Flait v. Mayor & Council of Wilmington

Wolcott, J.:

This appeal presents the broad question of whether or not the doctrine of municipal immunity to suit is the law of this state. That doctrine is that the existence of a municipality’s tort liability depends upon the test of whether or not the injury complained of was occasioned by the negligent performance of a governmental or corporate function. If the former is the case, no liability exists, but if the latter is the case the municipality is liable. The doctrine has been criticized by a number of legal writers as an erroneous and illogical extension of an initial misinterpretation…