Alder v. Salt Lake City , 64 Utah 568 ( 1924 )

This action is to recover damages for personal injuries. A demurrer to the plaintiff's complaint was sustained, and the action was dismissed. The plaintiff appeals.

The facts pleaded in the complaint as the grounds of defendant's liability are, in substance, that the defendant is a municipal corporation, and owns and maintains Liberty Park, a public park situated within the city; that on July 4, 1923, a pageant, for the entertainment of the public was presented at the park, under the supervision of the recreation director of the city; that for the occasion tiers of seats surrounding a stage were erected by the defendant, which the public was invited to occupy; that the plaintiff attended the pageant, and, while occupying one of the seats, the whole section or tier of seats on which she was seated collapsed and fell, in consequence of which she was injured; that the seats were negligently and carelessly constructed by incompetent workmen and of defective materials, etc., on account of which they collapsed and fell as aforesaid. The question is whether upon the facts alleged the defendant city is liable for the damages suffered.

The principle of law controlling the liability of cities in such cases is laid down in Gillmor v. Salt Lake City, 32 Utah, 180, 89 P. 714, 12 L.R.A. (N.S.) 537, where 1 this court cited with approval the following quotation from 20 A. E. Enc. Law, 1193:

"The rule is general that a municipal corporation is not liable for alleged tortious injuries to the persons or property of individuals, when engaged in the performance of public or governmental functions or duties. So far as municipal corporations exercise powers conferred on them for purposes essentially public, they stand, as does sovereignty whose agents they are, and are not liable to be sued for any act or omission occurring while in the exercise of such powers, unless by some statute the right of action be given. And, where the particular enterprise is purely a matter of public service for the general and common good, it makes no difference whether it is mandatory or whether only permitted and voluntarily undertaken. A municipal corporation, therefore, is not liable for negligence in the course of work undertaken purely for the public benefit and advantage, and not for the benefit of the corporation. Nor is liability incurred by a city in the exercise of its police power in measures adopted for the general health, comfort, and convenience of the public."

The principal was restated in the later case of Seby v.Salt Lake City, 41 Utah, 535, 126 P. 691, 42 L.R.A. (N.S.) 915.

There is a well-recognized exception to the general rule of immunity in cases involving the maintenance and care of public streets, and it is generally held that municipalities are liable for negligence in failing to keep the avenues of public travel in safe condition and repair. It is argued that a similar exception should be made in the case of the maintenance of public parks, playgrounds, etc. The exception in the case of streets is founded upon public policy and expediency, and is recognized in this state by legislative act. Comp. Laws Utah 1917, § 816. The nature and use of streets are quite dissimilar from the nature and use of parks and playgrounds, and the reasons for which liability is imposed in the case of the former are not applicable to the latter. If the exception is to be extended to parks 2 and playgrounds, the Legislature and not the courts should determine the question. It is a matter of public policy and expediency. The courts generally, as hereinafter shown, have declined to extend the exception to cases arising from negligence in the performance of functions similar to those described in the plaintiff's complaint.

There remains to be determined the question of whether the city, in the performance of the acts complained of, was exercising public and governmental functions.

In Bolster v. City of Lawrence, 225 Mass. 2387114 N.E. 722, L.R.A. 1917B, 1285, the court said:

"The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability."

While there are some cases to the contrary, the great weight of judicial opinion is that the maintenance of parks and playgrounds is a public and governmental function. The following cases hold that cities in conducting summer camps, public parks, free public baths, playgrounds, etc., exercise governmental powers only, and are not liable for the negligence of their agents and servants in connection therewith: Kellar v. City ofLos Angeles, 179 Cal. 605, 178 P. 505; City of Warrenton v.Smith, 149 Ga. 567, 101 S.E. 681; Harper v. City of Topeka,92 Kan. 11, 139 P. 1018, 51 L.R.A. (N.S.) 1032; Bd. of ParkCom'rs v. Prinz, 127 Ky. 460, 105 S.W. 948; Bolster v. Cityof Lawrence, 225 Mass. 387, 114 N.E. 722, L.R.A. 1917B, 1285;Heino v. City of Grand Rapids, 202 Mich. 363, 168 N.W. 512, L.R.A. 1918F, 528; Emmons v. City of Virginia, 152 Minn. 295,188 N.W. 561, 29 A.L.R. 860; Caughlan v. City of Omaha,103 Neb. 726, 174 N.W. 220; Bisbing v. Asbury Park,80 N.J. Law, 416, 78 A. 196, 33 L.R.A. (N.S.) 523; Blair v. Granger,24 R.I. 17, 51 A. 1042; Mayor, etc., of Nashville v. Burns,131 Tenn. 281, 174 S.W. 1111; Nelson v. City of Spokane,104 Wash. 219, 176 P. 149; Bernstein v. City of Milwaukee,158 Wis. 576, 149 N.W. 382, L.R.A. 1915C, 435.

The cases to the contrary are City of Denver v. Spencer,34 Colo. 270, 82 P. 590, 2 L.R.A. (N.S.) 147, 114 Am. St. Rep. 158, 7 Ann. Cas. 1042; Canyon City v. Cox, 55 Colo. 264,133 P. 1040; Capp v. City of St. Louis, 251 Mo. 345,158 S.W. 616, 46 L.R.A. (N.S.) 731, Ann. Cas. 1915C, 245; Silverman v.City of New York (Sup.) 114 N.Y.S. 59; Mahon v. City of New York, 10 Misc. 664, 31 N.Y.S. 676; Barthold v. City of Philadelphia, 154 Pa. 109, 26 A. 304.

The maintenance of the public park and the presentation of the pageant on the 4th of July by the defendant city were clearly matters of public service for the general and common good, designed exclusively for the social advantage, 3 entertainment, and pleasure of the general public; and from which the city could derive no benefit in its corporate or proprietary capacity.

We conclude that in the matters complained of the city was exercising its public and governmental powers, and that it is not liable for the negligence alleged. The demurrer to the complaint was properly sustained.

Judgment affirmed.

WEBER, C.J., and GIDEON and FRICK, JJ., and DILWORTH WOOLLEY, District Judge, concur.

THURMAN, J., did not participate herein.