Stone v. Arizona Highway Commission

Decision Date25 April 1963
Docket NumberNo. 6936,6936
PartiesErnest STONE, individually and as surviving spouse of Hathaway Stone, deceased, Darrell Stone and Denise Stone, by their Guardian ad Litem, Ernest Stone, Appellants, v. The ARIZONA HIGHWAY COMMISSION and Fred D. Schemmer, Frank E. Moore, Grover J. Duff, William P. Copple, and James R. Heron, members thereof, William E. Willey, individually and as State Highway Engineer, C. B. Browning, individually and as Deputy State Engineer, J. R. Van Horn, individually and as District Engineer, American Employers' Insurance Company, a corporation, Appellees.
CourtArizona Supreme Court

Udall & Udall, Tucson, for appellants.

Wade Church, former Atty. Gen., Robert W. Pickrell, Atty. Gen., Phoenix, Ralph L. Fenderson, Jr., former Asst. Atty. Gen., Scottsdale, for Arizona Highway Commission and others.

Jennings, Strouss, Salmon & Trask, Phoenix, for appellee, American Employers' Ins. Co., a corporation.

LOCKWOOD, Justice.

Ernest Stone, individually and as surviving spouse of Hathaway Stone, Deceased, and as guardian ad litem of Darrell and Denise Stone, sued Wallace & Wallace Construction Company (a road construction contractor); the Arizona Highway Commission and the members constituting the Commission; William E. Willey, individually and as State Highway Engineer; F. S. Berg, individually and as Deputy State Engineer; and J. R. Van Horn, individually and as District Engineer; and the bonding companies for the road construction contractor and for the State and Deputy State Engineers. The appeal is from orders dismissing as against all defendants except the contractor and his bonding company (judgment having been granted for the latter with no appeal therefrom). The dismissal was on the ground that the complaint failed to state a claim against the Highway Commission and the named State employees for the reason that the Commission and the named engineers, being state employees, are exempt under the doctrine of governmental immunity from tort liability. See Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924).

Taking as true the facts pleaded by plaintiff, Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017 (1960); State ex rel. Morrison v. mcCarrell, 80 Ariz. 243, 295 P.2d 1088 (1956), the case arose as follows: On the morning of September 27, 1955, Ernest Stone, his wife and two children were traveling east out of Tucson toward Benson, Arizona, along U. S. Highway 80, an interstate and much-traveled highway. As they approached Mountain View, Arizona, they came to a point at the crest of a hill where they newly built portion of the highway intersects with the old road. Certain markings and signs located at that spot directing traffic to turn left on a curve in the old road had not been removed. Actually, the new road had no such curve. Mr. Stone was misled by those markings into turning left into the party of an oncoming car which could not be seen as it was approaching from the east over the rise of the hill. The two vehicles collided, causing the death of Mrs. Stone and various injuries to Mr. Stone and the two children.

The plaintiff claimed that the defendants had failed to keep the highway at that place in a safe and proper condition for travel by failing to maintain and provide any warning to drivers of automobiles of the dangerous nature of the highway and by not removing markings and signs on the highway which were misleading to a driver. Plaintiff also claimed that the defendants had actual knowledge, or in the exercise of reasonable precautions should have known of this condition as it had existed for serveral months prior to the happening of the accident.

We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned. After a thorough re-examination of the rule of governmental immunity from tort liability, we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled. We recently stated in Hernandez v. County of Yuma, 91 Ariz. 35, 36, 369 P.2d 271, 272 (1962):

'It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state's functions, an unjust burden will become graver and more frequent as the government's activities are expanded and become more diversified.' 1

Because this rule is so deeply entrenched in our case law, we feel it is important and necessary to herein set out its evolution from its medieval English background to our present day Arizona law. Sovereign or governmental immunity began with the personal prerogatives of the King of England upon the theory that 'the King can do no wrong,' and even though at a very early date in American history we overthrew the reign of the English King the doctrine somehow became entrenched in our judicial code. Professor Borchard has termed this phenomenon as 'one of the mysteries of legal evolution.' Borchard, Governmental Liability in Tort, 34 Yale L.J. 1, 4. Its survival for such a great period of time in this country, where the royal prerogative is unknown, has perhaps been even more remarkable, considering it has been universally criticized as an anachronism without rational basis. Most writers and cases considering this fact have claimed that its only basis of survival has been on grounds of antiquity and inertia. Hernandez v. County of Yuma, supra; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Borchard, supra. 2

The rule of sovereign immunity had its judicial genesis in the case of Russell v. Men of Devon, 100 Eng.Rep. 359, 2 T.R. 667 (1788). 3 That case involved a suit against all the male inhabitants of the County of Devon for damages occurring to Russell's wagon by reason of a bridge being out of repair. The court disallowed the action mainly on the grounds that there was no fund out of which any judgment could be paid and 'it is better that an individual should sustain an injury than that the public should suffer an inconvenience.' 4 The court concluded by saying that the suit should not be permitted because the action must be brought against the public. 5 No rational or legal reason was expressed to sustain the decision except the practical problem of assessing damages against individual defendants. It should be noted, however, that the court did suggest that the plaintiff could sue the county itself instead of the individual inhabitants thereof.

This doctrine of the English common law seems to have been windblown across the Atlantic as were the pilgrims on the Mayflower and landed as if by chance on Plymouth Rock, for the first American case arose in Massachusetts. Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812). The Massachusetts court held that even though the town was incorporated and had a treasury out of which to satisfy a judgment, the town was not liable under the common law. These two cases seem to have set the tumbleweed in motion and nearly every state adopted this same theory as to sovereign liability for torts of its agents or employees. State v. Sharp, 21 Ariz. 424, 189 P. 631 (1920); 81 C.J.S. States §§ 130, 131; 20 C.J.S. Counties §§ 215-221. Even though this doctrine has subsequently been overruled in England, the rule still exists in most of the states of this country. Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959).

The first case in Arizona which held that the sovereign was immune from tort liability occasioned by the negligence of its agents was State v. Sharp, supra. Without examining any real basis or reason for sustaining the doctrine this court stated:

'As to this question it is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.' 6

This case set a precedent and other Arizona cases have since followed the rule without arriving at any basis other than that of stare decisis. 7 The case of Larsen v. County of Yuma, supra note 7; should be particularly noted at this juncture inasmuch as the defendants were almost identical with the case at bar and the facts were also very similar. In the Larson case a demurrer was sustained on a suit by plaintiff for damages arising by reason of the alleged negligence of both State and County Highway officers in maintaining a bridge. The Court affirmed the decision of the lower court by reference to the Sharp case and stating that neither the state nor its subdivisions, i. e. counties, may be sued for the negligence of their employees. This same rule has been relied on in cases dealing with cities, 8 county hospitals, 9 and school districts. 10 However, the rule has not been applied as stringently when dealing with cities. It has generally been held both in this state and elsewhere that a city is liable for injury to a person occasioned by the failure of the city to maintain its streets and sidewalks in proper condition. 11 The reason generally given for this variance is that the municipality's duty in this regard is considered ministerial and corporate rather than judicial and governmental. 12

The strict rule as to liability of county hospitals also has undergone some change in Arizona. In 1962, the twin cases of Hernandez v. County of Yuma, supra, and McQueary v. County of Yuma, 91 Ariz. 37, 369 P.2d 273 (1962), were decided by this court. Therein we held that the county hospital would be liable for an employee's negligence which resulted in injury to a 'paying patient.' 'If the government is to enter into businesses ordinarily reserved to the field of...

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