Austin v. Mayor of Baltimore

Cole, J.

dissenting:

A five year old child drowned due to the admitted negligence of agents of the City of Baltimore and the majority holds today that the mother may not recover because the City is immune from liability and may not be held accountable for the tortious conduct of its employees. If a private party had been the wrongdoer, the mother could have recovered. The majority ignores this distinction and continues to perpetuate the gross inequity inherent in the doctrine of governmental immunity, that liability may turn merely on the identity of the wrongdoer. I find this concept wholly unacceptable as being unjust, unsupported by any valid reason and having no place in today’s society. I, therefore, respectfully dissent.

It is my firm belief that this Court should meet its *79 responsibility head on and thoroughly reexamine the viability of the judicially created doctrine of governmental immunity and thereby reach the inescapable conclusion that the doctrine should be rejected and Maryland should follow the rule that liability follows tortious conduct. In so doing, we would bring ourselves in step with the; majority of our sister states, which have limited or completely curtailed the use of governmental immunity as a defense to tort actions. 1 I fully appreciate the soundness of following the rule of stare decisis to promote stability in the law; however, stare decisis should not mean blind adherence to the past with no regard to the impact of the law on the present.

*80 The doctrine of governmental immunity, in its present form, is hardly similar to the original common law principle which exempted the sovereign from liability in court on the theory that the “king could do no wrong.” It was introduced in this country on the premise that the new government was not financially secure so as to satisfy claims of negligence stemming from governmental activities. The earliest decisions of this Court trace the doctrine of governmental immunity back to Russell v. The Men of Devon, 100 Eng. Rep. 359 (1788) and state that “[t]his immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy.” See State v. B. & O. R.R. Co., 34 Md. 344, 374 (1871); Co. Comms. v. Duckett, 20 Md. 468, 479 (1864). Since that time, for over one hundred years, and despite the growth of and changes in tort law and in the nature of state and local government and without any articulation of the underlying reasons for the rule other than general and terse references to “fiscal considerations,” “administrative difficulties,” and “other problems,” e.g., Board v. John K. Ruff Inc., 278 Md. 580 , 366 A.2d 360 (1976); Spriggs v. Levitt & Sons, Inc., 267 Md. 679 , 298 A.2d 442 (1973); Jekofsky v. State Roads Comm’n., 264 Md. 471 , 287 A.2d 40 (1972), this Court has unquestioningly adhered to this doctrine and thus insulated itself from the magnitude of the wrong being wrought by its application. The Court’s recent rationale for failing to reexamine the merits of governmental immunity is that the doctrine is now so firmly entrenched in the law of this State that this Court can no longer alter it; it remains for the Legislature to grant relief. See, e.g., Katz v. Wash. Suburban Sanitary Com ’n, 284 Md. 503 , 397 A.2d 1027 (1979); Quecedo v. Montgomery County, 264 Md. 590 , 287 A.2d 257 (1972); Robinson v. Bd. of County Comm’rs., 262 Md. 342 , 278 A.2d 71 (1971); Duncan v. Koustenis, 260 Md. 98 , 271 A.2d 547 (1970).

This rigid view of the rule of stare decisis simply cannot be reconciled with what I glean to be a primary concern of the judiciary: to protect the individual against unjust governmental activity. Nor can it be squared with our prior decisions. Heretofore, when an issue concerning the *81 evolution of a common law doctrine was presented on “all fours,” as in the present case, we have not hesitated to “take the bull by the horns” and resolve the matter. Compare McGarvey v. McGaruey, 286 Md. 19 , 405 A.2d 250 (1979); Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979); Pope v. State, 284 Md. 309 , 396 A.2d 1054 (1979); Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978); Harris v. Jones, 281 Md. 560 , 380 A.2d 611 (1977); Davis v. Davis, 280 Md. 119 , 372 A.2d 231 , cert. denied, 434 U.S. 939 , 98 S. Ct. 430 , 54 L. Ed. 2d 299 (1977); Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976); Shilkret v. Annapolis Emergency Hosp., 276 Md. 187 , 349 A.2d 245 (1975). We said in Pope v. State, supra, 284 Md. at 341-42 that the common law “may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides .... It may also be changed by judicial decisions.” Thus, the determination of whether the common law is suitable in today’s society was never intended to be a matter resolvable by the Legislature alone. 2 See also State v. Brown, 21 Md. App. 91 , 318 A.2d 257 (1974); Latz v. Latz a/k/a Schafer, 10 Md. App. 720 , 272 A.2d 435 (1971) (written by Judge Orth now of this Court in his former capacity as Chief Judge of the Court of Special Appeals). It seems to me that the majority today contradicts its prior pronouncements.

Nor is there a valid reason why this Court should not consider public policy factors in seeking to determine whether governmental immunity is a viable doctrine. While it is likely that fiscal and administrative problems will be incidental to *82 the abolishment of governmental immunity, these factors should not be allowed to become roadblocks to this Court’s meeting its responsibility. The Supreme Court of Indiana in Campbell v. State, 259 Ind. 55 , 284 N.E.2d 733, 736-737 (1972) summarized this proposition as follows

The state argues that abolition of sovereign immunity will result in a great number of problems for the state. Inability to collect payment for claims against the state, inability of the state to secure adequate insurance, and prospective legal chaos are cited as examples of some of these problems. The arguments which the state presents are questions which properly belong to the legislature in facing and solving the problems of liability. Such arguments do not apply to the doctrine in its present state. We are only concerned with the common law justification of the doctrine....

The proper forum for such argument is in the legislature on the topic. The existence and application of the doctrine of sovereign immunity is a judicial question, [emphasis supplied].

The majority has offered no empirical support for its generalized assertions that tort claims would have a crippling effect on state and local governments. I find, as have other courts, that arguments based on such purely speculative fears are without merit. E.g., Parish v. Pitts, 244 Ark. 1239 , 429 S.W.2d 45 (1968); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A.2d 877 (1973). Studies of the effect of tort liability on governments have, on the contrary, demonstrated that prophesies of financial disaster are groundless. See generally, Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437 (1941).

I recognize that abrogation of the doctrine may impose some burden on government. However, as the Supreme Court of Arkansas reasoned in Parish v. Pitts, supra, 429 S.W.2d at 50 : “No one has ever suggested that it will not add to the *83 financial problems of the municipalities. Anything short of financial disaster, however, is insufficient reason for exempting the cities from the rule of tort liability.” As the law now stands in Maryland, the injured citizen must bear all the harm thrust upon him by a negligent government. This is manifestly unjust and inequitable in light of contemporary concepts of cost spreading and the general rule that liability follows tortious conduct. Any additional expense due to tort claims should be treated as any other cost of administration and spread among the public.

II

I believe the Court should have used this case as a vehicle to repudiate the court-created distinction between governmental and proprietary activities. This Court has held that if a governmental body is negligent in carrying out a proprietary function, it will be liable for its negligence; if its activity is regarded as governmental, the shield of governmental immunity will protect it from suit. What constitutes a proprietary activity as opposed to a governmental activity has never been clearly defined. However, the fact that the doctrine is beyond the scope of clear interpretation has not prevented its application. As Professor Davis has noted, “[tjhe distinction is probably one of the most unsatisfactory known to the law, for it has caused confusion not only among the various jurisdictions but almost always within each jurisdiction.” 3 K. Davis, Administrative Law Treatise, § 25.07, at 460 (1958).

Maryland provides a case in point. 3 In the reported decisions of this State one finds the following examples of illogic and absurdity. Recovery is denied to an individual injured while in a public park for recreational purposes, Baltimore v. State, ex rel. Blueford, 173 Md. 267 , 195 A. 571 (1937); Baltimore v. State, ex rel. Ahrens, 168 Md. 619 , 179 A. 169 (1935), but is permitted as to a pedestrian who falls on steps located within a public park, or who is struck by the *84 falling limb of a tree in a public park. Haley v. City of Baltimore, 211 Md. 269 , 127 A.2d 371 (1956); Baltimore v. Eagers, 167 Md. 128 , 173 A. 56 (1934). Maintenance of a park has been held to be governmental, Blueford and Ahrens, supra, while maintenance of public roads has been held to be proprietary. Cox v. Anne Arundel County, 181 Md. 428 , 31 A.2d 179 (1943). Maintenance of a court house has been held to be governmental, but removal of ashes and refuse from an apartment house is proprietary. Compare Harford County v. Love, 173 Md. 429 , 196 A. 122 (1938) with Apartment House Co. v. Baltimore, 131 Md. 523 , 102 A. 920 (1917).

The majority today concedes that the line between governmental and proprietary functions is often difficult to define and is sometimes illusory in practice. See also E. Eyring Co. v. City of Baltimore, 253 Md. 380 , 252 A.2d 824 (1969). Nevertheless, the majority does not advance any reasons in support of its continued adherence to the Blueford test beyond stare decisis and a bald statement that the test is “rational” and is “consistent with sound public policy.”

As I see it, the retention of the Blueford test represents a further perpetuation of unsound policy in Maryland tort law. The criteria of public benefit and profit are unsatisfactory, as Professors Harper and James have demonstrated:

All the functions of a municipality are — or should be — for the public benefit. They are none the less so because they serve directly and primarily only a limited segment of the public rather than all the people of the state. To the extent that cities are instrumentalities of the state, their main function is to serve the state’s purposes locally .... The fact that the municipality makes a charge or profit has often been considered; ... but functions have been held governmental in spite of a charge ... [e.g., Blueford, supra]..., and functions have been held proprietary where there is neither charge nor profit ... [e.g., Haley, supra]____[2 F. Harper & F. James, The Law of Torts, § 29.6, at 1622 (1958) (footnotes omitted)].

*85 It seems incongruous to let recovery for injuries occasioned by governmental negligence rest upon the chance that a particular activity creates a profit or upon this Court’s inconsistent application of such factors. It is unreasonable to allow compensation to hinge upon whether a particular government employee has enough personal funds to pay a tort judgment for actions occurring within the scope of his employment. Thé better policy is to recognize that government today is big business and should be prepared to spread this cost as it would any other.

My colleagues continue to hold to the doctrine of governmental immunity and the exceptions thereto on the theory that the rule of stare decisis requires them to. I disagree because I believe that when reason for the precedent no longer exists, abrogation of the precedent is not destructive of stare decisis but the fulfillment of its proper purpose.

For these reasons, I most respectfully dissent.

. As of the date of this writing, I note that courts in thirty jurisdictions have abrogated the doctrine of sovereign immunity in whole or in part. See Jackson v. City of Florence, 294 Ala. 592 , 320 So. 2d 68 (1975); Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963); Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P.2d 107 (1963); Parish v. Pitts, 244 Ark. 1239 , 429 S.W.2d 45 (1968); Muskopf v. Corning Hospital District, 55 Cal. 2d 211 , 359 P.2d 457 , 11 Cal. Rptr. 89 (1961); Evans v. Board of County Com’rs of County of El Paso, 174 Colo. 97 , 482 P.2d 968 (1971); Spencer v. General Hospital of District of Columbia, 425 F.2d 479 (D.C. Cir. 1969); Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957); Smith v. State, 93 Idaho 795 , 473 P.2d 937 (1970); Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 , 163 N.E.2d 89 (1959), cert. denied, 362 U.S. 968 , 80 S. Ct. 955 , 4 L. Ed. 2d 900 (1960); Campbell v. State, 259 Ind. 55 , 284 N.E.2d 733 (1972); Brinkman v. City of Indianapolis, 141 Ind. App. 662 , 231 N.E.2d 169 (1967); Carroll v. Kittle, 203 Kan. 841 , 457 P.2d 21 (1969); Haney v. City of Lexington, 386 S.W.2d 738 (Ky. 1964); Hamilton v. City of Shreveport, 247 La. 784 , 174 So. 2d 529 (1965); Davies v. Citv of Bath, 364 A.2d 1269 (Me. 1976); Pittman v. City of Taylor, 398 Mich. 41 , 247 N.W.2d 512 (1976); Williams v. City of Detroit, 364 Mich. 231 , 111 N.W.2d 1 (1961); Spanel v. Mounds View School District No. 621, 264 Minn. 279 , 118 N.W.2d 795 (1962); Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. 1977); Brown v. City of Omaha, 183 Neb. 430 , 160 N.W.2d 805 (1968); Rice v. Clark County, 79 Nev. 253 , 382 P.2d 605 (1963); Merrill v. City of Manchester, 114 N.H. 722 , 332 A.2d 378 (1974); Willis v. Department of Conservation & Econ. Dev., 55 N.J. 534 , 264 A.2d 34 (1970); Hicks v. State, 88 N.M. 588 , 544 P.2d 1153 (1975); Bernardine v. City of New York, 294 N.Y. 361 , 62 N.E.2d 604 (1945); Kitto v. Minot Park District, 224 N.W.2d 795 (N.D. 1974); Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384 , 388 A.2d 709 (1978); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A.2d 877 (1973); Becker v. Beaudoin, 106 R.I. 562 , 261 A.2d 896 (1970); Long v. City of Wierton, 214 S.E.2d 832 (W. Va. 1975); Holytz v. City of Milwaukee, 17 Wis. 2d 26 , 115 N.W.2d 618 (1962); Oroz v. Board of County Com’rs of Carbon County, 575 P.2d 1155 (Wyo. 1978). I should also call attention to the large number of distinguished legal scholars who have consistently criticized the doctrine Eg., 3 K. Davis, Administrative Law Treatise, §§ 25.00, 25.01 (1958, 1970 & 1976 Supps.); 2 P. Harper & F. James, The Law of Torts, §1 29.1-29.10 (1956); Borchard, Governmental Responsibility in Tort, 36 Yale L.J. 1039 (1927); Borchard, Governmental Liability in Tort, 34 Yale L.J. 1 (1924); Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437 (1941); Green, Freedom of Litigation (III) Municipal Liability for Torts, 38 U. Ill. L. Rev. 355 (1944).

. The Maryland General Assembly has only sporadically dealt with the question of governmental immunity. In 1786 the legislature abolished the doctrine. See Chapter 53 of the Laws of Maryland (1786). Thirty-four years later, however, the doctrine was reinstated. See Chapter 210 of the Laws of Maryland (1820). The next legislative action came over 150 years later, in 1976, when governmental immunity in contract was abolished, see Chapter 450 of the Laws of Maryland (1976), and charter counties were given the power to waive their immunity to suit in tort actions. See Chapter 825 of the Laws of Maryland (1976). Despite the fact that no less than eighy bills addressing the problem of sovereign immunity were introduced in the'1979 session of the General Assembly, as of May 1, 1979 no comprehensive legislation abrogating sovereign immunity to tort actions had been passed. See O’Meally, Sovereign Immunity is Archaic But Still Exists in Local La ws, The Daily Record, May 1, 1979, at 14, Col. 1.

. See also the comprehensive discussion in Clarke, Municipal Responsibility in Tort in Maryland, 3 Md. L. Rev. 159 (1939).