# Brown v. City of Omaha > Nebraska Supreme Court · August 30, 1968 · 183 Neb. 430 URL: https://www.frixlaw.com/law-library/cases/9722799 ## Case - **Full name:** Barbara Brown, Appellant, v. City of Omaha, Appellee - **Court:** Nebraska Supreme Court - **Decided:** August 30, 1968 - **Citations:** 183 Neb. 430; 160 N.W.2d 805; 1968 Neb. LEXIS 566 - **Precedential status:** Published - **Opinion:** Dissent by Newton - **Judges:** White, Carter, Spencer, Boslaugh, Smith, McCown, Newton - **Cited by:** 45 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9722799 ## How later opinions describe it (automated extraction) - holding that because doctrine was originally common-law rule, this court may modify it in absence of legislative action to contrary - stating that both the court and the legislature have the authority to waive sovereign immunity ## Opinion text Newton, J., dissenting. The present era has witnessed a more or less worldwide spread of the doctrines of paternalism. Peoples of many nations are no longer content with the old established practices of government. They are no longer, content with such limited forms of government as provide the simple and essential governmental .services such as streets, highways, and fire and police protection. The decline of personal initiative and responsibility, and the growth of governmental paternalism is apparent in the broad social security concepts now en-grafted into everyday life. We now have medicare, social security, and an enormous expansion of a myriad of welfare programs, with new and broader programs of similar character, such as a guaranteed minimum income, being urged. Such programs are all administered, and many financed, by the public. The theory that government “owes each of us a living” and should care for us “from the cradle to the grave” has achieved widespread adoption. This type of thinking has also branched out into certain facets of the law and is resulting in the erosion of certain legal principles of long standing. The idea that human or individual rights stand supreme above all other considerations, including *437 those of society generally, has received great impetus. Today, from a practical legal standpoint, the word “sedition” has been deleted from the English language, and in some instances the personal privileges of confessed criminals take, precedence over the interests and welfare of actual and potential victims; Rather than restrain the wrongdoer it is urged by some that we should recompense the victimized at public expense. One outgrowth of this general social unrest has been the advocacy of public tort liability and the abolition of the “immunity doctrine.” The “spread the' loss” theory has become popular in a number of jurisdictions ■and many writers of legal theses urge in regard to governmental responsibility that the “fault” concept be abandoned and absolute liability for injury or damage adopted. Individual self-reliance and the interests of -society must be subjected to other considerations in the interest of promoting the “cradle to the, grave” philosophy. As is generally true the elements of social philosophy mentioned are not entirely devoid of merit. The danger lies in extremism. As a pendulum swings from one extreme to another, just so do social movements swing from one extreme to another and the law which seeks to administer to modem needs likewise is in danger of adopting elements of an extremist philosophy. A favorite cliché of the many who advocate a complete abolition of the immunity doctrine is that it is -adopted from an English theory that “the King can do no wrong.” The falsity of this statement is apparent. Long before the colonization and settlement of America, ' English law provided remedies against the crown. See, 77 Harvard Law Review'1, Jaffe, Suits Against Governments and Officers: Sovereign Immunity; and Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211 , 11 Cal. Rptr. 89 , 359 P. 2d 457 . To the contrary, the immunity theory ' has been básed' on' what was considered to be the néc'.essity of protecting the, interests of the public,' and *438 the concept that since all rights were conferred by government it was illogical to hold the law giver liable in tort actions. Even today many of the most vigorous advocates of abolishment of the immunity doctrine concede, that it is still necessary to place certain restraints upon it as the very nature of many governmental activities require such protection. See 10 U. C. L. A. Law Review 463 (1963), Van Alstyne, Governmental Tort Liability: A Public Policy Prospectus; 3 Davis, Administrative Law Treatise, § 25.11, p. 482. The, opinion offered in the present case, although it states that the rejection of the doctrine of governmental immunity should be dealt with on a case-by-case basis, in effect, at one fell swoop, completely abolishes the immunity rule in Nebraska. In this respect the proposed remedy is as extreme and unreliable as the evils it purports to cure. It must be borne in mind that many of our essential governmental activities are of a nature, and entailing such a great element of risk insofar as tort liability is concerned, that private enterprise would find them unprofitable and would refuse to indulge in them, yet the public must perforce do so. Governmental administration of fire and police protection, water and air pollution control, health hazards, water and soil conservation, and flood control, are but a few of such instances. Public and private entities are so significantly different that it woud be inadvisable to treat them alike for tort purposes. The broad scope of governmental activities and the benefits they confer on the public render it unwise in many instances to burden them with liability for damages in tort. Also some consideration must be given to the ability of the public to bear the expense encountered. We have numerous small villages with assessed valuations of $100,000 or less. They do not have, the ability or means to maintain streets, fire and police protection, etc., on an adequate basis. Yet it is not unlikely in the present day that such a village could be subjected to a *439 judgment of a half million dollars, many times exceeding the actual value of the entire village. Even larger governmental units might find it necessary at times to curtail essential public services. It is true that a certain measure, of protection may, at least in some instances, be obtained through insurance, but insurance rates are based on risk and risk may render insurance unavailable or prohibitive. In any event, for the courts to direct governmental units to carry insurance, either directly or by generating conditions making it requisite, would be a clear invasion of the legislative function. Heretofore in recognition of the immunity rule, our statutes have specified certain instances in which municipalities and governmental subdivisions might be held responsible in actions for tort and either directly or by implication have authorized the payment of claims so authorized. The majority opinion now broadens the field of tort liability with reference to municipalities and governmental subdivisions. Yet, it does not and cannot authorize the payment of such claims. Even the majority must recognize that such authorization is exclusively a legislative function. The Legislature has in some instances prescribed limits on the taxing powers of these public bodies and in others, has authorized the expenditure of public money only for certain designated purposes. If these public bodies are to be made liable for judgments in tort, provisions for payment of such judgments and the raising of funds required must also be made, again a strictly legislative function. A few of the problems that will be encountered deal with legislative, judicial, quasi-legislative, quasi-judicial, and discretionary acts of public departments, officers, and agents. Nearly every legislative act damages someone. The same is true of judicial acts and discretionary decisions. Businesses are often destroyed or severely damaged by such means. For example, zoning ordinances may damage property values, forbidding the sale of drugs or merchandise considered harmful may injure *440 a business, requiring a reduction in a public utility’s- rates is damaging, a President or Congressman may be negligent in issuing' an unjust executive order or'in voting for an ill-conceived bill, or a governmental board may wrongfully change interest rates or deny a certificate of public convenience and necessity. In addition a multitude of questions may arise in regard to war losses, negligence of the armed forces, enforcement' Of antitrust laws, law enforcement including the failure to properly enforce criminal laws and to apprehend criminals, negligent failure to maintain water pressures for fire fighting purposes, failure to quarantine or doing so wrongfully, failure of inspectors to detect and require guards against dangerous conditions, and an infinite variety of other situations. The public cannot guarantee a citizen against all errors or defects he may encounter. Life in any organized community requires a certain number of sacrifices and risks. In those jurisdictions which have adopted Tort Claims Acts this has been recognized,' as witness the exceptions found in the Federal Tort Claims Act. It is much simpler and more practical to lay out the circumstances under which recovery may ' be had than to generally abolish governmental immunity and then define the specific and endless cases in which recovery cannot be justified or allowed. ' It' would take a court, working on a case-by-case basis, at least a century, and perhaps several, to work out an acceptable basis encompassing public tort liability. This points Up the fact that issues dealing with governmental immunity and tort liability are essentially legislative in nature and from a practical standpoint cannot be satisfactorily resolved by judicial action. If the present system be deemed obsolete and unjust it will nevertheless not be helpful to plunge the public into a morass of uncertainty by the adoption of an activist judicial philosophy. Problems enough will arise even after the' best-considéréd legislative action on the subject has been taken. ■ *441 We should not lose, sight of the fact that the doctrine of governmental immunity is an ancient one and well rooted in the common law of this country. Counties, cities, school districts, and other governmental subdivisions are to a large extent creations of the Legislature. In Nebraska a few of our laws governing such entities are of constitutional origin but most have resulted from legislative action, and all that are pertinent to the question under consideration came into being in recognition of the constitutional and common law precept of governmental immunity from tort liability. Examination of the statutes of Nebraska will reveal that the Legislature has not been completely insensitive to situations resulting from the application of the immunity rule. By statute, the rule has been suspended or waived in numerous instances specified by the Legislature. One of the better known exceptions is that authorizing recovery where injuries or damage is sustained by reason of the negligent and defective maintenance of highways. The destruction of that doctrine will require an extensive overhauling of all of our laws bearing on the duties and responsibilities of these entities in the field of torts. It is a major undertaking and one which I am informed is now under consideration. The Legislature alone, certainly not this court, can adequately cope with the situation. Alexander Hamilton once wrote that courts “ ‘must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.’ ” This aptly describes the present situation. White, C. J., and Carter, J., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722799. Public record. Not legal advice.