Thomas v. Baird

Dissenting Opinion by

Mr. Justice Roberts:

It is both necessary and unfortunate that I must once again vigorously dissent from this Court’s continuing blind adherence to the doctrine of sovereign immunity. See Harker v. D. & H. Building Wreckers, Inc., 429 Pa. 655 , 241 A. 2d 73 (1968) (dissenting opinion); Dillon v. York City School District, 422 Pa. 103, 109 , 220 A. 2d 896, 899 (1966) (dissenting opinion). The time is long past for this Court to join those twelve other jurisdictions which have recently abrogated the doctrine. See Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P. 2d 107 (1963); Muskopf v. California Hospital District, 55 Cal. 2d 211 , 359 P. 2d 457 , 11 Cal. Rptr. 89 (1961); Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957); Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill. 2d 11 , 163 N.E. 2d 89 (1959), cert. denied, 362 U.S. 968 , 80 S. Ct. 955 (1960); Brinkman v. City of Indianapolis, 231 N.E. 2d 169 (Ind. App. Ct. 1967); Haney v. Lexington, 386 S.W. 2d 738 (Ky. 1964); Williams v. City of Detroit, 364 Mich. 231 , 111 N.W. 2d 1 (1961); Spanel v. Mounds View School Dist., 264 Minn. 279 , *486 118 N.W. 2d 795 (1962); Brown v. City of Omaha, 183 Neb. 430 , 160 N.W. 2d 805 (1968); McAndrew v. Mularchuk, 33 N.J. 172 , 162 A. 2d 820 (1960); Holytz v. City of Milwaukee, 17 Wis. 2d 26 , 115 N.W. 2d 618 (1962); Parish v. Pitts, 244 Ark. 1239 , 429 SW. 2d 45 (1968). It can be said with all dne respect to those who originally promulgated the rule years ago that the doctrine is “no longer just, reasonable nor defensible” and that the “reasons underlying the traditional wide-sweeping rule of sovereign immunity have virtually disappeared in modern society.” Brown v. City of Omaha, supra at 485, 160 N.W. 2d at 806 .

Further, to those who would argue that this judicially promulgated doctrine should be rescinded by the Legislature if by anyone, I once again turn to the most recent opinion striking down this rule. “Both the Legislature and this court have power to act to change the doctrine and it may well be that the Legislature will have the ultimate word. This would seem to be a poor reason to avoid the court’s obligation to modify the common law to serve the requirements of justice in a modern society. We ought not to thrust upon the Legislature the sole responsibility for injustice on the ground that, ‘Thus it was said in the reign of Henry IV,’ nor even on the ground that any change would constitute the traditionally condemned heresy of judicial legislation.” Id. at 485 , 160 N.W. 2d at 808 ; Keeton, Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463 (Jan. 1962); Keeton, Judicial Law Reform: A Perspective on the Performance of Appellate Courts, 44 Texas L. Rev. 1254 (July 1966); Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (Dec. 1963).

Finally, I believe the instant fact situation presents uniquely compelling reasons for abrogating the sovereign immunity doctrine. Here we have a turnpike authority which operates almost five hundred *487 miles of super highway over which some forty-eight million vehicles travel each year. In its most recently completed fiscal year, the Pennsylvania Turnpike Commission took in almost $56,000,000 in operating revenues. Existing as it does like any other business corporation save for the fact that its “profit” is paid to the Commonwealth, it would seem a simple task for the commission to assume financial responsibility for its negligent acts. The cost of purchasing insurance or of self-insuring to cover such contingencies can easily be absorbed by the millions of users of the turnpike facilities. This is an especially simple solution when it is realized that the turnpike commission has complete authority for setting the toll charges. It seems to me that none of the reasons advanced in years past for maintaining the sovereign immunity doctrine could possibly apply to the turnpike commission in light of these facts.

Therefore, again I am forced to dissent and in so doing hopefully I give comfort to those litigants who may try in the future to strike down a doctrine whose time has long since passed into the realm of ancient history.