Within Recent Times newspaper headlines have carried titles such as "Another Riot Breaks Out In Watts." Underneath the headlines the story begins: "As usually has been the case in these racial outbursts, Tuesday night's violence was neither organized nor planned." Smoldering frustration, a rock through a car window, a policeman called to the scene suddenly scuffling, looting and even killings. In many cities of the nation this chain of events has been repeated, spontaneous and deadly, without plan or program. From Elizabethport, New Jersey, according to The Associated Press, came the story late in August of 1965 that large groups of youths drove through a section of Elizabethport in the early morning, hurling gasoline bombs, stones and bottles. They tossed firebombs through four store windows creating fires which were quickly extinguished. The rioters stoned the firemen when they attempted to save the burning property. Throughout the incident, people clustered in small groups along the sevenblock strip of the main business district and the city police were hampered in their attempts to disburse these groups because they were outnumbered. The first Watts riots which took place early in August of 1965 were, according to reports, a series of riots amounting almost to insurrection for a period of virtually six days when a small segment of the population estimated by officials to be not more than 1 per cent of the inhabitants of the city caused 34 deaths and 45 million dollars damage to private property. Eighty-five police officers, a large number of city firemen and 757 civilians were injured. Property stolen by looters exceeded the value of 200 thousand dollars. In New York City the shooting of a young Negro boy by a police officer triggered off a riot in Harlem. Nor are these incidents restricted to civil rights episodes. From throughout the United States have come stories of a growing tendency on the part of youths in many areas of the land to gather together in large numbers in small resort communities and villages with insufficient police personnel and equipment to control them. In these instances the youthful mobs may even outnumber the local population. Thrown stones and empty bottles, wielded weapons of all types, have resulted in store windows being smashed, buildings being set on fire, and other extensive damage throughout the affected communities. Locally, here in Cleveland, Ohio, during the construction of a school in the Lakeview area, extensive rioting and public commotion took place resulting in the death of a minister, the demolishing of many stores, extensive property damage throughout the area, and even complete loss of businesses. These examples illustrate that we are living in a tense, heated, explosive atmosphereespecially so in view of the unrest of the Negro in his quest for complete and equal civil rights-the results of which have been extensive property damage, personal injury and loss of life as a direct result of rioting and mob violence and civil disobedience. This article is addressed to the concept of the liability of a municipality for damage and injury caused by these riots and mob violence, and attempts to point out how the law has evolved and what we can expect in the future. The protection by a community of life and property within its boundaries has traditionally been considered a governmental function rather than proprietary; therefore the traditional theory of immunity has gone with it. Up to now, all authorities have indicated that there is no common-law right to recovery on the part of the injured, but by statute some states have already ended this immunity on the part of the municipality. The common-law rule that a municipality is not liable for damages resulting from mob violence or riots is founded on the traditional notions of sovereign immunity which shield the local government from liability for failures which are peculiarly governmental.' Therefore, in the absence of a statute abrogating this immunity, an injured citizen had no action against a municipality no matter how derelict it had been in maintaining order. Many states now have statutes which impose liability on a municipality for damage or personal injury by riots and mob violence.' The constitutionality of such statutes has been upheld by the 152 A.L.R. 562 (1928); 38 Am. Jur., Municipal Corporations Sec. 652 (1961). 2 Conn. Gen. Stat. Rev. Sec. 7-108( 1958); Ill. Ann. Stat. Ch. 24 Sec. 1-4-8 (1965): Kan. Gen. Stat Ann Sec 12-201 (1949) Ky Rev Stat. Ann. Sec. 411-100 (1963); La. Rev. Stat. Sec. 33: 5065 (1950); Me. Rev. Stat. Ann. Ch. 136, Sec. 8 (1954); Md. Ann. Code Art. 82, Secs. 1-3 (1957); Mass. Ann. Laws Ch. 269, Sec. 8 (1956); Mo. Rev. Stat. Secs. 537.140-160 (1959); Mont. Rev. Codes Ann. Sec. 11-1503 (1947); N.H. Rev. Stat. Ann. Sec. 31: 53 (1955); N.J. Stat. Ann. Secs. 2A: 48-1 to 48-7 (1952); N.Y. Munic. Law Sec. United States Supreme Court in Chicago v. Sturgess, in which the Court stated: "The law in question is a valid exercise of the police power of the State of Illinois. It rests upon the duty of the State to protect its citizens in the enjoyment of and the possession of their acquisitions. It is but a recogniion of the obligaion of the State to preserve social order in the property of the citizen against the violence of a riot or a mob. The State is the creator of subordinate municipal governments. It vests in them the police powers essential to the preservation of law and order. It imposes upon them the duty of protecting property situated within their limits from the violence of such public breaches of the peace as are mobs or riots. This duty and obligation thus entrusted to the local subordinate government is by this enactment emphasized and enforced by imposing upon the local community absolute liability for property losses resulting from the violence of such public tumults. The policy of imposing liability upon the civil subdivision of government exercising delegated police power is familiar to every student of the common law. We find it recognized in the beginning of the police system of the Anglo-Saxon people. Thus, 'the hundred' a very early form of civil subdivision was held answerable for robberies committed within the division. By a series of statutes, beginning possibly in 1285 in the Statutes of Westminster . . . we may find a continuous recognition of the principle that a civil subdivision entrusted with the duty of protecting property in its midst has police power to discharge the function and may be made answerable not only for negligence affirmably shown, but absolutely as not having afforded protection adequate to the obligation. Statutes of a similar character have been enacted by several of the states and held valid exertions of the police powers." The court in Darlington v. New York' said that the policy of the law respecting mob statutes has been well stated: "*** to make good at the public expense the losses of those who may be so unfortunate, as without their own fault, to be injured in their property by acts of lawless violence of a particular kind which is the general duty of the government to prevent, and further and principally, we may suppose, to make it the interest of every person liable to contribute to the public expenses, to discourage lawlessness and violence in maintaining the empire of the laws established, to reserve public quiet and social order." In Anderson v. Chicago," the court held that the purpose of the Illinois Riot Damage Act is toward the suppression of mob violence, to impose upon the municipalities to which the state has delegated police power the responsibility of protecting their residents against unlawful exercise by unauthorized groups of persons of powers delegated. And in Northern Insurance Company v. Milwaukee the court held that the statute imposing liability upon a municipality for injury to personal property by a mob or riot therein imposed absolute liability upon the municipality. 7 Ohio has a statute which makes counties liable for assault upon or lynching of a person by a mob. However, by an 1861 decision, Western College v. Cleveland, the City of Cleveland was held responsible neither for the destruction of property by a riotous assemblage of persons nor for the officers' neglect in not preserving the peace by preventing such destruction. This case still appears to be the law in Ohio despite a recent decision handed down in the Municipal Court of Cleveland in which the plaintiff recovered for injuries sustained as a result of mob violence as he attempted to report a robbery. This case did not apply to property damage and will probably be appealed. Whether this case will extend the municiality's liability for damage caused by riots and mob violence in the absence of statute is questionable at this time. STATUTORY ENACTMENTS An analysis of the various statutes which have been enacted up to this time reveals that they vary considerably as to the extent of recovery, as to whether personal injury as well as property damage is compensable, as to whether one 71; Pa, Stat. Ann. Tit. 16, Sec. 11821 (1956); R.I. Gen. Laws Ann. Sec. 45-15-13 (1956); S.C. Code Ann. Sec. 16-107 (1962); Wis. Stat. Sec. 66.091 (1961). 3 222 U.S. 313 (1911). +31 N.Y. 164 (1865). 313 Ill. App. 616; 40 N.E. 2d 601 (1942). • 227 Wis. 124, 277 N.W. 149 (1938). Ohio Rev. Code Sec. 3761.01 (1964). 8 12 Ohio St. 375 (1861). can recover if he himself is negligent, as to whether there is absolute liability or only conditional liability upon the community, as to the definition of a mob. It is to the variations of these statutes we will look next. All of the statutes provide for the recovery of property damage. Four states have enacted statutes which include recovery not only for property damage but for personal injury as well. In Connecticut, the statute provides that: "*** each city and borough shall be liable for all injuries to person or property including injuries causing death when such injuries are caused by an act of violence of any person or persons while a member of or acting in concert with any mob, riotous assembly or assembly of persons engaged in disturbing the public peace 99 10 ? 11 The Illinois statute provides for recovery for "any person suffering material damage to property, injury to person or death as a result of mob action." The Kansas statute provides that: “*** all incorporated cities and towns shall be liable for all damages that may occur in consequence of the action of mobs within their corporate limits whether such action shall be the destruction of property or injury to life or limb." 12 The Wisconsin statute provides that the county is liable for injury to person or property by a mob or riot therein.13 14 15 Several states provide for only partial recovery of any damage which may be incurred. Statutes enacted in the states of Maine, Massachusetts,10 and Rhode Island," provide that the municipality shall be liable to indemnify the owner for property damage caused by a "riotous, tumultuous assemblage of persons" to the amount of three quarters of the value of the property so destroyed. Many states condition recovery on the basis of whether or not the injured party was a participant in the riot and whether or not the injured party is free from any fault in connection therewith or whether or not the injured party was negligent in failing to notify the authorities to take preventive measures. The Illinois statute prohibits recovery if the injured party was a "participant" in the mob that produced the harm.18 The New Jersey statute provides that if the "claimant's negligence" contributed to destruction, he is barred from recovering. In addition, if claimant did not exercise all diligence to prevent the injury and if claimant had time to notify the authorities of impending mischief and failed to do so, he is barred from recovering." The New Hampshire" and South Carolina" statutes bar recovery by a claimant if the destruction of his property was caused by his "illegal or improper conduct." The Pennsylvania statute provides that the claimant cannot recover if he is guilty of "illegal or improper conduct" or if he fails to inform the authorities-if he has sufficient time to do so that a mob is forming which is likely to cause mischief." The statute of the state of Wisconsin prohibits recovery unless the claimant exercised all diligence to prevent the injury and notified the mayor or sheriff." Rhode Island prohibits recovery unless the owner used all reasonable diligence to prevent the destruction or damage to the property by an unlawful assemblage and to procure the conviction of the offenders." Some states provide for recovery only if the municipality or the police authority of the municipality is derelict and negligent in its duty to prevent any mob violence and to protect the property of its citizens. The Connecticut statute provides for recovery if the city or the police of the city "have not exercised reasonable care and diligence in the prevention or suppression of a mob, riotous assembly, or an assembly engaged in disturbing the public peace." 25 The Mary Conn. Gen. Stat. Rev. Sec. 7-108 (1958); Ill. Ann. Stat. Ch. 24 Sec. 1-4-8 (1965); Kan. Gen. Stat. Ann. Sec. 12-201 (1949); Wis. Stat. Sec. 66.091 (1961). 10 Conn. Gen. Stat. Rev. Sec. 7-108 (1958). 11 Ill. Ann. Stat. Ch. 24 Sec. 1-4-8 (1965). 12 Kan. Gen. Stat. Ann. Sec. 12-201 (1949). 13 Wis. Stat. Sec. 66.091 (1961). 14 Me. Rev. Stat. Ann. Ch. 136, Sec. 8 (1954); Mass. Ann. Laws Ch. 269, Sec. 8 (1956): R.I. Gen. Laws Ann. Sec. 45-15-13 (1956). 15 Me. Rev. Stat. Ann. Ch. 136, Sec. 8( 1954). land statute provides that a city is not liable unless the authorities had notice and also had the ability to prevent the injury. No recovery is allowed when it is satisfactorily proved that the civil authorities and citizens of said county, town or city have used all reasonable diligence to prevent or suppress mob action." Maryland has been followed by the state of Kentucky, which enacted similar provisions." Many of the statutes have certain distinctive features such as the number of persons required to qualify as a mob or in the designation of what cities or towns come within the statutory liability. The Illinois statute, for example, provides that a city, village, or incorporated town must have a population in excess of 5,000 persons in order to come within the provisions of the statute. Also, in order for an assemblage to constitute a mob for which liability could be imposed, the assemblage must consist of 20 or more persons. The Pennsylvania statute applies only to Philadelphia County, Allegheny County and North Hampton County, specifically referring to liability caused by riot damage and mobs only in those enumerated counties. The statute also specifies that a mob is 12 or more persons armed with clubs or weapons or 30 or more armed or unarmed persons assembled together." The Kansas statute defines a mob as an assemblage of five or more persons.50 30 83 The statutes of Rhode Island," Maine," and Massachusetts provide that in order for a claimant to recover, the damages to the property so destroyed or injured must exceed $50. Almost all of the statutes provide that the city which has to pay the claim of a citizen for damage caused by riots and mob action shall be subrogated to the rights of said citizen against the individual participants causing such damage. Most of the statutes also provide that the injured party may proceed against the individual causing the damage but may not have a double recovery. CALIFORNIA LAW 34 35 One state seems to have gone in the opposite direction with respect to a municipality's liability for damage caused by riots and mob action. Prior to 1963, the state of California had an act known as the California Riot Damage Act, which followed the pattern of those set forth above. However, in 1963, the California court in Muskopf v. Corning Hospital District held that the doctrine of sovereign immunity was mistaken and unjust and would no longer protect governmental entities from civil liability for their torts. As a result of this decision, the California Law Revision Commission recommended repeal of the California Riot Damage Act on the basis that it was unnecessary, and this statute and others imposing liability were subsequently repealed. However, California thereafter enacted a statute providing that a public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law." The result of this repeal and enactment is that a California property owner whose property has been damaged by riot cannot now recover from his government on any theory. The Riot Damage Act has been repealed, and he has no claim based on the government's failure to enforce the laws since the aforementioned statute abolishes such liability. PROGNOSIS Thus far, we have established that historically there is no common-law liability on the part of the municipality for damage to person or property as a result of riots. We see, in addition, that in recent times many states have by statute imposed a liability and that these statutes lack uniformity as to the scope of the liability and the definition of terms. What of the future? What may reasonably be expected in this regard? 20 Md. Ann. Code Art. 82, Sec. 3 (1957). Ky. Rev. Ann. Sec. 411.100 (1963). 28 III. Ann. Stat. Ch. 24 Sec. 1-4-8 (1965). Pa. Stat. Ann. Tit. 16, Secs. 11821, 11825, 11826 (1956). 20 Kan. Gen. Stat. Ann. Sec. 12-201 (1949). 1 R. I. Gen. Laws Ann. Sec. 45-15-13 (1956). 22 Me. Rev. Stat. Ann. Ch. 136, Sec. 8 (1954). Mass. Ann. Laws Ch. 269, Sec. 8 (1956). 84 Cal. Stats. 1949, Ch. 81, Sec. 1. As codified this enactment was Cal. Gov't Code Sec. 50140-45. 12 NEGLIGENCE CASES (2d) 160, 55 Cal. 2d 211, 359 P. 2d 457 (1961). se Cal. Stats. 1963 Ch. 1681. In evaluating the development of the statutory and case law in this area, it is necessary to examine the entire doctrine of sovereign immunity and the law which has evolved in this area. Recent decisions have whittled away at the doctrine of immunity, imposing more and more liability on a municipality for tortious conduct. In the Nimlo Municipal Law Review" the committee on tort liability reported that the general picture in the field of municipal tort liability continues to be one of attack upon the traditional doctrine of immunity. As in the immediately preceding years, several strongholds of immunity were taken by assault and the doctrine encroached upon. The report goes on to say that some of the cases continue in the traditional view that immunity is the rule and liability is the exception. However, the exceptions have become increasingly broad. Some of the cases make liability the rule subject to whatever immunity exceptions the legislature may thereafter restore; some cases take the view that liability ought to be the rule but it is up to the legislature to make it so. The trend continues, however, away from immunity. The concurring opinion of Justice Rankin Gibson in the case of Hack v. City of Salem" is an explicit illustration of how the doctrine of sovereign immunity has been wittled away. Justice Gibson sets forth the arguments which have been expounded in many decisions of recent years abrogating much of the doctrine of governmental immunity and states there is no good reason why a municipal corporation should not be held liable for its negligent torts on the same basis as a private corporation : "The municipal corporation is of no more legal concept than a private corporation. Both arise by operation of law, both necessarily act through agents and both necessarily are going to have agents who at times are negligent in the performance of their duties. The ordinary rules of liability applicable to private corporations should give municipalities all the protection they require against unreasonable claims. The defenses of contributory negligence and voluntary assumption of risks are available and are consistently upheld by the courts. Moreover, under the doctrine of respondeat superior, the liability of municipal corporations would be as limited as that of a private corporation by the requirement that the municipal employees act within the scope of their employment." In recent years, opinions by the Supreme Court of Florida in Hargrove v. Town of Cocoa Beach," the Supreme Court of Illinois in Moliter v. Kaneland Community Unit District No. 302," the Supreme Court of Michigan in Williams v. City of Detroit," and California-as has been previously cited-in Muskopf v. Corning Hospital District 2 have abrogated or whittled away at the broad doctrine of governmental sovereign immunity. Using the experience in the entire field of tort law as a guide, if one were to attempt to determine what the future might hold with respect to municipal liability for damage caused by riots or mob violence, one might expect to see many more states follow the lead of the states mentioned in this article and enact statutes providing recovery for damage caused by mob violence. One might also expect that due to the increasing number of cases abrogating and whittling away the doctrine of sovereign immunity, it may not be too long before we have case decisions in the various states-even in the absence of statutory provision-holding that a municipality is liable for damage and injury caused by riots and mobs. This is especially conceivable in view of the fact that possibilities of mob action, mob violence, rioting, and tumultuous assemblage have again become an increasing danger and menace to the safety and welfare of the citizens of the community not only because of racial unrest and tension but also as a sociological condition of society. Therefore, one may find the courts more and more willing to hold that a municipality entrusted under the police power with the preservation of the safety, health and moral welfare of the community should be responsible for the failure to protect its citizens and their property through every available means. The writers of this article therefore hazard a guess that the trend towards municipal liability for damage caused by riots and mob action will continue by the enactment of more statutes and by the evolvement of more case law creating such liability even in the absence of statutes. 37 28 Nimlo Mun. Law Rev. 432 (1965 Ed.). 38 15 NEGLIGENCE CASES (2d) 623. 174 Ohio St. 383, 189 N. E. 2d 857 (1963). 39 NEGLIGENCE CASES (2d) 145, 96 So. 2d 130 (Fla. 1957). 40 18 Ill. 2d 11, 163 N. E. (2d) 89 (1959). 41 13 NEGLIGENCE CASES (2d) 487, 364 Mich. 231, 111 N. W. 2d 1 (1961). 42 Case cited at footnote 35. |