Diker v. City of St. Louis Park, 38977

Decision Date17 July 1964
Docket NumberNo. 38977,38977
Citation268 Minn. 461,130 N.W.2d 113
PartiesBruce DIKER, a minor, by Louis Diker, his father and natural guardian, and Louis Diker, Respondents, v. CITY OF ST. LOUIS PARK, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

1. The notice of claim required by Minn.St. 465.09 was timely even though presented 31 days after injury when the preceding day was a Sunday.

2. The consent to the assertion of the defense of governmental immunity required by Minn.St. 465.62, in an action for damages allegedly caused by the negligence of a municipal corporation, must be expressed before the action is tried, formally and in the manner prescribed by law.

3. While a municipal corporation is not under a duty to provide supervision of skating rinks maintained by it or to supply equipment to hockey players using the facility, it may assume such a duty, and if it does, the assumed responsibility must be discharged with reasonable care.

4. Although the danger of being hit in the face by a puck while playing hockey should be apparent to the mature mind, a 10-year-old boy is not as a matter of law barred from recovery when so his where the evidence which fails to establish that he fully appreciated the risk of injury shows that he 'froze' in the path of a puck while defending the net.

5. In the absence of evidence showing that the father of a 10-year-old boy who supplied him with skates and a hockey stick and permitted him to use a public skating rink knew or should have known that he was exposed to the unusual hazard of playing 'goalie' without adequate protection for his face, there was, as a matter of law, failure of proof of contributory negligence on his part contributing proximately to the boy's injury which resulted when he 'froze' in the line of flight of a puck shot toward the net he was attempting to guard.

Cragg & Barnett, J. W. Cragg, Minneapolis, for appellant.

Dorfman, Rudquist, Jones & Ramstead, John H. Ramstead, Minneapolis, for respondents.

SHERAN, Justice.

The appeal is from an order of the district court denying defendant's alternative motion for judgment notwithstanding the verdict or a new trial.

On February 6, 1959, Bruce Diker, then 10 years of age, sustained serious personal injury when hit near the eye by a puck while playing hockey at a public skating rink maintained by defendant. A verdict of $17,000 was returned in his favor and his father, Louis Diker, was awarded $2,000 for medical and hospital expenses made necessary by the accident. Reversal is urged on the following grounds:

(1) That the notice of claim required by Minn.St. 465.09 was not filed within 30 days as specified by statute.

(2) That the maintenance of he skating rink here involved by the city of St. Louis Park was a governmental function and that this defense was not waived by defendant.

(3) That the evidence fails to support a finding of negligence on the part of the city proximately causing damage to plaintiffs.

(4) That contributory negligence or assumption of risk on the part of Bruce Diker appears from the evidence as a matter of law.

(5) That the trial court erred in refusing to submit the issue of contributory negligence on the part of Louis Diker, the father, to the jury.

1. A person claiming damage from any city upon the grounds of negligence is required by Minn.St. 465.09 to 'cause to be presented to the common council or other governing body within 30 days after the alleged loss or injury, a written notice.' This accident occurred on February 6, 1959. The statutory notice was filed 31 days later, on March 9. The preceding day was Sunday, March 8.

Minn.St. 645.15 provides that where the performance of any act is directed, and the period of time for the doing thereof is prescribed by law, the last day shall be omitted from the computation if it falls on Sunday. Rule 6.01 of Rules of Civil Procedure also provides that where the last day of a prescribed period falls on a Sunday the period runs until the end of the next day. It is unnecessary for us to determine whether our Rule 6.01 should be given the same construction accorded the comparable Federal rule in Joint Council, etc. v. Delaware, L. & W.R. Co. (2 Cir.) 157 F.2d 417, where it was held that Rule 6a of Federal Rules of Civil Procedure does not apply until an action is first commenced. While in Minnesota the Rules of Civil Procedure supersede statutes which are 'inconsistent or in conflict,' Rule 81.01(3), there is no inconsistency or conflict between § 645.15 and Rule 6.01 in so far as computation of time in this particular case is concerned. 1

2. It is conceded that the purchase of liability insurance by the city brings this case within the scope of Minn.St.1961, § 465.62, which applied in 1959 before it was repealed by L.1963, c. 798, § 6. That statute required the insurer for liability, arising from a city's governmental function, to waive the defense of governmental immunity 'unless the city * * * consents to the assertion of that defense.' In 1958 the members of the council of defendant city discussed the matter with its attorney and instructed him informally Without motion or vote to authorize assertion of the defense in all cases except those deserving special consideration. Such special cases were, in the discretion of the city attorney, to be referred to the city council for decision. He so informed the insurer. When the instant case was filed, the council referred it to the city attorney for advice and recommendation. It took no further action until after the trial. The defense was in fact asserted by the attorneys designated to defend by the insurer acting on instructions received from the city attorney.

The charter of defendant city places its discretionary power in the council. By the terms of the charter, the council is required to act by ordinance, resolution, or motion, with a recorded vote. No such formal action was ever taken prior to trial specifically directing the assertion of the defense of governmental immunity in this case. Under these circumstances, we agree with the trial court that the required consent to the assertion of the defense of governmental immunity was not established.

The complaint was served in February 1960. The action was tried and verdict returned in April 1962. On August 23, 1962, the council formally ratified the action of the city attorney in permitting the assertion of the governmental immunity defense. But this was too late. The litigation based on lack of the defense had already been submitted to the jury. The attempted ratification of the city council did not constitute newly discovered evidence. It was an attempt by the defendant city to take action, with the formality required by its charter, which should have been taken before the trial was commenced if it was to be of any effect.

3. The evidence offered at trial does not sustain a finding of negligence. Over objection by defendant, the trial court gave the following instructions particularly relevant to this issue:

'A municipality such as the defendant under the circumstances of this case, operating a skating rink or other recreational facilities maintained by it, is required to exercise reasonable care for the safety and protection of children and others who are invited expressly or impliedly to use such facilities. This includes reasonable supervision and the furnishing of equipment that is reasonably safe, where equipment is supplied as part of the city's activities.

'* * * The defendant was under no duty to warn the plaintiff of dangers which were known to the plaintiff or which he should have known in the exercise of reasonable care, and you may not find that the defendant was negligent merely because its employee allowed plaintiff, Bruce Diker, to engage in the game of hockey on a city rink.'

The rule is well established in Minnesota that a Private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons, 2 and that the obligation of due care includes supervision and control of others on the premises whose actions may cause injury, 3 at least where the defendant has actual or constructive knowledge of the activities involved. 4

A number of cases from other jurisdictions have been noted which apply these general principles to skating rinks. 5

In Minnesota the municipal operation of a recreational area open to the public without charge has been held to be a Governmental function. Nissen v. Redelack, 246 Minn. 83, 74 N.W.2d 300, 55 A.L.R.2d 1428. In Howard v. Village of Chisholm, 191 Minn. 245, 253 N.W. 766, the plaintiff was injured while playing hockey as a result of being struck by spectators who were catapulted from a balcony to the ice below by a surging crowd. Although the defense of Governmental immunity was available in 1934 when that case was decided, the village did not assert it because of an inhibiting provision that appeared in its policy of liability insurance. Counsel for the parties tried the case on the theory that the village should be held liable if the evidence justified recovery against a private person owning and using the building. It was held that the claimed negligence of the village was a jury question but, as noted, the law of the case was adopted by mutual agreement of the parties.

There is a difference between that relationship which exists between a municipal corporation and a person making use of a park or playground provided without charge on the one hand, and that which exists between the owner of a private enterprise conducted for profit and its patrons on the other. The person who pays for admission has more reason to expect that supervision will be maintained and adequate equipment provided as partial consideration for the admission charged. Proprietors can adjust such charges to spread the cost of protection among those benefited by it. A municipality, in contrast, provides...

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