Vanderpool v. State
| Decision Date | 26 July 1983 |
| Docket Number | No. 56939,56939 |
| Citation | 672 P.2d 1153,1983 OK 82 |
| Parties | Vera E. VANDERPOOL, Appellant, v. The STATE of Oklahoma and the Oklahoma Historical Society, Appellees. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; Charles L. Owens, Trial Judge.
Appeal from an order and judgment of the District Court of Oklahoma County, Oklahoma, granting summary judgment in favor of the State of Oklahoma and the Oklahoma Historical Society.
John W. Norman, Incorporated by Ronald W. Horgan, Oklahoma City, for appellant.
Jan Eric Cartwright, Atty. Gen., Floyd W. Taylor, First Asst. Atty. Gen., Oklahoma City, for appellees.
This is an appeal from an order of the trial court granting summary judgment in favor of defendants below, State of Oklahoma and the Oklahoma Historical Society.
The facts are not in dispute. Appellant and plaintiff below while employed as an office worker by the Oklahoma Historical Society at a state historical site known as Fort Washita was en route to deliver a telephone message. While traversing the grounds, she was struck in the eye by a rock thrown up by a "Brush Hog" mower operated by a fellow employee while mowing weeds on the site, resulting in permanent loss of sight in her right eye. Plaintiff alleged negligence in that a protective shield on the mower had been removed by an employee of the State making the brush hog defective and allowing objects to be propelled from the mower, thus rendering the mower totally unfit, unsafe and highly dangerous. Plaintiff seeks damages from the State and from the Society. The district court granted defendants' motion for summary judgment and dismissed the cause, holding that the doctrine of governmental immunity bars the action. Plaintiff appeals.
The nature, purposes, powers and duties of the Oklahoma Historical Society are statutory and are set forth in 53 O.S.1981, § 1, et seq. For the purposes of this appeal, suffice it to say:
The Society is authorized to acquire, operate and maintain real and personal property pertaining and relating to the history of Oklahoma, for the benefit of the public, to purvey the same, and to charge reasonable visitation fees. The Society is empowered to grant concessions, leases or permits after competitive bids, and to develop an education program and service for the purpose of publishing facts regarding Oklahoma historic sites, buildings and property of state significance. Reasonable charges may be made for the dissemination of any such facts or information. The Society is declared to be an agency of the State.
Fort Washita was purchased by the Merrick Foundation of Ardmore, Oklahoma, in 1962 from Douglas and Billie Colbert, and deeded to the Oklahoma Historical Society in April, 1962. Since 1968, the Fort Washita historical site has been staffed, maintained and operated by the Oklahoma Historical Society through state appropriations. Its purpose is to tell that particular aspect of Oklahoma history--antebellum military history in the Indian Territory--to the general public.
The case before us places squarely in issue the doctrine of sovereign immunity and impels us to reexamine the viability and efficacy of that doctrine as applied to tort liability of the State, the counties and of other governmental entities within the State of Oklahoma.
The doctrine of sovereign immunity was first recognized in early England and required that the sovereign could not be sued without his permission. It was not so much a matter of the king being above the law, embodied in the maxim, "the king can do no wrong," as it was in the oft-expressed concept that the courts were a part of the government and could not be used to enforce claims against the government--without the express permission of that government.
The doctrine found its way into the common law of the United States, and in 1821, in Cohens v. Virginia, 1 Chief Justice Marshall applied it in suits against the United States, declaring that suits could not be commenced or prosecuted against the federal government without its consent. Subsequently, the doctrine was applied to the states. In applying the doctrine to local government entities, it was early recognized that local government entities occupy a dual character which affected its liability in tort. On the one hand it is a subdivision of the State, endowed with governmental and political powers, and charged with governmental functions and responsibilities. On the other hand, it is a corporate body, capable of much the same acts as a private corporation, and capable of much the same special and local interests and relations, not shared by the State at large. This duality resulted in the attempted differentiation between governmental and proprietary functions, the first generally protected by immunity, the second generally not. 2
Meanwhile, the expansion of governmental functions with its attendant complexities gave rise to a plethora of governmental agencies whose purpose and function took on characteristics of both governmental and proprietary. Judicial attempts to grapple with what has become a multi-addered medusa has resulted in confusion and uncertainty all too painfully apparent to legal scholars, and an inability on the part of the courts to evolve any definitive guidelines for the demarcation between governmental and proprietary functions. 3
Reexamination of the soundness of the concept of governmental immunity in the light of the expanded role of government in today's society has, for various reasons, the enumeration of which would unduly lengthen this opinion, resulted in a retreat from the concept both legislatively and by case law.
In 1946, by the adoption of the Federal Tort Claims Act, Congress gave its consent for the United States to be sued in the district courts, and waived its governmental immunity, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occured." 28 U.S.C. § 1346(b). Various states have enacted statutes imposing more or less general liability in tort on local governmental entities and abrogating governmental immunity, generally or under prescribed circumstances.
In 1957, the Florida Supreme Court in the case of Hargrove v. Town of Cocoa Beach, 4 declared that there was no valid distinction between governmental and proprietary functions and determined that under the facts of that case the municipality had no immunity from tort liability, thus presaging a steady flow of case law away from the concept of governmental immunity and abrogating it in whole or in part, until today, there are not more than five states, including Oklahoma, which have not abolished the doctrine or have not, in some manner, retreated from its universal application as an immutable concept of the law. 5
While Oklahoma has been more cautious in its retreat from governmental immunity as a bar to actions for tort, it has not been heretofore totally immune from inroads upon the doctrine.
In 1978, the Oklahoma Legislature enacted the Political Subdivision Tort Claims Act (51 O.S.1981 § 151, et seq.) extending political subdivision tort liability for loss resulting from its torts or the torts of its employees acting within the scope of their employment or duties subject to the limitations specified in the Act. Included in the political subdivisions covered by the act are municipalities, school districts, counties and public trusts where a city, town, school district or county is a beneficiary.
In Hershel v. University Hospital Foundation, 6 we brought the application of the doctrine of sovereign immunity of the State of Oklahoma for tort into lock-step with the doctrine as it is applied to counties and municipalities where each is engaged in proprietary functions, thus holding that the State is liable for injuries committed by the State arising from proprietary functions. We thus repudiated the idea the State may not be sued without its consent, express or implied.
We have further held that in certain instances where the State insures itself against liability under legislative authority to do so, governmental immunity is waived by implication to the extent of its insurance coverage. 7
While in the case of Gable v. Salvation Army 8 the doctrine of charitable immunity and not governmental immunity was challenged and repudiated in a personal injury action brought against a charitable corporation for activities within the corporate powers and carried on to accomplish its charitable purposes, this Court did not hesitate to strike down the alleged immunity where upon critical examination the immunity was found to be unjust and unwarranted on every basis postulated in its favor.
We hold that the governmental-proprietary-function inquiry shall no longer be determinative in assessing liability for tort as to all levels of government in this State.
The doctrine of governmental immunity is hereby modified to bring it in line with what we perceive to be the more just and equitable view, and that which is in conformity with the generally prevailing view determined by the highest courts of our sister states. 9
In light of the foregoing, it is the finding and determination of this Court that:
A STATE OR LOCAL GOVERNMENTAL ENTITY IS LIABLE FOR MONEY DAMAGES FOR INJURY OR LOSS OF PROPERTY, OR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY GOVERNMENTAL ENTITY OR ANY EMPLOYEE OR AGENT OF THE GOVERNMENTAL ENTITY WHILE ACTING WITHIN THE SCOPE OF THE GOVERNMENTAL ENTITY'S OFFICE, AND PURPOSE FOR WHICH IT IS CREATED, UNDER CIRCUMSTANCES WHERE THE ENTITY, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE...
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