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decided: May 23, 1973.


Appeal from order of Superior Court, Oct. T., 1972, Nos. 687 and 749, affirming order and judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1971, No. 2726, in case of William A. Ayala, Jr., a minor by his father and guardian, William Ayala, and William Ayala, in his own right v. Philadelphia Board of Public Education.


Stephen M. Feldman, with him Joseph G. Feldman, John M. Demcisak, and Feldman & Feldman, for appellants.

Robert T. Lear, Assistant Counsel, with him Edward B. Soken, General Counsel, for Philadelphia Board of Public Education, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this opinion and files a concurring opinion. Mr. Chief Justice Jones, Mr. Justice Eagen and Mr. Justice O'Brien dissent. Concurring Opinion by Mr. Justice Manderino.

Author: Roberts

[ 453 Pa. Page 586]

Appellants, William Ayala and William Ayala, Jr., instituted this action to recover damages for injuries suffered by William, Jr., when his arm was caught in a shredding machine in the upholstery class of the Carrol School in Philadelphia. As a result of these injuries, the 15 year old student's arm was amputated.

Appellants alleged that appellee school district, through its employees, was negligent in failing to supervise the upholstery class, in supplying the machine for use without a proper safety device, in maintaining the machine in a dangerous and defective condition, and in failing to warn the children of the dangerous condition. Appellee, the Philadelphia Board of Public Education, interposed preliminary objections asserting the defense of governmental immunity. These objections were sustained and the Superior Court affirmed in a per curiam order. Ayala v. Philadelphia Board of Public Education, 223 Pa. Superior Ct. 171, 297 A.2d 495 (1972).*fn1 We granted allocatur.

[ 453 Pa. Page 587]

We now hold that the doctrine of governmental immunity*fn2 -- long since devoid of any valid justification -- is abolished in this Commonwealth.*fn3 In so doing, we join the ever-increasing number of jurisdictions which have judicially abandoned this antiquated doctrine. See, e.g., Spencer v. General Hospital of District of Columbia, 425 F. 2d 479 (D.C. Cir. 1969); Campbell v. State, 284 N.E. 2d 733 (Ind. 1972) (citing with approval Klepinger v. Board of Commissioners, 143 Ind. App. 155, 239 N.E. 2d 160 (1968) and Brinkman v. City of Indianapolis, 141 Ind. App. 662, 231 N.E. 2d 169 (1967); Evans v. Board of County Commissioners, 174 Colo. 97, 482 P. 2d 968 (1971); Flournoy v. School District No. 1, 174 Colo. 110, 482 P. 2d 966 (1971); Smith v. State, 93 Idaho 795, 473 P. 2d 937 (1970); Willis v. Department of Conservation and Econ. Dev., 55 N.J. 534, 264 A.2d 34 (1970); Becker v. Beaudoin, 261 A.2d 896 (R.I. 1970); Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W. 2d 286 (1969); Brown v. City of Omaha, 183 Neb. 430, 160 N.W. 2d 805 (1968); Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968); Veach v. City of Phoenix, 102 Ariz. 195, 427 P. 2d 335

[ 453 Pa. Page 588]

(1967) (relying on Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107 (1963)); Haney v. City of Lexington, 386 S.W. 2d 738 (Ky. 1964); Sherbutte v. Marine City, 374 Mich. 48, 130 N.W. 2d 920 (1964); Rice v. Clark County, 79 Nev. 253, 382 P. 2d 605 (1963); Scheele v. City of Anchorage, 385 P. 2d 582 (Alaska 1963); City of Fairbanks v. Schaible, 375 P. 2d 201 (Alaska 1962); Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W. 2d 795 (1962); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W. 2d 618 (1962); Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 359 P. 2d 457, 11 Cal. Rptr. 89 (1961); Williams v. City of Detroit, 364 Mich. 231, 111 N.W. 2d 1 (1961); Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959); Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957).*fn4


It is generally agreed that the historical roots of the governmental immunity doctrine are found in the English case of Russell v. Men of Devon, 2 T.R. 667, 100 Eng. Rep. 359 (1788). See, e.g., Parish v. Pitts, supra; Molitor v. Kaneland Community Unit District No. 302, supra; Prosser, Handbook on the Law of Torts 1004 (3d ed. 1964); Stason, Governmental Tort Liability Symposium, 29 N.Y.U.L. Rev. 1321 (1954); Borchard, Government Liability in Tort, 34 Yale L.J. 1 (1924). There, the court, in extending immunity to an unincorporated county, expressed the fear that if suits against such political subdivisions were permitted, there would be "an infinity of actions." Russell v. Men of Devon, supra at 672, 100 Eng. Rep. at 362. That

[ 453 Pa. Page 589]

    court was also influenced by the absence of a fund "out of which satisfaction is to be made." Id. Finally, Justice Ashurst, expressing the eighteenth century societal evaluation of the individual and local governmental interests, observed that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience." Id.

While some attribute the immunity of municipal corporations and quasi-corporations to an extension of the theory that "the King can do no wrong", it has been noted that in Russell v. Men of Devon there is no mention of that phrase. Spanel v. Mounds View School District No. 621, supra at 282, 118 N.W. 2d at 797. Rather, "[e]very reason assigned by the court [in Russell ] 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." Id.*fn5

Additionally, it has been suggested that the doctrine of governmental immunity was a result of the English courts' difficulties with the principle of respondeat superior.

"The attribution of an officer's torts to the state was not obvious on general principle. If the judges found it difficult to attribute to a private principal the tort of an agent chosen by him to work within rather limited confines, how much more difficult to attribute to that undefinable entity, the state, the illegal acts of

[ 453 Pa. Page 590]

    its various officers performing as a body a most disparate collection of functions.

"In short, the source of the 'mystery' lay not solely in the doctrine of sovereign immunity. Respondeat superior had caused difficulties as early as the nineteenth century in England, when the question arose whether the King, who by that time could be sued in contract whenever 'right should be done,' should be held for his officers' torts. The courts denied such relief, reasoning that respondeat superior was based on the identity of principal and agent, because the King could not himself commit a tort, the attribution failed for want of a competent principal." Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv. L. Rev. 209, 210 (1963) (footnote omitted).

Whatever may have been the actual basis for Russell v. Men of Devon, the doctrine it advanced was soon applied in the United States. In Mower v. Leicester, 9 Mass. 247 (1812), the Massachusetts court, relying upon Russell, held that an incorporated county was immune from liability for the tortious conduct of its employees. As to the adoption of this doctrine, it has been observed: ". . . the only similarity between the situation in New England and the Russell case lay in the fact that the defendants were counties. The New England county was incorporated, had a corporate fund and the means of enlarging it by taxation and was charged by statute with the duty of keeping highways in repair. Under the authority of Russell v. Devon, therefore, practically no reason for immunity can be found in these circumstances to exist, yet the Massachusetts court passed judgment for the defendant on the unconvincing ground that the county was a quasi -corporation created by the legislature for purposes of public policy and not voluntarily, like a city, and that as a State agency it was therefore immune. This poorly

[ 453 Pa. Page 591]

    reasoned decision, based upon a case which contradicts rather than sustains it, has been followed very generally in New England and has become the 'common law' of the states of the United States, with few exceptions." Borchard, supra at 42 (footnote omitted). "On such slender grounds have rested thousands of decisions requiring the assumption by the injured parties of damages inflicted by public corporations." Stason, supra at 1321.

Pennsylvania joined the numerous states adopting the immunity doctrine and, in Ford v. School District, 121 Pa. 543, 15 Atl. 812 (1888), held that school districts, as quasi-corporations, are not liable for the tortious conduct of employees. The Court's decision was motivated by factors similar to those which influenced the English court in Russell. Initially, the Court noted that school districts are agents of the Commonwealth "and are made quasi-corporations for the sole purpose of the administration of the commonwealth's system of public education." Id. at 547, 15 Atl. at 815. More importantly, the Court was reluctant to impose liability because "the act of assembly provides no fund out of which the directors can pay damages resulting from their own misconduct or that of their officers." Id. The Court further stated that "individual advantage must give way to the public welfare." Id. at 549, 15 Atl. at 815-16.

Although the English courts abandoned the doctrine and permitted suits against municipalities and school districts,*fn6 this Commonwealth continued to deny recovery. See, e.g., Kesman v. Fallowfield Township School District, 345 Pa. 457, 29 A.2d 17 (1942); Devlin v. Philadelphia School District, 337 Pa. 209, 10 A.2d 408 (1940); Carlo v. Scranton School District, 319 Pa. 417,

[ 453 Pa. Page 592179]

Atl. 561 (1935). In Morris v. Mount Lebanon Township School District, 393 Pa. 633, 636, 144 A.2d 737, 738 (1958), the Court refused to completely abrogate the immunity doctrine, but held that school districts, like municipal corporations, "are not immune from liability in tort for the negligent acts of their servants committed in the course of the [school district's] proprietary functions." See also Flinchbaugh v. Cornwall-Lebanon School Authority, 438 Pa. 407, 264 A.2d 708 (1970); Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966); Shields v. Pittsburgh School District, 408 Pa. 388, 184 A.2d 240 (1962); Supler v. N. Franklin Township School District, 407 Pa. 657, 182 A.2d 535 (1962).

Thus, until the present action, we have retained the archaic and artificial distinction between tortious conduct arising out of the exercise of a proprietary function and tortious conduct arising out of exercise of a governmental function.


Today we conclude that no reasons whatsoever exist for continuing to adhere to the doctrine of governmental immunity. Whatever may have been the basis for the inception of the doctrine, it is clear that no public policy considerations presently justify its retention.

Governmental immunity can no longer be justified on "an amorphous mass of cumbrous language about sovereignty . . . ." Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363, 1364 (1954). As one court has stated: "'. . . it is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, "the King can

[ 453 Pa. Page 593]

    do no wrong," should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.' Barker v. City of Santa Fe, 47 N.M. 85, 136 P. 2d 480, 482. Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that 'divine right of kings' on which the theory is based." Molitor v. Kaneland Community Unit District No. 302, supra at 21-22, 163 N.E. 2d at 94. See also Evans v. Board of County Commissioners, supra; Hargrove v. Town of Cocoa Beach, supra.

Moreover, we are unwilling to perpetuate the notion that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience." Russell v. Men of Devon, supra at 673, 100 Eng. Rep. at 362. This social philosophy of non-liability is "an anachronism in the law of today." Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 502, 208 A.2d 193, 201 (1965). As has been noted: "The social climate which fostered the growth of absolutism and the divine right of kings in England has long since been tempered with the warm winds of humanitarianism and individual freedom. The changes which have occurred in the last century with respect to the imposition of liability upon private corporate enterprises of any kind are well known. Workmen's compensation laws have replaced the old theories which permitted the corporate organizations to escape liability under the fellow-servant rule or the doctrine of assumption of risk. Liability

[ 453 Pa. Page 594]

    may now be predicated without fault merely on grounds that potential injuries to individuals must be calculated as a part of the cost of doing business, and must be paid for by the business enterprise. There is widespread acceptance of a philosophy that those who enjoy the fruits of the enterprise must also accept its risks and attendant responsibilities." Smith, Municipal Tort Liability, 48 Mich. L. Rev. 41, 48 (1949) (emphasis added) (footnote omitted).

Recently, this Court reiterated the prevailing philosophy that liability follows tortious conduct. In Niederman v. Brodsky, 436 Pa. 401, 403, 261 A.2d 84, 85 (1970), we said: "'It is fundamental to our common law system that one may seek redress for every substantial wrong. "The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct. . . ."' Battalla v. State, 10 N.Y. 2d 237, 240, 219 N.Y.S. 2d 34, 36, 176 N.E. 2d 729, 730 (1961)." See also Stone v. Arizona Highway Commission, supra at 392, 381 P. 2d at 112; Muskopf v. Corning Hospital District, supra at 220, 359 P. 2d at 462, 11 Cal. Rptr. at 94.

Appellee offers no reason -- and we are unable to discern one -- for permitting governmental units to escape the effect ...

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