Plaintiff Louisa C. Muskopf was a paying patient in the Corning Memorial Hospital. She and her husband allege that because of the negligence of the hospital staff she fell and further injured the broken hip for which she was being treated. Defendant demurred on the ground that the Corning Hospital District is immune from liability for tort under the rule of Talley v. Northern San Diego County Hospital District, 41 Cal.2d 33 [257 P.2d 22], which held that a hospital district was a state agency exercising a governmental function and as such was immune from tort liability. Defendant's demurrer was sustained, and upon plaintiffs' refusal to amend the court entered judgment for defendant. Plaintiffs appeal.
Plaintiffs contend that operating a hospital is a proprietary function of government and that in any event the rule of governmental immunity should be discarded.
The rule of hospital district tort immunity was based on
The shifting fortune of the rule of governmental immunity as applied to hospitals is illustrative of the history of the rule itself. From the beginning there has been misstatement, confusion, and retraction. At the earliest common law the doctrine of "sovereign immunity" did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation.
The rule of county or local district immunity did not originate with the concept of sovereign immunity. The first case to hold that local government units were not liable for tort was Russell v. Men of Devon, 100 Eng.Rep. 359. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was unincorporated there was no fund out of which
If the reasons for Russell v. Men of Devon and the rule of county or local district immunity ever had any substance they have none today.
None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative (Gov. Code, §§ 50140, 53051; Ed. Code, § 903; Veh. Code, § 17001) and judicial (Chafor v. City of Long Beach, 174 Cal. 478, 481-483 [163 P. 70, Ann.Cas. 1918D 106, L.R.A. 1917E 685]; People v. Superior Court, 29 Cal.2d 754, 761-762 [178 P.2d 1, 40 A.L.R.2d 919]), and the exceptions operate so illogically as to cause serious inequality. Some who are injured by governmental agencies can recover, others cannot: one injured while attending a community theater in a public park may recover (Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 341-342 [223 P.2d 639]), but one
Article XX, section 6 of the California Constitution provides: "Suits may be brought against the State in such manner and in such courts as shall be directed by law."
Previous cases, however, have differentiated between the state's consenting to be sued and its substantive liability, and have held that the language used in section 32121, subdivision (b), and in article XX, section 6, gives only the state's consent to be sued and does not waive any defenses or immunities. Thus, an 1893 statute (Stats. 1893, p. 57, now Gov. Code, § 641) providing that those having claims for negligence against the state were authorized "to bring suit thereon ..." was held not to waive the state's sovereign immunity but only to give its consent to be sued when it was otherwise liable. (Denning v. State, 123 Cal. 316, 319 [55 P. 1000], citing Chapman v. State, 104 Cal. 690, 693 [38 P. 457, 43 Am.St. Rep. 158]; Mclvin v. State, 121 Cal. 16, 23 [53 P. 416].)
It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing governmental immunities. Two basic arguments are made to deny the court's power: first, that by enacting various statutes affecting immunity the Legislature has determined that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive.
The doctrine of governmental immunity was originally court made.
The state has also enacted various statutes waiving substantive immunity in certain areas. (Gov. Code, § 53051 [dangerous or defective condition of public property]; Gov. Code, § 50140 [damage by mobs or riots]; Ed. Code, § 903 [liability of school district]; Veh. Code, § 17001 [public agency liability for negligent operation of motor vehicle].) Defendant contends that by removing immunity in these areas the Legislature has retained it in all others.
We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated reenactment of a statute. (Richfield Oil Corp. v. Public Utility Com., 54 Cal.2d 419, 430 [6 Cal.Rptr. 548, 354 P.2d 4].) Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most.
Nor does our decision herein affect the settled rules of immunity of government officials for acts within the scope of their authority.
Only the vestigial remains of such governmental immunity have survived; its requiem has long been foreshadowed. For years the process of erosion of governmental immunity has gone on unabated. The Legislature has contributed mightily to that erosion. The courts, by distinction and extension, have removed much of the force of the rule. Thus, in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend.
The judgment is reversed.
Gibson, C.J., Peters, J., White, J., and Dooling, J., concurred.
SCHAUER, J., Dissenting.
As recently as 1958 this court, in Vater v. County of Glenn, 49 Cal.2d 815, 820  [323 P.2d 85] (per Chief Justice Gibson, with only Justice Carter dissenting), although it expressly recognized that there has been much learned criticism of the principle of governmental immunity, held that "abrogation or restriction of this doctrine is primarily a legislative matter." And Talley v. Northern San Diego County Hospital Dist. (1953), 41 Cal.2d 33, 41  [257 P.2d 22] (per Justice Shenk, with only Justice
Our state Constitution, the instrument which rules (or should rule) our decisions, provides (art. III, § 1), "The powers of the government of the State of California shall be divided into three separate departments — the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted."
It appears that the Legislature specifically intended that a governmental unit such as the one sued here — a hospital district — should not be liable for the torts of its employes under the principle of respondeat superior. Since this court held in the Talley case (1953), supra, 41 Cal.2d 33, 40 , that substantive immunity was not abolished by subdivision (b) of section 32121 of the Health and Safety Code (which provides that hospital districts have power "To sue and be sued in all courts and places and in all actions and proceedings
While this court was repeatedly holding that abolishment of governmental immunity was a legislative question, the Legislature enacted various statutes which reduced such immunity in certain fields but did not abolish it, and enacted and reenacted statutes which dealt with the related problem of suability of the government; therefore, it should be concluded that the Legislature agreed with this court that the questions should be resolved by statute rather than judicial decision. (See Richfield Oil Corp. v. Public Util. Com. (1960), 54 Cal.2d 419, 430  [6 Cal.Rptr. 548, 354 P.2d 4].)
"`[I]n adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.' [Buckley v. Chadwick (1955), 45 Cal.2d 183, 200  (288 P.2d 12, 289 P.2d 242).] The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended." (Cole v. Rush (1955), 45 Cal.2d 345, 355 [8, 9] [289 P.2d 450, 54 A.L.R.2d 1137].) Yet the majority refuse to apply the just quoted rules and say instead that the "continuous reenactment" of section 32121 (subd. (b)) indicates only "a clear legislative purpose to remove all procedural obstacles when the state is liable." (Ante, p. 218.) An informed refusal to respect either the doctrine of stare decisis or the constitutional division of powers seems manifest.
One of the grounds upon which the majority seek to justify their invasion of the legislative province is that statutory and judicial exceptions to the governmental immunity doctrine "operate so illogically as to cause serious inequality." (Ante, p. 216.) I had thought that the Legislature could abolish immunity in some areas and modify it in others, as it has
Furthermore, I am impelled to comment that it is unfortunate that a court's reversal of itself on a point of law which it has recently and repeatedly considered should appear to depend upon a change of personnel. A change of court personnel is not, in my concept of judicial duty (under our historic form of government), properly to be regarded as carte blanche for the judiciary to effectuate either a constitutional amendment or legislative enactment. Such power, I think, should be exercised only by the People or by representatives directly responsible to them.
Because I believe that the question of abolishing governmental immunity is for the Legislature, I would affirm the judgment.
McComb, J., concurred.
Respondent's petition for a rehearing was denied February 21, 1961. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.
The immunity operated more as a lack of jurisdiction in the king's courts than as a denial of total relief. There was jurisdiction, however, in the Court of Exchequer for equitable relief against the crown. "... the party ought in this case to be relieved against the King, because the King is the fountain and head of justice and equity; and it shall not be presumed, that he will be defective in either. And it would derogate from the King's honour to imagine, that what is equity against a common person should not be equity against him." (Per Atkyns, B., Pawlett v. Attorney General (1668), Hadres 465, 468, 145 Eng.Rep. 550, 552; Dyson v. Attorney-General (1912), 1 K.B. 410, 415.)
The method for obtaining legal relief against the crown was the petition of right. The action could not be brought in the king's courts because of their lack of jurisdiction to hear claims against him. The petition of right stated a claim against the king, which was barred only by his prerogative. To the petition "there must always be a reply: `Let right be done,'" (Holdsworth, The History of Remedies Against The Crown, 38 L.Quar.Rev. 141, 149) and "... it is clear that the petition has assumed the character of a definite legal remedy against the Crown." (Id. at p. 150.) There were procedural difficulties with the petition, but alternate remedies existed in large part. (Id. at pp. 156-161.)
The main use of the petition of right in the early common law was in real actions, which then covered a wide field. (Holdsworth, Remedies Against The Crown, supra, at p. 152.) The basic principle was that the petition was proper "whenever the subject could show a legal right to redress." (Id. at p. 156.)
The early precedents may even be read as allowing a petition of right against the king for the torts of his servants. (See the cases of Robert (1325) and Gervais (1349) de Clifton, discussed in Ehrlich, Proceedings Against The Crown, supra, at pp. 123-126; Watkins, The State as a Party Litigant, supra, at pp. 20 n. 36.) In Tobin v. The Queen (1864), 16 C.B.N.S. 309, 111 Eng. Com. Law Rep. 309, however, the court refused to so read the precedents, and held that the crown was not liable for the torts of its servants. This decision arose because of the formalistic and mistaken idea that concepts of vicarious liability did not apply to the crown. (See Holdsworth, Remedies Against The Crown, supra, at pp. 294-296; Watkins, The State as a Party Litigant, supra, at p. 25.) Under the Crown Proceedings Act, 1947, however, the crown is today liable for the torts of its servants to the same extent as private persons. (Hals. Laws of England, vol. XXXII, §§ 253 A, B [Cum. Sup. 1953].)
One other protection was afforded the subject injured by the king's servants. Many of the king's officers were liable for the wrongs committed, and from the earliest times those officers had to have a sufficient financial standing to make those remedies against them meaningful. (See Ehrlich, Proceedings Against The Crown, supra, at pp. 200, 214.)