealed by L.1976, c. 331, § 42, and none of them in any way affects the operation of the...