Lyon v. City of Sumter

Ness, Justice

(dissenting) :

I dissent, being convinced the common law doctrine of sovereign immunity is an obsolete, inequitable principle which should be discarded.

The doctrine, as it exists today, is an illegitimate version of the original maxim that “the king can do no wrong.” The basis for the doctrine has long since vanished and it is time to re-examine the rule in light of reality.

Sovereign immunity had its genesis in this country following the Revolutionary War. It was based on the economically practical consideration that the young government could not bear the financial burden of negligence claims. The logic which spawned the doctrine of sovereign immunity, however sound it may have been in its inception, is no longer compelling. In view of the reality that liability insurance is available and is in widespread use, the doctrine has become an anachronism. When the reason behind a rule is whittled away by the passage of time, the rule should not persevere on the ground of stare decisis alone. As recognized by Roscoe Pound in Interpretations of Legal History, “law must be stable and yet it cannot stand still.”

The majority’s dogged adherence to this outmoded concept is incomprehensible to me. To date, more than 38 states have either abolished or amended the doctrine of sovereign immunity. I attempted in my dissent in Boyce v. Lancaster County Natural Gas Authority, 266 S. C. 398, 223 S. E. *365(21) 769 (1976), to trace the history of the doctrine from its colonial beginnings to its modern demise. Sufice it to say that I believe the principle of stare decisis cannot resuscitate a doctrine which has been discredited by actual experience and eclipsed by considerations of fairness and justice.

I would abolish the sovereign immunity doctrine in its entirety and hold prospectively that where an individual suffers a direct, personal injury or property loss proximately caused by the negligence of a governmental unit or its employee while acting within the scope of employment, the injured individual may recover for the wrong.

The wrong complained of here comes squarely within the language of Code §§ 47-379 and 47-380 (1962). The wording of Code § 47-379 could not be plainer: “Any such city shall be liable for all damages done to the. property of any citizen thereof . . .” (Emphasis supplied.)

The majority’s interpretation of the above provisions is tortured and contrived. Moreover, in an attempt to justify its construction of the statutes by reference to the parent legislation, the majority overlooks this broad language contained in § 22 of Act No. 377 of 1901:

“Any person who shall receive bodily injury or damage in his person or property through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under the control of the corporation . . . may recover . . .” (Emphasis supplied.)

The majority, in failing to recognize the express language of the statutes and the reality of liability insurance, has done a disservice to the citizens of this State who remain powerless to redress wrongs committed against them by municipalities.

I would affirm.