noting the "oft-expressed view of this Court that if the doctrine of governmental immunity is to be totally abrogated, such should be done by the Legislature and not by the courts of this State"
How later courts described this case
- noting the "oft-expressed view of this Court that if the doctrine of governmental immunity is to be totally abrogated, such should be done by the Legislature and not by the courts of this State"
- modifying doctrine of governmental immunity
- modified doctrine of governmental tort immunity
- which was established as October 1, 1985
Written by the judges who cited it.
The opinion
IRWIN, Justice,
dissenting:
As late as March 15, 1983, this court recognized the doctrine of governmental immunity and said that if sovereign immu *1158 nity is to be abrogated, it should be done by the Legislature and not by the courts. Ruble v. Department of Transportation of the State of Oklahoma, Okl., 660 P.2d 1049 (1983).
Various statutes have been enacted by the Legislature which demonstrate legislative intent that the State remain immune from suit on tort claims arising from governmental functions. Some of these are:
(A) 51 O.S.1981, §§ 151-170, “The Political Subdivisions Tort Claims Act.” This legislation became effective July 1, 1978, and abolished the sovereign/governmental immunity of municipalities, school districts, counties, and public trusts where a city, town, school district or county is a beneficiary; and all their institutions, instrumen-talities or agencies, to the extent of the limitation on liability contained in § 154 of the Act. Governmental immunity continues to bar claims in excess of § 154 limitations. The Legislature could have included the State in this limited waiver of sovereign immunity but chose not to do.
(B) 47 O.S.1981, §§ 157.1-158.2, Liability Insurance for State-owned motor vehicles and equipment. Sections 157.1 and 158.1 contain identical provisions:
“... the governmental immunity of such department or state agency shall be waived only to the extent of the amount of insurance purchased. Such department or state agency shall be liable for negligence only while such insurance is in force, but in no case in any amount exceeding the limits of coverage or any such insurance.”
(C) 74 O.S.1981, §§ 20f-20h, which provide for the Legal Defense of State Officers and Employees Sued in Performance of Official Duties. This legislation requires the Attorney General or state agency staff attorneys to defend state officials who are sued upon causes of action arising from the performance of official duties. Under § 20h(A), the cost of the litigation is paid out of the Attorney General’s Evidence fund. However, § 20h(B) contains this proviso:
“... except that this act shall not be construed as authorizing the payment by the State of Oklahoma or any agency thereof of any judgment making an award of money damages.”
In my opinion if sovereign immunity is to be abrogated, it should be done by the Legislature and not by the courts. If the Legislature had wanted to abrogate sovereign immunity, it would have done so.
I respectfully dissent.