Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1968, No. 1785, in case of Clara Laughner, administratrix of estate of Carol Ann Laughner, deceased, v. County of Allegheny.
Louis J. Grippo, with him Louis C. Glasso, for appellant.
John David Rhodes, with him Thomson, Rhodes & Grigsby, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy.
Dissenting Opinion by Mr. Justice Roberts:
Eleven years ago this Court stated: "The errors of history, logic and policy which were responsible for the development of this concept [of governmental immunity] have been clearly exposed, and thoroughly criticized." Morris v. Mt. Lebanon Township School District, 393 Pa. 633, 635, 144 A.2d 737, 738 (1958)
(footnotes omitted). Nevertheless, this Court refused to remedy the situation, which was created by the courts themselves,*fn* but instead called on the Legislature for help. Since then, a majority of this Court has continued to perpetuate the doctrine, while at the same time, it has continued to call on the Legislature for help. See, e.g., Supler v. North Franklin Township School District, 407 Pa. 657, 660, 182 A.2d 535, 537 (1962) ("[T]he change should be made by the Legislature and not by the courts."); Stouffer v. Morrison, 400 Pa. 497, 502, 162 A.2d 378, 381 (1960) ("This case once again demonstrates the urgent need for legislative action.") (concurring opinion). Needless to say, the Legislature has not responded. Today, the majority of this Court has even stopped calling for help.
The doctrine of governmental immunity is constantly being rejected by other courts, and it is long past the time for this Court to do likewise. The list of cases in which the immunity has been rejected includes: Carrol v. Kittle, 203 Kan. 841, 457 P. 2d 21 (1969) (overruling McCoy v. Bd. of Regents, 196 Kan. 506, 413 P. 2d 73 (1966), which held that it was up to the legislature to change the law); Brown v. City of Omaha, 183 Neb. 430, 160 N.W. 2d 805 (1968) (citing cases); Brinkman v. City of Indianapolis, 231 N.E. 2d 169 (Ind. Ct. App. 1967); Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W. 2d 190 (1965) (holding no governmental immunity for county); Walsh v. Clark Page 574} County School District, 82 Nev. 414, 419 P. 2d 774 (1966) (reaffirming Rice v. Clark County, 79 Nev. 253, 382 P. 2d 605 (1963), which abrogated immunity); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107 (1963); Haney v. Lexington, 386 S.W. 2d 738 (Ky. 1964); City of Fairbanks v. Schaible, 375 P. 2d 201 (Alaska 1962); Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W. 2d 618 (1962); Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W. 2d 795 (1962); Muskopf v. Corning Hosp. Dist., 55 Cal. 2d 211, 359 P. 2d 457 (1961); Molitor v. Kaneland Community Unit Dist., 18 Ill. 2d 11, 163 N.E. 2d 89 (1959), cert. denied, 362 U.S. 968, 80 S. Ct. 955 (1960); Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957).
Since this case is being dismissed at the pleading stage, we do not know whether plaintiff can prove her cause of action. But reading the complaint, and the attached exhibit, in the light most favorable to the plaintiff, as we must, plaintiff has recounted a most shocking, and harrowing, story of negligence.
Plaintiff is the mother of Carol Laughner; she is seeking to recover in an action for wrongful death. In October of 1966, Carol came to the attention of the juvenile authorities for the first time when she took some sleeping pills at school and stated she wanted to commit suicide. Over the next seven months, the authorities attempted to deal with Carol by placing her, at various times, in the Allegheny County Detention Home and in the Gilmary School. In December, a Dr. Hiller diagnosed Carol as being somewhat emotionally unstable with a hysterical character disorder. Although psychiatric examinations were planned in January, they evidently were never undertaken. During this time, Carol frequently ran away from whatever facility she was in, boasted about her suicide attempt, and complained about severe stomach pains. In February of 1967, Carol drank some turpentine and refused
the milk antidote. In March she reportedly took some quinine pills. Dr. Hiller again indicated that she had a hysterical character disorder and recommended psychological testing. The test was supposed to take place on March 16. It did not. On March 27, she swallowed a piece of glass and a tack. After this, there is some indication of a "psychological report" being filed with the juvenile authorities. The report indicated that the Job Corps was the best answer to Carol's problems.
On April 28, 1967, Carol was locked in her room at the Allegheny County Detention Home. The other girls were at supper and she was alone. With matches provided by an employee of the detention home, Carol set herself on fire. Infection and gangrene set in and on June 10, 1967, Carol died.
Dean Prosser has written: "The 'prophylactic' factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infreqeuntly one reason for imposing liability is the deliberate purpose of providing that incentive." Prosser, Handbook of the Law of Torts 23 (3d ed. 1964).
By its decision today, the majority refuses to provide that "strong incentive to prevent the occurrence of harm." The county was under a duty to provide for Carol's care, yet we sanction the negligent way in which they provided that care. We refuse to use the historical tool at our disposal -- tort law -- to help prevent future abuses. Those who must accept the "benefits" of governmental action will continue to be faced with what Carol faced. And governmental units will be secure in their knowledge that they may act with impunity.
I see no way to justify such a result. This Court has already abrogated the doctrine of charitable immunity -- despite the argument that only the Legislature could do so. See Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 520-21, 532, 208 A.2d 193, 209, 210, 216 (1965) (dissenting opinions). There is no jurisprudential difference between abrogating charitable immunity and abrogating governmental immunity. With charitable immunity rejected, I can see no reason for the majority's refusal to likewise reject governmental immunity. Not once since Flagiello was decided has the majority even attempted to distinguish the two immunities. See Harker v. D. & H. Building Wreckers, Inc., 429 Pa. 655, 241 A.2d 73 (1968) (per curiam without opinion); Husser v. Pittsburgh School District, 425 Pa. 249, 228 A.2d 910 (1967) (per curiam); Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966); Graysneck v. Heard, 422 Pa. 111, 220 A.2d 893 (1966).
Surely this Court has permitted too many years to pass without correcting the injustices produced by its own doctrine. There is no reason to let more years pass, to let more injustices of this nature accumulate without correction.
Dissenting Opinion by Mr. Justice Pomeroy:
This appeal is from an order of the lower court sustaining preliminary objections in the nature of a demurrer to a complaint seeking wrongful death and survival damages in two stated causes of action. The defendant's demurrer was based on its assertion that the doctrine of governmental immunity barred the plaintiff's recovery for any ...