Common Law Sovereign Immunity and the Maine Tort Claims Act: A Rose by Another Name

On October 12, 1976, the Maine Supreme Judicial Court allowed a Bath homeowner to sue the city for damage to her property resulting from the city's negligence. The case was Davies v. City of Bath and its significance was twofold. First, for decades before the Davies decision the Maine Supreme Judicial Court had routinely refused to consider such suits because of the doctrine of sovereign immunity. Fifteen years before Davies the court had expressed dissatisfaction with the doctrine, but until 1976 had repeatedly refused to abrogate it.

Second, the Davies decision was significant because the Maine Legislature, under the guiding hand of the Maine Municipal Association, reacted swiftly to the decision by passing the Maine Tort Claims Act. The Act became effective January 31, 1977, about three months after the court's decision in Davies. In many ways the Act codifies common law sovereign immunity. Immunity remains the rule and liability the exception.

Liability provisions are specific, however, unlike the common law, where liability had been couched in rather general terms open to liberal interpretation. For instance, a major area of common law liability involved municipal activity which could be called "proprietary" in nature. The term is not subject to precise definition, but for present purposes it is sufficient to say that it was broad enough to make a town liable when "acting for gain or remuneration and not solely because of a duty imposed by law . . . ." Similarly, other potentially broad exceptions to municipal immunity were not retained in the Tort Claims Act. Moreover, the Act places new and unique notice requirements on the individual injured by municipal negligence, imposes a two-year statute of limitations, and imposes a $300,000 cap on recovery from any municipality.