Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/9

Rh the individual from injury which the defendant had a reasonable opportunity to avoid at the time. Holmes, The Common Law, 144 (1881). The "reasonable freedom of action" here in question is that of a municipality, furnishing essential and other services to the public. The rule of immunity frees these activities of the city from liability for damages inflicted upon the individual. It is the tort-victim who bears the entire, sometimes calamitous, burden resulting from these enterprises undertaken for the benefit of the entire community The considered conclusion of the legal commentators has been that this burden should be treated as any other cost of administration of municipal activity and thereby be spread by taxes among the public receiving the benefits. Municipal irresponsibility and the sacrifice of individual rights to public convenience are not required to forestall disaster to the municipality.

They have pointed out that although municipalities are political subdivisions, created by the State and performing some governmental functions, they are not the State and do not partake of its sovereignty; they are corporate bodies, capable of much the same acts as private corporations; they have special and local interests and relations not identified with the State at large. They engage in fields of activity as a service to the citizenry never dreamed of in 1788, when this doctrine was first set forth in the report of the Men of Devon, supra, nor in 1870, when it was made a part of the law of Arkansas. The assumption of new and expansion of old services by the city for the benefit of the public has so augmented the incidence of this unjust precept on individual rights that it can no longer be retained except for the most compelling reasons. It has been noted that once the doctrine was imposed and followed by the courts stare decisis insulated the high court from the magnitude of the wrong being wrought by its application. Furthermore, the victims being individuals, made up at random from among the public generally, have, in the nature of things, no voice in the legislative halls.