Boyer v. Iowa High School Athletic Association

127 N.W.2d 606, 256 Iowa 337, 1964 Iowa Sup. LEXIS 765

• Court: Supreme Court of Iowa
• Decided: April 8, 1964
• Docket: 51235
• Status: Published

Opinions

Garfield, C. J.

Two paying spectators at a high-school tournament basketball game brought law actions against the Iowa High School Athletic Association and the Independent School District of Mason City to recover for personal injuries from collapse of the bleachers. The trial court sustained the school district’s motion to dismiss on the ground it was an agency of the state, not liable for negligence in the discharge of a governmental function in the absence of statutory authority for the actions. Plaintiffs appeal from the dismissal. No determination has been made as to the athletic association’s liability and that question is not before us.

Since the actions are identical we will refer to only one of them.

I. The single error relied on for reversal is the sustaining of the motion in that, it is said, the doctrine of governmental immunity should be abrogated in Iowa as outmoded, harsh and not in keeping with the modern trend of the law. Unquestionably adherence to our prior decisions over a period of nearly a hundred years would lead to an affirmance.

The school district is a quasi corporation, an arm or agency of the state, created by the legislature to carry out the governmental function of maintaining public schools. Bloomfield v. Davis County Community School Dist., 254 Iowa 900, 904, 119 N.W.2d 909, 912, and citations.

As such a quasi corporation a school district does not differ essentially from a county except that its functions and the purposes of its organization are fewer and more restricted. Lane v. District Township of Woodbury, 58 Iowa 462, 463, 12 N.W. 478.

These quasi corporations are to be distinguished from municipal corporations proper, such as cities, which are more amply endowed with corporate functions, conferred in general at the request of the inhabitants of the municipality for their peculiar and special advantage and convenience. Soper v Henry County (Dillon, J.), 26 Iowa 264, 267; Snethen v. Harrison County, 172 Iowa 81, 85, 86, 152 N.W. 12, 13; Larsen v. Independent School District, 223 Iowa 691, 700, 701, 272 N.W. 632; Shirkey v. Keokuk County, 225 Iowa 1159, 1170, 275 N.W. 706, 281 N.W. 837.

Commencing with Soper v. Henry County, supra, in 1868, we have consistently and repeatedly held, with three exceptions later to be mentioned, that such quasi corporations as counties and school districts are not liable for negligence in the absence of a statute so providing. Speaking of the liability of such “involuntary * * * divisions of the state”, the Soper opinion holds (pages 267, 271 of 26 Iowa) : “To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. * * * If the county ought to be liable in such a case, the remedy must be sought from the legislature.”

Snethen v. Harrison County, Larsen v. Independent School District, Shirkey v. Keokuk County, all supra, and Post v. Davis County, 196 Iowa 183, 192, 193, 191 N.W. 129, 194 N.W. 245, are among decisions which repeat the quoted language. To like effect are Cunningham v. Adair County, 190 Iowa 913, 915, 916, 181 N.W. 20; Bruggeman v. Independent School Dist., 227 Iowa 661, 664, 289 N.W. 5; Perkins v. Palo Alto County, 245 Iowa 310, 317, 60 N.W.2d 562, 565; Wittmer v. Letts, 248 Iowa 648, 651, 80 N.W.2d 561, 562.

In 1908 Wenck v. Carroll County (Weaver, J.), 140 Iowa 558, 560, 118 N.W. 900, observed: “The rule which has heretofore obtained does not often work substantial injustice, and, if it is to be materially modified or overthrown, it should be done by an expression of the legislative will to that effect.”

That our decisions correspond with many others to the effect a school district is not liable, in the absence of statute, for injury to pupils or others by reason of the condition of the school premises, see the annotations in 9 A. L. R. 911 and those supplementing it; 40 A. L. R. 1091; 160 A. L. R. 7, 127 et seq.; 86 A. L. R.2d 489, 545, 546.

The annotation in 160 A. L. B. 7, 127, 129, cites many decisions in support of this rule: “* * * in the absence of statute, it is the general rule that school districts * * # are immune from liability in tort for the personal injuries or death of pupils or other persons resulting from the dangerous, defective, unsafe, or negligent condition of school buildings, school grounds, or other school facility or equipment on school premises, * * #.

“A similar rule obtains with respect to the liability of counties, or towns not having the status of a municipal corporation, while in charge of public school premises.”

To like effect is annotation, 86 A. L. B.2d 489, 546.

We now mention the three exceptions we have recognized to the rule of nonliability of quasi-public corporations.

(1) Counties were held liable for injury from defective bridges and approaches thereto. This was first recognized in Wilson & Gustin v. Jefferson County, 13 Iowa 181. After a change in the applicable statute the cited decision and those which followed it were overruled in Post v. Davis County, supra, 196 Iowa 183, 191, 191 N.W. 129, 194 N.W. 245, where “we return to the fundamental principle of nonliability of the county, in the absence of legislation creating liability” (pages 195, 196).

(2) Ness v. Independent School Dist., 230 Iowa 771, 298 N.W. 855, holds the district liable in damages for a nuisance.

(3) Wittmer v. Letts, supra, 248 Iowa 648, 80 N.W.2d 561, holds a county liable for injury to a paying patient in its hospital by reason of the negligence of an employee, on the theory maintenance of the hospital was a proprietary, not a governmental, function.

TT. The trial court ruled that holding the basketball tournament was a governmental function, not a proprietary one. There is no room for a contrary holding here on this point. Plaintiff does not contend the court erred in this respect. As previously indicated, her sole assigned error is that the whole doctrine of governmental immunity is outmoded and should be abrogated by the courts., It is of course fundamental that a law case will not be reversed on a possible error not assigned and argued. See rule 344(a) (4) (Third), Buies of Civil Procedure.

We may observe many authorities support the view the school district was engaged in a governmental function even though spectators at the game were charged admission. They include Richards v. School District, 348 Mich. 490, 83 N.W.2d 643, 648-654; Mokovich v. Independent School Dist., 177 Minn. 446, 225 N.W. 292, 293; Rhoades v. School District, 115 Mont. 352, 142 P.2d 890, 160 A. L. R. 1, 6; Brown v. Board of Trustees, 303 N. Y. 484, 104 N.E.2d 866, 34 A. L. R.2d 720, 723; Smith v. Hefner, 235 N. C. 1, 68 S.E.2d 783, 788; Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49; Annotations, 160 A. L. R. 7, 67, 68, 182, 191, 192; 86 A. L. R.2d 489, 576, 582-584. Sawaya v. Tucson High School Dist., 78 Ariz. 389, 281 P.2d 105, is the only contrary precedent called to our attention.

We may also observe, without deciding the point, there is much authority that a school district exercises only governmental functions. Reed v. Rhea County, supra; Annotations, 160 A. L. R. 7, 65-68; 86 A. L. R.2d 489, 516-520. See also Lane v. District Township of Woodbury, supra, 58 Iowa 462, 463, 12 N.W. 478; Larsen v. Independent School District, supra, 223 Iowa 691, 700, 701, 272 N.W. 632.

III. We have held many times that if the doctrine of governmental immunity is to be changed it should be done by the legislature. We have already referred to Wenck v. Carroll County, 140 Iowa 558, 560, 118 N.W. 900, and other early cases. Decisions to like effect include Florey v. City of Burlington, 247 Iowa 316, 320, 321, 73 N.W.2d 770, 772; McGrath Bldg. Co. v. City of Bettendorf, 248 Iowa 1386, 1392, 85 N.W.2d 616, 620, 68 A. L. R.2d 1429; Monroe v. Razor Constr. Co., 252 Iowa 1249, 1255, 1256, 110 N.W.2d 250, 254.

See also Genkinger v. Jefferson County, 250 Iowa 118, 121, 93 N.W.2d 130, 132, which states, “While this rule of governmental immunity as to counties * * * is a court-made rule, it has been in substance the law of the state for many years. We feel it is based upon sound reason and are not inclined to change it.”

The position we have taken accords with that of most courts. The annotation in 86 A. L. R.2d 489, 501, says: “Undoubtedly, there is more criticism now of the doctrine of governmental immunity and its various underlying reasons, but in most instances the courts have felt that any relief should come from the legislature, particularly in view of the fact that the immunity doctrine in most jurisdictions has been adhered to for a great many years.”

We think experience in the few states where the court has attempted to abrogate the immunity doctrine indicates legislative action is a better solution. The two principal precedents plaintiff cites are Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A. L. R.2d 469, and Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795. They are the only decisions cited where the court abrogates the immunity doctrine as directly applied to a school district. In both eases the decision was to operate prospectively.

In Illinois the new court-made rule was to apply to the instant ease and to such others only as arose out of future occurrences. The state legislature promptly reinstated immunity as to certain governmental subdivisions. See Spanel v. Mounds View School Dist., supra, 264 Minn. 279, 118 N.W.2d 795, 801; Clark v. Ruidoso-Hondo Valley Hosp., 72 N. M. 9, 380 P.2d 168, 169; Illinois Rev. Stat., 1959, chapter 34, section 301.1; chapter 57%; section 3a; chapter 105, sections 12.1 — 1, 333.2a and 491. See also chapter 122, section 821, in which the legislature finds and enacts the public policy of Illinois, section 822 which limits to one year the time for commencing action against any school district or nonprofit private school for injury to person or property, and section 825 of chapter 122 which limits recovery against such schools to $10,000 for each cause of action. See also annotation, 86 A. L. R.2d at 526; Comment 46 Iowa Law Review 196, 202.

The existence of an Illinois statute as to liability insurance school districts were permitted to obtain may have had a bearing on the decision in the Molitor case. Under the statute, if there were insurance the insurer must waive the right to refuse payment by reason of the immunity of the insured.

The Minnesota case, supra, even more persuasively demonstrated the desirability of leaving to the legislature the matter of abrogating the immunity rule. There dismissal of the action on the ground of governmental immunity was affirmed but by way of what was admittedly dictum it was stated that with respect to torts committed after the next regular session of the state legislature the doctrine would not be recognized, subject to existing or subsequent statutes which would limit or regulate the prosecution of such claims. The opinion suggests these matters, among others, which might well receive the attention of the legislature:

“(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 of immunity as to some or all units of government for a limited or indefinite period of time” (page 293 of 264 Minn., page 804 of 118 N."W.2d).

The Minnesota court “readily concede that the flexibility of the legislative process — which is denied the judiciary — makes [that] avenue of approach more desirable” (page 292 of 264 Minn., page 803 of 118 N.W.2d).

The Spanel opinion concludes, “It may appear unfair to deprive the present claimant of his day in court. However, wc 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 rely. * *

Fette v. City of St. Louis, Mo., 366 S.W.2d 446, 447, 448 (Hyde, J.), considers the Minnesota case, supra, and the same other precedents plaintiff cites here, later to be mentioned herein. We agree with this from the Fette opinion: “We think the above-cited recent Minnesota case shows why this is properly a matter for the legislature.” After referring to the five suggested proposals we have quoted above, found in the Minnesota ease, the Fette opinion proceeds, “If such legislation is required by the abrogation of this doctrine, and we think it is, it is our view that the whole matter should be left to the legislature.”

The Missouri court then takes note of the moratorium the California legislature promptly declared on the particular claim and others similarly situated following the decision in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457, cited by plaintiff here, and the legislation in Illinois following the Molitor decision, supra, and concludes, “All this confirms our view that whatever is done to change the doctrine of governmental immunity should be done by the legislature and not by the courts.”

IY. Aside from the Molitor and Spanel decisions just discussed, plaintiff relies on these other out-of-state precedents: Stone v. Arizona Highway Comm., 93 Ariz. 384, 381 P.2d 107; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457; Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A. L. R.2d 1193; Williams v City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618.

We have just referred to the moratorium promptly enacted by the legislature on the Muskopf claim and others similarly situated, following the cited California decision. See Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 20 Cal. Rptr. 621, 370 P.2d 325. We may observe that two years later the legislature again passed laws on the subject of immunity and the intermediate appellate court held effect of both legislative enactments was merely to suspend operation of the Muskopf decision. Bell v. City of Palos Verdes Estates, Cal. App., 36 Cal. Rptr. 424, 426, 427.

In Hargrove, supra, a town was held liable for negligently causing death of a prisoner in the jail. The precedent is not authority for plaintiff here. Two years later the Florida appellate court held a county school board was immune from liability for negligence in maintaining an athletic field. Buck v. McLean, 115 So.2d 764, 767. The court holds: “There is nothing in this [Hargrove] decision which says, or from which it can be reasonably inferred, that the rule there announced is likewise applicable to the State of Florida, or its several counties and boards of public instructions.’* The Florida Supreme Court has cited Buck v. McLean with apparent approval. Kaulakis v. Boyd, 138 So.2d 505, 507.

In Williams v. City of Detroit, supra, an equally divided court holds the city was not liable for death from falling into an unguarded elevator shaft in a municipal building but by a vote of five to three abolished the immunity doctrine as to like causes thereafter arising. In a long separate opinion the judge who east the deciding vote on this question sought to justify his position in these words (page 287 of 364 Mich., page 18 of 111 N.W.2d) :

“Regrettably, release of these opinions cannot be delayed until the legislature is in session. * * *.

“* * * The Governor may call a special legislative session to authorize purchase and maintenance by municipal corporations of liability insurance pending the regular session and such contemplative study of the situation as may result in legislative determination to effect strict immunity by statute; modified immunity by statute; amount-limited liability by statute, or full liability by statute with insured protection.”

Later Michigan precedents make it clear the Williams ease applies only to municipal corporations proper, not to such state agencies as school districts. McDowell v. Mackie, 365 Mich. 268, 112 N.W.2d 491; Sayers v. School District, 366 Mich. 217, 114 N.W.2d 191; Stevens v. City of St. Clair Shores, 366 Mich. 341, 115 N.W.2d 69.

Governmental immunity of a city for torts is prospectively abrogated in Holytz v. City of Milwaukee, supra, 17 Wis.2d 26, 40, 115 N.W.2d 618, 625, but the court says the decision applies also to all public bodies in the state, including school districts, but the state itself may be sued only upon its consent. The opinion observes: “If the legislature deems it better public policy, it is, of course, free to reinstate immunity. The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort.” At least this last sentence seems to be by way of suggestion to the legislature.

In Clark v. Ruidoso-Hondo Valley Hospital, supra, 72 N. M. 9, 13, 380 P.2d 168, 171, plaintiff cited the same precedents cited to us here. After carefully considering them the court concludes, “The not-too-satisfactory experience in most of those jurisdictions which have attempted to overrule the immunity doctrine by court decision should make it obvious that legislative action on the subject is the preferred solution.”

V. It is clear our legislature has been fully aware of the long-standing public policy of our state as to governmental immunity and has given thought relative thereto. In many instances the legislature has recognized the doctrine of governmental immunity from liability for torts while engaged in governmental functions and has taken limited action in this field. We mention some of these instances. Several statutes authorize the purchase of liability insurance although none confers authority on school districts to purchase insurance to cover such a claim as this for which we have uniformly held there is no liability.

Section 321.497, Code, 1962, provides a city, town or township maintaining a police or fire department may purchase liability insurance covering individuals or groups in such departments. Section 404.8(6) confers power on municipal corporations to levy a tax to be used, among other purposes, to pay premiums on insurance authorized by 321.497.

Section 368A.1(12) confers power on municipal corporations to purchase liability and property damage insurance covering municipal employees while operating certain vehicles owned or used by the corporations.

Section 517A.1, quoted in Johnson v. Baker, 254 Iowa 1077, 1088, 1089, 120 N.W.2d 502, 508, 509, authorizes purchase of liability “insurance covering all officers, proprietary functions and employees of such public bodies * * (emphasis added).

Section 368.11 states, “They [cities and towns] may provide conditions upon which the fire department will answer calls outside the corporate limits * * * and the corporation shall have the same governmental immunity as when operating within the corporate limits” (emphasis again added).

. Another legislative recognition of governmental immunity of cities and towns is found in chapter 235, Laws of the Sixtieth General Assembly, effective July 4, 1963: “It is hereby declared to be the policy of the state of Iowa that the provisions of the Code relating to the powers, privileges, and immunities of cities and towns are intended to confer broad powers of self-determination as to strictly local and internal affairs upon such municipal corporations and should be liberally construed in favor of such corporations.”

The state senate in the last regular legislative session passed a state torts claim Act (Senate File 377) although it was not passed by the house and, of course, did not become law.

It seems clear from the above that the legislature has not closed its eyes to problems surrounding the immunity rule.

VI. As above indicated, whether or not the state or any of its political subdivisions or governmental agencies are to be immune from liability for torts is largely a matter of public policy. The legislature, not the courts, ordinarily determines the public policy of the state. State v. Bruntlett, 240 Iowa 338, 355, 356, 36 N.W.2d 450, 460; In re Disinterment of Jarvis, 24.4 Iowa 1025, 1031, 58 N.W.2d 24, 27, and citations; 16 C. J. S., Constitutional Law, section 151(l)b, page 733 “* * * policy questions are for the legislature and not for the courts.”

Although the doctrine of governmental immunity may have been of ancient judicial origin, it has been recognized as the policy of the state by the limited action of the legislature toward relaxation. The purposes for which public funds may be expended are limited by statute. The legislature recognized and relaxed the limitation by passage of laws authorizing purchase of liability insurance covering proprietary functions and officers and employees of certain public bodies. Had the legislature favored complete abrogation of the immunity rule, as plaintiff contends for, it could have said so and authorized purchase of insurance protecting against such a claim as here asserted. It is significant the legislature did not do so.

In the particulars wherein the legislature has acted we have a clear recognition of legislative responsibility for action in the field of public policy. The limited action taken shows more than mere tacit approval of the long-standing doctrine left unchanged.

Our problem is whether we should now interfere and by judicial decision overrule a public policy doctrine that is more appropriately left to the legislature. We think not.

VII. We are fully aware of the trend away from governmental immunity. We took note of it in Brown v. Sioux City, 242 Iowa 1196, 1201, 49 N.W.2d 853, 857, and Florey v. City of Burlington, supra, 247 Iowa 316, 320, 73 N.W.2d 770, 772. Florey is the same case in which we said any substantial modification of the rule must come by legislation. As pointed out, subsequent decisions adhere to this view. Consideration of the problems of legislative versus judicial abrogation of the rule, including the precedents plaintiff cites to us, leaves us satisfied the policy we have announced is the preferred one.

VIII. The writer joined in a concurring opinion to Moore v. Murphy, 254 Iowa 969, 973-976, 119 N.W.2d 759, 762, 763, which warned that the doctrine of governmental immunity might be re-examined in the near future. This has now been done. The conclusion reached from such re-examination is, as stated, that abrogation of the doctrine should come from legislative, not judicial, action. This is the position we have repeatedly taken and, as pointed out, that taken “in most instances,” by other courts (annotation, 86 A. L. R.2d 489, 501). It may be added that when Moore v. Murphy was before us little, if any, consideration was given to the question whether the courts or the legislature should act in the matter of abrogating the doctrine. — Affirmed.

Thompson, LaRSON, Snell, and Stuart, JJ., concur. Moore, Hays, Peterson, and Thornton, JJ., dissent.