1958 Ins. L.J. 300 (1958)
Governmental v. Proprietary Function in the Operation of Airports

handle is hein.journals/inslj20 and id is 302 raw text is: Whether or not governmental units are liable for the torts
of their employees, agents or servants is resolved in this
analysis of the current status of the law with regard to
Governmental v. Proprietary Function in

T HIS ARTICLE is limited to a con-
sideration of those cases where the
litigation brought into issue the specific
legal point of whether the operation of an
airport by a municipality or some other
governmental unit is governmental or pro-
prietary in function; and, hence, whether
or not there is liability on the part of the
governmental unit for the negligence of its
employees, agents or servants.
This article does not include cases which
were decided subsequent to those cited,
where the courts of the jurisdiction have
simply reaffirmed the original holding, ex-
cept where the affirmation is by a court of
higher jurisdiction. It also does not in-
clude cases of bailment (airplanes lost by
fire), contract (actions of municipality ultra
vires), injunction (exclusive franchise at air-
port sought to be stopped) or taxation
(issuance of bonds and use of bond receipts).
Nor does this article cover the liability of
the United States Government under the
Federal Tort Claims Act,
Citations are not numbered in the order
in which they appear in the text, but rather
they are listed in the appendix in alpha-
betical order by states. In this way, by
noting those citations which apply to the
reader's jurisdiction, he may immediately
determine the rule in his state.
General Rules
While the general rules which apply to
the tort liability of political subdivisions
are well known and have been stated fre-
quently (29), they are repeated here for
focus as far as the ensuing discussion is
concerned, The test governing liability
which is usually applied is that of whether
the function or action is governmental or
States.-It can be stated unequivocally
that states are not liable in tort regardless
of whether the function has a governmental
or proprietary flavor (4).
Counties.-The rule among the juris-
dictions is divided. Some say that since

the county is an arm of the state, it cannot
be liable. Some states, however, are be-
ginning to hold counties liable and are ap-
plying the same rule as is applied to
municipalities (16, 20).
Municipalities.-There appears to be a
large majority of jurisdictions which hold
that municipalities are acting in a pro-
prietary manner when they are construct-
ing, operating or maintaining an airport,
whether or not there is a statute covering
the situation.
Governmental and Proprietary
Functions Differentiated
The usual tests which are applied are
clearly expounded in the texts (29). How-
ever, their application in the field of the
operation of airports has been extremely
checkered, and the line of demarcation be-
tween governmental and proprietary func-
tions is a difficult one to discern. In one
state (Georgia), the identical statute has
been held by the same court to be both
governmental (6) and proprietary (7), with-
out any intervening action on the part of
the state legislature and without any recog-
nition of the prior decision in the later one.
So also, under statutes whose wording is
almost identical, the courts of some states
have held that action was proprietary (7, 16,
17, 18), while in other states the courts have
held that the action was governmental (2,
26). To further confuse the situation, the
courts of one state (Texas) with an assist
from the federal courts have said that the
function was proprietary (25). Subsequently,
the state legislature adopted an additional
statute quite similar to those mentioned
above, The first interpretation of this was
by the federal courts, which held that the
function was governmental (26). Then, with-
out any further benefit of action by the
state legislature, the state court has inter-
preted this later statute as being pro-
prietary (27).
Actually, the classification of these cases
can be split into two main classes:
I L J - May, 1958

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