Parish v. Pitts

Decision Date03 June 1968
Docket NumberNo. 5--4134,5--4134
Citation244 Ark. 1239,429 S.W.2d 45
PartiesMrs. Dora Louise PARISH and Thomas L. Parish, her husband, Appellants, v. Ollie W. PITTS and the City of Little Rock, Appellees.
CourtArkansas Supreme Court

Alonzo D. Camp, Little Rock, for appellants.

Joseph C. Kemp and John B. Plegge, Little Rock, for appellees.

Henry Woods and Dale Price, Little Rock, amicus brief for Trial Lawyers Ass'n.

Glenn G. Zimmerman and William G. Fleming, North Little Rock, amicus brief for Ark. Municipal League.

W. H. Dillahunty, West Memphis, amicus brief for City-West Memphis.

Spitzberg, Bonner, Mitchell & Hays, Little Rock, and Daily & Woods, Fort Smith, and Graham Sudbury, Blytheville, amicus brief for Little Rock Waterworks Commissioners.

Terral, Rawlings, Matthews & Purtle and another, Little Rock, for amicus brief for Ark. Hosp. Association.

F. N. Burke, Jr., Marianna, for St. Francis Levee District of Arkansas.

Roscopf & Raff, Helena, for White River Drainage District of Phillips and Desha Counties, Arkansas Laconia Drainage and Levee District of Phillips County, and Helena Improvement District.

David Solomon, Helena, for Beaver Bayou Drainage District.

John L. Anderson, Helena, for Cotton Belt Levee District.

Oscar Fendler, Blytheville, for Drainage District No. 16 of Mississippi County, Arkansas.

Rieves & Rieves, West Memphis, for Drainage District No. 5 of Crittenden County, Arkansas.

Frierson, Walker & Snellgrove, Jonesboro, for Cache River-Bayou DeView Improvement District, First Slough Drainage District of Poinsett County, Arkansas, Drainage Districts Nos. 7, 9, 19, 20, 26, 29 and 33 of Poinsett County, Arkansas.

WILLIAM M. MOORHEAD, Special Justice.

This Court is again asked to overturn the rule of law granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity.

Appellants sued the City of Little Rock and one of its employees for damages as compensation for painful and permanent bodily injuries allegedly suffered by Mrs. Parish when her car was negligently struck by the City's garbage truck. The judgment of the lower court sustained the demurrer of the City and dismissed the complaint against it. Plaintiffs appealed.

The Court below followed the precedents of this Court which have established that a municipality when acting in its governmental capacity is not liable in damages for injuries inflicted on others by the negligent acts of its employees, servants and officers. If the activity causing the harm was 'in the interest of the public generally', it is classed 'governmental' and no suit will lie against the municipality. Clearly the operation of a garbage truck is governmental by this test. Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257, 66 A.L.R.2d 627 (1957). Yet, in applying this rule the Court there voiced its criticism: 'Considerations of fair play and justice suggest that those injured by the negligence of a municipality or its agents should be compensated on equal terms with those injured by individuals or private corporations.' The opinion further noted that many students of law have so recommended; that the Arkansas Legislature in 1947 had authorized municipalities to purchase liability insurance with a right of direct action against the insurer and expressed the hope that the Legislature might make the purchase of such insurance by municipalities mandatory at some future time. However, the Court felt that even though it might agree that the present rule of municipal immunity from tort actions should be replaced with a stricter, more complete rule of responsibility, it was a matter of public policy and therefore, for consideration of the Legislature, not the Court. Kirksey v. City of Fort Smith, supra. The Legislature's broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action. Despite the Court's invitation for legislative action ten years ago there has quite understandably been no comprehensive legislative consideration, or action on this troublesome question. It could not realistically be expected that a problem of judge-made or 'lawyers' law' could or would be given the necessary time and attention by the Legislature. It operates basically in a sixty-day biennial session, necessarily crowded with more pressing and immediate problems of economics, taxation, the allocation of the proceeds thereof, and the myriad other interests affecting the general welfare of the people of the State. It should also be realized that most citizens, and more particularly legislators, will normally think of themselves as being on the side of government rather than opposed to it. They are thus more likely to cling to the 'pleasant and appealing advantage' of immunity from liability for injury suffered at the hands of their public servants and employees. Leflar and Kantrowitz, 'Tort Liability of the States', 29 N.Y.U.L.Rev. 1363 (1954). Although the field of the common law is not primarily the Legislature's problem, it is the primary concern of this Court. Accordingly, the Court, nor the Legislature, should extirpate those rules of decision which are admittedly unjust, for it is to the judiciary that the power of government is given to provide protection against individual hurt. Green, Freedom of Litigation, 38 Ill.L.Rev. 355, 382 (1944).

Considerations of public policy are not and never have been for determination by the Legislature alone. Holmes, The Common Law, 35 (1881). Especially is this so when the individual's rights are put in question by governmental activity as here. We are now of the opinion that re-examination of the principle of governmental immunity from tort action is the duty of this Court and should be undertaken at this time.

The origin of the concept of governmental immunity to suit and how it came to relieve the municipal corporation in the United States of liability for its tortious conduct, is quite involved and the subject of conflicting accounts. Nevertheless, it is generally agreed that its application to a local unit of government is first recorded in Russel v. Men of Devon, 2 T.R. 667, 11 Eng.Rep. 359 (1788). An action for injuries caused by a defective bridge was brought against all the men of the County of Devon since they were required by statute to keep it in repair. Even the reasons given in the report for denial of the right to sue are subject to much dispute today. It was said a multiplicity of suits would be encouraged; that no such action had been authorized by statute; and that a judgment would work an injustice upon the changing population of an unincorporated county since those not residents when the tort occurred could be required to help satisfy it. In the concurring opinion is found what may well be the most fundamental reason for the concept:

'It is better that an individual should sustain an injury than that the public should suffer an inconvenience'.

The earliest Arkansas case enunciating the rule, Granger v. Pulaski County, 26 Ark. 37 (1870), cited the Massachusetts case of Mower v. Inhabitants of Leicester, 9 Mass. 247, which in turn had cited the Russel case, supra. It is noteworthy that in applying this concept to a county the Arkansas court pointed out the distinctions between the unincorporated county and the incorporated municipality, indicating that liability might well attach to the latter. In City of Little Rock v. Willis, 27 Ark. 572 (1872), it was said that for the exercise of judgment and discretion by the municipality for the good of the whole, no action would lie for injuries resulting therefrom, but that for the negligent performance or execution of the orders of such a public body, suit would lie. This reasoning was followed in Mayor of City of Helena et al. v. Thompson, 29 Ark. 569 (1874), and liability was imposed upon the City for the negligent construction of an inadequate ditch and culvert which served to divert a flowing stream.

Yet, in Trammell v. Town of Russellville, 34 Ark. 105 (1897), without mentioning the Willis and Thompson cases, supra, this Court held that a municipality is liable in tort only if the activity engaged in was solely for financial gain or 'proprietary' in nature, but if the activity causing the injury was in the interest of the public generally, it is 'governmental' and the city is immune to suit and liability. In 1931, in City of Little Rock v. Holland, 184 Ark. 381, 42 S.W.2d 383, the decisions in this field were reviewed, the oversight of the Willis and Thompson cases, supra, in the Trammell decision, supra, was noted. Still the Court concluded that a municipality is not liable for its nonfeasance, nor for the negligence of its officers and agents in the performance of a governmental function. Thus by implication the earlier Arkansas cases imposing liability on municipalities for negligence in the performance of ministerial acts were overruled. This rule has been followed to the present with little discussion until the opinion given in Kirksey v. City of Fort Smith, supra. In applying the governmental-proprietary test, Arkansas has held that the maintenance of city streets, Risser v. City of Little Rock, 225 Ark. 318, 281 S.W.2d 949 (1955); law enforcement activity, Franks v. Town of Holly Grove, 93 Ark. 250, 24 S.W. 514 (1910); the operation of municipal waterworks, Patterson v. City of Little Rock, 202 Ark. 189, 149 S.W.2d 562 (1941); operation of an electrical distribution system, City of Little Rock v. Holland, supra; and the maintenance of a municipal swimming pool, Yoes v. City of Fort Smith, 207 Ark. 694, 182 S.W.2d 683 (1944), are governmental functions. No case of liability for personal injury by a municipality is found in the Arkansas reports. In Arkansas, the immunity of the municipality in the tort field is, in practice, complete at present.

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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 16, 1977
    ... ... See, for example, Arkansas: local governmental immunity judicially abolished in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968) restored by statute, Ark.Stat.Ann. § 12-2901 (Cum.Supp.1975); California: governmental immunity ... ...
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