Niblock v. Salt Lake City , 100 Utah 573 ( 1941 )

I concur. In the case of Husband v. Salt Lake City,92 Utah 449, 69 P.2d 491, I expressed the opinion that municipal immunity for the negligence of its employees had been extended too far. The doctrine cannot be defended in any case on ethical grounds. The state should set the example by responding in damages for injury caused by the negligence of its servants while they are about its business. It follows then, that it should permit its courts to be opened to the inquiry as to whether there was such negligence and whether it proximately caused the plaintiff's injury.

Governmental immunity is granted on the old theory that "the king can do no wrong" or, on better circumstanced morality, that the sovereign by its very nature cannot be sued because the sovereignty implies something which cannot be reached by suit in and through the very agencies which the sovereign itself creates. One cannot bring into court the creator of the court itself. But neither of these theories suffices in this modern day. See 23 Mich. L. Rev. 325;Hoggard v. Richmond, 172 Va. 145, 200 S.E. 610, 120 A.L.R. 1376.

Realistically speaking, the state should be free from the vexatious suits based on fictitious grounds which might spring into abundance were the immunity removed. Therefore, the matter of lifting immunity is, perhaps, properly the matter of legislation. But it behooves the courts judicially not to extend the doctrine. As stated in the concurring opinion in the Husband case, supra [92 Utah 449, 69 P.2d 501]:

"I am in favor of restricting municipal immunity for the negligence of its employees while engaged in the city's business to that committed in the pursuit of actual protection of persons and property or preserving the peace of the community or some other police duty which it exercises as an agency of the state. The doctrine originated on the theory that the city was an agency of the state in its function of preserving the peace and protecting persons and property, and since the state could not be sued for negligence of its employees in performing such functions, neither should the agency be required to respond when its servant so engaged was guilty of negligence. I have some question about the soundness of the original doctrine, but as then restricted, it did not produce the unfairness which now ensues because of the greater and greater expansion of municipal activities construed to be for governmental purposes."

Logically, if a city's immunity is based on the fact that it exercised sovereign powers, as pointed out in 120 A.L.R. 1376, at p. 1377, the doctrine "constitutes an impediment to suing the sovereign at all, and would apply as well to proprietary functions as to those of a governmental character."

Logically, also, there is no reason why a line should be drawn between some governmental functions and others. But at least it has the virtue of mitigating the injustices of the anachronous doctrine of governmental immunity.

However, since the decisions of this court have steadfastly refused to so limit the doctrine, the prevailing rule must continue to be the law until the Legislature sees fit to change it.