Dillon v. York City School District , 422 Pa. 103 ( 1966 )

Opinion by

Mr. Justice Jones,

On February 27, 1962, while crossing over from one building of the William Penn Senior High School¹ to another in order to attend her next class, Donna L. Dillon, the minor plaintiff, slipped and fell while descending a flight of eight concrete steps.² Suit was brought against the York City School District [School District] and four of its employees for damages arising from minor plaintiff’s resulting injuries which were allegedly due to the accumulation of ice that had become glazed and ridged on the steps. The complaint charged that the School District knew or should have known of this dangerous condition before minor plaintiff fell and therefore was liable, under the doctrine of respondeat superior, for failing to maintain the steps in a safe condition and failing to warn the minor plaintiff of the hazardous condition then existing.

The School District filed preliminary objections in the nature of a demurrer to the complaint based on its assertion of immunity from liability for torts committed by its employees acting within the scope of its legitimate governmental functions.³ On November 15, 1965, the Court of Common Pleas of York County sustained the School District’s preliminary objections and entered judgment in favor of the School District and against the plaintiffs. From that judgment, plaintiffs have appealed to this Court.

In Shields v. Pittsburgh School District, 408 Pa. 388, 184 A. 2d 240 (1962), and Supler v. North Franklin Township School District, 407 Pa. 657, 182 A. 2d 535 (1962), we recently re-affirmed the doctrine of a school district’s immunity from suit for the negligence of its officers and . employees while engaged in governmental functions. See also cases cited in Supler at 658. Thus, Shields and Supler would control this appeal unless we accept plaintiffs’ plea to overrule the line of cases which Shields and Supler represent.

Plaintiffs have presented recent decisions in other jurisdictions where courts have abolished municipal corporations’ and school districts’ immunity from tort liability. See e.g., Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957); Molitor v. Kaneland Community Unit District, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959), cert. den. 362 U.S. 968, 80 S. Ct. 955; Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W. 2d 795 (1962) ; Haney v. City of Lexington, 386 S.W. 2d 738 (Ky. 1964). We are now ashed to follow these decisions.

Even though the doctrine of municipal immunity from tort liability was initially imposed by judicial decision, Russell v. Men of Devon, 2 T.R. 667, 100 Eng. Rep. 359 (1788),⁴ we are reluctant to abolish this doctrine by judicial fiat. In Morris v. Mt. Lebanon Township School District, 393 Pa. 633, 144 A. 2d 737 (1958), Mr. Justice Cohen stated: “. . . the solution of the problem of government responsibility in tort is too complex an undertaking to permit the partial and piecemeal judicial reform which the plaintiff seeks. Establishment of a comprehensive program by legislation applicable to the Commonwealth and to all of its sub-divisions is sorely needed to deal effectively with tort claims arising out of the conduct of governmental activities.” (393 Pa. at 635, 636). Four years later, Mr. Chief Justice Bell reiterated these thoughts in Supler v. North Franklin Township School District, 407 Pa. 657, 660, 182 A. 2d 535, 537: “If it is to be the policy of the law that the Commonwealth or any of its instrumentalities or any political subdivisions are to be subject to liability for the torts committed by their officers or employees while engaged in governmental functions, the change should be made by the Legislature and not by the Courts.” See also Mr. Justice Cohen’s concurring opinion requesting the legislature to undertake a full scale review of governmental immunity in Pennsylvania, in Stouffer v. Morrison, 400 Pa. 497, 502, 503, 162 A. 2d 378, 381 (1960).

Even though the reasons for originating governmental immunity are now anachronistic, the Commonwealth may wish to sustain the rule for other, more modern, reasons. Only the legislature can deal with the field of immunity in all of its state, municipal corporations and school district aspects by enacting a comprehensive bill based on extensive hearings and investigation. On the other hand, we continue to be confronted with the problem on the most fragmented basis. Cf. the case at bar (school district) with Graysneck v. Heard, 422 Pa. 111, 220 A. 2d 893 (1966) (municipal corporations).

Recently, the Supreme Court of Iowa was faced with the same problem in Boyer v. Iowa High School Athletic Association, 127 N.W. 2d 606 (1964) that confronts this Court today. After extensively reviewing the case law which has judicially overthrown the doctrine of governmental immunity, especially Molitor v. Kaneland Commumty Unit District, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959) and Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W. 2d 795 (1962), the Boyer court decided that legislative action was still the more satisfactory solution: “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. . . . We are fully aware of the trend away from governmental immunity. . . . Consideration of the problems of legislative vs. judicial abrogation of the rule, including the precedents plaintiff cites to us, leaves us satisfied the policy we have announced is the preferred one. . . . The conclusion reached from such re-examination is, as stated, that abrogation of the doctrine should come from the legislative, not judicial, action.” (127 N.W. 2d at 612, 613). (Emphasis added). See also: Weisner v. Board of Education of Montgomery County, 237 Md. 391, 206 A. 2d 560 (1965).

Finally, plaintiffs argue that the School District waived its immunity to tort liability by the purchase of liability insurance protecting itself and not its employees.⁵ We rejected this contention in Supler v. North Franklin Township School District, 407 Pa. 657, 659, 660, 182 A. 2d 535, 537 (1962). The insurance policy protects the School District for possible liability incurred while engaging in proprietary functions.

Judgment affirmed.

1 William Penn Senior High School is operated by the York City School District.

2 The eight concrete steps which were a total of six feet high were completely exposed to the elements.

3 Plaintiffs concede that the injury arises from the alleged failure of the School District to perform properly its governmental function,

4 The rule of Men of Devon was first brought into this country by the case of Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812),

5 It follows from Sutler that the averment of liability insurance coverage in the complaint is not irrelevant and prejudicial as the School District has argued. Insurance coverage is material here only because it bears on the possibility of waiver of immunity. This in no way violates the general rule that the averment of defendant’s insurance coverage is immaterial and prejudicial in an action for personal injuries. Trimble v. Merloe, 413 Pa. 408, 410, 411, 197 A. 2d 457 (1964).