# Parish v. Pitts/Opinion of the Court

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* Opinion of the Court
* Concurring Opinion Smith
* Dissenting Opinions Harris Fogleman
​WM. 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 care 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 (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, not 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. The 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 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 Trammel 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. Holkund, 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.
The only mitigation of the rule of governmental immunity in Arkansas has come in the past by legislative action. In 1940 this Court determined that a rural electrical cooperative should be immune from tort liability. Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538 (1940). The reasons given were those applied to the governmental activities of a municipal corporation: the cooperative was not organized for profit, but only for the benefit of its members; it has no fund provided by statute out of which to pay judgments; rather, its funds were said to be held in trust, available only for its corporate purposes. Six years later the Legislature reversed that decision of the Court by providing that such organizations should be liable for torts resulting from the negligent acts of its agents, servants and employees. Act 362 of 1947; Ark. Stat. Ann. § 64-1525 (Repl. 1966).
This same General Assembly, by Act 46 of 1947, authorized municipalities and other entities enjoying the rule of immunity to purchase liability insurance covering their tort damages. The sovereign State of Arkansas itself has submitted to a forum in which its tort liability is determined and compensation paid to the injured parties. See Ark. Stat. Ann. § 13-1401 ff. (Repl. 1956), establishing and providing a mode of proceeding before the State Claims Commission. State employees have rights similar to those given private employees by the Workmen's Compensation laws of this State. Ark. Stat. Ann. § 13-1407 ff. (Repl. 1960). Thus we see that the basic injustice of the rule of tort immunity where it has come to the attention of the Legislature has met with dissatisfaction and been curtailed in part. This same "abhorrence of wrong suffered without a forum ​in which redress may be had", is reflected in similar and more far-reaching legislation of other states and of the United States Government. See Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954); Vermont Laws 1961, Public Act No. 265, Title 12, sec. 5601-02; Washington, Rev. Code, Ch. 4192; R.C.W. 4.92.090, added 1963 Ch. 159, sec. 2; Alask. Stats. Title 9, Ch. 65, sec. 09.65-070 added to a sec. 5.13 Ch. 101 S.L.A., 1962, and the Federal Tort Claims Act, 28 U.S.C.A., 2674 (1948). We do not construe such limited legislative action as has been taken in Arkansas to soften the impact of immunity on individual rights as an expression of legislative intent to retain the rule in all other areas. Only a comprehensive legislative study and enactment encompassing the entire field would warrant such an inference.
Legal scholars for the past forty years have criticized and condemned the concept of governmental immunity. An early and thorough-going examination of the doctrine was by Borchard, Government Liability in Tort (Pts. 1-3), 34 Yale L. J. 1, 129, 229 (1924-25); Government Liability in Tort (Pts. 4-6), 36 Yale L. J. 1, 757, 1039 (1926-1927); 28 Colo. L. Rev. 577, 734.
One of the more exhaustive examinations concludes that the failure to break fully with the immunity rule and ". . . to do what nearly everyone agrees ought to be done . . ." is found in three basic factors: First, the language of sovereignty found in the early cases; second, legislative and judicial inertia, thought to be the most potent single explanation of inaction; and finally, the fear that the financial burden of liability would result in inability to perform essential governmental services. Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954).
Tort law is intended to reconcile the policy of letting accidents lie where they fall, thereby giving reasonable freedom of action to others, and protection of ​the individual from injury which the defendant had a reasonable opportunity to avoid at the time. Holmes, The Common Law, 144 (1881). The "reasonable freedom of action" here in question is that of a municipality, furnishing essential and other services to the public. The rule of immunity frees these activities of the city from liability for damages inflicted upon the individual. It is the tort-victim who bears the entire, sometimes calamitous, burden resulting from these enterprises undertaken for the benefit of the entire community The considered conclusion of the legal commentators has been that this burden should be treated as any other cost of administration of municipal activity and thereby be spread by taxes among the public receiving the benefits. Municipal irresponsibility and the sacrifice of individual rights to public convenience are not required to forestall disaster to the municipality.
They have pointed out that although municipalities are political subdivisions, created by the State and performing some governmental functions, they are not the State and do not partake of its sovereignty; they are corporate bodies, capable of much the same acts as private corporations; they have special and local interests and relations not identified with the State at large. They engage in fields of activity as a service to the citizenry never dreamed of in 1788, when this doctrine was first set forth in the report of the Men of Devon, supra, nor in 1870, when it was made a part of the law of Arkansas. The assumption of new and expansion of old services by the city for the benefit of the public has so augmented the incidence of this unjust precept on individual rights that it can no longer be retained except for the most compelling reasons. It has been noted that once the doctrine was imposed and followed by the courts stare decisis insulated the high court from the magnitude of the wrong being wrought by its application. Furthermore, the victims being individuals, made up at random from among the public generally, have, in the nature of things, no voice in the legislative halls. ​Thus neither the judicial nor the legislative processes have been brought to bear on the problem.
The supposed threat to the cities' operations posed by financial responsibility for its torts has ever been a major factor, though not always expressly set forth, upholding the immunity rule. This fear is found in the report of the decision in Men of Devon, supra, wherein it was expressed as "inconvenience to the entire populus", and in Arkansas Valley Cooperative Rural Electric Company, supra, holding later that all funds were subject to a trust for the benefit of the members and to divert them to the satisfaction of tort judgments would be a violation of that trust. However, it is the conclusion of those studies that the fear of curtailment of essential public services or the imposition of tremendous financial burdens on the public, is not founded on fact. In the private sector tort liability is a small item in the budget of any well run enterprise and should prove to be proportionately no greater for the municipality, since it will have available to it the same defenses and means of spreading the risk. 9 Law and Contemporary Problems (1942); Warp, Tort Liability Problems of Small Municipalities, 363; David, Public Tort Liability Administration; Basic Conflicts and Problems, 335; David, Tort Liability of Local Governments: Alternatives to Immunity From Liability, 6 U.C.L.A.L. Rev. 1 (1959); Green, Freedom of Litigation, 38 Ill. L. R. 355. At page 367 of this last work this judicial fear is contrasted with experience; in Wilcox v. Chicago, 107 Ill. 334, 340 (1833), it was said that to subject cities to liability for the operation of a fire department ". . . would most certainly subject property holders to as great, if not greater burdens than are suffered from the damages from fire." Yet, the Illinois Legislature in 1931 imposed liability on the cities for injuries to person and property caused by the negligence of the employees of the fire department. It was thirteen years before a ease appeared in the Illinois Reports in which damages had been assessed against a city under this statute. ​Arkansas's own limited experience with the imposition of tort liability on cooperatives apparently has not resulted in a rash of cases nor oppressive financial burdens on that type of public corporation. The excellent amicus curiae brief filed herein by the Arkansas Municipal League quotes at length from reports over the last several years by the New York Legislature's Joint Committee on Municipal Tort Liability. In 1929 the State of New York waived its immunity from tort liability by statute and in 1945 its courts construed this to be applicable to municipalities and counties. Yet those reports give no instance of curtailment or deprivation of essential municipal service. Quite expectedly this legislative committee is concerned with the extent of tort claims, the rising cost of liability insurance and in some instances difficulty in obtaining such insurance. New York's experience with municipal tort responsibility would rather seem to indicate that the cities can continue to function while responding in tort to those injured by their activities. No one has ever suggested that it will not add to the financial problems of the municipalities. Anything short of financial disaster, however, is insufficient reason for exempting the cities from the rule of tort liability. In any case, the solution of the financial problem by taxation or otherwise rests with the legislative branches of government, not the judicial. If the rule of liability imposes on the taxpayer either a curtailment of some municipal services or an increase in his taxes, still it will serve to assure him that the economic impact of any tortious injury he may suffer at the hands of a public employee would be shared with the other inhabitants of the city rather than, ". . . falling with awesome tragedy" upon him alone. Willims v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1, 25 (1961). Admittedly, this court, because of the limitations on the judicial function, is not able to conduct the careful survey, preparation and study required for an ideal solution to the problem of municipal irresponsibility, nor can it limit and moderate the imposition of liability as could the legislature. Yet, if it is not ​conclusively shown that the cities can bear the financial burden of their own torts, neither is it demonstrated that they are unable to do so. An exemption of this magnitude to the usual rule of law leading to a just result in tort can no longer be continued because of speculative fears by the Court of financial disaster to cities. The injustice wrought by the immunity rule on the individual's rights is clear and certain; its justification must be no less so.
Beginning with Florida in the year 1957, ten American jurisdictions have reviewed and rejected the doctrine of governmental immunity for political subdivisions and entities, Hargrove v. Town of Cocoa Beach, Fla., 96 So. 2d 130 (1957); Molitof v. Kaneland Community Unit District, 18 Ill. 2d 11, 163 N. E. 2d 89 (1959); McAndrew v. Mularchuk, 33 N. J. 172, 162 Atl. 2d 820 (1960) (active wrong-doing only); Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 359 Pac. 2d 457 (1961); Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1 (1957); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618 (1962); Spaniel v. Mounds View School District, 264 Minn. 279, 118 N. W. 2d 795 (1962); Fairbanks v. Schiable, Alaska, 375 Pac. 2d 201 (1962) (interpreting statute permitting suit against local government unit and refused to apply "proprietary-governmental" test); Rice v. Clark County, 79 Nev. 253, 382 Pac. 2d 605 (1963); Haney v. City of Lexington, Ky. 386 S. W. 2d 738 (1964).
Of sovereignty as a reason for holding political subdivisions immune to suit, it is generally agreed in those decisions that cities and other such entities are not the state, and it is only to the state that the high attribute of sovereign immunity should properly be attributed. Generally governmental immunity is traced to the medieval concept that "the king can do no wrong", a notion which is entirely foreign to and at variance with the basic principles of government in America. Whether the rule of governmental immunity is traceable to the medieval concept that "the king can do no wrong" or ​to the Men of Devon case, supra, which does not mention today. Further, the reasons given in the Men of of kings to govern, political subdivisions are not in fact the sovereign state. The language of the early decisions concerning sovereignty has little bearing on the question today. Further, the reasons given in the Men of Devon case, supra, if valid when adopted, are no longer sufficient to justify the rule of immunity. Public convenience does not outweigh the right to individual compensation for injuries suffered, and the political subdivisions are corporate entities financially capable of providing for the satisfaction of such judgments. Muskopf v. Corning Hospital District, supra. In Hargrove v. Town of Cocoa Beach, supra, it is said:
"The modern city is in substantial measure a large business institution. While it enjoys many of the basic powers of government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth century upon an Eighteenth century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice." In the Molitor opinion, supra, as in others above cited, it is noted that this doctrine of immunity was created by the courts, not the legislatures, and that the eourts should correct their own errors, and so concluded that the rule was, ". . . unjust, unsupported by any valid reason, and has no rightful place in modern day society."
Of the fear of bankrupting the political subdivision by imposing liability these several courts note the fact that no such actual case has been pointed out, Spasel v. Mounds View School District, supra; that public liability insurance was not in common use at the time the courts of this country adopted the doctrine of governmental immunity, while today it ". . . serves private citizens and private corporations as a means of prepaying ​and sharing this sort of unexpected burden with which we deal in this case". Williams v. City of Detroit, supra. All give weight to the growth of municipal activity.
Municipalities are not the State of Arkansas and do not partake of its constitutionally granted immunity. It does not clearly appear to us that in this day and time the municipality and those presumably benefiting from its services are unable to bear the full cost of these activities. The immunity rule imposing the entire burden of municipal torts on the individual victims is patently unjust and can no longer be retained without an equally clear showing of an even greater harm to the public.
Other courts during the past ten years have, like Arkansas in Kirksey, supra, refused to overturn the rule of governmental immunity, though many have criticized it. Their principal reason for continuing to adhere to an admittedly unjust rule is the doctrine of stare decisis. This policy of adhering to precedent to give predictability to the law, and to avoid unsettling things, is fundamental to the common law. So too is the power to overrule a line of decisions, even those under which property rights were acquired. Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215 (1946). Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Any rule of law not leading to the right result calls for rethinking and perhaps redoing. Llewellyn, Jurisprudence, 217 (1962). The proper limitations on the doctrine of stare decisis have ever been recognized by this Court. "Precedent, it is said, should not implicitly govern, but discretely guide . . .", Roane v. Hinton, 6 Ark. 525, 527 (1846). Having determined as we have here that a rule established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this ease than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be ​settled correctly. Brickhouse v. Hill, 167 Ark. 513, 522, 268 S. W. 865 (1925). We are not here faced with a rule of property, for the law of torts does not affect ownership or devolution of title. Contracts and wills are not drawn in reliance upon it. Ordinarily then the doctrine of stare decisis is of no great weight in the field of tort law. Here, however, a numerous class, the municipalities, relying on the past decisions of this Court granting them immunity, may well have neglected to investigate accidents or to insure against liability as they are permitted by statute to do. Hence, because of this Court's prior rulings, many would be unprepared to present defenses otherwise available to them, and in event of the imposition of liability, a small municipality might find itself financially unable to meet it without the possibility of disrupting its services to the public.
That possible hardship on those who have justifiably relied upon the law as announced by the Court in the past stems from the retroactive effect normally given a court decision. Legislative acts which normally operate only in the future avoid this effect. It is for this reason that many of the courts have left such problems for legislative solution. Whittington v. Flint, 43 Ark. 504 (1884). In the past we have met the problem by making our decisions operative ' only in the future. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973 (1952). Other courts faced with this problem arising from elimination of past error have solved it in all three ways open to us: California in the Muskopf case applied the decision in the normal manner; making it retroactive as to the present case and all other actions arising within the statute of limitations. The Legislature fixed a period during which the new rule would be held in abeyance. Cal. Stat. ch. 1404. In Williams v. City of Detroit, supra, the Michigan court held that governmental immunity no longer would be recognized from the date that decision, while in Holytz v. City of Milwaukee, supra, Wisconsin allowed suit by the plaintiff before it, but ​made the new rule applicable to others only in the future. This last mode of proeedure seems to us to best meet the several inevitable problems created by a change in a line of precedents. We declare the rule of liability to be applicable to this case and all other causes of action arising after this decision becomes final. This serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given to this Court the opportunity to rid the body of our law of this unjust rule. The impact of retroactive application on the present defendant is not likely to create any major crisis. Being prospective as to all other causes of action the municipalities are given time in which to procure insurance and take measures to protect themselves in suits thereafter arising. Any one of the three means of application of the law here is necessarily going to deny the benefit of this decision to some injured persons. This is always true when there is any change, judicial or legislative, in the law.
We would make plain that this decision imposes liability on municipalities only for the imperfect, negligent, unskillful execution of a thing ordained to be done. No tort action will lie against them for those acts involving judgment and discretion; which are judicial and legislative or quasi-judicial and quasi-legislative in nature. The exercise of discretion necessarily carries with it the right to be wrong. It is only for ordinary torts committed in the execution of the activities decided upon that a tort action will lie; not for the decision itself.
Nor have we at this time considered the liability of any other governmental unit or political subdivision.
Judgment reversed.
JONES, J., disqualified.
GEORGE ROSE SMITH, J., concurs.
HARRIS, C.J., and FOGLEMAN, j., dissent.