Cox v. Des Moines , 233 Iowa 272 ( 1942 )

I am unable to agree with the conclusion reached in the majority opinion and therefore respectfully dissent. The vital question that is presented in this case is as to whether or not the rule that we have heretofore adhered to, that the maintenance and operation of a park by a municipality is a purely governmental function and the municipality is not liable for its construction or maintenance, shall be followed. The majority opinion, in effect, overrules many of our prior decisions although there is no direct statement so holding. If our decisions in prior cases are to be changed, we should do so by a direct holding rather than to endeavor to distinguish this case from our prior cases.

A brief résumé of the factual situation as disclosed by the pleadings seems imperative in connection with this dissent.

The walk in question was within the limits of the park and was the means of entrance to a park building or lodge from a vehicular drive. This walk was not along a public thoroughfare through the park but was a part of the park. The distance between the sidewalk and the pit was nine feet and was a grassy slope. The plaintiff's petition does not allege that there was any defect in or on the walk. The plaintiff's claims of negligence were that the city failed to maintain a guardrail around the pit, in failing to maintain a light so that plaintiff could see the pit, and in failing to place a warning sign near the pit. With these facts before us, let us then give consideration to our prior holdings.

In Smith v. City of Iowa City, 213 Iowa 391, 394, 395,239 N.W. 29, 30, we said:

"The construction and maintenance of a public park by a municipality has been repeatedly held in this state to be a purely governmental function. [Citing cases.]

"The rule long established in this state is that a municipality, in the exercise of its purely governmental function, is not liable for negligence. [Citing cases.]

"Governmental functions are exercised by municipalities for the benefit of the public. They are acts from which the city, as a municipality, derives no peculiar advantage, pecuniary or otherwise, but acts and functions designed to advance and conserve the convenience, comfort and welfare of the public. Clearly, therefore, the appellee city is not liable for the mere failure of its park board to keep and maintain the instrumentality or device in question, which was a part of the equipment of a public park established by the municipality in the exercise of governmental functions, free from danger."

This court also, in the case of Norman v. City of Chariton,201 Iowa 279, 280, 283, 207 N.W. 134, 136, in commenting upon the liability of a municipality for claimed negligence in the construction and maintenance of a city park, made the following statement:

"There is no dispute about the general principles involved. It is conceded by appellant `that there is no liability on the part of the city for the negligence, misfeasance, or nonfeasance of its officers, agents, and employees in performing its governmental functions.' The issue is limited to whether the construction and maintenance of a public park by a city are the exercise of a governmental or a ministerial function."

And later in this same opinion, we said:

"The park was maintained and was being improved for the benefit and in the interests of the public, and not for any pecuniary or other benefit or advantage to the municipality as such.

"While there are cases to the contrary, the conclusion that the construction or maintenance of a public park is the exercise of a governmental function on the part of a municipality, and that the city is under no liability for the negligence of its officers or employees engaged in such work, has the support of the weight of authority generally. [Citing cases.]"

A further Iowa case which holds that a municipality is not liable for the maintenance of a city park by reason of the fact that it is a governmental function is Hensley v. Incorporated Town, 203 Iowa 388, 212 N.W. 714. Further authorities which bear upon this question are State ex rel. Welsh v. Darling, 216 Iowa 553,564, 246 N.W. 390, 88 A.L.R. 218, and Abbott v. City of Des Moines, 230 Iowa 494, 298 N.W. 649, 138 A.L.R. 120.

Unless this court is disposed to definitely overrule the authorities heretofore set forth there should be an affirmance in this case. Consequently, I respectfully dissent from the majority opinion.

I am authorized to state that MILLER and MITCHELL, JJ., join in this dissent.