CARLETON HARRIS, Chief Justice, dissenting. I have no quarrel with the basie premise set out in the majority opinion, i. e., that from the standpoint of right and wrong, it is just as right for a person who is hurt by the negligence of a city and its employees to obtain damages for the injury, as it is for those persons who are injured by the negligence of private individuals or corporations. But I think there are compelling reasons why the doctrine of governmental immunity should not be changed by this court.
Of course, this immunity was a part of the common law when this state was admitted to the Union. The very first section that appears in our Arkansas statutes (numbering 20 volumes), Ark. Stat. Ann. § 1-101 (Repl. 1956), provides that the common law of England, of a general nature, and not inconsistent with the constitution and laws of this nation, or this state, "shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state. [My emphasis.]" Actually, as is pointed out in Horsley v. Hilburn, 44 Ark. 458 (1884), while Arkansas was still a part of the Missouri Territory, this statute (in substance) was enacted (1816), and the opinion then recites:
"This statute remained to govern the subsequent formed territory of Arkansas, and was afterwards reenacted as a part of the laws of the State, with some change of phraseology and grammatical arrangements."
Throughout all the sessions of the General Assembly subsequent to our admission as a state (1836), there apparently has been no attempt to enact legislation to change the long-standing doctrine of governmental immunity to suits in tort, and I can see no urgent reason for this established policy to be changed by judicial fiat. As pointed out in the majority opinion, the only modification of the rule came by virtue of legislative action in 1940,[1] and the subject was also indirectly approached in 1947, when the Legislature authorized municipalities to purchase liability insurance covering tort damages. It is significant to me that the General Assembly has not made further exceptions to the general rule, and to me, it is somewhat persuasive that legislative intent has been expressed to retain the rule.
There are many facets connected with a change of the rule that are unanswered. For instance, the immunity is not being done away with in personal injury cases alone, but this step also relates to acts committed that damage property, or conversely, the failure to perform acts that might have prevented damage to property (or person). The failure of building inspectors to discover and eliminate certain hazardous conditions, or perhaps the failure of the city to install a traffic light at some location, which a jury might find to have been hazardous, are examples of possible liability. Actually, there are literally dozens of situations that could arise.
It is pointed out by the majority that cities and towns can obtain liability insurance—but I am not convinced that this is true in every instance. Not only that, but what would be the cost of such insurance? I cannot say—but I do know that the premiums for automobile coverage are constantly increasing; in fact, a recent increase on this type of coverage was granted which will average 17% over the state. I have no doubt but that similar increases will be sought for public liability coverage. It may well be that many cities and towns will not be able to afford adequate coverage, and I know of no way for this deficiency to be corrected, except by additional taxation. Here again, it may well be neeessary for the General Assembly to pass legislation affording proper authorization for the cities to act. But suppose the General Assembly does not act—where then, is the answer? The plight of the cities, though giving me concern, does not disturb me as much as the possible plight of small towns. The judgments awarded today by juries are far larger than those of past years, and, under some causes of action, the financial structure of a small town could be literally "wiped out" by one large judgment.
The needs of a city are many, and most police and fire departments are undermanned and underpaid; the demand for all types of services becomes greater each year, and I cannot bring myself to impose this additional burden.
I reiterate that this is a matter for the General Assembly. Perhaps, at the beginning, the court could have justifiably taken the step that is now being taken, but the fact that the rule of governmental immunity has been in effect in this state (and territory) for 150 years, strengthens my conviction that no change should be made, except through legislative action.
I respectfully dissent.
- ↑ After this court had held that a rural electric cooperative should be immune from tort liability, the General Assembly enacted legislation providing that these organizations were liable for torts resulting from the negligent acts of agents, servants and employees.