(specially concurring).
I concur with the majority for the reason that a sudden and complete abrogation of the doctrine of governmental immunity from tort liability which has become embedded in the law of this state might be accompanied by dire results. Many subdivisions of government already are strained by high costs of operation and are levying almost maximum taxes and abrogation at this time could cause extreme hardship. I also agree that the legislature because of its flexibility is better equipped to cope with the problem. However, I do feel that the judicial branch of government has a responsibility in this area and should remain cognizant of it.
The doctrine of governmental immunity from tort liability was judge made. If abrogated in the same manner, as some courts have done, it can again be reinstated or limited by the legislature. There is little doubt that the courts have created an area of nonliability for torts with slight reason to allow it to subsist under modem socio-economic conditions. Courts should not irrevocably place corrective responsibility upon the legislature for a situation they have created.
The decisions of this court in attempting to distinguish between proprietary and governmental functions and predicating liability and nonliability thereon are not clear and the thread of distinction in many instances is without logic and confusing. Decisions were reached at times by a divided court. I fear the court will continue to be troubled in applying this test.
So far as I have been able to determine neither the legislature nor its research committee has given the matter the serious consideration it merits or attempted a solution. The federal government and many states have; some with judicial prodding and others without it. I would defer to the legislature further opportunity to act. If they fail to act I feel the whole problem should be reconsidered by this court.