Charles B. Elgin, Sr., Individually and as Next Friend of John Elgin, a Minor v. District of Columbia

BAZELON, Chief Judge,

concurring:

I join in reversing dismissal of the complaint. In emphasizing the factor of discretion as decisive, the court’s opinion takes a useful step toward modernizing the archaic doctrine of sovereign immunity. In retaining a rigid classification of cases, however, it harbors seeds of the same arbitrariness which presently characterizes that doctrine. In other areas of tort law, the elaborate categorizations of the common law have gradually been replaced by a single rule — that the existence and extent of the defendant’s duty to the plaintiff is to be determined in the context of all the circumstances of the action of which the plaintiff complains.1 I would decide cases against the sovereign in a like manner, treating the degree of discretion available to Government officials in performance of their office and the public interest in protecting the exercise of that discretion as among the “circumstances of the action” to be considered.2

. Cf. Daisey v. Colonial Parking, 118 U.S.App.D.C. —, 331 F.2d 777 (1963), and cases cited therein.

. Cf. Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (Traynor, J., Cal.Sup.Ct., 1961); Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465 (Gibson, C. J., Cal.Sup.Ct.1961). While the suggestion in Lipman corresponding to that made here — that discretion is only one of several factors to be considered (55 Cal.2d at 229, 11 Cal.Rptr. at 99, 359 P.2d at 467) — has since been rejected by the California legislature, Cal.Gov't Code, §§ 815.2, 820.2, the legislature has substituted a solution which reflects its own balancing of the many relevant factors in varying contexts. Cal.Gov’t Code, § 810 et seq.; Cal. Law Revision Comm’n, Recommendation Relating to Sovereign Immunity 807-34 (1963); Cal. Law Revision Comm’n, A Study Relating to Sovereign Immunity 246-83 (1963). See also, Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209 (1963); Note, 46 Minn.L.Rev. 1143 (1962); Note, 49 Cal.L.Rev. 400 (1961).