Parish v. Pitts/Dissent Fogleman

by John A. Fogleman

JOHN A. FOGLEMAN, Justice, dissenting. I subscribe to and join in the dissenting opinion of the Chief Justice. This court has on numerous occasions, some rather recently, said that the question presented here was one for consideration by the legislative branch of the government. I still feel that the court was right, and I cannot see that anything has changed except some of the personnel of this court. If the times and current circumstances call for a change in public policy in this field, it should be done by the General Assembly which is properly a policy-making branch of government.

In Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257, this court, in addition to the quotation in the majority opinion, said:

"If we were privileged to set the state's public policy on this issue we might readily agree that the present pattern of partial tort liability of municipalities should be replaced with a stricter or more complete rule of responsibility. * * * Able law writers have so recommended, but through legislative and not judicial action. See the splendid article on 'Municipal Tort Liability in Operation,' 54 Harvard Law Review 437. A step in this direction was taken by the Arkansas Legislature in 1947 by the enactment of Ark. Stats., § 66-517 et seq., which authorizes municipalities and other agencies immune from tort action to purchase liability insurance with the right of direct action by the injured plaintiff against the insurer. Perhaps the Legislature will make the purchase of such insurance mandatory at some future time. This decision rests with the people acting directly or through their legislature, and not with the courts."

While the doctrine of municipal tort immunity may not have been based upon the constitutional immunity of the state from suit, a city is nevertheless an agency of the state for the performance of specified essential governmental functions in a limited area. The fact that a city can be sued at all has never seemed to me compatible with the holding that agencies of state government, such as the Arkansas Highway Department, cannot be sued. Cities do exercise some of the sovereignty of the state. If they do not, how can some of their powers, such as prosecutions for violations of ordinances, be constitutionally justified?

If the problem is approached from the point of view that our cities have become business institutions in many respects, a workable solution could be found in the liability of cities when acting in a proprietary, rather than a governmental, capacity without opening the door to a floodgate of unanswered questions for these agencies of state government which have become so important in our scheme of things that in recent years an executive department of our federal government has been created to deal with their problems at that level.

We should not assume that the General Assembly has been unaware of our decisions or the expressions in our opinions that this court thought some legislative action was appropriate. That branch of our government is usually alert in giving attention to matters when changes in our basic law is needed. No better examples can be found than in the actions eliminating tort immunity of electric cooperatives, authorizing the purchase of liability insurance by agencies to which tort immunity has been extended, and creating the State Claims Commission.

Had a study in depth of this problem by the legislative branch been felt appropriate by the General Assembly, there can be no doubt that it would have been undertaken either through the Legislative Council or by other means. The creation of the Arkansas Constitutional Revision Study Commission, the Arkansas Economic Expansion Study Commission, and the Arkansas Judiciary Commission are evidences of their alertness.

This action cannot be properly justified by any allegations of affluence on the part of municipalities. While revenues are greatly increased over those of 1870, the number and extent of the services demanded of them have multiplied at a much more rapid pace than have the revenues and sources thereof. Evidence should not he required for us to know that cities in Arkansas bring ever increasing financial problems to the General Assembly biennially and that cities all over the nation are calling upon the National Congress for aid. Strict limitations on the taxing power of municipalities, whether wise or unwise, make this new liability a greater problem than should be imposed without some compensating means which can only be provided legislatively.

There is a delicate balance of powers in our three separate and independent branches of government. None of them should be more alert to preserve that balance and recognize the independence of each of the interrelated branches in its own field than the judicial department. I deplore the growing tendency on the part of courts to take actions which might well be construed to give the impression that the judiciary may, in pointing out what it deems to be matters requiring legislative attention, be saying: "If you don't, we will." The step being taken here is one of the few actions of this court that might be so construed. We should not impose a whole new batch of problems on the legislative branch by a judicial solution of a problem that we have repeatedly said belonged to it.

I am not entirely satisfied that insurance is actually available for the various liabilities that would be imposed upon cities by today's decision or if now available, that it will continue to be. Even if it is, what are to be the limits of liability? Tort injuries to a whole family in an automobile in one of the smaller incorporated towns, such as Jerome, would justify as much money damage as they would in Little Rock. Many of these small ineorporated towns will not have the revenues sufficient to pay liability insurance premiums after paying for the services required of them. None of our municipal corporations can afford to pay their employees adequate salaries, even without this additional burden.

I cannot help posing unanswered questions which make me steadfast in my opinion that the matter of change should have been left to the legislature rather than to this court.

Should there be limits of liability? If so, should they be the same for all municipalities or should they bear some relationship to population or assessed valuation?

Should the rule have been applied to all municipalities, or just to cities, not incorporated towns, or just to cities of the first class?

Should the liabilities and damages be determined in the courts just as is done in the case of a private corporation? Should a procedure similar to that under the Federal Tort Claims Act be provided? Should the jurisdiction and function of the State Claims Commission be expanded to these cases to insure uniformity of treatment? Should municipalities be given the power to establish such commissions? Or should there be regional commissions? Should a new commission similar to the Workmen's Compensation Commission be given this jurisdiction?

Should a state fund be provided for payment of tort claims? If so, should it be financed by state appropriation or city contributions or by some new or additional tax? Or should each city have such a fund?

Should any and all tort damages in the ever expanding field be compensable by municipalities, or should there be a limitation to certain types or kinds of tort liability?

Out of which funds are judgments against cities to be paid? Is damage by reason of injury resulting from automobile collision caused by negligence of the operator of a waterworks vehicle to be paid from waterworks revenues or funds earmarked for those purposes or is it compensable from city funds and revenues allocated for fire or police departments?

Should there be a time limitation upon notice of claims, so that proper municipal authorities are enabled to properly investigate incidents out of which the claims arise? Or shall they be called upon to defend a claim three years after an alleged occurrence that went unreported to proper city authorities?

What is the status of city employees in regard to claims for injuries? Will there be a common law liability to them? What application will such rules as the fellow servant doctrine and assumption of risk have?

Are acts of malfeasance, misfeasanoe and nonfeasance all proper bases for recovery?

It is not necessary to speculate about possibilities with reference to liabilities that may be imposed upon our municipalities. A list of some liabilities that have been imposed in states where municipal tort immunity has been abolished follows:

1. Failure to install a fire hydrant where others within a similar area were protected. Veach v. City of Phoenix, 427 P. 2d 335 (Ariz. 1967).
2. Injuries to persons struck by suspected robber's automobile during a high speed chase by city police. Evanoff v. City of St. Petersburg, 186 So. 2d 68 (Fla. 1966).
3. Failure to maintain streets and highways in safe condition. Byne v. Americus, 6 Ga. App. 48, 64 S. E. 285 (1909); Jones v. Kase & Roach, Inc., 182 Misc. 37, 43 NYS 2d 140 (1943).
4. Injury by a falling awning which extended over a sidewalk. McHarge v. Newcomer & Co., 117 Tenn. 595, 100 S. W. 700 (1906).
5. Injury to persons on property adjacent to municipally owned ball park by a ball hit or thrown from the park. Robb v. Milwaukee, 241 Wis. 432, 6 N. W. 2d 222 (1942).
6. Failure to maintain proper warning barriers for protection of persons using sidewalks and highways who unintentionally deviate therefrom. Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259 (1954); Gabbert v. Brownwood, 176 S. W. 2d 344 (Tex. Civ. App. 1943).
7. Child killed by injury on city property under attractive nuisance doctrine. Peters v. Tampa, 115 Fla. 666, 155 So. 854 (1934).
8. Failure to adequately maintain drains or sewers to prevent clogging. Tucson v. O'Reilly Motor Co., 64 Ariz. 240, 168 P. 2d 245; Lobster Pot of Lowell v. Lowell, 333 Mass. 31, 127 N. E. 2d 659 (1955).
9. Negligence in placing, failing to remove or permitting, with constructive notice, a rope or clothes line across a sidewalk. Albany v. Black, 214 Ala. 359, 108 So. 49 (1926); Shinnick v. Marshalltown, 137 Iowa 72, 114 N. W. 542 (1908).
10. Drowning of a child under attractive nuisance, nuisance, or negligence theories. Peters v. Tanipa, 115 Fla. 666, 155 So. 854 (1954); Doyle v. Chattanooga, 128 Tenn. 433, 161 S. W. 997 (1913); Cates v. Bloomington, 333 Ill. App. 189, 77 N. E. 2d 46 (1947).
11. Explosion of butane gas stored in city's streets and alleys by a third party under a city permit. Splinter v. Nampa, 215 P. 2d 999 (Ida. 1950).
12. Allowing fire in a city dump to spread to plaintiff's property. Osborn v. Whittier, 103 Cal. App. 2d 609, 230 P. 2d 132 (1951).
13. Injury to child by flare placed in street to warn of recent road work under attractive nuisance doctrine. Gilligan v. Butte, 118 Mont. 350, 166 P. 2d 797 (1946).
14. Injury to child in trying to light a warning lantern that had gone out. Collins v. Chicago, 321 Ill. App. 73, 52 N. E. 2d 473 (1943).
15. Damage caused by operation of fire department vehicles. Miami v. McCorkle, 145 Fla. 109, 199 So. 575 (1940); Baltimore v. Fire Ins. Sallvage Corp., 219 Md. 75, 148 A. 2d 444; Cavagnaro v. Napa, 86 Cal. App. 2d 517, 195 P. 2d 25 (1948); Peerless Laundry Services v. Los Angeles, 109 Cal. App. 2d 703, 241 P. 2d 269 (1952).
16. Damages from temporary obstructions in streets. Crow v. San Antonio, 157 Tex. 250, 301 S. W. 2nd 628 (1957); Rueter v. Versailles, 213 F. 2d 233 (CA Ill. 1954); Denver v. Austria, 136 Colo. 454, 318 P. 2d 1101 (1957).
17. Negligent operation of parks and equipment. Kingsport v. Lase, 35 Tenn. App. 183, 243 S. W. 2d 289 (1951).
18. Injuries from acts in construction or repair of sewers or drains. Galtuzzi v. Beverly, 309 Mass. 135, 34 N. E. 2d 492 (1941).
19. Failure to erect traffic warnings against entering a street partially barred or obstructed by construction or improvement work. Austin v. Schmedes, 154 Tex. 416, 279 S. W. 2d 326 (1955).
20. Injuries from falls on stairways. Knoxville v. Bailey, 222 F. 2d 520 (CA Tenn. 1955).
21. Operation of street lighting facilities. Hooton v. Burley, 70 Ida. 369, 219 P. 2d 651 (1950).
22. Injuries from overhanging tree limbs. Montgomery v. Quinn, 246 Ala. 154, 19 So. 2d 529 (1944); Tate v. Greenville, 228 S. C. 530, 91 S. E. 2d 161 (1956).
23. Injuries because of an accumulation of water at a street intersection. Booth v. Dist. of Columbia, 100 App. D. C. 32, 241 F. 2d 437 (1956).
24. Injuries to an unattended prisoner. Hargrove v. Cocoa Beach, 96 So. 2d 130 (Fla. 1957).
25. Injuries due to defective condition of sidewalk. Winchester v. Finchum, 201 Tenn. 604, 301 S. W. 2d 341 (1957); Claessens v. Troy, 272 App. Div. 971, 71 NYS 2d 571 (1947).
26. Injuries from fall in municipal parking lot. Rhodes v. Palo Alto, 100 Cal. App. 2d 336, 223 P. 2d 639 (1950).
27. Injuries from fall by slipping on wet paint used to designate parking spaces on street. Austis v. Daniels, 160 Tex. 628, 335 S. W. 2d 753 (1960).

Is there to be liability for damages in Arkansas arising by reason of these and other things which come to mind:

Injury to an intoxicated prisoner who falls out of a bunk while unattended?

Injury to an unattended prisoner by another prisoner?

Injury to a person arrested by what a jury, after deliberation, may determine to have been an excessive use of force?

Injury from the falling of a defective bridge?

Injuries and property damage in riots a city fails to suppress?

Damages from a nuisance created by failure to collect garbage promptly or properly?

Injuries or damages by reason of inability of city to perform a usual function because of a strike of city employees?

Injuries in and about municipal swimming pools, parks, playgrounds, golf courses and other recreational facilities?

Injuries to which the malfunction of traffic lights was a contributing cause?

Injuries or damages by reason of failure of city authorities to condenm or demolish buildings of private owners in a dangerous condition?

Damages from slander by city officer or employee?

Damages for malicious prosecution upon acquittal of persons arrested or prosecuted by city officials? Or for false imprisonment?

Damages for malpractice in city hospitals?

What effect will this decision have on liability insurance rates of private citizens?

I feel that the court has not given due regard to Amendment No. 10 which had the very desirable purpose of requiring our cities and counties to operate on a cash basis. One judgment in one tort case could exhaust all the revenues of many of our cities and towns so that all governmental functions would cease. This brings to mind another question. Would a tort judgment be paid from the revenues of the year in which the tort was committed or that in which the judgment was rendered or that in which the judgment becomes final? It would seem logical that it be paid out of the revenues of the year in which the tort was committed, which would likely be exhausted before the damages could be ascertained in many cases. This is another problem that might be solved by legislative action.

I also feel that the majority has not considered the fact that many required city services are activities that might well be called inherently dangerous. At least they involve a high degree of risk. The cities have no option about whether they will perform most of these services, as a private individual or corporation would. I submit that at least these activities should involve immunity. There is at least doubt whether the constitutional power of granting immunity can be exercised by the General Assembly in view of today's decision and Article 2, § 13, of our Constitution.

While the majority seek to limit the application of today's decision to cases which do not involve judgment and discretion, I do not understand the limitation. Most of the acts of a municipal officer, servant or employee involve the exercise of some judgment or discretion.

I am also concerned about the effect of today's decision upon counties, school districts, improvement districts, and other agencies performing governmental functions. I do not know whether we should consider them to be bound by this decision or not.

It gives me cause for concern that we unhesitantly applied the doctrine of tort immunity in City of Fort Smith v. Anderson, 241 Ark. 824, 410 S. W. 2d 597, less than one month before the submission of this case, and now permit recovery of one whose alleged damage occurred two years and nine months prior to that a jury found to have been inflicted upon the plaintiffs in that case.

The difficulty of the majority in deciding just what claimants shall be beneficiaries of today's decision emphasizes the fact that the court is acting legislatively. I do not agree that the solution is a proper one. I would prefer that we rule on the cases as they come here and without declaring whether rules are prospective or retroactive in operation.

I respectfully submit that the investigative powers of the General Assembly, not available to us, could have reached a sounder conclusion in this matter. Such an investigation would probably not have created more questions than it answered.

I fully agree with the remarks of the Chief Justice with reference to judicial change of the common law. I agree that courts have the power to overrule their own decisions, but not the common law adopted by this state. If Ark. Stat. Ann. § 1-101 (Repl. 1956) does not mean that this law can be altered or repealed by the General Assembly, only, then, I ask, what does it mean?

With all due respect for my brethren of the majority, whom I hold in the highest esteem, I cannot help but feel that this step is unwise, is in violation of the separation of powers prescribed by Article 4, § 2, of our Constitution and that it is being taken with only a superficial examination of the ultimate consequences. Legislative attention is more plainly indicated now than ever before.