Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/8

1246 in which redress may be had", is reflected in similar and more far-reaching legislation of other states and of the United States Government. See Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954); Vermont Laws 1961, Public Act No. 265, Title 12, sec. 5601-02; Washington, Rev. Code, Ch. 4192; R.C.W. 4.92.090, added 1963 Ch. 159, sec. 2; Alask. Stats. Title 9, Ch. 65, sec. 09.65-070 added to a sec. 5.13 Ch. 101 S.L.A., 1962, and the Federal Tort Claims Act, 28 U.S.C.A., 2674 (1948). We do not construe such limited legislative action as has been taken in Arkansas to soften the impact of immunity on individual rights as an expression of legislative intent to retain the rule in all other areas. Only a comprehensive legislative study and enactment encompassing the entire field would warrant such an inference.

Legal scholars for the past forty years have criticized and condemned the concept of governmental immunity. An early and thorough-going examination of the doctrine was by Borchard, Government Liability in Tort (Pts. 1-3), 34 Yale L. J. 1, 129, 229 (1924-25); Government Liability in Tort (Pts. 4-6), 36 Yale L. J. 1, 757, 1039 (1926-1927); 28 Colo. L. Rev. 577, 734.

One of the more exhaustive examinations concludes that the failure to break fully with the immunity rule and " to do what nearly everyone agrees ought to be done " is found in three basic factors: First, the language of sovereignty found in the early cases; second, legislative and judicial inertia, thought to be the most potent single explanation of inaction; and finally, the fear that the financial burden of liability would result in inability to perform essential governmental services. Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954).

Tort law is intended to reconcile the policy of letting accidents lie where they fall, thereby giving reasonable freedom of action to others, and protection of