City and County of Denver v. Madison , 142 Colo. 1 ( 1960 )

Mr. Justice Moore

delivered the opinion of the Court.

This is an action for damages for personal injuries. Trial of the case resulted in a verdict in favor of plaintiff for $35,000.00. The City and County of Denver, against whom said judgment was entered, brings the case here for review by writ of error. We will refer to the City and County of Denver as the City or defendant, and to the defendant in error as plaintiff.

The action was commenced April 24, 1956, and the complaint contained allegations that plaintiff was born on July 27, 1946; that no guardian or other fiduciary has ever been appointed by court order to protect the interests of the minor plaintiff; that a notice of the claim against the City was served on April 20, 1956, and that said notice was not served within the time prescribed by law for the reason that plaintiff was, and is, an infant under a disability; that the Denver General Hospital is operated by the City and County of Denver; that on February 1, 1947, when plaintiff was six months old she was taken to said hospital where a physician employed by the City determined that she was suffering from pneumonia; that she was admitted to said hospital for observation and treatment, and that as a result of the negligence of the City while a patient as aforesaid plaintiff suffered severe burns on her back, buttocks, face and arms; that said burns disfigured and crippled her so that the use of her arms and legs has been permanently impaired and that by reason of said burns she became permanently blind, deaf, mute and an idiot.

Defendant filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted for the reason that the Denver General Hospital and its employees were at all pertinent times engaged in a governmental function and therefore as a matter of law the City could not be held liable. As a further ground for said motion the City alleged that the failure to give written notice of claim within the time required by law should defeat the action. The motion to dismiss was overruled and the City filed an answer denying negligence on its part, and generally placing in issue all material allegations of the complaint.

As a separate defense the City alleged that it was immune from liability because the employees of the City whose acts allegedly caused the injuries to plaintiff were performing services in connection with a governmental function of the City and County of Denver. Additional defenses alleged by the City were that the disabilities suffered by plaintiff were caused by congenital conditions existing at the time of her birth, improper prenatal care of the mother and child, and improper care and treatment at the time of and subsequent to plaintiff’s birth; that the statute of limitations, C.R.S. 1953, 139-35-1, barred recovery; and that the injuries and damages sustained were caused by an unavoidable accident.

The parties stipulated concerning many of the pertinent facts, and the record establishes without dispute that plaintiff was admitted to the Denver General Hospital on February 1, 1946, where she was treated for pneumonia; that on February 7, while she was strapped in her bed part of her treatment consisted of the use of a steam vaporizer; that while thus being treated she was very seriously burned from steam or hot water, or both. The hospital record relating to the tragic incident, as recorded by the nurse who first discovered what had happened, is as follows:

“Diagnosis Lobar pneumonia. Condition serious. At 1:00 p.m. I came on duty. At 1:00 p.m, report baby’s condition was reported improved since entrance into hospital. I went in to give child 2:00 p.m. formula. Around 1:30 child was getting steam inhalations and was restrained securely with double clove hitch. Finding the water container almost empty I filled the container about two thirds full with water leaving the lid to the container ajar so that excess steam could escape. The supervisors made rounds around 3:10 p.m. Found the baby all right. At about 3:25 I returned to the baby to give it water and found child severely burned. Steam droplets were dripping from the spout. I reported to the head nurse immediately. Do not know how accident occurred. Pressure inside of the container must have caused a spray of hot steam which hit the restrained baby at the top of the bed.”

The infant plaintiff suffered second and third degree burns on the left foot, left leg, buttocks, three-fourths of the area of the back, the arms, and portions of her face. At the time of trial — March 1957 — plaintiff was deaf, dumb, blind, unable to walk, and was described as an “idiot.”

By stipulation of counsel the hospital records containing the case history of plaintiff were admitted in evidence. They disclose that she was first admitted to the hospital July 27, 1946, as a prematurely born child the product of six to seven months gestation, weighing about two pounds two ounces. She developed and was dismissed October 23, 1946, weighing approximately five pounds, having progressed to that point in the normal way that is expected in premature births. She was next admitted to the hospital February 1, 1947, and received the burns complained of on February 7, 1947.

It was further stipulated:

“ * * * that the Department of Health and Hospitals, and particularly, the Denver General Hospital of the City and County of Denver, is operated, maintained and controlled pursuant to the Charter of the City and County of Denver, and in compliance with State statutes pertaining to the maintenance and operation of county hospitals, for the purpose of preserving, protecting and maintaining the health and welfare of the people of The City and County of Denver * *

Dr. Collett qualified as an expert witness and testified that in his opinion plaintiffs present condition was caused by the burns which she received at the hospital.

Defendant offered no evidence. It relied on the contentions: (1) That plaintiff had failed to show negligence; (2) that the condition of plaintiff was congenital; (3) that no notice was given to the City within ninety days of the injury as required by statute; (4) that the statute of limitation barred recovery; and (5) that the City was not liable, under the doctrine of immunity, for negligence in the performance of a governmental function.

Questions to be Determined.

First. Where a person suffers personal injuries proximately caused by the negligence of employees of the City and County of Denver while caring for such person as a patient in a hospital operated by the city for the purpose of preserving, protecting and maintaining the health of the people of the city; is the municipality liable for the damages caused hy the negligence of said employees?

This question is answered in the negative. Very firmly settled in the law of this state is the rule that a municipality is not liable for the acts of officers, agents or employees, committed by them in the discharge of functions or duties which are governmental in nature and which are “exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection' of its inhabitants.” Moses v. City and County of Denver, 89 Colo. 609, 5 P. (2d) 581. It is equally well established that the municipality is liable for the negligent acts of its agents in the performance of duties related to the proprietary or private corporate purposes of the city. As stated in Moses v. Denver, supra:

“ * * * In the former case its functions are political and governmental, and no liability attaches to it either for nonuser or misuser of a power; while in the latter, it stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence.”

This distinction between the exercise of governmental power on the one hand and proprietary or corporate power on the other, is clearly laid down in a long line of decisions of this court. City of Denver v. Capelli, 4 Colo. 25; Veraguth v. The City of Denver, 19 Colo. App. 473, 76 Pac. 539; City of Denver v. Davis, 37 Colo. 370, 86 Pac. 1027; City and County of Denver v. Forster, Administrator, 89 Colo. 246, 1 P. (2d) 922; Meek v. City of Loveland, et al., 85 Colo. 346, 276 Pac. 30; McIntosh v. City and County of Denver, 98 Colo. 403, 55 P. (2d) 1337; Schwalb, et al. v. Connely, 116 Colo. 195, 179 P. (2d) 667; Barker, et al. v. City and County of Denver, 113 Colo. 543, 160 P. (2d) 363; Atkinson v. City and County of Denver, et al., 118 Colo. 322, 195 P. (2d) 977; City and County of Denver v. Leonard Austria, 136 Colo. 454, 318 P. (2d) 1101.

This differential between governmental and proprietary powers conferred upon municipal corporations, controls the question in a given case as to whether the city can be held liable for negligence of its agents. Counsel for plaintiff relies on the decisions of this court in Ace Flying Service, Inc. v. Colorado Department of Agriculture, et al., 136 Colo. 19, 314 P. (2d) 278; Colorado Racing Commission, et al. v. Brush Racing Association, Inc., 136 Colo. 279, 316 P. (2d) 582; and Lavinia Frances Stone, as Admx., etc. v. Thomas G. Currigan, Auditor of the City and County of Denver, 138 Colo. 442, 334 P. (2d) 740, in which the doctrine of sovereign immunity from suit in actions sounding in contract was repudiated. The rule announced in those cases has no application to actions ex delicto. The substantive law has always recognized the right of an individual to bring an action against a municipality with or without the consent of the city, and has provided that a good defense to an action against it for personal injuries caused by the negligence of its agent is shown, if at the time of the negligent act the agent was engaged in the performance of a duty pertaining to a governmental function. The injured person has, of course, a remedy against the actual tort-feasor. It is not within the province of the judicial branch of the government thus to change long established principles of law. This is a function of the legislature and in a particular area the legislature has performed its function by changing the rules. In 1949 the General Assembly adopted a statute providing, inter alia:

“In case any injury to the person or property of another is caused by the tortious operation of a motor vehicle by a state, county, municipal or quasi-municipal police, fire or health department while engaged in the line of duty, the state, county, municipality or quasi-municipality and the motor vehicle drivers thereof shall be liable for such injury to the extent hereinafter stated; and subject to all defenses and laws as the same apply to such actions founded on tort.” (C.R.S. '53, 13-10-1.)

In Maffei, et al. v. Incorporated Town of Kemmerer, (Wyo. 1959), 338 P. (2d) 808, it was held in substance that although a rule of law which is merely the product of judicial decision, born of the necessities of particular circumstances, is subject to judicial repudiation when the reasons which gave rise to its adoption have failed or no longer exist, an ancient doctrine firmly embedded in the common law and which became so through long custom and usage cannot be judicially abrogated any more than courts are authorized to abolish statutory law because in their opinion the reason for the legislative enactment no longer justifies the continuance of the law.

Second. Where a patient, admitted to a hospital operated by the City and County of Denver, was treated therein without charge by doctors and nurses employed by the municipality, and while being so treated suffered injuries due to the negligence of those in attendance; did the negligent acts or omissions of said attendants arise out of the performance of a governmental function of the municipality?

This question is answered in the affirmative. In this connection we think it sufficient to quote from Schwalb v. Connely, supra, as follows:

“Municipal corporations exercise two classes of powers, ‘one * * * is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants; the other relates only to special or private corporate purposes, for the accomplishment of which it acts, not through its public officers as such, but through agents or servants employed by it. In the former case its functions are political and governmental, and no liability attaches to it, either for nonuser or mis-user of a power; while in the latter, it stands upon the same footing with a private corporation, and will be held to the same responsibility with a private corporation for injuries resulting from its negligence.’ Veraguth v. City of Denver, 19 Colo. App. 473, 76 Pac. 539. ‘The authorities are practically agreed in placing certain general duties in the class that is governmental, and among those is the general duty of the preservation of the public health.’ Denver v. Maurer, 47 Colo. 209, 108 Pac. 875. Considering that the hospital where the events upon which plaintiff relies occurred, was maintained and operated ‘for the purpose of preserving and maintaining the health of the people of the said City and County of Denver,’ as the stipulation emphasizes, we are persuaded that the municipal entity was carrying on in its governmental, not its corporate, capacity, hence would not be liable. 6 McQuillin Municipal Corporations (2d ed.) P. 1167, §2840; 37 Am. Jur., P. 888, §265.”

See also Durst v. County of Colusa, 166 Cal. App. (2d) 623, 333 P. (2d) 789.

The judgment is reversed and the cause remanded with directions to dismiss the action.

Mr. Justice Hall, Mr. Justice Frantz and Mr. Justice Doyle dissent.