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Government Liability In Tort
Borchard, Edwin
Borchard, Edwin
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Abstract
Probably no function of a municipal corporation is more “governmental" in character than the care of its highways, streets and bridges. In theory, therefore, the city should be immune from responsibility for negligence in such matters; and such was the common law. Precisely the opposite result, however, constitutes the weight of judicial authority in this country, even in the absence of statue, on the commonly advanced ground that the duty of taking care of the public highways is ministerial in character. The conclusion deserves approval, though not necessarily the ground on which it is based. More difficult to support is the common-law immunity extended to towns and countries in several parts of the country in respect of like defects in public highways. Mention has already been made of the way in which the courts, first in New England, worked out the immunity of the country, on the authority of Russell v. Men of Devon. Most of these cases involved acti.ons for injuries arising out of defective highways or bridges.