LEGAL BASIS AND
IMPLICATIONS FOR PUBLIC EDUCAT'!ON
EUGENE T. CONNORS
A DISSIERTATION ,pRESj-,NT~rO '10 THlE GRAWA.TE COUNCIL OF~
r!I U\ R~17i 01 F
TN PART I AL Ul ELNTOF ThI I,JQ~ltlZME'fS FOR 'III
iEGr01- DOCTrOR OF P~iiLOSOuIn'I
IN IX ~ I OF 01: 1 0lE Lo
Eugene T. Connors
To Sofie Madelyn Connors
Digitized by the Internet Archive
in 2010 with funding from
University of Florida, George A. Smathers Libraries
I would like to acknowledge the assistance of the
following persons and to thank them for all the help and
patience which they rendered me in the preparation of this
Dr. Kern Alexander, my advisor and committee chairman,
for his sincere and helpful guidance and assistance throughout
this entire project.
Dr. John M. Nickens, a member of my dissertation
committee, for his time and suggestions in helping me to
complete this project.
Dr. William B. Ware, a member oE my dissertation
committee and minor advisor, for his sincere interest in
this project and for all the encouragement and help he
rendered me in this project.
Dr. Leland L. Zimmerman, a member of my dissertation
committee and minor advisor, for his support in this endeavor.
And last in mention, but first in mind, my wife, Ms.
iLcL.n B. Cnn.--na for her patience and understanding while T
.orkc d on this project.
TABLE OF CONTENTS
ABSTRACT ....................................... ........
Purpose of the Study.......................
Delimitations of the Study................
Definition of Terms.......................
Justification of the Study................
Procedures and Sources of Data............
Organization of the Study.................
II. HISTORICAL ANALYSIS OF MEDIEVAL AND ENGLISH
SOVEREIGN IMMUNITY ........................
Review of the Literature ..................
Historical Development ..................
Movement from Common Law to Statutory
Law Status ...........................
English Law Heritage......................
Roman Law ............................ ..
The Dualistic Nature of Roman Law.......
Canon and Ecclesiastical Law............
The Feudal System .......................
Unification of the English Legal System.
William Blackstone's Contribution.......
England's Abrogation of Immunity.........
III. DEVELOPMENT AND EVOLUTION OF GOVERNMENTAL
IMMUNITY IN THE UNIT ED STATES.: .............
Hethod of Transmission ................... .
The Federal Government and Immunity........ 45
The Individual States and Governmental
Immunity ....................... ......... 51
Early Immunity Cases in the States...... 53
Abrogation of Immunity by the States ...... 63
Summary ................................... 77
IV. IMPLICATIONS OF THE GOVERNMENTAL IMMUNITY
PRINCIPLE TO EDUCATION IN THE UNITED
STATES .................................... 79
Early Case Law............................. 80
Court Ordered Abrogation in Education
Cases ................................... 83
Application to Education: Political
and Fiscal ......................... .... 83
V. CONCLUSION................................... 88
Origination .............................. 88
Development in England.................... 89
Transmission of the Principle.............. 89
Evolution in the United States............. 90
Application of the Governmental Immunity
Principle to Education.................. 92
Recommendations ........................... 93
APPENDIX 1 STATE DECISIONS LIMITING GOVERNMENTAL
IMMUNITY. ............................. ..... 95
AT','N )IX 2 STATE LTABIITfY LEGISLATIONN ............... 100
APPENDIX 3 STATUS OF GOVERNMENTAL IMMUNITY IN
lIHE UNITED STATES .. ........................ 105
I BL O1 GtkAPHY .......... ..................... ..... ...... 133
B iOGlRAPHl CAL SKEfCH ............ ................... . 135
ABSTRACT OF A DISSERTATION PRESENTED TO
THE GRADUATE COUNCIL OF THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR
THE DEGREE OF DOCTOR OF PHILOSOPHY
LEGAL BASIS AND
IMPLICATIONS FOR PUBLIC EDUCATION
EUGENE T. CONNORS
Chairman: Dr. Kern Alexander
Major Department: Education Administration
This study had three purposes: First, it traced the
historical development of the concept of sovereign immunity
in the English common law system. Second, it sought to
determine the means by which the concept of sovereign immunity
from liability became ingrained in the American legal system.
Third, it identified the trends and movements in the govern-
mental immunity concept on the United States' public school
in 1977. Governmental immunity had its origin in the Middle
Ages where the feudal system and Canon law merged together,
thus creating the concept of "The King shall do no wrong."
This concept flourished and became firmly established in the
statutory legal system under the reign of King Henry VIII.
Since the American colonies were under the legal juris-
diction of the English Crown, the principle of sovereign
immunity became an accepted legal principle which was
subsequently endorsed by the United States. Governmental
immunity, then was inherited from the English legal system.
Governmental immunity flourished in the United States
until the late 1950's when a series of court cases brought
challenges. In the 1960's, states began a trend of abrogating
governmental immunity either by statutory or judicial means.
In 1977, a majority of states have abrogated their govern-
mental immunity, at least in part.
The effect of this trend of abrogation on public
education is great. For centuries, education had enjoyed
the protection of governmental immunity since education was
a function of the state. However, the recent trends in
abrogation has left many educational systems liable. In
many instances, it was education cases which the courts used
in abrogating a state's governmental immunity. Consequently,
educators can no longer depend on the principle of governmental
immunity for protection against liability suits. The study
contains recommendations for educators who may be concerned
about tort liability and governmental immunity.
A survey of legal precedence, statutes, and attorneys
general opinions provide detailed information regarding the
current status of governmental immunity in each state.
Governmental immunity has been an established
principle in the United States' system since 1798.1 The
principle of governmental immunity is where governments and
their agencies are immune from liability suits. This prin-
ciple is believed to have been part of the legal system
which the United States inherited from England.2
All levels of United States' government (local,
state, and federal) have endorsed and embraced the concept
that governments are immune from tortious acts. In the late
1950's, an era began in which the entire concept of immunity
was vigorously attacked on several fronts. Victims who
sustained injury and damages as a result of tortious acts by
the state maintained that the state should absorb the cost
of this injury rather than make the individual bear the
burden. Some authorities questioned the use of public funds
in acquiring liability insurance rather than simply paying
Date of ratification of the Eleventh Amendment to the
United States Constitution. The inclusion of this amendment
initiated the statutory use of the governmental immunity
concept in the United States.
2C. E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN
the damages.3 Historical criticism questions the entire
foundation on which the sovereign (governmental) immunity
principle is based.4
In 1959, however, an Illinois court stripped away
the immunity from liability which a school district had
previously enjoyed.5 As a result of this decision and of
increasingly strong criticisms, governmental immunity has
undergone several changes. Between 1959 and 1976, several
states voluntarily abrogated immunity either partially or
completely.6 Other states have had this privilege terminated
for them by state and/or federal courts.
Purpose of the Study
This study had three purposes:
First, it traced the historical development of the
concept of sovereign immunity in the English common law
Second, it sought to determine the means by which
the concept of sovereign immunity from liability became
ingrained in the American legal system.
3Molitor v. Kaneland Community Unit District No. 302
18 Ill. 2d 11, 163 N.E. 2d 89 (19591.
4Supra note 3.
51d note 3.
6New York (1959), Iowa (1967), Nebraska (1969), Florida
(1969), and Colorado (1970).
7Massachusetts (1869), Washington (1907), New York (1907),
California (1928), Illinois (1959), Michigan (1961), Wisconsin
(1962), and Arizona (1963).
Third, it identified the trends and movements in
the governmental immunity concept on the United States'
public school in 1977.
Delimitations of the Study
This study will be delimited to an examination of
the United States and British common and statutory law in
relation to governmental immunity as well as how the concept
was utilized during the Middle Ages. The focus of this
study will be on public education at all levels with special
emphasis on the kindergarten through twelfth grade levels.
Definition of Terms
The following terms and their definitions will be
used throughout this study. Adequate understanding of this
study requires a knowledge of the definition of these terms.
They are provided to help eliminate any misunderstandings
which might arise as a result of semantic variations:
Abrogation of immunity. The term, as used herein,
is the destruction or annulling of immunity by an act of the
legislative power, by constitutional authority, or by
Canon law. Law enacted and enforced by the Roman
Catholic Church before the Reformation and by any state
8. C. BLACK, BLACK'S LAW DICTIONARY 21 (1968).
recognized church after the Reformation. Sir William Black-
stone describes canon law as:
S. a body of Roman ecclesiastical law, relative
to such matters, over which that church professed to
have proper jurisdiction. It is compiled from the
opinions of the ancient Latin fathers, the decrees of
general councils and the decretal epistles and bulls
of the Holy See.9
Civil law. Civil Law is that law enacted or
created by various governmental bodies such as congresses,
general assemblies, or administrative agencies.
Common Law. Law which derives its authority from
previous uses of customs. Court decisions (case law) are
common law since they set precedents on which other court
decisions may be based. Blackstone's narrative on common
law provides more insight.
The ancient collection of unwritten maxims and
customs called the common law, had subsisted
immemorially in this kingdom (England) . .the
people were attached to it, because its
decisions were universally known.10
Constitutional law. That law which is derived
from the constitution of a particular state.11
Governmental immunity. A term, the meaning of
which has evolved considerably over the three hundred years.
9WILLIAM BLACKSTONE, COMMENTARIES OF THE LAWS OF
ENGLAND 23 (1897).
10Supra note 9 at 4.
11Sura note 8 at 395.
In its original sense, it mearnt immunity from taxation.12
In the last two centuries, however, the phrase has come to
mean "immunity from liability" (see sovereign immunity).
Liability. "The word is a broad legal term and
has been referred to as of the most comprehensive signi-
ficance, including almost every character of hazard of
responsibility, absolute, contingent, or likely."13 Or, the
"condition of being responsible for a possible or actual
loss, penalty, evil, expense, or burden."14
Sovereign immunity. Originally embodied the
concept of "governmental immunity." This phrase originated
in Seventeenth Century England where the King or Queen
declared that their sovereignty made them immune from
prosecution or suit.15
Sovereign prerogative. Predecessor of the "sov-
ereign immunity" concept. According to Blackstone, "sover-
eign prerogative" can be divided into two divisions; first,
and most important, was the prerogative of property rights.
12Supra note 8 at S26.
13Id note 8 at 720-721.
14First National Bank v. National Surety Co. 228 N.Y.
469, 127 N.E. 478.
15D. L. KEIR & F. H. LAWSON, CASES IN CONSTITUTIONAL
LAW 74 (1967).
Among these medieval (feud:il) rights, the concept of "immun-
ity" is embedded. The second division of prerogative is a
vague category which can be labeled as "inherited powers."
The monarchs were able to inherit the concept of "The King
can do no wrong" from their feudal predecessors as a part of
their inherited powers.16
Statutory law. Law relating to or created by an
act of the legislative branch of government.7
Tort. "A private or civil wrong or injury. A
wrong independent of contract."18
Tortious act. An act done by some person which
leads to a tort.
Justification of the Study
There are two general justifications for this
study and four specific justifications which coincide with
the three purposes of the study which are as follows:
First, the study traces the development of sovereign immunity
in the English common law system. Second, it determines the
means by which sovereign immunity transferred into the
American legal system. And third, it identifies trends and
movements in governmental immunity in the United States'
public schools in 1977.
16Supra note 9 at 239.
17Supra note 8 at 1581.
18Id note 8 at 1660.
The major justification for this study is its
advancement of knowledge concerning the governmental immun-
It is important from a historical and legal
perspective that the issues concerning these three major
issues be resolved. Significant court decisions have relied
heavily on the lack of knowledge in the area of immunity.19
Therefore, a more secure knowledge base should be found
providing a better basis for sound judicial adjudication.
A second general justification is that this study
will offer solutions to the practical problems which educa-
tional administrators face concerning the issues of govern-
Public school administrators who understand the
development and/or historical traditions of the governmental
immunity concept possess a better basis to view trends and
movements in governmental immunity and, therefore, are able
to offer wiser leadership through their knowledge.
Procedures and Sources of Data
Since this study is essentially a legal-historical
exan;3 nation of governmental immunity, there are two primary
steps in the research process.
The first step is to locate and collect all per-
tinent data relating to the topic; and the second step is to
Supra note 3.
interpret these data in relationship to the purposes of the
study which were presented earlier.
Location and collection of data will be done by
searching all relevant United States' Supreme Court, circuit
courts of appeals' and district courts' cases as well as
selected state court rulings. Other pertinent information
contained in works of history and/or political science was
also be used. Location of relevant data from British
sources will consist of searching British court decisions,
statutes, and related historical and political science
In locating these data, such legal materials as
The American Digest System, The Dicennial Digest, and specific
state indexes will be used to find specific cases relevant
to this study. These cases will then be located in various
reporters as the United States Reports, The Federal Reporter,
The Federal Supplement, regional and state reporters.
Peripheral information regarding the topic of this
study will be obtained from other legal encyclopedia sources
as American Law Reports, Corpus Juris Secundum, American
Jurisprudence, and various law journals.
All data will be scrutinized regarding their
relevance, impact, and implications and reported in the
Organization of the Study
The study is organized in the following manner:
Chapter 2: Historical analysis of Medieval and
British sovereign immunity.
Chapter 3: Development and Evolution of
Governmental immunity in the United
Chapter 4: Implications of the governmental
immunity principle to education
in the United States.
Chapter 5: Conclusion.
HISTORICAL ANALYSIS OF MEDIEVAL
AND ENGLISH SOVEREIGN IMMUNITY
Since several United States' courts have attacked
the concept of sovereign immunity because "the whole doctrine
of governmental (sovereign) immunity from liability from
tort rests upon a rotten foundation," it is necessary to
examine this foundation and to analyze its historical impact
on modern-day usage of sovereign immunity.20
Review of the Literature
The term "governmental immunity" represents an
evolution of the term "sovereign immunity." WThen the United
States declared independence in 1776, American governments
absorbed the duties and responsibilities of the previous
colonial governments which were authorized and sanctioned
by the English Crown.21 During the pre-revolutionary
war period, the state was immune from suits of tort
liability, because it was held that the state was an exten-
sion of the sovereign crown--hence the name "sovereign
immunity." The founders of the new American nation,
however, in their attempt to eliminate all references to
2Supra note 3.
21Dartmouth College v. Woodward 4 Wheaton 517 (1819).
"kingship," and "sovereignty" adopted this principle of
immunity from suit, but changed its name to "governmental
immunity." It was felt that the sovereign was replaced by a
government; and since the principle was still applicable,
the name change was justified.
The origination of the governmental immunity
concept is uncertain. Scholars present various theories
regarding its inception. Literature relevant to this
discussion reveals two major theories concerning the origina-
tion of governmental immunity.
The most popular school of thought is represented
by the English scholar Bracton and his successors Maitland
and Pollock, who suggested that many common law concepts
evolved during the dark ages. One common law custom
established during this period was that the lord of the fief
was also the law-maker and judge of the fief. Since this
arrangement placed the lord (for all practical purposes)
above the law, a type of common law immunity from suit was
developed. The only person who could hold a lord legally
responsible for his actions was the superior power that gave
2BRACTON, TRACTATUS DE LF.GIBUS (ed. F. W. Maitland)
107-108 (1887) and 2 F. POLLOCK F. W. MAITLAND, 'THE
HiSTORY OF ENGLISH LAW 124-215 (1968).
him his fief--the king.23 Tie kiug, in turn, was immune
from suit as a result of his sovereignty.2
Another point of view is expounded by the English
Law historian Blackstone, and later by Keir and Lawson.
This school of thought maintains that sovereign immunity was
a royal "advantage" of one of the king's two prerogatives.
The chief among his advantages in litigation was
that he could not be made defendant to an action at
law; this was hardly a prerogative in the earlier
Middle Ages since it was shared by other lords, being
merely an application of the feudal rule that a lord
cannot be sued in his own court. It later came quite
correctly to be regarded as a prerogative; for when
the King's courts had become national courts and
absorbed the greater part of the legal business of
the country, the King's immunity ceased to have any
real connection with feudalism."5
Blackstone maintains that the King's prerogatives were the
only legal basis for his authority.26 Therefore, there
appears to be a controversy regarding initiation of the
Movement from Common Law to Statutory Law Status
Even though governmental immunity is a legal
principle which has existed in statute for hundreds of
years, no major research has been conducted regarding its
movement from common law to statutory law status. Bracton,
23Supra note 15 (BRACTON) at 107.
24Id note 15 at 109.
251d note 15 at 107.
26Supra note 9 at 74.
2Supra note 22.
28 R729 30
Maitland, Pollock,29 and Jacobs30 are some of the scholars
who have identified a type oF governmental immunity which
existed in common law during the MLddle Ages.
Blackstone, Keir, and Lawson are representative of
those scholars who have identified the concept in a quasi-
statutory law status. By quasi-statutory law status, it
is meant the concept possessed a solid and firm foundation
in the King's prerogative but had not been placed into civil
Jones maintains that the status of governmental
immunity was changed from common law to statutory law in
1532 and 1533 by two acts of Henry VIII. He does not,
however, offer any explanation regarding the events which
lead to this historical change in legal principle.
English Law Heritage
English statutory law and common law has a long
and complex history. In its simplest form, English law is
comprised of Roman civil law (both statutory and common),
28F. POLLOCK & F. W. MAITLAND, THE HISTORY OF ENGLISH
2Id note 28.
30Supra note 2.
3Supra note 15 at 18.
ecclesiastical or canon connon law, feudal common law,
European common law (especially French and Norman), and its
own Anglo-Saxon law.32
The influence of each of these laws will be
examined in terms of the contribution to the English system
of law which is able to endorse the concept of sovereign
immunity, and the contribution concerning the evolution of
the sovereign immunity doctrine.
Roman law played an important role in determining
the foundation of English law and was able to influence the
form of English law by two primary paths. Since Roman law
consisted of both statutory and common law,33 each of these
elements had a unique impact on the development of the
English legal system and its system's ability to so easily
adopt the principle of sovereign immunity.
The primary path of influence results from the
fact that England was occupied by the Roman empire until
410 A.D. and, consequently, was subject to its statutory
laws. Even though the Romans left England early in the
Fifth Century, the influence of Roman law continued and
eventually influenced (to a certain degree) Anglo-Saxon law.
32Supra note 9 at 17-19.
33HENRY S. MAINE, ANCIENT LAW at 52 (1930).
Even though many scholars maintain that "when the
Romans left Britain, his law departed with him."34 Percy
Winfield claims that the Roman influence continued:
Nor is it credible that Rome, of all empires,
should have ruled any dominion for three and a half
centuries without making her subjects familiar with
some of the principles of law that backed her government
.. Grants of land to private individuals,
unclogged by the native "folkright can be linked up
to Roman conceptions of ownership.35
Therefore, English law has a direct historical connection
with the Roman statutory law system.
There is another means by which Roman statutory
law helped to influence English law. Early during the
Twelfth Century, a revival of Roman law was begun in con-
tinental Europe. This revival was quickly spread to England
where conflicting reports show Roman law (on one hand)
endorsed by English lawmakers36 or (on the other hand)
opposed due to ecclesiastical matters.37 In any event,
there was a new move towards reviving Roman law in England,
and its influence is bound to exist. A more detailed
discussion of the extent of this influence will be discussed
later in this chapter.
34PERCY WINFIELD, THE CHIEF SOURCE OF ENGLISH LEGAL
HISTORY 55 (1925).
35Supra note 34.
3Supra note 33.
37Supra note 28 at 122-135.
A second primary means of influence also had two
paths. First, and contrary to most beliefs, Roman law
possessed a type of common law which directly influenced
ecclesiastical law. Ecclesiastical law, in turn, had a
direct influence on English law as well as having strong
influence on feudal law. The second path was a feudal
system which operated in England for many centuries.
Therefore, through the dual paths of ecclesiastical law and
feudal law (both of which had their beginnings in Roman
common law), Roman common law influenced English law.
The Dualistic Nature of Roman Law
A superficial examination of Roman law often
reveals that Roman law was a civil law, based on statutory
or written provisions. While this observation is correct,
it is far from complete. Roman law, in fact, was comprised
of two separate legal elements:
The Romans described their legal system as con-
sisting of two ingredients. "All nations," says the
Institutional Treatise published under the authority
of the Emperor Justinian, "who are ruled by laws and
customs, are governed partly by their own particular
laws, and partly by those laws which are common to all
mankind. The law which a people enacts is called
the Civil Law of that people, but that which natural
reason appoints for all mankind is called the Law
of Nations, because all nations use it."38
The "Institutional Treatise" which Main refers to is the
basis for the statutory laws which governed the Roman Empire.
38Supra note 33 at 53-54.
It is appropriate at this point to mention that both the
English and American legal systems incorporate statutory
provisions as part of the overall system of laws. The Roman
Statutory provisions consisted of "Twelve Decemviral Tables"
which were tablets that contained all Roman civil laws.
These laws were written on these tables and, therefore, were
standard throughout the Roman Empire. England was governed
by these statutory laws up until 410 A.D. when the Roman
The Roman treatment of torts (law of wrongs) and
the English treatment of torts, while having similar results,
are administered quite differently. The Roman law of torts
not only included torts (in the modern sense) but also
crimes against an individual since it is the individual that
suffers, not the state.
Offenses which we are accustomed to regard
exclusively as crimes are exclusively treated as
torts, and not theft only, but assault and violent
robbery, are associated by the jurisconsult with
trespass, libel, and slander. All alike gave
rise to an Obligation or vinculum juris, and
were all requited by a payment of money. This pecul-
iarity, however, is most strongly brought out in
the consolidated Laws of the Germanic tribes. With-
out an exception, they describe an immense system of
money compensations for homicide, and with few
exceptions, as large a scheme of compensation for
minor injuries . . a sum was placed on the
life of every free man, according to his rank, and
on his person, for nearly every injury that could be
done to his civil rights, honour, or peace; the sum
being aggravated according to adventitious circum-
stances. These compositions are evidently regarded
as a valuable source of income; highly complex rules
regulate the title to them and the responsibility for
them; and, as I have already had occasion to state,
they often follow a very peculiar line of devolution,
if they have not been acquitted at the decease of
the person to whom they belong. If therefore the
criterion of a delict, wrong or tort be that the
person who suffers it. ind not the State, is
conceived to be wronged, it may be asserted that in
the infancy of jurisprudence the citizen depends for
protection against violence or fraud not on the
Law of Crime but on the Law of Tort.39
The Romans, then, obviously treated any wrong (physical or
tort) against an individual as a type of statutory tort.
The English system, however, deals with torts in a
common law fashion which requires judicial procedures. It
is interesting to note the similarities of the outcomes.
Under both systems, a monetary compensation is required to
the person who sustained injury. Often, these compensations
carry previously determined remedies much like the Roman
statutory law. Insurance contracts often spell out exact
damages for each type of physical injury in much the same
manner as Blackstone in his Commentaries on the Laws of
While Roman statutory law did exert some influence
on English law and tort actions in England, it was not the
primary method. The Roman equivalent of English common
law--the law of nature--appears to be the primary source of
influence. The Roman Law of Nature was a common law.4 No
statutes were written regarding its use or implementation.
The primary element of the "law of nature" was "Equity,"
Supra note 33 at 392-393.
40Supra note 9 at 239.
41Id note 33 at 54.
which Henry S. Maine describes as "a set of legal principles
entitled by their intrinsic ;periority to supersede the
Maine contends that much of the law practiced in
England by Chancery judges was law derived from Equity. In
fact, "the Court of Chancery, . bears the name of Equity,"
adopted many principles of Roman jurisprudence.
The Roman law, more fertile than the Canon
Law in rules applicable to secular disputes, was
not seldom resorted to by a later generation of
Chancery judges, amid whose recorded dicta we often
find entire texts from the Corpus Juris Civilis
imbedded, with their terms unaltered though
their origin is never acknowledged.44
Therefore, Roman law (hence its influence on
English law) possessed not only statutory law, but also in
equity. The statutory law influenced the English legal
system through a historical path and a scholarly revival
path. Equity influenced English law in a more indirect
manner--through Church ecclesiastical law.
Canon and Ecclesiastical Law
It is necessary to immediately differentiate
between canon and ecclesiastical law. Canon law is law
which was derived from Roman common law and which, even-
tually, absorbed civil law in medieval Europe. Ecclesiastical
42Supra note 33 at 2.
43d note 33 at 52.
44Id note 33 at 52.
Id noto 33 at 52,
law, on the other hand, is a law which has a civil law
basis, but where the reigning monarch accepts the merger of
Canon law with his civil law. Technically, then, "Ecclesias-
tical laws (were) issued by the Anglo-Saxon Kings on the
advice of their bishops, with whom they were closely allied."45
Canon law began as an internal religious law that
not only was not sanctioned by the Roman government, but was
persecuted by various Roman emperors until 313 A.D..
Pollock and Maitland report that during this period Roman
law "was stricken with sterility."46
By the time the fall of the Roman Empire was
completed, canon law, governed by the Church, was the only
operating jurisprudence in Europe. This law, however, was
growing so quickly that no standardized format was in exist-
ence between European countries or even between bishop's
Slowly and by obscure processes a great mass
of ecclesiastical law had been forming itself. It
rolled, if we may so speak, from country to country
and took up new matter into itself as it went, for
bishop borrowed from bishop and transcriber from
transcriber. Oriental, African, Spanish, Gallican
canon were collected into the same book and the
decretal letters of later were added to those of
45Supra note 34 at 55.
46Supra note 33 at 3.
Id note 33 at 16.
It is important to remember that while these various laws
were multiplying and increasing in complexity, they were
still operating at a common law level. No statutory pro-
visions existed in the canon law until Gregory IX's decrees
in 1230. In the Ninth Century, however, one attempt at
consolidation of the legal principles governing canon law
prevailed which helps to cast some light on the early
development of sovereign immunity.
Then out of the depth of the ninth century
emerged a book which was to give law to mankind
for a long time to come. Its core was the Hispana;
but into it there had been foisted besides other for-
geries, some sixty decretals professing to come from
the very earliest successors of St. Peter. The
compiler called himself Isidorus Mercator. .
The false decretals are elaborate mosaics made up
out of phrases from the Bible, the fathers, genuine
canon, genuine decretals, the West Goth's Roman
law-book; but all these materials, wherever collected,
are so arranged as to establish a few great prin-
ciples: the grandeur and superhuman origin of
ecclesiastical power, the sacrosanctity of the
persons and the property of bishops, and, though
this is not so pominent, the supremacy of the
bishop of Rome.'
Mercator's work is of major importance to this
study. According to Pollock and Maitland, Mercator express-
es (what this researcher finds to be) the first legal refer-
ence to the principle of sovereign immunity.
Above all, no accusation can be brought against
a bishop so long as he is not despoiled of his
see: Sioliatus episcopus ante omnia debet
48Supra note 33 at 17.
49Id note 33 at 17.
Most legal observers have attributed the concept of sovereign
immunity to the feudal legal system. The above reference,
however, reveals that the concept was imbedded in the canon
law before passing on to the feudal system.
During the Ninth Century, canon law's influence on
England took two separate paths. First, the Catholic Church,
in its attempt to spread Christianity throughout Europe, was
preserving and transmitting the canon legal system which was
based on the Roman "law of equity." Since England was one
of the many countries converted to Christianity, it (too)
began to adopt this legal system in conjunction with its
other legal heritages. Therefore, ecclesiastical law was
being created in England through the merger of the operating
civil law system and the Church's canon law. As noted
previously,50 the Canon law possessed an element of immunity
from tort which would also become merged with the new English
The second path of transmission is the method by
which canon law influenced the feudal system which provided
the legal basis for English law.
The Feudal System
While the feudal system existed in northern Europe
before the fall of the Roman Empire, it did not become
oSupra note 33 at 17.
prevalent until around 800.SL Prior to this time, civil
laws either did not exist or were ignored. It was inevitable,
however, that the canon law system and the feudal system
would influence each other and, eventually, merge. The
Church found it useful to endorse certain feudal lords who
would in return for this endorsement, spread and support the
dogma of the Church.
It is believed by many that the feudal system has
been the vehicle which transported the principle of sovereign
immunity into statutory law. This system consisted of a
hierarchy of lords solely responsible to a single king (of a
country). Each lord derived his power from the king's
sanction; and the king derived his power from the collective
power of his lords who supported him maintained the king in
his position of power. Under the "divine right of kings"
concept, the king claimed sovereignty over his kingdom
because he was sanctioned by God and acted as God's regent
on earth. He claimed that he derived his power from God and
that only God could take it away.
Since each lord was, in essence, a little king of
his fief, his powers over the people and activities of his
fief were almost unrestricted. One custom that was established
during this period was that the lord of the fief was also
the law-maker and judge of the fief. Since this arrangement
places the lord (for all practical purposes) above the law,
5Supra note 9 at 183.
a type of common law immunity from suit was developed. The
only person who could hold a lord legally responsible for
his actions was the superior power that gave him his fief--
Therefore, sovereign immunity was a common law
principle which evolved from two sources. First, the canon
law of the Church endorses this concept as mentioned earlier
in Mercator's work.53 Second, the concept developed as a
common law principle that grew out of the feudal system
(which was also influenced by canon law).
Unification of the English Legal System
English law, as we know it today, began to evolve
shortly after the Norman Conquest in 1066. The Norman
Conquest caused a consolidation of all the influences on
English law to take place. The feudal system, the Church
canon law, and the historical heritage of Roman civil law
all merged into a common law system.
In 1100, Henry I became the first king of England
whose authority extended over all of what is known as modern
day England. In uniting England, Henry I took two actions
which would affect his successors. First, he was able to
have himself recognized by all the English people as Sover-
eign of England (which technically, he inherited from
52Supra note 22.
53Supra note 33 at 4-5.
Rufus William the Conqueror's son). This sovereignty
entitled him as the law-giver, law-maker, and supreme judge
of the realm. It also made him immune from suit. Second,
he established the beginnings of a judicial system. In this
judicial system, "the King sat in person in Curia regis.54
Because the king held court in different locations during
the year, suitors were required to follow the king in order
to pursue whatever legal actions they were seeking. To
compensate for this problem, Henry divided the court into
two systems, one would continue to follow the king and
maintain the legal concept of Curia regis; the other court
was permanently based in Westminister and became known as
Henry II assumed the English throne in 1154 and made
great progress in the formation of an equitable and just
judicial system. Under him, the Exchequer became known as
the Bench. However, a struggle began between Henry II and
Rome concerning which set of legal laws were to prevail in
the English civil courts--the English civil laws or the
Roman canon laws. Henry TI's attempt to check the power of
the clergy lead to the fatal dispute with Archbishop Becket
of Canterbury.56 Pollock and Maitland report that Henry was
541 W. HOLDSI\ORTH, A HISTORY OF ENGLISH LAW 23 (1959).
Supra note 34 at 131.
5Supra note 9 at 739.
so angered by his power being usurped by Rome, that he made
assurances that civil law and the king's sovereignty would
prevail in future legal contests.
During the first half of the twelfth century
the claims of the church were growing, and the duty
of asserting them passed into the hands of men who
were not mere theologians but expert lawyers. Then,
as all know, became the quarrel between Henry and
Becket. In the Constitutions of Clarendon (1164)
the king offered to the prelates a written treaty,
a treaty which, so he said, embodied the 'customs'
of his ancestors, more especially of his grandfather.
Becket, after some hesitation, rejected the con-
stitutions. The dispute got hot; certain of the
customs were condemned by the Pope. The murder
followed, and then Henry was compelled to renounce,
though in carefully guarded terms, all his innova-
tions. But his own assertion all along had been that
he was no innovator; and though the honours and
dishonours of the famous contest may be divided,
the king was left in possession of the greater part
of the field of battle. At two points he had been
beaten:--the clerk suspected of felony could not be
sentenced by, though he might be accused before, a
lay court; appeals to Rome could not be prohibited,
though in practice the king could, when he chose,
do much to impede them. Elsewhere Henry had
maintained his ground, and from his time onwards the
lay courts, rather than the spiritual, ar9 the aggressors
and the victors in almost every contest.
This incident is indicative of the type of sovereignty which
English monarchs possessed during this period. Immunity
evolved from this sovereignty in civil matters, but the king
still had to answer to Rome's canon law. Canon law was
still the dominant law until Henry III's (1216) and Edward I's
(1272) reigns. It was during their reigns that the split in
5Supra note 33 at 122-123.
canon law and English civil law became severe enough to be
labeled as a separation.5
Under Edward I's reign, three courts emerged which
were the early basis for today's English Courts-- The Common
Bench, The King's Bench, and King in Council.59 Along with
the judicial structure being stabilized and formalized, the
concept of immunity was set as a common law doctrine.
At least as early as the Thirteenth Century,
during the reign of Henry III (1216-1272), it was
recognized that the king could not be sued in his
own courts, but this immunity did not imply that the
sovereign was above the law. To the contrary, the
king was regarded as the fountain of justice and,
as such, bound by law and conscience to redress
wrongs done to his subjects. This conception appears
to account for the initial development of remedies
against the ruling sovereign as these began to take
shape during the reign of Edward I (12721307).60
Therefore, the doctrine of sovereign immunity
began to blossom forth under the reign of Henry III and
Edward IV. Initially, this sovereign immunity did not apply
the maxim "The King can do no wrong"61 but rather endorsed
the maxim "The King is the fountain of justice."62 This
difference is important. Under this initial type of sover-
eign immunity, the king cannot be sued but is duty bound to
abide by his own laws. Sovereign immunity under the reign
of ilenry VIII is quite different.
58Supra note 9 at 739.
91d note 9 at 131.
lSupra note 30 at 3.
6138 AM. JUR., MUN. CORPS., :573, 266.
2Sira note 33 at 5.
There were few major developments concerning the
law and sovereign immunity until the rise of the Tudors in
the Fifteenth Century. The struggle of the Tudors line
concerning the law, immunity, and the Holy Roman Empire
seems to be exemplified by the reign of Henry VIII. It was
during his reign that immunity from prosecution and suit
moved from common law status to statutory law status.
Keir and Lawson, when speaking of Henry's prero-
gatives, are quick to point out,
The chief among his advantages in litigation
was that he could not be made defendant to an action
at law; this was hardly a prerogative in the earlier
Middle Ages since it was shared by other lords, being
merely an application of the feudal rule that a lord
cannot be sued in his own court. It later came
quite correctly to be regarded as a prerogative;
for when the King's courts had become national courts
and absorbed the greater part of the legal business
of the country, the King's immunity ceased to have any
real connection with feudalism.63
The other prerogative64 was inherited from "the medieval
lawyers (who) had held the view that the law was a bridle on
the King, and in their famous maxim, 'The King can do no
wrong,' they had insisted that his power extended to do only
what is rLght."65
Henry VIII had decided to choose another wife but
was opposed by the Pope who still claimed sovereignty (even
over kings). Henry had, as a part of his royal prerogatives,
Supra note 9 at 74.
641d note 9 at 239.
65GARETH JONES, THE SOVEREIGNTY OF THE LAW 93 (1973).
first, immunity from prosecution; second, supposedly the
"Divine Right of Kings" concept; and third, the fact that
the "King can do no wrong." His solution was simple. He
declared first, that he was given his power from God and God
alone (Divine Right of Kings); second, that he was immune
from all suits; because third, he was sovereign and not
under the authority of anyone, including the Bishop of Rome.
His realm is declared to an empire. and his
crown imperial, by many acts of parliament, par-
ticularly the statutes 24 Henry VIII. c. 12. (1532)
and 25 Henry VIII. c. 28. (1533); which at the same
time declare the king to be the supreme head of the
realm in matters both civil and ecclesiastical,
and of consequence inferior to no man upon earth,
dependent on no man, accountable to no man
Hence it is, that no suit or action can be brought
against the king, even in civil matters, because
no court can have jurisdiction over him. For all
jurisdiction implies superiority of power:
Authority to try would be vain and idle, without an
authority to redress; and the sentence of a court
would be contemptible unless that court had power
to command the execution of it: but who, says Finch,
shall command the king? Hence it is likewise, that
by law the person in his reign be completely tyrannical
and arbitrary: for no jurisdiction upon earth has
power to try him in a crimgial way; much less to
condemn him to punishment.
It was at this point, then, that the feudal concept
of "The King can do no wrong" and "Sovereign Immunity"
(which were common law based) were combined with the civil
law. This produced the general concept of Sovereign Immun-
ity which has been transported to America in the form of
"Governmental Immunity from Liability."
66Supra note 65 at 94-95.
It is ironic that the Roman Catholic Church and
Canon law, which were one of the primary influences on the
establishment of the common law doctrine of sovereign
immunity, was also the primary cause of the principle move-
ment from common law status to statutory law status. Also
imbedded in the many acts of Henry VIII which declared him
sovereign of all England and free from interference from
Rome was the statutory establishment of the "divine right of
. for where this your Grace's Realm recognifing
no Superior under God, but only your Grace, hath
been and is free from Subjection to any Man's Laws,
but only to fuch as have been devifed, made and obtained
within this Realm, for the Wealth of the fame, or to
fuch other as by Sufferance of your Grace and your
Progenitors, the People of this your Realm have taken
at their free Liberty, by their own Confent to be
ufed amongft them, and have bound themselves by long
Ufe and Cuftom to the Obfervance of the fame, not
as to the Obfervance of Laws of any foreign Prince,
Potentate or Prelate, but as to the cuftomed and
ancient Laws of this Realm, originally eftablifhed as
Laws of the fame, by the faid Sufferance, Confents and
Cuftom, and none otherwise: (4) It ftandeth there-
fore with natural Equity and good Reafon, that in
all and every fuch Laws human made within this Realm,
or induced into this Realm by the faid Sufferance,
Confents and Cuftom, your Royal Majefty, and your
Lords Spiritual and Temporal, and Commons, repre-
fenting the whole State of your Realm, in this your
moft high Court of Parliament, have full Power and
Authority, not only to difpenfe, but alfo to authorize
fome elect Perfon or Perfons to difpenfe with thofe,
and all other human Laws of this your Realm, and with
every one of the, as the Quality of the Perfons and
Matter fhall require; (5) and alfo the faid Laws,
and every of them, to abrogate, annul, amplify or
diminifh, as it shall befeen unto your Majefty, and
the Nobles and Commons of your Realm prefent in your
Parliament meet and convenient for the Wealth of your
Realm, as by divers good and wholfome Acts of Parliaments,
made and eftablifhed as well in your Time, as in the
Time of your moft noble Progenitors, it may plainly
and evidently appear.67
Henry VIII was also astute enough to insure that from that
time (1532) on, all subjects of England, including the
clergy, were subject to the laws of England. This move
helped to assure Henry of total sovereignty from Rome and
There appears to be no case law defending Henry VIII's
position on sovereign immunity. However, one of his succes-
sors, James I, called upon this prerogative in 1607 when
suit was brought against him for causing damage to a subjects
property while digging for saltpetre (an ingredient used in
the manufacture of gunpowder).69
The English court ruled that the statute III
Henry VIII, CXV made the King immune from suit and that the
individual must incur the damages.
as, for saving of a city or town, a house shall
be plucked down if the next be on fire: and the
suburbs of a city in time of war for the common
safety shall be plucked down; and a thing for the
commonwealth every man may do without being liable to
an action, as it is said in III Henry VIII, CXV.
And in this case the rule is true, Princeps et res-
publica ex just causa possunt rem meam auferre.70
6XXV HENRY VIII, C. XXI
68XXIV HENRY VIII, C. XII F, C. XIX.
6The Case of the King's Prerogative in Saltpetre,
12 Co. Rep. 12 (1607).
70Supra note 69.
The decision in this 1607 case, reaffirms that sovereign
immunity was placed in statute by Henry VIII and that it
made the sovereign immune from all suits.
William Blackstone's Contribution
In 1758, the famed English law historian and
scholar, William Blackstone, wrote his famed, An Analysis of
the Laws of England which documented the evolution of sover-
eign immunity into what had come to be known as "the King's
prerogatives."71 Blackstone defines this prerogative as
Prerogative is that special Power and pre-
eminence, which the King hath above other Perfons, and
out of the ordinary Courfe of Law, in right of his
Regarding the king's role in English justice, Blackstone
The King is alfo the Fountain of Juftice, and
general Confervator of the Peace; and therefore may
erect Courts, profecute Offenders, pardon Crimes,
and iffue Proclamations.73
Blackstone's contribution to the formalization of the sover-
eign immunity concept is important to this study since it
will be pointed out (in the succeeding chapter) that many
courts relied on Blackstone's reporting of this principle in
their dicta which subsequently established the concept in
711 1V. BLACKSTONE, AN ANALYSIS OF THE LAWS OF ENGLAND
72Supra note 71 at 75.
73Id note 71 at 18.
England's Abrogation of Immunity
The doctrine of sovereign immunity became so
firmly entrenched into the English legal system, that it was
not until late in the Nineteenth Century that the English
Parliament and courts began to seriously challenge the
In 1860, Parliament passed into law "The Petitions
of Right Act, 1860" which formalized the procedure of
petitioning the crown to bring suit against the crown.7
While this right had always existed in English law, Holds-
worth reports that few, if any, subjects had ever taken
advantage of this right because of the intricate legal
procedures.75 The Petitions of Right Act, 1860 outlined a
fifteen step procedure to petition the crown for permission
to sue the crown. It established a time period of twenty-
eight days for the reigning monarch to either accept or
reject such a petition as well as designating "any One of
the Superior Courts of Common Law of Equity at Westminister"
as having jurisdiction over such suits.
However, The Petitions of Right Act, 1860 did not
authorize suits against the crown for torts.
7423 VICTORIA I, C34 (1860).
76 HOLDSWORTH, THE HISTORY OF ENGLISH LAW 266 (1956).
Supra note 71.
The remedy was available for the recovery of
property, whether land or goods, for breach of contract
and indeed, it would seem, in every case where the
suppliant would have had an action against a subject
with the single exception of tort. The exception
covered not merely cases where it was alleged that the
King himself had committed a tort but also cases where,
had he been a subject, he would have been vicariously
liable for the torts of his servants. This meant that
Petition of Right could not be used as a remedy for
any torts committed by anyone in the course of govern-
Therefore, the Petitions of Right Act, 1860 did not really
abrogate sovereign immunity from tortious acts, but rather
clarified the petition procedure which had always been an
Englishman's legal right.
In 1866, an English court determined that public
bodies are responsible for the negligent acts of their
employees.7 The court, in Mersey Trustees v. Gibbs and
The Same v. Penhallow, ruled that a public entity, like the
master-servant relationship, is liable for damages caused by
acts of its employees.79 The decision in this case opened
new avenues for liability suits in England. Public entities
were no longer protected from suits where damages were
caused by official acts of employees.
The major case which abrogated the sovereign
immunity concept was a public school case in 1890.80 In
Supra note 15 at 203.
78Mersey Trustees v. Gibbs, L.R.1 H.L.93 (1866).
7Supra note 78.
80Crisp v. Thomas 63 LINS 756 (1890).
this case, a school teacher was being sued for damages
because a portable blackboard fell upon and injured a student.
The student's parents sued for damages claiming teacher
negligence. The Queen's Bench Division Court held that the
fall of the blackboard was not evidence of negligence, but
if there had been negligence, the school or the teacher
could be held liable.
Then, if there was negligence, someone must be
liable. Fees are paid for the schooling, therefore
someone must have duties towards the children. The
defendant is the only active member of the committee;
he was the master of Rider pro hac vice. (Lord
Esher, M.R.--It seems that the Ifefndiant could not have
forbidden Rider to teach.) The fact of hil position
being only honorary is of no consequence.8
This court decision is quite important to this study because
it is the first instance of a court abrogating the sovereign
immunity concept whether it be statutory law or common law
based. This case also reversed the findings of lower English
courts, especially in the case of Russell v. The Men Dwelling
in the County of Devon82 which many scholars claim to be the
basis of American governmental immunity.83
It should be noted that the Russell case was later
overruled by the English courts, and that in 1890 it
was definitely established that in England a school
board or school district is subject to suit in tort
for personal injuries on the same basis as a private
81Supra note 80 at 756.
2100 ENG. REP. 359 (1788).
83Lee 0. Garber, Origin of the Governmental Immunity
from Tort Doctrine, YEARBOOK OF SCHOOL LAW 235-243 (1964).
individual or corporation. (Crisp v. Thomas, 63
L.T.N.S. 756 (1890).) Nonimmunity has continued
to be the law of England to the present day.84
Following this landmark decision by the English
courts, many tort liability suits were filed against govern-
mental agencies (especially school systems).
In a great number of cases, most of which involved
the personal injuries of a pupil or student resulting
from alleged negligence of an educational authority
or that of a school official, schoolmaster or teacher,
or other school personnel, such authorities have
been treated as liable in tort to the same extent
as private persons or corporations, although no
mention was made therein as to the doctrine of
In 1893, Queen Victoria and the British Parliament
passed The Public Authorities Protection Act, 189386 where
the act attempted to insure certain public officials at
least a rudimentry immunity against suit. This act also
specified certain provisions which must be followed before a
suit against the state could be brought.
Following the official passage of this act, the
British courts became swamped with education tort suits
against school boards.87 Finally, in 1939, Parliament
passed the Limitation Act, 1939, s. 31 where all sovereign
immunity was abolished.88 Chapman suggests that this may
84Supra note 3.
85160 ALR 84.
8656 VICTORIA I, C. 61 (1893).
87Supra note 85 at 84.
8S. CHAPMAN, STATUTES ON THE LAW OF TORTS 439 (1963).
have been a move to abolish immunity on a statutory level
rather than allow British courts to totally abrogate it.89
In 1954, the Parliament passed The Law Reform Act,
195490 which removed the restrictions and provisions (set up
in 1893 by the Public Authorities Protection Act, 189391)
which private individuals needed to meet in order to bring
suit against the state. This latest act is considered to
remove the last obstacle in absolute and total abrogation of
sovereign immunity in England.
9Supra note 88 at 440.
902 ELIZABETH II, c 36 (1954).
Supra note 86.
The evolution of the sovereign immunity concept
into the English legal system is a complex and vague prin-
ciple to follow. A combination of feudal influence and
Canon law (which was derived from Roman law) supplied the
base for the common law evolution of the principle. The
Roman civil law supplied the statutory basis for the prin-
cipal to become imbedded in law.
The reigns of Henry II, Henry III, and Edward I
allowed the sovereign immunity concept to flourish indepen-
dent of Canon law. Henry VIII's dispute with Rome became
the vehicle for this monarch's exercise of his sovereignty.
Immunity against suit was placed into statutory law as a
means to protect the king against the Canon forces of Rome
as well as increasing the king's already awesome power.
Sovereign immunity was the rule of law until 1890
where a British court abrogated it for school boards and
school districts. As a compromise move, Queen Victoria
passed the Public Authorities Protection Act, 1893 which
partially abrogated immunity while protecting the concept as
applied to certain public officials. Queen Victoria finally
abrogated all sovereign immunity in 1939. However, the
restrictions and provisions set in 1893 were still in effect.
QuOen Elizabeth passed The Law Reform Act in 1954 which
removed these restrictions and, consequently, totally
abrogated all sovereign immunity in England. So, 422 years
after Henry VIII had the concept of sovereign immunity
placed in statute, and many more years after the development
of the common law basis for the concept, England has finally
abandoned sovereign immunity as a means of protecting the
state against suit.
DEVELOPMENT AND EVOLUTION OF
GOVERNMENTAL IMMUNITY IN THE UNITED STATES
Prior to 1776, the American colonies were subject
to and governed by the laws and the courts of England. One
of the common laws which was maintained in the colonies was
the concept of sovereign immunity. A colony could not be
sued since the colony was an extension of the English crown
and protected by the privilege of sovereign immunity.
In 1776, the colonies declared their independence
from England. During and following the Revolutionary War,
each state assumed governmental control of the state functions
which were previously performed by the English crown (and
its appropriately appointed ministers and governors).
Because the United States is an offspring of England, its
governmental, legal, and judicial systems are very similar
to those of England. Many of the legal concepts developed
and used in England were (and still are) endorsed by our own
system of government. England's colonial rule simply gave
way to each state's individual governmental rule. The
method of governing changed little except to correct for the
obvious inequities which caused the split in the first
One of the specific elements or principles of this
legal system which the newly formed state governments inherited
and endorsed was the concept of sovereign (governmental)
immunity. In England, the state was immune from suit because
the state was an extension of the English crown who is
immune from suit.92
Even though it is apparently inconsistent with the
principles of a democratic government, the founding fathers
of each and every individual state (as well as the federal
government) readily accepted this notion.
Method of Transmission
The exact method of transmission of the principle
of sovereign immunity in England to governmental immunity in
the United States is difficult to locate. As stated pre-
viously, the underlying principles of the governmental
immunity concept seem inconsistent with the reasoning that
lead to the formation of the United States. The sovereignty
of the English crown, the privileges of that position, the
prerogatives of the kingship, and the unchallengeable
arbitrary and capricious acts made by the English crown were
the primary reasons for this country's formation. Yet, the
leaders of this new republic, readily accepted and endorsed
the governmental immunity concept which gave the state (and
federal) government sovereignty, which gave the state (and
92. L. PROSSER, LAW OF TORTS 971, (1971).
federal) government one of the privileges and prerogatives
that used to be enjoyed by the English king, and which gave
the state (and federal government) the power to act without
fear of legal reprisal.
Many legal scholars and authorities are at a loss
to explain why such a concept was allowed to develop in the
United States. William L. Prosser, in his textbook, Law of
Just how this feudal and monarchistic doctrine
ever got itself translated into the law of the new
and belligerently democratic re public in America is
today a bit hard to understand. 3
The National Association of Attorneys General, in their
publication, Sovereign Immunity, The Liability of Government
and Its Officials, query:
The great mystery is how this absolutist,
monarchical notion came to be an accepted legal
principle in a new democracy like the United States
of the early nineteenth century. One can scarcely
imagine any idea more antithetical to the basic
tenents of democratic government than that which
holds that the people, at whose pleasure and for
whose benefit the government exists, cannot sue
their9 representatives when they have been wronged by
Edwin M. Borchard, in his famed article, "Government Liability
in Tort," states:
The jurisdiction of the King's courts was purely
personal. How it came to be applied in the United
States of America, where the prerogative is unknown
93Supra note 92.
94SOVEREIGN IMMUNITY: THE LIABILITY OF GOVERNMENT AND
ITS OFFICIALS (published by the National Association of
Attorneys General) 1 (1975).
is one of the mysteries of legal evolution. Admitting
its application to the sovereign and its illogical
ascription as an attribute of sovereignty generally,
it is not easy to appreciate its application to
the United States, where the location of sovereignty--
undivided sovereignty, as orthodox theory demands--
is a difficult undertaking.-'
Alexander and Solomon, in their book, College and University
Law, speculate that:
It is difficult to comprehend why in the
United States, where there was such great fear of
tyranny of kings, this doctrine was unquestionably
adopted so wholeheartedly. It would have been
reasonable to assume that in the absence of sheer
oversight by the framers of the constitution,
immunity of the government would have been denied
or at least carefully circumscribed."
Prosser and Wade, in Torts: Cases and Materials, observe
that "(t)he explanations for the initial acceptance of this
feudal and monarchistic doctrine in the democracy of this
country are quite obscure."97
Mr. Justice Klingbiel of the Supreme Court of
Illinois in the famed Molitor v. Kaneland decision ponders
how the concept of governmental immunity survived in the
United States since it conflicts with the basic concept of
the law of torts.
9E. i. Borchard, "Government Liability in Tort," 24
YALE LAW JOURNAL 4 (1924).
9KERN ALEXANDER Q ERWIN S. SOLOMON, COLLEGE AND
UNIVERSITY LAW 649 (1972).
9W. L. PROSSER AND J. W. WADE, TORTS: CASES AND
MATERIALS 1117 (1971).
It is a basic concept underlying the whole
law of torts today that liability follows negligence,
and that individuals and corporations are responsible
for the negligence of their agents and employees
acting in the course o F their employment. The
doctrine of governmental immunity runs directly
counter to that basic concept. What reasons, then,
are so impelling as to allow a school district,
as a quasi-municipal corporation, to commit wrong-
doing without any responsibility to its victims,
while any individual or private corporation would
be called to task in court for such tortious
The Supreme Court of Florida in Hargrove v. Town of Cocoa
Beach noted that the "divine right of kings" concept which
is embodied in governmental immunity was abolished because
of the Revolutionary War.99 The court could not understand
how the principle had been maintained. And a California
court found that:
The whole doctrine of governmental immunity from
liability for tort rests upon a rotten foundation.
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 do no wrong,'
should exempt the various branches of the govern-
ment 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 con-
stituting the government, where it could be borne
without hardship upon any individual, and where it
justly belongs . 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.100
Supra note 3 at 17.
99Barker v. City of Santa Fe 47 N.M. 85, 136 P.2d 480.
100Hargrove v. Town of Cocoa Beach 96 So. 2d 130 (1957).
In essence, the above authorities, scholars, and
courts question why a new nation, whose entire reason for
breaking away from its mother country is distaste with the
sovereign crown, would so heartily endorse and accept a
concept that "prima facie" appears to contradict that basic
premise. The authorities also agree that the exact method
of transmitting this immunity concept from England into the
United States' legal system is, at best, ambiguous.
In order to examine this unique migration and
adoptance of the sovereign (governmental) immunity principle,
it is necessary to divide this examination into the same
divisions as the governments are arranged. Therefore, the
balance of this chapter will look at first, governmental
immunity in the United States federal government, and second,
governmental immunity in the individual states.
The Federal Government and Immunity
In December 1787, the seventy-four delegates who
attended the Constitutional Convention submitted the Constitu-
tion of the United States to each state for ratification.
One particular article of the Constitution enlightens this
study regarding the liability of governments. Article III,
section 2, of the United States Constitution reads as follows:
The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;--to
all Cases affecting Ambassadors, other public Ministers
and Consuls;--to all Cases of admi ralty and
maritime Jurisdiction;--to Controversies to which
the United States shall be a Party;--to Controversies
between two or more Slatcs;--between a State and
Citizens of another Stat(,;--between Citizens of
different States;--berwoon Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof,
and Foreign States, Citizens or Subjects.101
It is interesting to note that framers of the Constitution
were providing a vehicle for citizens of one state to sue in
equity another state, and for all "Controversies to which
the United States shall be a party" to be settled. A
strict interpretation of this article would lead one to
believe that the United States government is consenting to
However, in 1788, when ratification no longer
seemed certain, Alexander Hamilton, James Madison, and John
Jay wrote 85 articles defending the Constitution. Paper
(article) number 81, written by Hamilton sometime between
April 4 and May 28 of 1788, contains a statement regarding
It is inherent in the nature of sovereignty not
to be amenable to the suit of an individual "without
its consent." This is the general sense and the
general practice of mankind; and the exemption, as one
of the attributes of sovereignty, is now enjoyed by
the government of every State in the Union. Unless,
therefore, there is a surrender of this immunity in
the plan of the convention, it will remain with
the States and the danger intimated must be merely
ideal. The circumstances which are necessary to
produce an alienation of State sovereignty were
discussed in considering the article of taxation
and need not be repeated here. A recurrence to
]01U. S. CONSTITUTION, Article III, section 2
102Supra note 101.
the principles there es tab I shed will satisfy us
that there is no color to pretend that the State
governments would, by the adoption of that plan,
be divested of the privilege of paying their own
debts in their own way, free from every constraint
but that which flows from the obligations of good
faith. The contracts between a nation and individuals
are only binding on the conscience of the sovereign,
and have no pretensions to a compulsive force.
They confer no right of action independent of the
sovereign will. To what purpose would it be to
authorize suits against States for the debts they
owe? How could recoveries be enforced? It is
evident that it could not be done without waging
war against the contracting State; and to ascribe to
the federal courts, by mere implication, and in
destruction of a pre-existing right of the State
governments, a power which would involve such a
consequence would be altogether forced and unwar-
This statement implies that governments maintain their
immunity unless they specifically intend to abrogate it.
Therefore, it can be construed, in a liberal interpretation,
that since the United States federal government did not
specifically abrogate governmental immunity, that such
immunity was in effect.
The earliest federal tort case bears out this
point. In Little v. Barreme, the Supreme Court of the
United States held Little, a captain of a United States
warship, liable for damages even though the captain was
operating in "good faith" on instructions from the Presi-
dent.104 The appellees, owners of a French ship, did not
even attempt to sue the President of the United States or
103THE FEDERALIST PAPERS, No. 81 (Hamilton) (1788).
104Little v. Barreme 2 U.S. (Cranch) 170 (1804).
the Government since they (letermnincd that the United States
was operating under the privilege of governmental immunity.
In 1821, Supreme Court Chief Justice Marshall,
writing the opinion of the majority in Cohens v. Virginia
The universally received opinion is, that no
suit can be commenced or prosecuted against the
United States; that the judiciary act does not
authorize such suits.105
Chief Justice Marshall gave no defenses or reasons why
immunity would be a "universally received opinion." 06 He
did, however, make several references to Chisholm v. Georgia,
a case which examined sovereign immunity of an individual
state. This case will be discussed in succeeding sections
of this chapter. It was at this point then, in 1821, where
governmental immunity became a "formally" accepted principle
in federal law.
Prosser states that following the Cohens v.
Consent to be sued began to appear in the
form of special legislation by Congress authorizing
particular plaintiffs to sue on particular claims.
Apart from the obvious possibility of political
influence, this of necessity involved considerable
delay and inconvenience, as well as inflicting
a considerable burden upon the time of Congress.108
105Cohens v. Virginia 19 U.S. 264 (1821).
106Supra note 92 at 971.
107Chisholm v. Georgia 2 U.S. (2 Dallas) 419 (1793).
0Supra note 97 at 1117.
In 1855, Congress, growing weary of passing
legislation on specific tort ca.scs, passed the Federal Court
of Claims Act.109
This Act makes the United States liable under
the local law of the place where the tort occurs,
for the negligent or wrongful acts or omissions of
federal employees within the scope of their employ-
ment "in the same manner and to the same extent
as a private individual under like circumstances."
It has been held to make the government liable
where the negligence of some employee is proved,
although he is not identified. It has been held to
mean that the United States may be impleaded as a
joint tortfeasor, and becomes liable for contribu-
tion where the local law permits it; and that it
creates liability to insurers on subrogation
There were, however, several exemptions to this abrogation
of immunity. Parties could not sue the federal government
for claims arising out of:
1) Military service 112
2) Special activities of the government
3) "Assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or
interference with contract rights."113
The United States Court of Claims did not, however, have
power to adjudicate findings under the 1855 statute. "This
was initially merely an advisory court making recommendations
10928 U.S.C.A. 1356, 1402, 1504, 2110, 2401, 2402,
2411, 2412, 2671-2680.
11Supra note 92 at 972.
11 28 U.S.C.A. 2680 (j).
11228 U.S.C.A. 2680 (i).
11328 U.S.C.A. 2680 (h).
to Congress."114 In 1863, the Court of Claims was empowered
to make effective judgements under the 1855 act.1 Some
authorities point out that even with the Federal Tort Claims
Act, very few tort claims received redress.116
Over 18 bills were introduced into Congress between
1919 and 1946 which intended to alter, amend, or replace the
1855 statute. Finally, in 1946, Congress passed the Federal
Tort Claims Act of 1946.117 This act has been heralded as
being "a very important step forward."118 It abrogated
governmental immunity from liability in tort for the United
States and provided for litigation of tort claims against
the government. Many of the exemptions found in the 1855
act still apply, but redress became much easier to acquire.
Since the passing of this act, the Federal Court of Claims
has heard and ruled on a great number of tort liability
cases. It is important to point out that in 1855 the United
States federal government attempted to abrogate its immunity
from tort liability 38 years before England did so. However,
England totally abrogated their immunity at that time--the
United States did not do so until 1946.119
114Supra note 97 at 1117-1118.
115Id note 97 at 1118.
116Supra note 92 at 972 and note 98 at 1118.
11728 U.S.C.A. 9 1346.
118Id note 92 at 973.
19Supra note 86.
The Individual States and
Governme Lta I immunity
Unlike the federal government of the Eighteenth
Century, the state governments which replaced the English
colonial governments did not have absolute control regarding
their governmental immunity status. As pointed out earlier,
the newly adopted constitution of 1788 gave federal courts
jurisdiction over suits between a citizen of one state and
another state. This was viewed by many states to be an
infringement on the sovereignty which Hamilton refers to in
The Federalist Papers (No. 81).121 Individual states did
inherit some immunity form from the previous English govern-
ment for there is no mention of the possibility of a citizen
of a state suing the state in which he enjoys his citizenship.
This is not to mean that an Englishman could not sue the
crown. For if an Englishman petitioned the crown to allow
itself to be sued (and the crown agreed to do so), then suit
could be brought against the English crown. States, through
common law transference, were able to maintain their immunity
with their own citizens.
In 1793, the newly formed Supreme Court of the
United States ruled on a governmental immunity case that is
of great importance. Not only did Chisholm v. Georgia
120Supra note 101.
121Supra note 103.
1222 U.S. (2 Dallas) 419 (1793).
inspire quick passage and ratification of the Eleventh
Amendment to the United States Constitution, but it also
established a common law link regarding the transmission of
the governmental (sovereign) immunity concept into American
The Chisholm case presents the question
Can the State of Georgia...be made a party-defendant
in any case...at the suit of a private citizen of
the State of South Carolina?12"
Chisholm, a resident and citizen of South Carolina, was
seeking compensation for the nonperformance of a contract
made with the State of Georgia. The attorney general of
Georgia claimed that no suit could be brought against the
state since the state was sovereign. The Supreme Court's
(of the United States) justices examined all the relevant
aspects of Georgia's inherited sovereign immunity in analyzing
Mr. Justice Iredell, in discussing the applicability
of English Law to the newly formed Union states:
I presume it will not be denied, that in
every State in the Union, previous to the adoption
of the Constitution, the only common law principles
in regard to suits that were in any manner admis-
sible in respect to claims against the State, were
those which in England apply to claims against the
crown is that which is called a Petition of right...
but now none can have an action against the King,
but one shall be put to sue to him by petition ...
The same doctrine appears in Blackstone's Commen-
123Mr. Randolph, Attorney General for the United States,
arguing for the plaintiff, Supra note 122 at 420.
tries. 1 Vol 243.124 The same doctrine is also
laid down with equal explicitness, and without
noticing any distinct ion whatever, in Blackstone's
Commentaries, 3 Vol. 256, where he points out the
petition of right as one of the common law methods
of obtaining possession or restitution from the
crown, either of real or personal property; and
says expressly the petition of right 'is of use where
the King is in full possession of any hereditaments
or chattels, and the petitioner suggests such a
right as controverts the title of the crown, grounded
on facts disclosed in the petition itself.'12
Justice Blair, while endorsing the concept of sovereignty
and immunity from suit, points out
And if a State may be brought before this
Court, as a Defendant, I see no reason for confining
the Plaintiff to proceed by way of petition; indeed
there would even seem to be an impropriety in pro-
ceeding in that mode. When sovereigns are sued
in their own Courts, such a method may have been
established as the most respectful form of demand;
but we are not now in a State-Court; and if sover-
eignty be an exemption from suit in any other than
the sovereign's own Courts, it follows that when
a State, by adopting the Constitution, has agreed
to be amenable to the judicial power of the United
States, she has, in that respect, given up her
right of sovereignty.126
Mr. Justice Wilson, however, points out that the Constitution
of the United States is conspicuously absent of the word
To the Constitution of the United States
the term SOVEREIGN, is totally unknown. There is
but one place where it could have been used with
propriety. But, even in that place it would not,
perhaps, have comported with the delicacy of those,
124Supra note 122 at 437.
125 ote 122 at 442.
Id note 122 at 442.
Id note 122 at 452.
who ordained and establi :;hed that Constitution.
They might have announced themselves "SOVEREIGN"
people of the United States: But serenely conscious
of the fact, they avoided the ostentatious
In examining the historical development of sover-
eignty and immunity, Wilson refers to Blackstone's Commen-
taries several times.
The law, says Sir William Blackstone, ascribes
to the King the attribute of sovereignty: he is
sovereign and independent within his own dominions;
and owes no kind of subjection to any other potentate
upon earth. Hence it is, that no suit or action can
be brought against the King, even in civil matters;
because no Court can have jurisdiction over him:
for all jurisdiction implies superiority of power.
This last position is only a branch of a much more
extensive principle, on which a plan of systematic
despotism has been lately formed in England, and
prosecuted with unwearied assiduity and care. Of
this plan the author of the Commentaries was, if
not the introducer, at least the great supporter.
He has been followed in it by writers later and less
known; and his doctrines have, both on the other and
this side of the Atlantic, been implicitly and gen-
erally received by those, who neither examined their
principles nor their consequences.128 . In Enland,
according to Sir William Blackstone, no suit can be
brought against the King, even in civil matters.
So, in tha Kingdom, s the law, at this time,
Finally, however, Judge Wilson concludes:
It is plain then, that a State may be sued,
and hence it plainly follows, that suability and
State Sovereignty are not incompatible.10
127Supra note 122 at 454.
128Id note 122 at 458.
1291d note 122 at 460.
130Id note 122 at 473.
Consequently, the Supreme Court of the United States ruled
that even though a state may not give consent to be sued or
even oppose being sued, a citizen of another state may sue
the state because Article III, section 2 of the Constitution
authorizes such suits. In upholding the power of the federal
courts, the Supreme Court permitted both tort and contract
liability suits since the article in question reads "(t)he
judicial Power shall extend to all Cases . (italics
added).131 The Constitution does not specify either contract
suits or tort suits.
Chisholm v. Georgia, one of the earliest Supreme
Court cases on the subject, held that Article HII
of the Constitution gave the federal courts juris-
diction over suits against a state by citizens of
another state, whether or not the state had consented
to suit. This decision caused a great deal of turmoil
among the states, who feared that this would open
the door to innumerable suits based on debts accrued
during the Revolutionary War, and eventually bank-
rupt the fledgling state treasuries.132
This case's great importance to this study comes from the
various justices' discussions regarding the sovereign and
governmental immunity aspects of the case.
The situation in 1793 for the states, then was
1) States, by inheriting sovereignty from
colonial governments, exercised govern-
mental immunity and could not be sued
by one of their own citizens.
I 31SL.a io)te 101.
Su2r5 a note 83.
2) Due to ArticLu Ill, section 2 of the
ratified 17s8 United States Constitution,
states could hbI sued in federal court
by citizen, of other states.
As previously mentioned in this paper, many scholars
believe that sovereign immunity was transmitted to this
country through the Russell v. Men Dwelling in Devon case.
They maintain that this legal precedent set the foundation
for the establishment of this concept in the United States.
However, this case was decided in 1788. The Supreme Court
of the United States decided the Chisholm v. Georgia case
in 1793. Five years had passed since the supposedly significant
Russell decision, yet there is not one reference to this
earlier case in Supreme Court's decision. The Supreme Court
of the United States, instead, examines the concept of
sovereign immunity in terms of Blackstone's Commentaries
on the Laws of England.13 Mr. Justice Iredell states that
everyey man must know that no suit can be against a legis-
lative body."135 He then references "1 Blackstone's Commen-
taries 243" to prove his point. In discussing the common
law transmission of ancient law into modern law, the justice
133Russell v. Men of Devon, 100 Eng. Rep. 359 (1788).
1Supra note 83.
13Supra note 122 at 437.
I take it for granted, that when any part of
an ancient law is to be applied to a new case, the
circumstances of the new case must agree in all
essential points with the circumstances of the old
cases to which that ancient law was formerly appro-
He then finds the circumstances of sovereign immunity in
ancient times to agree with the circumstances of the new
The vital point of this decision to this study is
that the United States Supreme Court, the highest court in
the land, did not base its decision on some obscure English
case,3 but rather on the writings of the scholar who
helped to formalize and legitimize the concept of sovereign
immunity in England. Russell and Others v. The Men Dwelling
in the County of Devon38 is probably not the primary method
of transmission of the common law principle of sovereign
immunity from England to the United States, but rather
Sir William Blackstone and his Commentaries on the Laws of
England provided the legal basis for adoption of this prin-
ciple into American law. The courts of the United States
relied on the English scholars' interpretation of English
laws much more than obscure English case law when justifying
their opinions on the sovereign immunity principle.
136Supra note 122 at 447.
137Supra note 133.
138 note 133.
Id note 133.
Russell and Others v. The Men Dwelling in the
County of Devon139 was not followed by a court in the United
States until 1812 when a Massachusetts court ruled on Mower
v. Inhabitants of Leicester140 This left a time period of
24 years where United States courts were ruling on public
tort liability cases without using Russell as precedent.
Early Immunity Cases in the States
The 24 year time period between Russell and Mower
(1788-1812) is very important to this study. If the theory
advancing the "Russell" connection is correct, then on what
basis did the various state courts rely in cases concerning
immunity during this 24 year period? If it can be shown
that many state courts relied on the principles of law which
existed prior to Russell or on principles other than Russell,
then the Russell theory is questionable.
Many cases were found involving actions against
public officials for tortious offenses. By far the most
popular type of cases were actions brought against local
sheriffs for damages resulting due to a prisoner escaping
from the town jail.141 During this time period, it was
generally held that the sheriff is liable for damages
139Supra note 133.
140Mower v. Inhabitants of Leicester 9 Mass. 246 (1812).
141Sheldon v. County of Litchfield 1 Root 158 Connn.
1790); Clarke v. Little, Johnson, and Webber 1 Smith 100
(N.IH., 1805); Moccubbin v. Thornton 4 Md 461 (1807); et cetera.
if he knew of the escape, aided in the escape, or if he knew
the jail was defective and this defect led to the escape.
Otherwise, the sheriff, being a public official, was held
immune from suit. However, none of these early "escape"
cases cited authorities or sources of law for their decisions.
Actions against other public officials (town
councilmen, constables, clerks, et cetera) were also prevalent
during the 24 year period in question.
In 1793, a Connecticut court ruled on a case where
the town constable spent bond funds and could not return
them to the proper person.143 The court ruled that
Towns are not liable or responsible for the conduct of
the constable ~yom they appoint, in the execution of
Another Connecticut case affirms the immunity privilege
without citing sources or references. In Willet v. Hutch-
inson, Town Clerk,1 a town clerk received a deed and
entered upon it "received for record," but forgot to record
it in town records, thereby causing the plaintiff monetary
damages. The court found
142Supra note 141, Clarke v. Little, Johnson, and
Webber 1 Smith 100 (1805).
143Hurlburt v. Marsh and the Town of Litchfield
1 Root 520 (1793.
144Sura note 143.
1452 Root 85 (1794).
That a town clerk being in officer of public trust
and confidence, much depended upon his duly attend-
ing to the law in the execution of his office,
and he, having once received a deed as town clerk
and entered upon it, "received for records", may not
suffer it to go out of his hands, unrecorded; as
he will be answerable in damages, o any person
that shall be prejudiced thereby.1
An early New Hampshire case involving (again) a
sheriff provides an interesting connection for the argument
of historical common law immunity.
It is an established principle of jurisprudence in
all civilized nations that the sovereign cannot
be sued in its own courts, or iy,4ny other, with-
out its consent and permission.
In 1797, a Delaware court ruled on a case4 much
like Russell49 where the town commissioners of Levy Court
chose not to repair a bridge over W. Clay Creek. The State
of Delaware brought suit against the local commissioners
seeking damages for "neglect" due to their failure to repair
the bridge. The court held "(T)he indictment quashed"150
Commissioners form a corporate body, and are not
indictable in their individual capacity.
The cases all go to show that judges, etc. are
not liable for mistakes, not for neglect on duty.151
14Supra note 145 at 86.
47Supra note 142 at 102.
1State v. Commissioners of the Levy Court 2 Del.
Cases 85 (1797).
Supra note 133.
50Supra note 148 at 88.
51d note 148 at 86.
A Massachusetts court held in 1804 that the town
clerk is not liable for misrecording a deed.1 Judge S. Dana
quotes an English case to support his point.
But the great point in the case is, that an agent
for the public is not liable to be sued upon
contracts made by him in that capacity.15
Judge Thacher, in finding for the clerk states
It appears by the record that the plaintiff in
error was acting as the agent of the public. The
law is settled that any person, acting in that
capacity . does not render himself personally
an officer appointed by the government . is not
liable to be sued . a sjrvant of the public is
not personally answerable. 4
In 1804, a Massachusetts court interpreted a state
statute erroneously and found a local municipality liable in
Lobdell v. Inhabitants of New Bedford.155 However, eight
years later, the same court corrected its earlier error and
found a local municipality not liable in an identical sit-
nation as the 'Lobdell' case and applying the same statute.
None of those cases cited above, nor any of those
encountered between the years 1776 and 1812 cited Russell as
a legal precedent for the maintaining of sovereign immunity
52Brown v. Austin 1 Mars 208 (1804).
3Supra note 152 at 213, Judge S. Dana quoting Macbeath
v. Holdmand 1 T Rep 172.
]54Id note 152 at 217, Judge Thocker.
551 Mass 153 (1804).
156Supra note 140.
in the United States. Indeed, in almost every instance, the
various justices felt that it was "settled law" or "common
law" that establishes the privilege of governmental immunity.
This indicates that our foundation of governmental
immunity was inherited from the English sovereign immunity
(as described by Blackstone157) through the colonies. The
Russell case connected to the United States through the
Mower v. Leicester precedent, happened 19 years after the
United States Supreme Court in Chisholm v. Georgia158
discussed the principle of sovereign immunity in terms of
inheritance and Blackstone9
Governmental immunity, then, as enjoyed by indivi-
dual states, was inherited (along with much of the rest of
the United States' legal system) when American state govern-
ments took over control from the English colonial governments
in 1776. The immunity which the English colonial governments
enjoyed was derived from English common law as described in
For the next 150 years, governmental immunity was
the rule when applied to states and their governments.
Occasional cases would reach the courts, but the results
157Supra note 9.
1Supra note 122.
Id note 9.
Id note 9.
were always the same--the state is immune from suits unless
it consents to be sued.
It is a familiar doctrine of the common law,
that the sovereign cannot be sued in his own courts
without his consent .. The exemption from direct
suit is, therefore, without exception.161
Every government has an inherent right to pro-
tect itself against suits . The principle is
fundamental (and) applies to every sovereign
Abrogation of Immunity by the States
As discussed previously, the federal government
partially abrogated its immunity in 1855 with the establishment
of the Federal Court of Claims, and totally abrogated its
immunity in 1946 with the Federal Tort Claims Act of 1946.
The individual states, however, were much more reluctant to
do so. It was not until the 1950's, that serious challenges
began to arise against the governmental immunity doctrine.
These challenges appeared on the most obvious and
logical of fronts--the state courts and the state legislatures.
Challengers attempted to influence state legislatures or
convince state courts to abrogate the governmental immunity
enjoyed by the states.
It is appropriate at this point in the study to
elaborate on the abrogation issue momentarily. There are
161The Siren 74 U.S. (7 Wallace) 152 (1869) at 154.
162Nichols v. United States 74 U.S. (7 Wallace) 122
(1869) at 126.
two types of abrogation: There is total abrogation of
governmental immunity. This is where the state gives up all
of its privileges of immunity. It can be sued for any type
of liability, tort, contractual breach, et cetera. There is
also no limitation of damages which can be collected from
the state if a suit is successful.
On the other hand, there is partial abrogation of
governmental immunity where the state gives up only part of
its privileges of immunity. There are two elements of
partial immunity--categories of liability and limitations of
damages. In the categories of liability, the state may
abrogate only types of liabilities for particular kinds of
actions. For example, some states will permit only actions
.resulting from school bus accidents to be heard in state
courts. The other element of partial abrogation, limitations
of liability, is where a state will set a maximum amount for
which it can be sued. For example, a state may allow itself
to be sued, but not for more than a specified amount per
person per incident. This is an attempt by the state to
keep from paying out unusually large sums in damages and,
thereby, upsetting the fiscal balance of the state budget.
In many instances, states use a combination of
"categories of liability" and "limitations of damages" in
their partial abrogation of governmental immunity. The
Commonwealth of Virginia is an excellent example of this
type of abrogation. In this state, the only action for
which the state can be sued is school bus accidents. And
the suit cannot be for morc than $30,000.00 per person per
incident. In this manner, the state has reduced its liability
of both suits and damages through partial abrogation.
As mentioned previously, the two methods of
abrogating governmental immunity may be by act of the state
legislature or by court order.
In the late 1950's, state legislatures were hesitant
to abrogate even partial immunity for fear of causing a
flood of suits. Due to this reluctance, state courts took
the initiative and began to abrogate governmental immunity
in a series of "spectacular decisions abolishing governmental
The first of these was Hargrove v. Town of
Cocoa Beach (Fla. 1957) 96 So.2d 130. This was
followed, over a period of two years, by a trio
of rather spectacular decisions abolishing the
municipal immunity, in Molitor v. Kaneland
Community Unit Dist. No. 302 (1959) 18 I11.2d 11,
163 N.E. 2d 89; Williams v. City of Detroit (1961)
364 Mich. 231, 111 N.W.2d 1; and Muskopf v. Corning
Hospital District (1961, 5 Cal.2d 211, 11 Cal.
Rptr. 89, 359 P.2d 457.164
A notable case concerning abrogation of governmental
immunity was Hargrove v. Town of Cocoa Beach 65 In this
case, the Supreme Court of Florida decided that for:
163upra note 97 at 1124.
16Id note 97 at 1124.
16596 So. 2d 130 (1957).
an individual to suffer a grievous wrong
(rather) than to impo.:e liability on the people
vicariously through their government . is
a sham to our constitutional guarantee that the
courts shall always be open to redress wrongs.166
The court then reversed its previous decisions supporting
the governmental immunity concept because of the many incon-
gruities and inconsistencies in applying the immunity prin-
The modern city is in substantial measure a
large business institution. While it enjoys
many of the basic powers of government, it nonethe-
less is an incorporated organization which exercises
those powers primarily for the benefit of the people
within the municipal limits who enjoy the services
rendered pursuant to the powers. To continue to
endow this type of organization with sovereign
divinity appears to us to predicate the law of
the Twentieth Century upon an Eighteenth Century
anachronism. Judicial consistency loses its
virtue when it is degraded by the vice of injustice.
We therefore now recede from our prior decisions
which hold that a municipal corporation is immune
Therefore, the Supreme Court of Florida led the
way towards abrogation of governmental immunity by abrogating
municipal immunity throughout the State of Florida in 1957.
In doing so, the court pointed out that the doctrine established
in Russell "had its inception . in 1788, some twelve
years after our Declaration of Independence" and pondered
why this new country would support and endorse such a doctrine.
166Supra note 165.
167Id note 165.
Quickly after the Ilarrove decision was made in
Florida, an even more historic case was decided in the State
of Illinois. Molitor v. K:ineland Community Unit District
No. 302 is of primary importance to this study for several
reasons. First, this decision abrogated governmental
immunity in the State of Illinois; and second, the decision
is an education case concerning a school bus accident. This
case is the link between the examination of the governmental
immunity concept, and its application to United States
education. In its decision, the Supreme Court of Illinois
We do not believe that in this present day
and age, when public education constitutes one
of the biggest businesses in the country, that
school immunity can be justified on the protection-
The court also found that while the school system
did possess limited insurance to cover liability in school
bus related accidents, "the question as to whether or not
the institution is insured in no way affects its liability."170
In fact, the court found a grave inconsistency in the entire
18Supra note 3.
1691d note 3 at 96.
170Id note 3 at 93.
Thus, under this statute, a person injured by an
insured school district bus nay recover to the
extent of such insurance, whereas, under the Kinnare
doctrine, a person injured by an uninsured school
district bus can recover nothing at all.171
The Illinois Court also faced the Russell doctrine head on
and found that:
It should be noted that the Russell case
was later overruled by the English courts, and that
in 1890 it was definitely established that in Eng-
land a school board or school district is subject
to suit in tort for personal injuries on the same
basis as a private individual or corporation.
(Crisp v. Thomas, 63 LTNS 756 (1890).) Non-
imfmunity has continyu9 to be the law of England
to the present day.
Yet, in the United States, courts, justices, and
legislators have seized upon this acient, obscure case and
endorsed it (even) in modern times while ignoring the fact
that it was overruled in England in 1890.
Three years after the Molitor case, the Supreme
Court of Michigan was faced with a similar situation in
Williams v. City of Detroit.173 In this case, the court
endorsed the notion of governmental immunity in the present
case, yet "overruled the doctrine of governmental immunity
for future cases by a majority of the court."174
171Supra note 3 at 92.
172Id note 3 at 91.
173111 N.W. 2d 1 (1961).
174Supra note 173 at 1.
From this date forward the judicial doctrine
of governmental immunity from ordinary torts no
longer exists in Michigan.175
The court, in essence, was giving the Michigan legislature
notice that legislative abrogation of governmental immunity
would be preferable to judicial abrogation but the court
would do it if the legislature would not.
The practical situation presented is that
if the legislature deems it necessary so to do it
may act to modify, or even abrogate entirely, the
doctrine of governmental immunity. It is also
true that the people acting under the initiative
provisions of the State Constitution may accomplish
a like result by legislation or by Constitutional
The Michigan court ignored the English precedent and generally
directed its attentions to recent American case law. It did
not feel at all bound by the ancient maxim, "the king shall
do no wrong."
The third case of what Dean Prosser calls "a trio
of rather spectacular decisions" is Muskopf v. Corning
Hospital District.177 The Supreme Court of California in
its 1961 decisions found no justification for maintaining
the archaic concept and "held that the doctrine of govern-
mental immunity from tort liability is to be rejected as
mistaken and unjust."178
Supra note 173 at 2.
76Supra note 97 at 1124.
177359 P. 2d 457 (1961).
178 ra note 177 at 457.
Supra note 177 at 457.
The court felt that by abrogating governmental
immunity, it was not breaking with past precedent, but
rather concluding a wrongly established legislative and
Only the vestigial remains of such governmental
immunity have survived; its requiem has long been
foreshadowed. For years the process of erosion of
governmental immunity has gone on unabated. The
Legislature has contributed mightily to that
erosion. The courts, by distinction and extension,
have removed much of the force of the rule. Thus,
in holding that the doctrine of governmental immunity
for torts for which its agents are liable has no
place in our law we make no startling break with the
past but merely take the final step that carries
to its conclusion an established legislative and
Due to the monumental implications of these three
precedent setting decisions, state legislatures began to
take rapid action.180 Many state legislatures, fearful of
court ordered total abrogation, immediately passed legislation
partially abrogating governmental immunity. In other states,
the courts seized upon the new precedents and began abrogation
(either partial or total) of governmental immunity. Some
state legislatures passed abrogation bills in response to
partial abrogation by their own state courts. In any event,
the Molitor, Williams, and Muskopf decisions opened the
flood gates for challenges to the governmental immunity
179Supra note 177 at 463.
180Supra note 97 at 1124.
issue. Since the late 19510's governmental immunity has been
in a fluid state, changing 'rom year to year compensating
for various community and judicial attitudes. The trend is
definitely towards abrogating of governmental immunity.
By 1971, the states of Alaska, Arizona, Arkansas,
California, the District of Columbia, Illinois, Indiana,
Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada,
New Jersey, and Wisconsin had their governmental immunity
abrogated by state court decisions.181 Many of these courts
expressed sentiments similar to those found in Molitor v.
Kaneland Community School District.182
It is revolting to have no better reasons
for a rule of law than that it was laid down in the
time of Henry IV. It is still more revolting if
the grounds upon which it was laid down have
vanished long since, and the rule simply persists
from blind imitation of the past.1 a
There are probably few tenets of American
jurisprudence which have been so unanimously berated
as the governmental immunity doctrine. This court,
and the highest courts of numerous other states
have been unusually articulate in castigating the
existing rule; test writers and law reviews have
joined the chorus of denunciators . The abroga-
tion of the doctrine applies to all public bodies
within the state . by reason of the rule of
respondant superior a public body shall be liable
for damages for the torts of its officers, agents,
and employees occurring in the courts of business
of such public body.
Supra note 97 at 1124.
1Supra note 3.
183Supreme Court of Minnesota, Spanel v. Mounds View
School District No. 621 188 N.W. 2d 795 (1962).
184Supreme Court of Wisconsin, Holytz v. City of
Milwaukee 155 N.W. 2d 618 (1962).
The rule of governmental immunity for tort is
an anachronism without rational basis, and has
existed only by the force of inertia. For years
the process of erosion of governmental immunity
has gone on unabated. The Legislature has
contributed mightily to that erosion. The courts,
by distinction and extension, have removed much of
the force of the rule. Thus, in holding that the
doctrine of governmental immunity for the torts for
which its agents are liable has no place in our
law we make no startling break with the past but
merely take the final step that carries to its
conclusion an established legislative and judicial
Appendix 1 presents a table which illustrates the major
court decisions in states where courts have found the need
to abrogate governmental immunity. This table presents the
court decision and the appropriate governmental entity
affected (if any other than the state). Material found in
this table came from a nationwide survey conducted by this
researcher regarding state governmental immunity and from
the National Association of Attorneys General's January, 1975
report on Governmental Immunity.186 Over 30 states have
case law precedents limiting some aspect of governmental
immunity. In all of these states, the court decisions have
been since 1957. Fourteen of these states have had court
decisions since 1970. This appendix shows that a majority
of states have limited governmental immunity by court
decision in the last 20 years.
185California Supreme Court, Muskopf v. Corning
Hospital District, supra note 177.
186Supra note 94.
After this trend of court decisions ordering
abrogation, state legislatures immediately began passing
legislation concerned with governmental immunity.
Almost without exception, state legislatures
have responded quickly to state court decisions
regarding sovereign immunity. When an Arkansas
court abrogated the doctrine of sovereign immunity,
the legislature immediately reinstated the doctrine,
finding the vitality of the principle essential to
the fiscal integrity of the state.
A second group of states responded by limiting
their liability through tort claims acts, a number of
which were modeled after the Federal Tort Claims
Act. These acts have the effect of reinstating
immunity except where the act provides for liability.
Twenty states have tort claims acts. Although they
differ in a number of particulars, there are signi-
ficant similarities. For example, there is commonly
a requirement that all claims be presented to the
relevant state department or agency, which has a
specified period of time in which to review the
claim and either pay it or deny it. In some states,
as soon as the claim is denied by the department,
the claimant may seek redress in the courts. In
others, a special hearing or appeal board must have
reviewed and affirmed the denial of the claim before
the jurisdiction of a court may be invoked.
Each act has specific exceptions to liability.
These include: discretionary acts within the scope
of employment, intentional torts by employees,
false imprisonment, mlicious prosecution, and
invasion of privacy.187
Appendix 2 is a table which presents information about state
legislation concerning governmental immunity. This table
lists both the statutory provisions of each state and the
appropriate coverage. Like Appendix 1, the information
found in this table comes from this researcher's national
survey and the 1975 report on governmental immunity for The
187upra note 94 at 28.
National Association of Attorniy's General.8 Appendix 2
shows that a majority of states (48) have some provision for
handling tort suits against the state. These provisions
range from insurance coverage (5)190 to various tort claims
acts (18).191 Many states have statutory provisions requiring
the state's attorney general to represent various state
officers in tort suits. The appendix reveals that most
states deal with governmental immunity concerns through
statutory means rather than constitutional provisions. Only
Georgia and Montana use the state constitution to direct
tort claim procedures.1
Mississippi and Pennsylvania have no statutory or
constitutional provisions regarding the governmental immunity
issue. Eighteen states use some type of tort claims act in
their liability legislation while five states make provisions
for insurance coverage. Through statutory means, three
188Supra note 94.
189Some statutory provision which speaks directly to
the tort liability issue.
190Colorado, Delaware, New Hampshire, New Mexico,
191Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky,
Missouri, Montana, Nebraska, Nevada, New Jersey, New York,
North Carolina, Ohio, Oregon, South Carolina, Tennessee,
192GEORGIA CONSTITUTION, ARTICLE VI; and MONTANA
CONSTITUTION, ARTICLE II.
states uphold the principle of sovereign immunity93 while
six states substantially abrog:ate it.1
The information compiled in Appendix 3 was gathered
primarily from this researcher's nationwide survey. Letters
were sent to each attorney general of each state asking for
that official to outline the status of governmental immunity
in his/her state. Appendix 3 provides a composite presentation
of the most recent information regarding the status of
governmental immunity. Letters from states' attorneys
general cite both courts decisions and statutes in determining
the extent to which governmental immunity operates.
The survey reveals that most states (35) have some
form of partial abrogation of governmental immunity.
The extent of this immunity varies from limitations of
damages to limitations of categories of liability. Fourteen
states have totally abrogated their immunity96 while eight
states still claim full governmental immunity.1
193Arkansas, Minnesota, Oklahoma.
194Florida, Illinois, Maryland, Montana, Rhode Island,
195See Appendix 1.
196Alaska, Arizona, California, Delaware, Florida,
Hawaii, Illinois, Louisiana, Mayyland, Michigan, Montana,
New Jersey, Vermont, and Washington (state).
197Connecticut, Georgia, Kansas, Mississippi, Missouri,
North Carolina, Pennsylvanis, and Virginia.
Michigan's attorney general responded that he was
unable to ascertain the status of governmental immunity in
his state.198 Responses from the attorneys general indicate
that many states are actually engaged in statutory or court
examination of the governmental immunity principle. This
continued interest indicates that the immunity issue is
fluid and changes as the needs of the states fluctuate.
198Letter from Louis A. Riyoli dated December 16, 1976.
Sovereign immunity was transmitted to both the
state and federal governments by two paths: first, the
principle was inherited by the state (and federal) governments
when they took over the functions of the English colonial
government. And second, the concept of governmental immunity
was formalized by the courts (especially the United States
Supreme Court's) reliance on Blackstone's Commentaries on
the Laws of England199 as a common law principle.
The federal government partially abrogated some of
its immunity in 1855 with the establishment of the Federal
Court of Claims. In 1946, with passage of the Federal Tort
Claims Act of 1946, the federal government totally abrogated
its governmental immunity.
Prior to 1798, the individual states were only
immune from suits from their own citizens. They could be
sued in federal court by citizens of other states. In 1798,
however, the Eleventh Amendment to the United States Consti-
tution was ratified and, thereby, gave individual states
total governmental immunity. This total immunity continued
until the late 1950's and early 1960's where a rash of
spectacular court decisions abrogated many state's govern-
mental immunity. State legislators quickly responded by
passing legislation abrogating (either partially or totally)
governmental immunity by state statute rather than allowing
199Supra note 9.
Supra note 9.
state courts to determine the extent of abrogation. Since
then, state governmental i inmii ty has been changing year by
year to accommodate the attitudes of both, the public and
the judiciary. The trend is towards abrogation of govern-
mental immunity as Appendices 1, 2, and 3 substantiate.
IMPLICATIONS OF THE GOVERNMENTAL
IMMUNITY PRINCIPLE TO EDUCATION
IN THE UNITED STATES
Since the late 1950's, many local and state
educational systems have become involved in the abrogation
of governmental immunity controversy. Education interests
are an important aspect of this controversy because in all
50 states, plus the District of Columbia, education is
specified as being an official state function. Education
has not been viewed by courts as a proprietary function, but
rather as a governmental function.201 Therefore, education
is a legitimate and bonafied state interest with official
state status in all 50 states.
Prior to the late 1950's, most states in the
United States enjoyed the prerogative of governmental immunity.
This immunity which the states enjoyed was also extended to
the various agencies and departments which perform govern-
mental functions. Education, being one of these agencies or
departments, also possessed governmental immunity from
200A. H. LEVINE, E. CAREY, AND D. DIVOKY, THE RIGHTS OF
STUDENTS 15 (1973).
201160 ALR 38
160 A.L.R. 38.
The abrogation movement began to substantially
alter this immunity status in the late 1950's. The most
notable case involving education being Molitor v. Kaneland
which was adjudicated by the Supreme Court of Illinois in
1959.202 This case was the first of what Dean Prosser
called "a trio of rather spectacular decisions" following
the important Florida decision in Hargrove v. Town of Cocoa
Beach. Therefore, it is important to realize that educa-
tional tort liability cases are frequently at the spearhead
of the abrogation of immunity movement.
The reasons for this situation probably arise
because of the nature of the educational process. Education,
by its very nature, is much more susceptible to tortious
acts than most other state agencies or departments are.
Because of this, there is a great deal more legal activity
concerning liability in the education field, than in other
governmental function fields.
Early Case Law
The earliest known case involving court abrogation
of sovereign immunity in an education case occurred in 1890
in England (Crisp v. Thomas).204 This landmark decision
202Supra note 3.
203Supra note 100.
204Supra note 80.
established the liability of education for acts of negli-
gence in torts. It should be noted that this case overruled
the immunity doctrine which was established over a hundred
years earlier in England. That same year, the English
Parliament partially abrogated that nation's sovereign
immunity as a result of this decision involving an education
case. Therefore, in England, the doctrine of sovereign
immunity was judicially abrogated in an education case
(Crisp v. Thomas). This decision places education at the
spearhead of the abrogation movement in England.
In the United States, however, the judicial
attitudes towards both, abrogation of immunity and educa-
tional tort liability cases, remained consistent. Court
after court in the Nineteenth Century ruled that the doctrine
of governmental immunity prevented the state (and schools)
from being sued.20 Everyone of these early education
decisions reflected the continuance of the governmental
immunity from liability, even in cases of gross negligence.
(T)he rule of immunity has been applied or
recognized where the negligence was that of a
school district itself, or of a school board, as
well as where the negligence was that of officers,
205Grander v. Pulaski County 26 Ark. 37 (1870 Arkan-
sas), Elmore v. Drainage Commissioners 135 Ill. 269 (1890 -
Illinois), Kinnare v. Chicago 171 Ill. 332, 49 N.E. 536
(1898 Illinois), Frecl v. Crawfordsville 142 Ind. 27,
41 N.E. 312, 37 L-A 301 (1895 Indiana), Kincaid v. Hardin
County 53 Iowa 430 (1880 Iowa), McKenna v. Kimball 145
Mass. 555, 14 N.E. 789 (1888 Massachusetts), Ferris v.
Board of Education 122 Mich 315, 81 N.W. 98 (1899 Michigan),
Bank v. Brainerd School District 49 Minn. 106, 51 N.W. 814
(1892 Minnesota), Finch v. Board of Education 30 Ohio St
37 (1896 Ohio), Ford v. Kendall School District 121 Pa.
543, 15 A. 812 (1888 Pennsylvania).
such as the trustees or( directors of a school
district, or the negligence of agents or employees.
And the rule of ininunility is applicable for
negligence committee in connection with duties or
functions which are merely optional or permissive,
as well as in connection with those mandatory in
The rule of nonliability for negligence has
been applied or recognized to preclude recovery
against school districts, school boards, or similar
school agencies for the personal injuries, illness,
or death of pupils attending public schools, as
well as of other persons, such as teachers, school
janitors or janitresses, employee in a school cafe-
teria, workmen or laborers, persons, other than
servants or employees, on school premises for
business reasons, such as one making a survey of
certain needed repairs to a school building, and
an employee of one under contract to remove ashes
from school premises, boy scouts, members of the
general public invited upon school premises to
attend school or other functions upon payment of
admission price, speakers or other guests at school
or other functions held on school premises for
which no admission price was charged, and members
of the general public on school premises or elsewhere,
such as on public sidewalks, streets, or highways.
And the rule of tort immunity for negligence
has been applied or recognized with respect to
injuries or damage to private property, as well as in
connection with loss caused by unreasonable delay
in disposing of condemnation proceedings.
With respect to liability for personal injuries
or death caused by a wrong other than negligence,
judicial statements have been made, for the most part
in cases involving negligence, to the effect that
the general rule of tort nonliability applies
irrespective of the nature of the wrong causing
such injuries or death.206
Therefore, prior to the 1950's, there seemed to be
almost no action which an education agency, department,
board, official, or employee could perform which would cause
agency liability damages.
206160 A.L.R. 42-48.
Court Ordered Abrogation
in Educationt Cases
As stated previously, the Molitor decision changed
the steadfast principle of governmental immunity. Mr. Justice
Klingbiel, in his 1959 Supreme Court of Illinois decision,
found no solid basis for the governmental immunity principle.
This ground breaking decision abrogating govern-
mental immunity was an education case. Like Crisp v. Thomas
in England,207 Molitor v. Kaneland is at the spearhead of
the abrogation of governmental immunity movement in the
United States. This means that educational systems can no
longer rely on the protection of governmental immunity since
education cases are the precedent-breaking decisions.
Education cases are setting the new trend in this field.
Application to Education:
Political and Fiscal
This section is intended to present a series of
political and fiscal alternatives that various states are
using or are attempting to use in order to deal with the
governmental immunity controversy.
In the states where governmental immunity has been
totally abrogated, education (both local and state agencies)
is liable for damages of tortious acts. School districts in
these states frequently purchase liability insurance for
S7upra note 80.
fiscal protection. State courts of claims frequently hear
tort cases and thereby offo.r some control of the situation.
In the states where governmental immunity has been
partially abrogated, education is liable for the categories
of claims and the extent of damages allowed in the partial
abrogation. Local school districts in these states have the
appearance of limited protection since they can only be sued
in particular circumstances. For these circumstances, most
states allow or require their school districts to purchase
liability insurance. However, the fact that partial abrogation
has occurred in no way prohibits a state court from totally
abrogating the state's (or agency's) governmental immunity.
In the states where governmental immunity is still
in effect and is enjoyed by all state agencies, education is
protected from liability suits. In some of these states,
however, local school districts still purchase liability
insurance for additional protection in high risk situations
such as school bus use, field trips, shop classes, et cetera.
It should be pointed out that state courts can, at any time,
abrogate this immunity either in total or partially. And
since education cases have the tendency to spearhead this
abrogation movement, school districts could, at any time,
lose their immunity from liability.
The fiscal implications of abrogation of govern-
mental immunity are numerous and far reaching. In situations
where school systems have suddenly lost their immunity by
court abrogation, the damages must be paid out of the system's
current operating budget. Obviously, this situation is
undesirable since the budget, then, must be reduced and
funding of the educational program endangered. To compensate
for situations such as this, school systems often use state
appropriated funds to purchase liability insurance. This
has become a common practice for many school systems through-
out the United States. However, some courts have found this
practice to be unwise and inappropriate.
If tax funds can properly be spent to pay
premiums on liability insurance, there seems to be
no good reason why they cannot be spent to pay the
While the Molitor decision adds some insight into
the problems of purchasing liability insurance, other
problems exist in its solution.
It would be impossible for local school districts
to predict exactly how much damages (if any) they would be
paying out in the next fiscal year. It is quite conceivable
that the damages may exceed the allotment and consequently
create a categorical deficit. If, on the other hand, a
school system did not use all the funds appropriated for
damage claims, "carrying-over" these funds until the next
year might not be possible. Many states have laws prohibit-
ing or limiting "carry-over" accounts. Therefore, the "pay-
as-damages-come-in" philosophy is often neither practical or
208Supra note 9.
The "savings-account" idea also possesses the same
inherent problems as the "carry-over" accounts, so this
option is not viable either.
Some states have, through legislative action,
created a state court of claims. Often, these courts of
claims are fashioned after the federal Court of Claims. In
these instances, the court adjudicates the tort claims and,
thereby, is able to exercise some amount of control over the
type of claims and the extent of damages. However, school
districts cannot count on help from these courts.
The purchasing of liability insurance, super-
ficially, at least, seems to be the only practical solution
to the fiscal dilemma and is, by far, the most common.
Political alternatives offer some possibility of
relief. States that do not have courts of claim might be
prodded into legislating such courts. States that do not
require insurance, might be wise to consider mandating that
such insurance be possessed by each local school division.
Another alternative is for the creation of a state-wide tort
claims account from which damages caused by any state agency
could be paid out of.
In any event, solutions to the governmental
immunity controversy will have to be effective, efficient,
The implications oF the abrogation of governmental
immunity movement are substantial. More and more school
districts and agencies are finding themselves liable for
damages incurred by tortious acts. This increase in liability
is directly attributable to the increase in the abrogation
of governmental immunity either by court or legislative
action. The school district can no longer rely on the,
heretofore, steadfast rule of governmental immunity.
Avoiding liability suits is particularly difficult
since the very nature of the educational process exposes it
to more than its share of tortious risks.
Fiscal and political alternatives offer limited
relief at present, but creative and imaginative administration
may open up many new avenues of protection.
This study has had three major purposes. It has
attempted to demonstrate the following:
(1) The origination and the development of the
sovereign immunity concept into the English legal system,
(2) The transmission or migration of this concept
into the United States' legal system, and
(3) The evolution of the concept of governmental
immunity in the United States, and the application of this
concept to education in the United States.
It has been shown that the origin of the concept
of sovereign immunity had two evolutionary paths. First,
the canon law system developed a type of sovereign immunity
for its higher level clergy. And second, the feudal system
also developed the concept that the lord who made the laws
could not be sued under those same laws. These two paths
were merged into the early English legal system where the
doctrine of sovereign immunity became formalized in case law
during the reign of King Henry II.
Developmei-fL in Ein land
The doctrine of sovcreign immunity continued to
develop in case law until the reign of King Henry VIII in
1532 when, as a result of his marital difficulties with the
Bishop of Rome, he had the royal prerogative established
into statutory law. By doing so, he legitimized his immunity--
even from Rome.
The English law historian Blackstone helped to
incorporate this principle into the established legal system
in his Commentaries on the Laws of England0 where he
justified the concept of sovereign immunity became "the king
can do no wrong.210 Blackstone's reputation as a great
legal scholar helped to further this principle in the newly
formed United States.
Transmission of the Principle
When the states assumed the responsibility of
governmental functions from the earlier colonial governments
in 1776, they inherited the prerogative as part of their
legal heritage. The endorsement and acceptance of such a
medieval concept into the new democratic government defies
all rational explanations. It was the same prerogative of
sovereignty that the Revolutionary War was fought to abolish.211
20Supra note 9.
210Id note 9.
Supra note 3 at 95.
Shortly after the federal Constitution was ratified
in 1788, the United States Supreme Court ruled on an immunity
case in Chisholm v..Georgii.212 While finding the state
liable for suit in a federal court, the Supreme Court endorsed
the concept of sovereign immunity as applied against a
state's own residents. The court's rationale for this
endorsement of immunity was the famous Blackstone's Commen-
taries.213 No mention of an obscure English case (Russell v.
Men of Devon21) was made. This, therefore, established a
case law principle which was apparently founded on Blackstone's
Evolution in the United States
Shortly after the Chisholm decision, the Eleventh
Amendment to the United States Constitution was ratified.
This amendment guaranteed absolute governmental immunity to
the United States.
The federal government partially abrogated its
immunity in 1855 with the establishment of a federal court
of claims. Ninety-one years later (56 years after England
abolished its sovereign immunity) the Federal Tort Claims
Act of 1946 totally abrogated the federal government's
immunity from liability. The states, however, were still
212Supra note 107.
213Supra note 9.
214Supra note 133.
Supra note 133.
clinging to their immunity using the Russell doctrine as the
justification even though this doctrine (which was established
in England in 1788) was overruled in England in 1890.
It was not until the late 1950's when "a trio of
rather spectacular decisions" by state courts began the
abrogation movement.215 The first case of this "trio" was
an education case where the doctrine of sovereign immunity
was abolished. Within ten years time of these decisions,
over 15 states had abrogated Cat least partially) their
governmental immunity. The data presented in Appendices
1, 2, and 3 details the current status of governmental
immunity in the United States.
The trend in this movement is clear. State legis-
latures are gradually abrogating the states' governmental
immunity. This abrogation movement is frequently in response
to court decisions where legislative abrogation is either
required or totally circumvented.
The usual mode of abrogation is partial liability
with a limitation of the tort categories as well as a limita-
tion of the damages. Frequently, a state court of claims,
patterned after the federal court of claims, is established
to hear such actions.
25Supra note 97 at 1124.
216Alaska, Arizona, Arkansas, California, District
of Columbia, Illinois, Indiana, Kentucky, Louisiana,
Michigan, Minnesota, Nebraska, Nevada, New Jersey, and
The study conducted by this researcher found only
eight states which are attempting to maintain full govern-
mental immunity. On the other hand, only 16 states have
total abrogation of their governmental immunity. The rest
of the states have some form of partial abrogation of
governmental immunity in effect. Data found in Appendices
1, 2, and 3 give specific details on a state-by-state
Application of the Governmental
Immunity Principle to Education
As stated in Chapter 4, the implications of the
movement of the governmental immunity principle are great
and far reaching.
Before the abrogation movement began, educational
agencies and local school districts enjoyed the privilege of
governmental immunity. But education soon found itself at
the forefront of the abrogation movement. Some courts,
which abrogated school district immunity, indicated that the
presence or lack of insurance was a moot factor in their
decision. In other states, the purchasing of school
liability insurance was interpreted by the courts as consent
to be sued.
This places local school districts in quite a
dilemiia. On one hand, they cannot be certain that the
217 ra note 3 at 93.
Snora note 3 at 93.