264 Minn. 279, 118

N.W. 2d 795 (1962)


Plaintiff sues on behalf of his 5-year-old son to recover damages from a school district and a teacher and principal employed by it for injuries resulting from the alleged negligence of defendants in permitting a defective slide to remain in the kindergarten classroom of an elementary school.

Plaintiff appeals from an order granting a motion to dismiss the action as to defendant school district on the ground the complaint fails to state a claim upon which relief can be granted against it.

The only issue before us is whether the doctrine of governmental tort immunity shall now be overruled by judicial decision.

We hold that the order for dismissal is affirmed, with the caveat, however, that subject to the limitations we now discuss, the defense of sovereign immunity will no longer be available to school districts, municipal corporations, and other subdivisions of government on whom immunity has been conferred by judicial decision with respect to torts which are committed after the adjournment of the next regular session of the Minnesota Legislature.

All of the paths leading to the origin of governmental tort immunity converge on Russell. v. The Men of Devon, 100 Eng.Rep. 359 (1788). This product of the English common law was left on our doorstep to become the putative ancestor of a long line of American cases beginning with Mower v. Leicester, 9 Mass. 247 (1812). Russell sued all of the male inhabitants of the County of Devon for damages occurring to his wagon by reason of a bridge being out of repair. It was apparently undisputed that the county had a duty to maintain such structures. The court held that the action would not lie because: (1) To permit it would lead to "an infinity of actions," (2) there was no precedent for attempting such a suit, (3) only the legislature should impose liability of this kind, (4) even if defendants are to be considered a corporation or quasi-corporation there is no fund out of which to satisfy the claim, (5) neither law nor reason supports the action, (6) there is a strong presumption that what has never been done cannot be done, and (7) although there is a legal principle which permits a remedy for every injury resulting from the neglect of another, a more applicable principle is "that it is better that an individual should sustain an injury than that the public should suffer an inconvenience." The court concluded that the suit should not be permitted "because the action must be brought against the public." (Italics supplied.) There is no mention of "the king can do no wrong," but on the contrary it is suggested that plaintiff sue the county itself rather than its individual inhabitants. Every reason assigned by the court is born of expediency. The wrong to plaintiff is submerged in the convenience of the public. No moral, ethical, or rational reason for the decision is advanced by the court except the practical problem of assessing damages against individual defendants. The court's invitation to the legislature has a familiar ring. It was finally accepted as to claims against the Crown in 1947, although Russell had long since been overruled.

In 1812 when Mower's horse was killed by stepping in a hole on the Leicester bridge, counsel argued that "Men of Devon" did not apply since the town of Leicester was incorporated and had a treasury out of which to satisfy a judgment. The Massachusetts court nevertheless held that the town had no notice of the defect and that quasi-corporations are not liable for such neglect under the common law. On the authority of "Men of Devon" recovery was denied. It was on this shaky foundation that the law of governmental tort immunity was erected in Minnesota and elsewhere.

California undertook to abolish tort immunity in a suit against a public hospital district. Mr. justice Traynor in a carefully documented and thoroughly considered opinion adverted to Borchard's comment in his classic treatise on the subject:

Nothing seems more clear than that this immunity of the King from the jurisdiction of the King's courts was purely personal. How it came to be applied in the United States of America, where the prerogative is unknown, is one of the mysteries of legal evolution.

. . . It has been argued on behalf of defendants that if immunity is abolished public schools will be deluged with claims for injuries resulting from inadequate supervision, from frostbite while waiting for buses, from blows struck by other children, from forbidden and mischievous activities impulsively and foolishly inspired, and from a host of other causes. School children have a special status in the eyes of the law, and in view of the compulsory attendance statute deserve more than ordinary protection. Operating an educational system has been described as one of the nation's biggest businesses. The fact that subdivisions of government now enjoy no immunity in a number of areas of activity has not noticeably circumscribed their usefulness or rendered them insolvent.

While the court has the right and the duty to modify rules of the common law after they have become archaic, we readily concede that the flexibility of the legislative process, which is denied the judiciary, makes the latter avenue of approach more desirable.

Counsel has assured us that members of the bar, in and out of the legislature, intend to draft and secure the introduction of bills at the forthcoming session which will give affected entities of government an opportunity to meet their new obligations. A number of procedural and substantive proposals for the orderly processing of claims have been suggested. Among them are: (1) A requirement for giving prompt notice of the claim after the occurrence of the tort, (2) a reduction in the usual period of limitations, (3) a monetary limit on the amount of liability, (4) the establishment of a special claims court or commission, or provision for trial by the court without a jury, and (5) the continuation of the defense 0fimmunity as to some or all units of government for a limited or indefinite period of time.

On this subject Mr. justice Cardozo has stated (109 Pa.L.Rev. 13):

It may appear in unfair to deprive the present claimant of his day in court. However, we are of the opinion it would work an even greater injustice to deny defendant and other units of government a defense on which they have had a right to deny. We believe that it is more equitable of they are permitted to plan in advance by security liability insurance or by creating fins necessary for self­insurance. In addition, provision must be made for routinely and promptly investigating personal injury and other tort claims at the time of their occurrence in order that defendants may marshal and preserve whatever evidence is available for the proper conduct of their defense.