The Pennsylvania Supreme Court refuses to abolish the doctrine of sovereign immunity.
Dillon v. York City School Dist., 422 Pa. 103, 220 A.2d 896 (1966)

McGinley, John R., Jr.

English

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Duquesne Law Review Volume 5 Number 2 Article 11 1966 Torts - Governmental Immunity John R. McGinley Jr. Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Torts Commons Recommended Citation John R. McGinley Jr., Torts - Governmental Immunity, 5 Duq. L. Rev. 211 (1966). Available at: https://dsc.duq.edu/dlr/vol5/iss2/11 This Recent Decision is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. RECENT DECISIONSthereunder is determined from the date of exercise. But, under themajority rule, if B were the donee of a general testamentary power and hemade the appointments in the same manner, the appointments thereunderare invalid if measured from the creation. But if one analyses the ex-amples in a "restraint of alienation" context, it can be seen that where C isthe donee the property is "tied up" for a longer period. This is so becausethe power cannot be exercised until 21 years after B's death. Where B isthe donee, the power must be exercised, if at all, under B's will when hedies. Yet, the former is valid and the latter invalid under the majority rulealthough in the former the property cannot be "brought into themarket" until a later period.3 To so state is inconsistent and permits ascheme to be carried out by some words which cannot be done by others."[T]here is serious objection to a rule, purporting to express a policy,which declares that this scheme can be carried out by some words andcannot be carried out by others."24 Such objections can be made to the"majority view" here and it must be concluded that the holding of thecourt in Industrial Nat'l Bank v. Barrett answers such objections andis consistent with obviating the technical harshness of the rule.2 5Richard S. DorizaunToRTs-Governmental Immunity-The Pennsylvania Supreme Courtrefuses to abolish the doctrine of sovereign immunity.Dillon v. York City School Dist., 422 Pa. 103, 220 A.2d 896 (1966).Plaintiff, a minor, and her guardian brought suit against the defendantfor injuries sustained in a fall on the school's icy steps. The trial courtsustained a demurrer based on sovereign immunity from tort liability.On appeal the Pennsylvania Supreme Court, in affirming the lower court'sorder, held that it could not undertake piecemeal judicial reform of awas invalid when created. C was not in being at the creation of the power and it is possiblethat C would live more than 21 years after the death of A and B and might not be able toexercise the power (he cannot until he dies) until such time. But this problem goes to thevalidity of a power when created and not appointments made under a valid power. SeeKales, supra note 14, at 64-65.23. See Thorndike, supra note 14, at 715.24. 6 AMERICAN LAW OF PROPERTY, op. cit. supra note 4, § 24.9.25. "The Rule persists in personifying itself to me as an elderly female clothed in thedress of a bygone period who obtrudes her personality into current affairs with burst ofindecorous energy." Leach, Perpetuities in Perspective: Ending the Rule's Reign of Terror65 HARv. L. REV. 721, 725 (1952). By its decision, the Supreme Court of Rhode Islandhas taken a step in clothing the lady in more "modern garb."See the above cited article generally for some proposed solutions to the problems createdby the Rule against Perpetuities. However, it should be noted that although this article is.cited in Barrett, - R.I. at -, 220 A.2d at 524, one of the problems not discussed in thearticle is that which was before the court.1966-1967]DUQUESNE UNIVERSITY LAW REVIEWdoctrine which should be abolished by legislative action.1 Consequently,the court adopted a rationale rejected by other jurisdictions which haveabrogated the doctrine of governmental immunity by judicial fiat.2In 1963, the court discarded the doctrine of charitable immunity'despite strong objections to a judicial assumption of a legislative func-tion.4 The adoption of the judicial intrusion argument to sustain theprivilege accorded governmental agencies and the rejection of it inabolishing the doctrine of charitable immunity indicates an incongruitywhich needs clarification.The Dillon majority may be separated into two distinct groups. Onesegment has uniformly recommended legislative action in both areas,5i.e., governmental and charitable immunity, while the second is comprisedof those justices who rejected the judicial intrusion argument in abolishingthe privilege granted to charities and accepted it in sustaining govern-mental immunity.'An analysis of the four-fold rationale7 of the Flagiello case,' whichabolished the doctrine of charitable immunity fails to provide a rationaljustification for this latter position. The most important step in therationale of Flagiello was the rejection of the theoretical validity of theconcept of charitable immunity.9 Modern justification for the doctrineof governmental immunity has also been criticized by numerous otherjurisdictions ° and legal writers." Moreover, the Pennsylvania Supreme1. 422 Pa. at 105, 220 A.2d at 898.2. In Molitor v. Kaneland Community Dist., 18 Ill.2d 11, 25, 163 N.E.2d 89, 96 (1959),the court stated that "having found that doctrine (i.e. governmental immunity) to beunsound and unjust under present conditions, we consider that we have not only the rightbut the duty to abolish that doctrine." See also Muskopf v. Corning Hosp. Dist., 55 Cal. 2d211, 11 Cal. Rptr. 89, 359 P.2d 457 (1960), and Spanel v. Mounds View School Dist., 264Minn. 279, 118 N.W.2d 795 (1962), where the doctrine was overruled prospectively.3. The doctrine of charitable immunity protected charitable institutions from liabilityfor torts committed by their employees. Sidekum v. Animal Rescue League of Pittsburgh,353 Pa. 408, 416, 45 A.2d 59, 62 (1946).4. Flagiello v. Pennsylvania Hosp., 417 Pa. 486, 519, 532, 208 A.2d 193, 210, 216 (1965),where Chief Justice Bell and Justice Jones dissented and urged that legislative action,not judicial reform, was the proper tool to abolish charitable immunity.5. This group is comprised of Chief Justice Bell and Justice Jones. See discussion innote 4 supra.6. This group is composed of Justice Cohen and Justice O'Brien. In the Fagiello case,Justice O'Brien joined in the majority opinion whereas Justice Cohen filed a concurringopinion stating his basis for abolishing the doctrine of charitable immunity.7. Comment, 26 U. PmTr. L. REv. 749, 754 (1965).8. Flagiello v. Pennsylvania Hosp., 417 Pa. 486, 208 A.2d 193 (1965).9. Cf. comment cited note 7 supra.10. See cases cited note 2 supra.11. Proposals set forth to justify the retention of the doctrine have been varied. Theyhave included assertions that immunity should be granted to a governmental agency becausetorts are never authorized and are, therefore, ultra vires. However, the ultra vires doctrine[Vol. 5:211RECENT DECISIONSCourt itself has admitted that the errors in logic which spawned thedoctrine have been exposed. 12 Secondly, Flagiello conceded that immunityworks an injustice by compelling injured parties to bear the loss occasionedby another's negligence." While discussing this facet of the opinion thecourt acknowledged that government would mean very little if it exemptedportions of the population from liability on the theory that the publicright transcends the claim of the individual. 14 As it is, the immunitygranted to governmental agencies works injustice by relieving a wrongdoerfrom liability. Application of the concept would also generate disrespectfor a government which almost arbitrarily denies recovery in certaininstances while allowing compensation in others."5 Thirdly, Flagiello statedthat the abolition of the doctrine of charitable immunity would inducegreater care on the part of protected institutions.16 If the threat ofliability would have that effect on charities, no reason is apparent whysuch a menace would not have an equivalent influence on shelteredgovernmental agencies. This factor assumes greater significance in viewof government's expanding involvement with society. Finally, Flagielloindicated that the court never had the prerogative to establish a blanketimmunity because this form of privilege is opposed to the tenets of ademocratic society." The principle of governmental immunity is similarlya judicially innovated"' blanket exemption, and its retention would, like-wise, seem offensive to a democratic system. An anlysis of the Flagiellodecision fails to expose any foundation for the court's retention of thehas prevented liability only when the tortious act was committed outside the authoritydelegated to the employee. The supposed lack of a corporate fund has also been advanced asa reason for retention. This had been construed as a carry-over from the area of charitableimmunity. Since the trust fund theory is insufficient to justify the doctrine of charitableimmunity, it should not be advanced in support of governmental immunity. Fuller andCasner, Municipal Tort Liability In Operation, 54 HARV. L. REv. 437, 438-441 (1941). Thedoctrine of governmental immunity has been criticized as resting upon a misinterpretationof the sovereignty of the king and anomalous when applied in the United States. Borchard,Governmental Immunity In Tort, 34 YALE L.J. 1, 4-5 (1924). See also Borchard, Govern-mental Immunity In Tort, 36 YALE L.J. 1 (1928), Comment, 4 DUQUESNE L. REV. 441 (1966).12. In Morris v. Mount Lebanon School Dist., 393 Pa. 633, 635, 144 A.2d 737, 738(1958), the court stated that the errors in history, logic and policy which gave rise to thedoctrine have been exposed.13. 417 Pa. at 506, 208 A.2d at 203.14. Ibid.15. An individual may recover from the government if the tort is committed by anemployee engaged in a proprietary as distinguished from governmental function. In Morrisv. Mount Lebanon School Dist., 393 Pa. 633, 637, 144 A.2d 737, 739 (1958), the court statedthat "perhaps there is no issue known to the law which is surrounded by more confusionthan the question whether a given municipal operation is governmental or proprietary innature."16. 417 Pa. at 504-505, 208 A.2d at 202.17. Id. at 504, 208 A.2d at 202.18. The doctrine of governmental tort immunity was introduced into Pennsylvania lawby the case of Fox v. Northern Lights, 3 W. & S. 103 (1841).1966-1967]DUQUESNE UNIVERSITY LAW REVIEWimmunity accorded governmental agencies after withdrawing the privilegefrom charitable institutions.Inquiry into Justice Cohen's concurring opinion in Flagiello19 fails toreconcile the apparent inconsistency in the court's position. He reliedprimarily on the Michigan case of Parker v. Port Huron Hosp.2° Parkerrecognized the fact that the doctrine of charitable immunity had beenjudicially assimilated, and therefore, could be dismantled by judicialfiat.2 In abolishing charitable immunity Parker negated the stare decisisargument by holding that the maxim was not meant to perpetuate error.22This rationale is equally applicable in the area of governmental immunity.Accordingly, some persuasion not present in the case of charitableimmunity must be found in order to sustain the position of the courtin Dillon. Although not enunciated, this component may originate in thecomplexity of the reform required to effect abolition. 23 The essence of thiscomplexity is not, however, defined. It is submitted that this definitionwas omitted because the nature of the reform required to abolish govern-mental immunity is indistinguishable from the action which was initiatedwith Flagiello. The abrogation of governmental immunity would imposeliability on many previously sheltered governmental agencies just asthe withdrawal of the privilege accorded charities imposed liability onmany previously insulated charitable institutions.24A final rationale proposed by some jurists involves an interpretation oflegislative inactivity. It has been asserted that the failure of a legislatureto act upon a bill which is before it expresses an intent to leave the lawas it stands.25 In 1961, a bill providing for partial waiver of the Common-wealth's tort immunity died in committee. 2' This inaction could be inter-preted as a desire of the people to retain the doctrine. However, the courtdid not adopt this argument with respect to charitable immunity after abill to abolish that privilege likewise died in committee in 196 1.27Past action of the court in other areas fails to provide an answer for19. 417 Pa. at 515, 208 A.2d at 208.20. Parker v. Port Huron Hosp., 366 Mich. 1, 105 N.W.2d 1 (1960).21. Id. at 11, 105 N.W.2d at 6.22. Id. at 10, 105 N.W.2d at 6.23. In Dillon, 422 Pa. at 106, 220 A.2d at 898, the court intimates that this is a dis-tinguishing factor when it speaks of the complexity of the reform which would be required.24. The doctrine of charitable immunity extended protection to institutions other thanhospitals. Included within the definition of charitable institutions were religious, educationaland cemetery organizations and the Young Men's Christian Association. 14 C.J.S. Charities§ 2 (1939).25. In Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 223, 11 Cal. Rptr. 89, 96, 359 P.2d457, 464 (1960), Justice Schauer, in dissent, stated that the failure of a legislature to changea law which is generally before it . . . is indicative of an intent to leave the law as it stands.26. Pa. H.R. Res. 75, Gen. Assembly, 145th Sess. (1961).27. Pa. S. Res. 59, Gen. Assembly, 145th Sess. (1961).[Vol. 5:211RECENT DECISIONSits refusal to abolish governmental immunity after it had abrogated theimmunity accorded to charities. This analysis reveals an actual incon-gruity in maintaining a rule which imposes hardship on injured partiesand perpetuates a deleterious doctrine.John R. McGinley, Jr.TORTs-Products Liability-Restatement (Second), Torts, § 402(A)-The Pennsylvania Supreme Court adopts a strict tort liability rule forthe products liability area.Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).Plaintiff brought an action in trespass against a beer distributor, brewer,and manufacturer for injuries resulting from the explosion of a beerkeg which had been purchased by plaintiff's father. Plaintiff relied on atheory of exclusive control and the trial court dismissed the complaintbecause all parties whose conduct could have affected the condition of thekeg had not been joined as defendants.' This judgment was vacated andplaintiff was given leave to amend his complaint and proceed on a theoryof strict liability.2The court decided the case not on the doctrine of exclusive control buton the more determinative issue of "the nature and scope of the liabilityin trespass of one who produces or markets a defective product for use orconsumption." 3 With one dissent, the court followed the modern trendtoward strict liability by adopting Section 402(A)4 of the Restatement1. The plaintiff's father and brother who had handled the keg were not joined as de-fendants and were unable to be joined because the Statute of Limitations had run. PA. STAT.ANN. tit. 12, § 34 (1953).2. Chief Justice Bell, dissenting, sharply criticised the court for allowing plaintiff toproceed on a theory not pleaded by him. Webb v. Zern, 422 Pa. 424, 429, 220 A.2d 853,859 (1966). Although a strict products liability theory was not pleaded, plaintiff did urgethe adoption of Section 402(A) in a supplemental brief. Supplemental Brief for Appellant.3. 422 Pa. at 425, 220 A.2d at 854.4. RESTATEMENT (SEcoND), TORTS, 402(A) (1965):Special Liability of Seller of Product for Physical Harm to User or Consumer(I) One who sells any product in a defective condition unreasonably dangerousto the user or consumer or to his property is subject to liability for physicalharm thereby caused to the ultimate user or consumer, or to his property if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to and does reach the user or consumer without substantialchange in the condition in which it is sold.(2) The rule stated in Subsection (1) applies although(a) the seller has exercised all possible care in the preparation and sale ofhis product, and(b) the user or consumer has not bought the product from or entered intoany contractual relationships with the seller.1966-19671

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