FLAIT et al.
MAYOR & COUNCIL OF WILMINGTON.
Suit for injuries sustained by reason of alleged negligent operation of city's fire engine. The Superior Court, New Castle County, entered judgment granting motion to dismiss complaint, and plaintiffs appealed. The Supreme Court, Wolcott, J., held that city was immune from liability.
The operation of a fire department by city was a " governmental function" and city was immune from liability for injuries arising out of alleged negligent operation of fire engine.
[48 Del. 90] Albert L. Simon and Stephen E. Hamilton, Jr., of Wilmington, for appellants.
William F. Lynch, II, Asst. City Sol., Wilmington, for appellee.
Before SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ.
This appeal presents the broad question of whether or not the doctrine of municipal immunity to suit is the law of this state. That doctrine is that the existence of a municipality's tort liability depends upon the test of whether or not the injury complained of was occasioned by the negligent performance of a governmental or corporate function. If the former is the case, no liability exists, but if the latter is the case the municipality is liable. The doctrine has been criticized by a number of legal writers as an erroneous and illogical extension of an initial misinterpretation of certain English cases by the courts of this country. The appellants join the attack.
The complaint before us alleges that the appellants were injured by the negligent operation of one of the appellee's fire engines. The appellee's motion to dismiss the complaint was granted below on the authority of Delaware Liquor Store, Inc., v. Mayor and Council of Wilmington, 6 Terry 461, 75 A.2d 272, a Superior Court decision applying the doctrine of municipal immunity to suit for a tort arising out of an accident involving one of the city's fire engines.
[48 Del. 91] The appellants argue that none of the reasons stated in the many cases upholding the doctrine of municipal immunity to suit are sound in reason and logic. These reasons, five in number, are set forth in a note in 34 Harv.L.R. 66. The author of that note demonstrates that the reasons in fact are not logical reasons. We are frank to say that if this was a question of first impression, we would be disposed to accept the appellants' arguments against municipal immunity to suit for tort, since it would seem to be a matter of common justice that a loss occasioned by the negligent performance of a function designed to benefit the community as a whole should fall upon the community generally, rather than upon the hapless individual injured through no fault of his own. We think, however, that this is not a question of first impression before us and that we are
bound by prior decisions of the courts of the state.
In Mayor and Council of Wilmington v. Vandegrift, 1 Marv. 5,29 A. 1047,25 L.R.A. 538, the former Court of Errors and Appeals held that the doctrine of municipal immunity to suit for torts arising out of the performance of a governmental function applied to the activities of the city constables.
In Eastern Union Co. of Delaware, Inc., v. Moffat Tunnel Improvement District, 6 W.W.Harr. 488, 178 A. 864, the former Supreme Court expressed approval of the doctrine, stating that irrespective of a provision in a municipal charter authorizing suits by and against the municipal corporation, the municipal corporation is nevertheless not subject to be sued for all purposes, and that suit may not be brought against it on account of acts done or omitted to be done in its governmental capacity.
The doctrine of municipal immunity to suit thus approved by the two former highest appellate courts of the state has been repeatedly applied in the trial courts. From 1849 to date there [48 Del. 92] have been twenty-five reported instances of the imposition of liability for acts or omissions of city employees in connection with the maintenance and improvement of streets, sewers and parks, regarded for this purpose as corporate and not governmental functions. Opposed to this there have been three reported ...