James R. Spencer v. General Hospital of the District of Columbia

425 F.2d 479, 138 U.S. App. D.C. 48, 1969 U.S. App. LEXIS 10117

Opinions

McGOWAN, Circuit Judge:

Footnotes

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Appellant’s complaint in the District Court alleged that (1) he had, as a paying patient, been admitted to the District of Columbia General Hospital for diagnosis and treatment of a pain in his back, (2) the Hospital’s employees had “negligently, or recklessly, or carelessly” treated him, including the improper performance of surgery, and (3) the injuries so suffered were compensable in damages. The Hospital, an agency of the District Government, moved to dismiss the complaint before trial as barred by the immunity to suit assertedly enjoyed by the District of Columbia as a governmental entity. In granting the motion for this reason, we think the District Court erred.

I

In support of the judgment appealed from, appellee insists that Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964), is inapposite because it involved improper maintenance of a public school playground, whereas the complaint in this case relates to the provision of medical services in a public hospital. In this latter area, appellee points to our decision in Calomeris v. District of Columbia, 96 U.S.App.D.C. 364, 226 F.2d 266 (1955), as controlling, and as necessitating affirmance of the District Court unless we are to characterize that case as without continuing authority. We think this last is a fair challenge, and we meet it directly.

Calomeris was, like the case now before us, a suit to recover for allegedly negligent medical treatment of a paying patient at D.C. General Hospital. Classifying the operation of the Hospital by the District Government as the perform anee of a “governmental function,” the Calomeris court concluded that immunity accordingly attached, and affirmed the District Court’s pre-trial dismissal of the complaint. The District Court had taken this action “much to its regret” (125 F.Supp. 266, 268), and this court on appeal recorded its own unhappiness about the result in these terms (at p. 268 of 226 F.2d):

We agree with Judge Holtzoff that the defense of governmental function to a complaint for negligence, mistreatment or malpractice is ‘an obsolescent and dying doctrine’, but we also agree with him that since it is a phase of government immunity Congress alone can replace it. We join in his suggestion that the attention of the Congress might well be directed to it. Congress did not include the District of Columbia Government in the Federal Tort Claims Act. * * *

In Elgin, we put to one side an issue tendered to us in terms of a plea that we abolish the doctrine of sovereign immunity in tort for the District Government. In doing so, we took note of various expressions by this court, in addition to Calomeris, to the effect that abolition was a matter for the Congress,¹ and we thought it appropriate for the issue so east to be pursued only en banc. We did not feel inhibited, however, from probing the emerging formulations of the municipal immunity principle and, in particular, we remarked the trend, in this jurisdiction as elsewhere, towards an analysis which looked to the nature of the function being performed by a municipality and which did not stop short at a finding of the governmental character of the activity in question. We found that the articulation of the immunity test in terms of “governmental,” as opposed to “proprietary,” functions had increasingly lost its vitality as an accurate or adequate rationale for the immunity privilege. We noted that this court had contributed to an evolving concept of municipal immunity in tort as deriving from a purpose not to jeopardize “the quality and efficiency of government itself” by exposing the exercise of discretion in the formulation of governmental policy to the scrutiny and sanction of tort liability.²

Under these circumstances the Elgin court did not think itself disabled by stare decisis from deciding in that case that the mere fact that a public school was involved did not foreclose further inquiry into the question of whether the District Government was immune from suit. We looked to the facts giving rise to the injury, and concluded that the keeping in repair of a guardrail on a school playground, although obviously a governmental function, was not of such a nature as to pose threats to the quality and efficiency of government in the District if liability in tort was made the consequence of negligent act or omission. We did not believe that the provision of public education in the District would be undermined by making the District answerable in tort for failing to maintain the school playgrounds properly. We doubted that seeing that a fence needed fixing involved “the performance of functions calling for the highest degrees of discretion and judgment,” and it was the latter which we conceived to be the proper objects of solicitude of the court-created concept of municipal immunity.

The error of the District Court in the case before us resides in its apparent allegiance to Calomeris rather than to Elgin. Each, in the broad sense of “governmental” versus “proprietary,” involved the former. Neither, in the narrower terminology of “ministerial” versus “discretionary,” involved the latter. And we perceive no distinctions between the operation of hospitals, on the one hand, and schools, on the other, that offer meaningful bases for differentiation in the imposition of tort liability for acts of the kind alleged in those cases and in the one before us. We do not, therefore, consider Calomeris as retaining the authority to command the result reached by the District Court, and we hold that Elgin pointed ineluctably towards denial of the motion to dismiss to the degree that that motion was grounded upon municipal immunity.

II

In reaching the result we do by reference to Elgin, we confront both (1) appellee’s argument that only Congress may abolish the tort immunity of the District Government, and (2) the view expressed in concurrence in Elgin that that decision does not go far enough because it fails to effect such abolition. In commenting upon these contrasting stances towards municipal immunity, it may be useful to take a hard look first at what is customarily subsumed under the rubric of “abolition.”

Professor Davis, surely one of the sternest and most relentless critics of immunity, has characterized Elgin as being “as complete an abolition of the doctrine of sovereign immunity from tort liability as any judicial opinion that has been written by any of the state courts that have abolished that doctrine.”³ Chief Judge Bazelon, by contrast, lamented in Elgin its failure to achieve abolition, and looked longingly towards decisions of the California Supreme Court which Professor Davis cites as stellar items in his catalogue of state court abrogations of the offending doctrine.⁴ These differing degrees of rapture evoked by Elgin from two able observers sharing the same objectives suggests that there must be some ambiguity in the concept of abolition.

Of course, if what is meant by that term is the abandonment of the “governmental-proprietary” distinction and of the concomitant readiness of .the courts to bar suit whenever the sovereign is found to be acting in the former capacity, then Elgin may be deemed to have effected abolition. This would, however, be true not only of Elgin but of the earlier cases in this jurisdiction referred to by it in which, without the aid of any statute, this court countenanced the answerability of the District Government in tort even though there was no question but that the act or omission complained of was clearly in the context of the performance by the District of one of its characteristically public functions. By this standard we can be said to have “abolished” the immunity long ago, and to have been either obtuse or uncomprehending in our perennial incantations that only Congress could or should do that.

The truth is, presumably, that Professor Davis, Judge Bazelon, and the California Supreme Court all mean the same thing when they speak of abolition or abrogation, and that is the total rejection of the concept that the classification of a function as “governmental” ends, rather than begins, the inquiry into whether a tort action should be permitted to proceed against a public entity. The California Supreme Court in Muskopf said that “[abrogation of governmental immunity does not mean that the state is liable for all harms that result from its activities”; and, in the companion case of Lipman, it observed that Muskopf was far from holding “that a public body has no immunity where the discretionary conduct of governmental officials is involved.” In Lipman the Court held that the acts in question “were of a discretionary character,” and that, because there is a vital public interest in the “free and independent judgment” of public officials, the school district there sought to be sued was immune.⁵

In regarding Elgin as determinative here, we do neither more nor less than has been done by the growing number of state courts which are customarily categorized as having “abolished” municipal immunity in tort. See K. Davis, supra Note 3, at § 25.01. Perhaps more significantly, we do nothing essentially different in kind from what was done on occasion in this jurisdiction long before Elgin. We do not expose the District Government to liability in tort for every conceivable injury resulting from the performance of its functions.

We do reaffirm, for the purpose of a claim of medical malpractice in a District hospital, the position we took in Elgin — which was, we repeat, not without precedent in this jurisdiction — that a plaintiff is not automatically out of court whenever it appears that the injury grew out of the operation by the District of a school, or a hospital, or in the course of any other activity carried on by the District because it is a government. In these self-same activities there are situations where wise considerations of public policy will readily suggest the undesirability of subjecting the District to suit.⁶ Until the Congress addresses itself to a comprehensive effort to identify the foundations of liability more particularly, it will be for the courts here, as they are doing elsewhere, to make these discriminating judgments. See, e. g., Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960).

To the argument of appellee that we should await Congressional action, the answer is that the issue is not one of our power to act. As, en banc, we hereby provide a formal interment of the “governmental-proprietary” test of immunity, we flout no visible purpose or policy of Congress but, rather, only bury one of our own offspring — one whom we periodically treated as illegitimate well in advance of Elgin. As to the policy of what we do, we see no virtue in staying our hand until Congress chooses to recognize formally that we have changed the direction of a course that we set long ago.

It is said that we should heed the failure of Congress to include the District of Columbia under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) as a sign of a legislative purpose to maintain tort immunity for the District in full vigor. But there is nothing in the legislative record of that statute to indicate such a purpose, and the omission is as logically explicable on the theory that Congress was satisfied with the developing state of the law in this jurisdiction which, as we have seen, was not without its rejections of the purely “governmental” test. To the extent that, in Elgin and here, we recognize the significance of the discretionary factor in the determination of the availability of immunity, we note the central place of importance given by Congress to this element in the Tort Claims Act.⁷ The end of the journey we reach today in the case of the District Government is, thus, not unlike the beginning of the one initiated by the Congress in 1948 for the Federal Government.

The judgment of the District Court is reversed and the case remanded with directions to reinstate the complaint.

It is so ordered.

Chief Judge BAZELON, and Judges TAMM, LEVENTHAL, ROBINSON, and ROBB join in this opinion. Judge PRETTYMAN concurs in a separate opinion, in which Judge DANAHER joins. Judge WRIGHT concurs in a separate opinion, in which Chief Judge BAZELON also joins.

1

. Harbin v. District of Columbia, 114 U.S.App.D.C. 31, 336 F.2d 950 (1964); Urow v. District of Columbia, 114 U.S. App.D.C. 350, 316 F.2d 351, petition for rehearing en banc denied April 16, 1963, cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59 (1963); Capital Transit Co. v. District of Columbia, 96 U.S.App. D.C. 199, 225 F.2d 38 (1955); Wilson v. District of Columbia, 86 U.S.App.D.C. 28, 179 F.2d 44 (1949).

2

. Booth v. District of Columbia, 100 U.S. App.D.C. 32, 241 F.2d 437 (1956), with which compare Johnston v. District of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed. 75 (1886). See also District of Columbia v. Caton, 48 App.D.C. 96 (1918); Sass v. District of Columbia, 114 U.S.App.D.C. 365, 316 F.2d 366 (1963); and Elliott v. District of Columbia, 82 U.S.App.D.C. 64, 160 F.2d 386 (1947).

As long ago as 1861, the United States Supreme Court held the District Government answerable in tort for the negligent construction of a bridge, Weightman v. Corporation of Washington, 66 U.S. (1 Black) 39, 17 L.Ed. 52 (1861); and, as recently as Urow v. District of Columbia, Note 1 supra, this court echoed the Weightman distinction between a “discretionary” or “legislative” function, on the one hand, and a “ministerial” act, on the other. For other expressions of the U. S. Supreme Court on the matter of municipal immunity in tort for the District Government, see Barnes v. District of Columbia, 91 U.S. 540, 23 L.Ed. 440 (1875), Johnston v. District of Columbia, 118 U.S. 19, 6 S.Ct. 923 (1886), and District of Columbia v. Woodbury, 136 U.S. 450, 10 S.Ct. 990, 34 L.Ed. 472 (1890). Our cases ultimately came to rest upon so-called exceptions for nuisances and street maintenance, but it was not pretended that these exceptions were founded upon any view of the activities in question as non-governmental. See Smith v. District of Columbia, 89 U.S.App.D.C. 7, 189 F.2d 671 (1951).

3

. K. Davis 3 Administrative Law Treatise, § 25.01 at p. 107 (1965 Pocket Part). The literature of attack upon the inadequacies and injustices of immunity founded upon the “governmental-proprietary” distinction is as extensive as it is unanswerable. Professor Davis, like other critics, can summon the most respectable authority for his assertion that that distinction “is probably one of the most unsatisfactory known to the law * * * ” § 25.07 at p. 460 (1958).

4

. Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465 (1961). The eases are discussed at 3 Davis, supra note 3 at § 25.01, pp. 98-101 (1965 Pocket Part).

5

. Lipman involved a claim for defamation brought against a school district and certain of its officers. The district was held immune from suit because the officers were acting in a discretionary role when the words complained of were uttered, but the suit was permitted to proceed against the officer-defendants because they exceeded the scope of their authority in making the statements to the press.

Muskopf and Lipman occasioned a comprehensive study of the immunity problem by the California Law Revision Commission which eventuated in the enactment hy the California Legislature in 1963 of a thorough-going statute on the “Liability of Public Entities.” Oal. Gov’t Code § 815 et seq. (West 1964). The scheme of the statute generally may be described as abolishing all common law tort liability for public entities whether the function in question be “proprietary” or “governmental,” and prescribing by statute those circumstances in which such liability may be asserted.

6

. As Elgin remarked, Urow, supra Note 1, was just such a case. There, although professing an incapacity to do anything about the . District Government’s immunity in tort in the absence of Congressional action, we analyzed the claim presented in terms of a “discretionary— ministerial” test, and concluded that the District should not be subject to suit in any event.

7

. First among the exceptions to liability provided by 28 U.S.C. § 2680 is the following :

“Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or'not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”