(dissenting).
I respectfully disagree with the conclusion reached by the majority on rehearing, that the ruling previously made in this case should not take effect until July 1, 1976. The “modified prospectivity” rule, as announced in our opinion, is in accord with well-recognized principles of justice. The terms “similar pending actions” and “causes arising in the future,” alleged to be ambiguous, have a definite legal meaning and are not subject to interpretation as claimed. It recognizes the oft-stated principle of law that all citizens should have access to the courts in seeking redress for every substantial wrong. The spectre that the effects of this ruling will bankrupt the State is, at best, based on pure conjecture and speculation. Before the State can be held liable for any claim the liability must be established and the damages proven in a court of law. I do not believe that reliance, convenience or expediency should outweigh the just objective that an aggrieved party be compensated for injuries suffered when incurred through the negligence of the State or any of its political subdivisions. In Barker v. City of Santa Fe, 47 N.M. 85, 88, 136 P.2d 480, 482, (1943), we referred to an Annot. in 75 A.L.R. at 1196, which said that the sovereign immunity doctrine should not exempt the various branches of the government from liability for their torts, and that the entire burden of damages resulting from the wrongful acts of the government should not be imposed upon the single individual that is injured,
“ ‘ * * * rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.’ ”
Though in that case we were dealing with a tort allegedly committed by a municipality in the exercise of a proprietary function, the same principle should apply to all torts committed by any governmental agency acting in any capacity. In today’s world, consideration of the extent of governmental intervention and the many regulations which affect the actions of the individual citizens, should compel the adoption of the reasoning in Barker v. City of Santa Fe, supra, and thus permit an injured person to hold the wrongdoer responsible for the proximate consequences of the wrongdoer’s misconduct, whether it be the government or a person or private corporation. To insulate the government from responsibility for its negligence, even for a short period of time, once we have declared that anyone injured by a tortious act of the government should have the opportunity and right to litigate their claims in the court, is not only devoid of logic but disregards the very reasoning which prompted this Court to eliminate “the harsh and unjust results which blind adherence to sovereign immunity rules mandated.”
The least this Court should do is to apply the ruling to the case at bar where, through the efforts of the appellant, we have been afforded an opportunity to change an outmoded and unjust rule of law. The majority of cases dealing with the problem, excepting two, have applied the ruling to the case which resulted in the abolishment of the doctrine of sovereign immunity. To do otherwise would prevent case law or decisions from keeping up with the changing needs of society, when we deprive the litigant who was successful in making the change possible of the opportunity to completely litigate his claim on the merits. To be left only with the distinction of causing a change in the rule of law seems manifestly unfair.
The majority feeling otherwise, I respectfully dissent from the order on rehearing for the reasons above stated.