N.W.
2d 795 (1962)
OTIS,
JUSTICE.
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.
Affirmed.