Tesone v. School Dist. No. Re-2, in Boulder County

Decision Date29 July 1963
Docket NumberIN,No. 20293,RE-2,20293
PartiesGerald P. TESONE, by and through his father and next friend, Fiori A. Tesone, and Fiori A. Tesone, Plaintiffs in Error, v. SCHOOL DISTRICT NO.the COUNTY OF BOULDER and State of Colorado, a body corporate, commonly known as Boulder Valley School District, Defendant in Error.
CourtColorado Supreme Court

Williams & Zook, Roger E. Stevens, John G. Taussig, Jr., Boulder, for plaintiffs in error.

Hutchinson & Hutchinson, Boulder, for defendants in error.

DAY, Justice.

This action by a minor, Gerald P. Tesone, through his father and next friend and by the father individually, against School District No. Re-2 in the County of Boulder, seeks to recover damages in tort for injuries alleged to have been sustained by Gerald while practicing basketball in the Louisville High School in Louisville, Colorado.

The trial court dismissed the complaint, ruling that defendant School District as a subdivision of the State of Colorado is immune from liability under what the court found to be the settled pronouncements of this court. Plaintiff in error admits that the holding in City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826, and the later case of Liber v. Flor, 143 Colo. 205, 353 P.2d 590, precluded the trial court from ruling otherwise, that such holding constitutes up to the present day the law in Colorado. It is urged that these cases be overruled.

This we decline to do under the pronouncement in the Madison case, supra, wherein we said, 'It is not within the province of the judicial branch of the government thus to change long established principles of law. This is the function of the legislature * * *.'

The judgment is affirmed.

MOORE, J., specially concurs.

FRANTZ, C. J., and HALL and PRINGLE, JJ., dissent.

MOORE, Justice (specially concurring).

I concur in the opinion of Mr. Justice DAY. In view of the fact that Mr. Chief Justice FRANTZ in his dissenting opinion has once more seen fit to advocate that we should overrule the considered opinions of this court in at least forty cases extending over a period in excess of eighty-five years, I must again direct attention to certain fundamental principles which I believe would be ignored or violated if a majority of this court were to follow the course suggested by said dissent.

It is asserted that we should now reject the doctrine, heretofore firmly established in the law of this jurisdiction, that municipal corporations are not liable for the negligent acts of their servants committed in the discharge of duties which are governmental in nature. As already indicated, cases far too numerous to mention in detail have upheld this doctrine ever since the State of Colorado was admitted to the Union. Indeed the doctrine was approved by a majority of the court on three separate occasions in a single recent volume of the Colorado Reports, and in a single year, namely 1960, the rule was approved on four occasions, and in each case the arguments advanced in the instant dissenting opinion were presented and rejected by a majority of the court. Some of the cogent reasons why they should have been, and were, rejected are set forth in the majority opinions to which we refer. City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d 826; Liber v. Flor, 143 Colo. 205, 353 P.2d 590; Faber v. Colorado, 143 Colo. 240, 353 P.2d 609; Berger v. Dept. of Highways, 143 Colo. 246, 353 P.2d 612.

In no opinion of this court has it ever been held that the rule of nonliability of a governmental agency for the negligent acts of its servants in the performance of governmental duties, has in any degree whatever been modified, discarded or minimized. Sentences lifted from the context of opinions dealing with actions ex contractu in situations which do not have the slightest resemblance to the issues involved in tort actions, cannot be given the effect for which my dissenting brethren contend. The statement contained in the dissent that, 'There is thus revealed a condition of unquiet flux on the subject. Where once the doctrine had smooth sailing, it is now rocking along in troubled waters,' is without support in any one of numerous Colorado decisions dealing with tort actions, and can only find justification by obiter dicta in opinions deciding actions based on contractual rights and liabilities. The obiter dicta to which reference is made does not have the slightest bearing upon any issue arising in an action for damages based upon negligence, and the pertinence thereof is necessarily limited to actions based upon contract

We have held repeatedly that if liability is to arise against a governmental agency for the negligent acts of its servants engaged in a governmental function, this liability, heretofore unknown to the law of this state, must be a creation of the legislative branch of the government. I repeat again that it is not the function of the judiciary to create confusion and instability in well settled law, nor is it within the province of judges to refuse to apply firmly established principles of law simply because those rules do not conform to the individual judge's philosophical notion as to what the law should be.

I respectfully submit that there comes a time when the minority should recognize that an issue of law has been decided in this state, and that the rule of stare decisis is applicable to a given situation. I recognize that under some circumstances it is proper for a court to overrule a previous decision and this court has indicated under what circumstances it is proper to do so. None of the reasons heretofore given as a basis for the court's action in overruling a previous decision are present in the instant case. The reasons which are generally acceptable as a basis for a refusal to be governed by the rule of stare decisis are considered in Mountain States Telephone and Telegraph Company v. City and County of Denver, et al., 125 Colo. 167, 243 P.2d 397, and the cases there cited.

The dissenting opinion quotes from People ex rel. Dunbar v. Schaefer, 129 Colo. 215, 268 P.2d 420, the following language:

'With reference to the rule of stare decisis upon which the administratrix relies, suffice it to say that this is not the first time, nor will it be the last, in which we, for definite and valid reasons, have felt obligated to overrule a former decision. * * *'

Here the quotation abruptly stops. But in the opinion referred to the paragraph, after citing authorities, continues:

'Courts are not bound to perpetuate errors merely upon the ground that a previous erroneous decision has been rendered on a given question. If it is wrong, it should not be continued, unless it has been so long the rule of action, and relied upon to such an extent, that greater injustice and injury will result by a reversal, though wrong, than to observe and follow it.'

The dissent places the emphasis on the phrase 'nor will it be the last.' If I were to place an emphasis upon any selected portion of the full statement I probably would italicize the statement that 'for definite and valid reasons' this court may disregard the rule of stare decisis. Those reasons which are 'definite' and 'valid' are not present in the instant case, as will readily appear from reading the decisions cited in the last paragraph of the opinion in People ex rel. Dunbar v. Schaefer, supra, and a substantial number of other cases cited in Mountain States Telephone and Telegraph Company, supra.

The concluding statement in the dissenting opinion of Mr. Chief Justice FRANTZ points up the area in which I respectfully part company with him. It is there asserted, 'I would have Colorado join the ranks of states which repudiate the doctrine of sovereign immunity.' (Five states seem to have taken this action.) As a matter of individual opinion I might also be pleased to see Colorado 'repudiate' that doctrine. However, if that result is to be reached it should be brought about by that branch of the government which is charged with the legislative duties of creating rights and liabilities, and amending and changing the existing law. It should not be accomplished by a usurpation on the part of the judiciary of a power belonging exclusively to the legislative branch of the government in violation of Article III of the constitution, which provides,

'* * * and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, * * *.'

Courts are not arbiters of public policy. We are not here dealing with any of the considerations, governmental, sociological or otherwise with which the age old doctrine of sovereign immunity in tort actions is freighted. Whatever views any of us may entertain as to its historical or philosophical worth, we are here limited both by law and conscience to the judicial function of faithfully interpreting and applying the law as we find it. We cannot usurp the legislative power of establishing public policy.

It is interesting to note that several sessions of the state legislature have convened since a minority of the members of this court opened the war on the doctrine of governmental immunity in actions based upon negligent acts of servants of the state. In City and County of Denver v. Madison, supra, (January 1960) a dissenting opinion was filed which directed attention to the personal belief of the author that:

'It is a melancholy distortion of the temper of our institutions that the doctrine of immunity ever gained acceptance. Sovereign immunity is just as incongruous to our way of government as speaking of a squared circle. The reasons for its recognition are baseless, * * *.'

This was an honest statement of one judge's opinion. But the legislature, which was then in session, was not impressed thereby and the several legislatures which have since convened have not yet been impressed...

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8 cases
  • Evans v. Board of County Com'rs of El Paso County
    • United States
    • Colorado Supreme Court
    • March 22, 1971
    ...views not only with respect to the instant matter but also as to the other two cases. The majority opinion in Tesone v. School District No. Re--2, 152 Colo. 596, 384 P.2d 82 (1963), upheld the doctrine of governmental immunity. A concurring opinion there commenced as 'I concur in the (major......
  • Hodge v. Craig
    • United States
    • Tennessee Supreme Court
    • October 1, 2012
    ...S.Ct. 1949, 80 L.Ed.2d 502 (1984); Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn.1975) (quoting Tesone v. School Dist. No. Re–2, 152 Colo. 596, 384 P.2d 82, 86 (1963) (Frantz, C.J., dissenting)). It is flexible enough to adapt to the emerging conditions of society. Cardwell v. Bechtol, 724 S.W......
  • Blackwell v. Del Bosco
    • United States
    • Colorado Supreme Court
    • August 3, 1976
    ...of time.' The former Chief Justice Frantz, in speaking of this principle, said in his dissent to the majority in Tesone v. School District, 152 Colo. 596, 384 P.2d 82 (1963): 'Thus it has been said that courts may reshape ancient rules of the common law so as to fit them to present conditio......
  • Cullinan v. Jefferson County
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    • United States State Supreme Court — District of Kentucky
    • March 17, 1967
    ...Problems of a Sovereign Without Immunity, 36 So.Cal.L.Rev. 168. Reference was also made to Tesone v. School District No. RE--2, in the County of Boulder, etc., 152 Colo. 596, 384 P.2d 82, wherein it was said that the removal of sovereign immunity and the creation of liability against a gove......
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