8 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 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.1 Several states provide for only partial recovery of any damage which may be incurred." Statutes enacted in the states of Maine, 15 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 20 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.23 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." 21 24 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." "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). 22 Pa. Stat. Ann. Tit. 16, Sec. 11822 (1956). 23 Wis. Stat. Sec. 66.092 (1961). 24 R.I. Gen. Laws Ann. Sec. 45-15-13 (1956). 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.* 26 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. 30 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 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. 36 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). 90 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). 33 Mass. Ann. Laws Ch. 269, Sec. 8 (1956). 34 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). 36 Cal. Stats. 1963 Ch. 1681. 37 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. 38 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 have abrogated or whittled away at the broad doctrine of governmental sovereign immunity. 4.2 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). NEGLIGENCE CASES (2d) 145, 96 So. 2d 130 (Fla. 1957). 40 18 Ill. 2d 11, 163 N. E. (2d) 89 (1959). 4113 NEGLIGENCE CASES (2d) 487, 364 Mich. 231, 111 N. W. 2d 1 (1961). 42 Case cited at footnote 35. STUDENT COMMENTS INSURANCE PROTECTION AGAINST CIVIL DEMONSTRATIONS [Reprint from Boston College Industrial and Commercial Law Review] (By Alan S. Goldberg and William P. Statsky) Since the summer of 1964, Negro communities in eight large cities have experienced mob violence resulting in widespread damage.1 The most recent of these outbursts occurred in the Watts section of Los Angeles. In an area covering forty-six square miles, the cost of property destruction approximated forty million dollars. The purpose of this comment is to examine the insurance ramifications of such civil demonstrations. From an insurance point of view, the first obstacle faced by a property owner in a district prone to civil demonstrations is the possible unavailability of insurance in the event that insurers anticipate a recurrence of violence. Although it has been asserted that owners of private homes and business establishments in these areas have experienced little difficulty in obtaining policies, there are indications to the contrary. One Los Angeles insurance agent has charged that businessmen in that city are faced with the decision of many first-line insurance companies to refuse to write policies in southern Los Angeles. Similar problems have been reported in other racially tense cities. Moreover, one who has succeeded in obtaining a policy in these areas is not secure. The same threat of violence which has led underwriters to refuse to issue new policies has reportedly caused cancellation and refusal to renew existing policies. And, even where policies are made generally available, insurers have yet another means by which they can avoid assuming the risk of civil demonstrations. They can make it financially impractical for a property owner to pay the insurer's rates for covering those risks. While it has been suggested that the incidence of prohibitive rates has been minimal,' reports from Philadelphia, New York, and southern Los Angeles indicate the contrary. Assuming that the property owner has been able to obtain a policy at reasonable rates, he faces yet another obstacle in the possible operation of the exclusion clause. The standard fire policy covers all fire damage, including that caused by riot. If the assured desires additional protection, the "extended coverage plan" insures against all non-fire losses, even those caused by riot.10 However, in both the standard fire policy and the extended coverage plan, and in any policy obtainable," there is a clause excluding the insurer's liability if the loss results from insurrection." Hence the problem of the policyholder becomes clear: is the outburst a riot, making the insurer liable, or is it an insurrection, as this term is used in the exclusion clause? 13 A "riot" is generally said to have occurred when two or more persons have joined in committing an act, lawful or unlawful, in a violent or tumultuous manner. Most of the cases, however, further require that the tumult have a private objective," such as the destruction of the property of an individual," as opposed to a public objective. In the latter case the violence is directed against 1 Governor's Comm'n on the Los Angeles Riots, Violence in the City-An End or a Beginning? at 2 (1965). State of California, Department of Insurance Press Release, Aug. 20, 1965. 3 State of California, Department of Insurance Press Release, Sept. 21, 1965. N.Y. Times, Aug. 16, 1965, p. 16, col. 8 Boston Herald, Oct. 3, 1965, p. 7, col. 6. Elizabeth Daily Journal (N.J.), Oct. 6, 1965; Wall Street Journal, Oct. 4, 1965, p. 14, col. 3. State of California, Department of Insurance Press Releases, Sept. 2, 1965 & Nov. 22, 1965. Boston Herald, supra note 5; Wall Street Journal, supra note 6; N.Y. Times, supra E.g., Mass. Gen. Laws Ann, ch. 175. § 99 (1958). note 4. 10 Extended Coverage Endorsement No. 4, Uniform Standard New England Form No. 758 (1962). "Although insurers are generally authorized to insure against such risks as war and insurrection, see Mass. Gen. Laws ch. 175, § 47 (1932), as a practical matter they usually do not do so. Vance, Insurance § 153, at 871 (3d ed. 1951). 12 Mass. Gen. Laws Ann. ch. 175, § 99 (1958); Extended Coverage Endorsement No. 4, Uniform Standard New England Form No. 758 (1962) 13 Walter v. Northern Ins. Co., 370 Ill. 283, 286, 18 N.E. 2d 906, 907 (1939); Idaho Code Ann. § 18-6401 (1947). 14 "It seems to be agreed that the injury or grievance compained of and intended to be revenged or remedied by a riotous assembly must relate to some private quarrel only*** Salem Mfg. Co. v. First American Fire Ins. Co., 111 F. 2d 797, 802 (9th Cir. 1940). 15 Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S.W. 234 (1909). society or civil authority, such as an organized rebellion against the government. Even when it is established that the objective of the group was the settlement of a private quarrel, a riot cannot be said to have occurred unless the result or effect of this settlement is a public disturbance." For example, if two or more persons secretly break into a home at night and destroy some property, no riot will have taken place unless these actions terrified the general populace or in some way produced a public disturbance. Hence a riot can be defined as the activity of two or more persons acting in pursuit of a private objective resulting in public turmoil. 19 22 18 A difficulty often arises in determining whether public turmoil has resulted from a private or a public objective. Violence aimed at the settlement of a labor dispute, or an attempt to prevent a business enterprise from operating,20 is clearly privately motivated. Other cases pose difficulties. In Commonwealth v. Runnels," a group of about fifty persons attacked a public town house, seized the ballot boxes, and prevented the holding of an election. And in United States v. Stewart, the defendants used violence to thwart the mayor's efforts to have the polls opened. In both criminal actions, the court held that a riot had occurred. Since opposition to the voting process would appear to be directed against society or government, it can be argued that these outbursts had public objectives and hence were not riots. However, neither court discussed the public-private dichotomy. A possible reason for this, other than their rejection of this dichotomy as a test, could be that it was clear to the court that the objectives of the violence were in fact not public. If in Runnels and Stewart the prevention of the elections was motivated by the participants' desire for personal revenge against those conducting the elections, then it would seem that the court could find riot and still observe the requirement of a private objective. But the underlying objectives were not mentioned. The Runnels court emphasized the combination of two or more participants 23 while the Stewart court treated this factor plus the element of a public disturbance." If these cases did reject a private objective requirement, then it would appear that a riot is any assembly of two or more who act in such a way that members of the general public become terrified. As will be seen, while such a definition may suffice in a criminal proceeding, it is of little value in an insurance context, where the issue is not "riot or no riot," as in Runnels and Stewart, but rather "riot or insurrection." When it becomes necessary to distinguish between riot and insurrection, the private objective requirement for riot should be retained. Otherwise the definition of riot could in many instances easily encompass what should technically be termed an insurrection. By limiting the definition of riot to the use of violence to settle a private quarrel, and by defining insurrection as the violent manifestation of a public objective, we adopt the only test available which draws a workable distinction between riot and insurrection. The term "insurrection" has been defined generally as an armed assembly of persons rising in opposition to established government or lawful authority. This definition raises the fundamental question of the nature of the opposition required. One aspect of the problem is whether incidental or indirect opposition to government is sufficient. In In re Charge to Grand Jury," the defendants were charged with willfully obstructing the execution of the mail transportation laws in so formidable a way as "for the time being to defy the authority of the United States."" This obstruction was held to be an insurrection which was defined as a "rising against civil or political authority,-the open and active opposition of a number of persons to the execution of law in a city or state." This holding is subject to criticism since the defendants were involved in a local labor disagreement in which the court suggests that personal ambition and the satisfaction of private malice might have been the motivating factors. It could be inferred from this that the defendants did not have the public ob 10 Boon v. Aetna Ins. Co., 40 Conn. 575, 584 (1874). 17 Commonwealth v. Zwierzelewski, 177 Pa. Super. 141, 146, 110 A.2d 757, 760 (1954). 18 Walter v. Northern Ins. Co., supra note 13, at 291, 18 NE.2d at 910. 19 Insurance Co. of North America v. Rosenberg. 25 F.2d 635, 636 (2d Cir. 1928). 20 Commonwealth v. Paul, 145 Pa. Super. 548, 554, 21 A2d 421, 423 (1941). 10 Mass. 518 (1813). 22 27 Fed. Cas. 1339 (No. 16401a) (C.C.D. Pa. 1818). 23 Commonwealth v. Runnels, supra note 21, at 519. 24 United States v. Stewart, supra note 22, at 1343. 25 Hearon v. Calus, 178 S.C. 381, 399, 183 S.E. 13, 20 (1935). 20 62 Fed. 828 (N.D. Ill. 1894). "Id at 830. 28 Ibid. 11 28 |