Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/3

Rh ; Glenn G. Zimmerman, William G. Fleming and W. H. Dillahanty, amici curiae.

W. M. M, Special Justice. This Court is again asked to overturn the rule of law granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity.

Appellants sued the City of Little Rock and one of its employees for damages as compensation for painful and permanent bodily injuries allegedly suffered by Mrs. Parish when her care was negligently struck by the City's garbage truck. The judgment of the lower court sustained the demurrer of the City and dismissed the complaint against it. Plaintiffs appealed.

The Court below followed the precedents of this Court which have established that a municipality when acting in its governmental capacity is not liable in damages for injuries inflicted on others by the negligent acts of its employees, servants and officers. If the activity causing the harm was "in the interest of the public generally", it is classed "governmental" and no suit will lie against the municipality. Clearly the operation of a garbage truck is governmental by this test. Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257 (1957). Yet, in applying this rule the Court there voiced its criticism: "Considerations of fair play and justice suggest that those injured by the negligence of a municipality or its agents should be compensated on equal terms with those injured by individuals or private corporations." The opinion further noted that many students of law have so recommended, that the Arkansas Legislature in 1947 had authorized municipalities to purchase liability insurance with a right of direct action against the insurer and expressed the hope that the Legislature might make the purchase of such insurance by municipalities mandatory at some future time. However, the Court felt that even though it might agree that the