Summary
discussing lack of immunity for governmental propriety activities
Summary of this case from Bronsen v. Dawes CountyOpinion
No. 36483.
Filed June 30, 1967.
1. States. A consent to suit is a waiver of immunity from suit which permits the enforcement of a preexisting liability. It is not a waiver of immunity from liability and does not create a cause of action not previously existing. 2. ___. When a state, by itself or through its corporate creations, embarks in an enterprise, especially when commercial in character or which is usually carried on by individuals or private companies, its sovereign character is ordinarily waived, and it is subject to like regulations with persons engaged in the same calling.
Appeal from the district court for Frontier County: VICTOR WESTERMARK, Judge. Reversed and remanded.
Smith Brothers and John Wightman, for appellant.
Cline, Williams, Wright, Johnson, Oldfather Thompson, for appellee Board of Regents.
Maupin, Dent, Kay Satterfield, Clinton J. Gatz, and Donald E. Girard, for appellee Curtis Gas, Inc.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is an action by the administratrix of the estate of Roy Stadler, deceased, to recover damages for his injury and death. The deceased was injured on May 20, 1965, in a gas explosion caused by a defective valve on a water heater in a residence leased by the deceased from the defendant, Board of Regents of the University of Nebraska. The deceased died on June 7, 1965, as a result of the injuries sustained in the explosion on May 20, 1965.
The second amended petition alleged that employees of the defendant, Curtis Gas, Inc., had serviced the water heater in March at the request and authorization of the Board of Regents; that Curtis Gas, Inc., had notified the Board of Regents that the valve was defective but that each defendant had failed to repair the heater or notify the deceased of its defective condition; and that the Board of Regents was negligent in failing to keep the premises in a safe condition and in failing to warn the deceased of the defective valve.
The second amended petition further alleged that the Board of Regents had acquired the property in August 1947; that it had been leased to others since May 1964; that it was leased to the deceased on or about February 27, 1965; that there was no relationship between the Board of Regents and the deceased other than that of landlord and tenant; that the leasing of the property by the Board of Regents "was in the same nature and capacity as that of private parties leasing dwelling houses for rent"; and that the Board of Regents "was acting beyond the scope of any governmental capacity for which it was created" in leasing the property to the deceased.
A general demurrer filed by the Board of Regents was sustained and the action dismissed as to that defendant. The administratrix has appealed.
The question presented is whether the Board of Regents of the University of Nebraska may be liable for the negligence of its agents and employees. The Board of Regents contends that it is an agency of the state and as such is immune from liability.
By statute, the Board of Regents of the University of Nebraska in constituted "a body corporate" that "may sue and be sued." 85-105, R.R.S. 1943. This statute permits the maintenance of an action against the Board of Regents but it is not a waiver of any immunity from liability. A consent to suit is a waiver of immunity from suit which permits the enforcement of a preexisting liability. It is not a waiver of immunity from liability and does not create a cause of action not previously existing. Shear v. State, 117 Neb. 865, 223 N.W. 130; Kent v. State, 118 Neb. 501, 225 N.W. 672.
The plaintiff contends that the renting of the residence property to the deceased in this case was a nongovernmental or proprietary activity of the Board of Regents to which the immunity from liability does not extend. The Board of Regents argues that all of its activities are governmental in nature and the state engages in no activity of a nongovernmental or proprietary nature.
Although there is some conflict in the authorities, this court has recognized the doctrine that the state and its agencies may engage in proprietary activities and thereby incur liabilities from which they would otherwise be immune. In Sorensen v. Chimney Rock Public Power Dist., 138 Neb. 350, 293 N.W. 121, this court said: "* * * when a state, by itself or through its corporate creations, embarks in an enterprise, especially when commercial in character or which is usually carried on by individuals or private companies, its sovereign character is ordinarily waived, and it is subject to like regulations with persons engaged in the same calling." See, also, Platte Valley Public Power Irr. Dist. v. County of Lincoln, 144 Neb. 584, 14 N.W.2d 202, 155 A.L.R. 412; People v. Superior Court, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R. 2d 919.
In this case the plaintiff has alleged that there was no relationship between the Board of Regents and the deceased other than that of landlord and tenant, and that the leasing of the property by the Board of Regents was in the same nature and capacity as that of private parties leasing dwelling houses for rent. In Pintek v. County of Allegheny, 186 Pa. Super. 366, 142 A.2d 296 (Allocatur refused), the Superior Court of Pennsylvania held that a school district, a county, and a borough, which were operating an apartment building that they had bid in at a tax sale, were engaged in a proprietary activity and liable for injuries to a child who was injured on a defective fire escape. In the language of the court, they were "conducting a business operation on the premises as distinguished from a governmental operation." See, also, Morris v. School Dist. of Mount Lebanon, 393 Pa. 633, 144 A.2d 737.
The ultimate determination in this case, as to whether there is any basis for liability on the part of the Board of Regents to the plaintiff, will necessarily depend upon the facts. Upon the present state of the record, the demurrer of the Board of Regents should have been overruled.
The judgment of the district court is reversed and the cause remanded for further proceedings.
REVERSED AND REMANDED.