explaining that “municipal immunity in tort . . . deriv[es] from a purpose not to jeopardize ‘the quality and efficiency of government itself’ by exposing the exercise of discretion in the formulation of governmental policy to . . . tort liability” (citation omitted)
How later courts described this case
- explaining that “municipal immunity in tort . . . deriv[es] from a purpose not to jeopardize ‘the quality and efficiency of government itself’ by exposing the exercise of discretion in the formulation of governmental policy to . . . tort liability” (citation omitted)
- explaining that this is why the courts had the power to discard the governmental-proprietary test of sovereign immunity
- discussing history of immunity, abandoning "governmental-proprietary" test for defining immunity, and adopting "discretionary function" test for defining immunity
- "We found that the articulation of the immunity test in terms of governmental,' as opposed to ‘proprietary,’ functions had increasingly lost its vitality as an accurate or adequate rationale for the immunity privilege.”
Written by the judges who cited it.
The opinion
PRETTYMAN, Senior Circuit Judge
(concurring):
I oppose with all possible emphasis the suggestion that the court attempt to eliminate sovereign immunity from among the defenses available to the Government in tort cases in this jurisdiction. I think that to be a matter of legislative policy rather than a judicial question. But the immunity of the local municipal corporation from liability for torts committed by it or its agents in the course of the performance of duties imposed by statute is quite a different thing. It does not involve sovereignty in the classic sense; it is a problem concerning municipal functions and the liability therefor. I see no reason why a court should not construe and apply the latter.
I am authorized to say that Senior Circuit Judge DANAHER concurs in the foregoing statement.