The opinion
McINERNEY, Justice
(concurring specially).
I concur in the result of the majority opinion holding the City of Oklahoma City liable for the injury and damage sustained by the Taylors due to the negligence of a city employee. I believe that the factual situation disclosed by the opinion justifies a complete re-evaluation of the doctrine of governmental immunity. Assuming that the employee worked in the department charged with the maintenance and repair of streets and was driving a City truck to help repair a traffic signal, liability for his negligence would not seem to attach to the City. In my opinion, liability for a tort is thus bottomed on too tenuous a legal theory-
The doctrine of municipal immunity for torts in Oklahoma has a judicial rather than constitutional or statutory origin. The doctrine was announced in City of Lawton v. Harkins, 34 Okl. 545 , 126 P. 727 (1912). A sound reason for discarding the judicially imposed rule is stated in Hargrove v. Cocoa Beach (Fla.), 96 So.2d 130 , 60 A.L.R.2d 1193 (1957). The annotation following Hargrove on page 1198 is a commentary on the general dissatisfaction with the rule of municipal immunity from liability for torts. An excellent discussion of the subject is found in Muskopf v. Corning Hospital District, 55 Cal.2d 211 , 11 Cal.Rptr. 89 , 359 P.2d 457 (1961), together with the conclusion that the judicial rather than legislative branch of government must determine the continued validity of the rule of immunity.
Abrogation of the doctrine would not relax the application of the standards of negligence, but would merely apply these standards to all tort-feasors. This result seems compatible with the mandate expressed in the Oklahoma Constitution, Article 2, §§ 6 and 7, relating to due process and access to courts of justice. It seems reasonable to me to reconsider and re-evaluate the doctrine of governmental immunity for a municipality, established in 1788 in Russell v. Men of Devon, 2 Term Rep. 671, 100 Eng.Rep. 359, in light of the present day and age. The judicial branch of government pronounced the birth of the doctrine of municipal immunity and should now announce its demise.
*330 The present case seems appropriate to discuss, and possibly change, our decisional law imposing the doctrine of municipal immunity against citizens injured by the negligence of an employee of a city when the employee is engaged in a governmental function. The facts of this case present a clear picture of the artificial basis, in my opinion, on which the doctrine is grounded : whether the employee was installing a guard rail for traffic or a traffic signal. Further, the City was held liable, so no unexpected expenditure is involved if the doctrine of immunity is discarded in this case. And a prospective application can, and should, be given to the opinion, thereby permitting sufficient time for the various municipalities to accommodate themselves to the imposition of future liability for torts.