Heitman v. Lake City

• Decision Date: 28 November 1947
• Docket Number: No. 34503.,34503.
• Citation: 30 N.W.2d 18,225 Minn. 117
• Parties: HEITMAN v. LAKE CITY.
• Court: Minnesota Supreme Court

30 N.W.2d 18

225 Minn. 117

HEITMAN v. LAKE CITY.

No. 34503.

Supreme Court of Minnesota.

November 28, 1947.

Appeal from District Court, Wabasha County; Karl Finkelnburg, Judge.

Action by Ernest Heitman, special administrator of the estate of Robert Heitman, decedent, against the City of Lake City, Minn., to recover damages for wrongful death of decedent. From an order denying defendant's blended motion for judgment non obstante or new trial, defendant appeals.

Affirmed.

K. R. Smith, of Lake City, and G. P. Mahoney and John S. Morrison, both of Minneapolis, for appellant.

John R. Foley, of Wabasha, and William H. DeParcq and Donald T. Barbeau, both of Minneapolis, for respondent.

MATSON, Justice.

Appeal from order denying defendant's blended motion for judgment non obstante or a new trial.

Plaintiff, as special administrator, brought this action to recover damages for the wrongful death of his minor son, seven years old, who died July 17, 1946, from drowning in a small boat harbor built and maintained by defendant on a triangular-shaped point of land jutting out into Lake Pepin. The base of the triangle is bounded by Park street, the northwesterly side by Greenwood street, and the southeasterly side by Centre street. The two latter streets converge at the apex of the triangle. Both Park and Centre streets are open to traffic, but Greenwood street is not. On the Greenwood street side, defendant has for many years maintained a municipal bathing beach, and on the Centre street side a tourist park with 26 cabins for rent. Prior to 1933, approximately in the center of the triangle, between the bathing beach and the tourist camp, there was a small pond connected with Lake Pepin by a channel large enough for the passage of small boats only. In 1934, defendant enlarged and dredged the pond and channel to an average normal water depth of 13 feet. The side of the excavation parallel to Park street was faced with a vertical retaining wall extending from the bottom of the excavation to about a foot above the ground level. This retaining wall, built of 8 × 16-inch timbers, is about 400 feet long and 16 inches wide. Along the top of this wall, a fence 30 inches high was erected, which remained in place for about five or six years until destroyed by the ice. At the time of the accident and for several years prior thereto, the retaining wall was without a fence or a guardrail. In addition to its obvious purpose of maintaining a proper water depth by preventing the harbor embankment from caving in, the retaining wall served as a dock for the mooring of small boats. For a few years preceding the accident, the wall had not been repaired, and consequently the surface of the top timbers was spotted with dry-rot holes. The particular timber, upon which plaintiff's son knelt when he fell into the water as he leaned forward to reach some floating object, was also out of alignment with the rest of the wall and was inverted so that the edge next to the water was considerably higher than the landside edge. The water was approximately eight or nine feet deep next to the wall. In consideration of a rental paid to defendant, a small shack located on one end of the retaining wall was occupied by a man who sold soft drinks and operated a gasoline station and a private boat livery. A floating dock, equipped with 23 slips of various sizes for the accommodation of the larger boats, projected into the harbor from the southeasterly side. Boats could be moored to the retaining wall free of charge, but owners of boats desiring to use the floating dock were charged from $30 to $60 a year, depending on the size of the slip used. In addition to the shack rental and the floating-dock wharfage fees, the city collected rental for the use of tourist cabins. A small marine railway for removing boats from the water was available gratis. Boats not using the floating dock were permitted mooring space without charge.

1. From the antiquated maxim "the King can do no wrong" comes whatever immunity in tort is enjoyed by a municipality. In the judicial process, the principle of nonliability has been increasingly qualified by the distinction that, while the King can do no wrong as King, he can certainly commit wrongs as an individual so far as municipal corporations are concerned. Nonliability in tort for negligence is confined to acts performed in a sovereign or governmental capacity, as distinguished from the liability attaching to acts which are performed by a municipality in its individual corporate or proprietary role. The principle of nonliability for governmental acts and liability for proprietary acts is easy to state but difficult to apply. When is the act governmental, and when is it proprietary? We have evolved no catchall test equally applicable to all situations. We have, however, come to recognize certain characteristics as indicative of the proprietary role. In Storti v. Town of Fayal, 194 Minn. 628, 632, 261 N.W. 463, 465, we adopted the rule of Bolster v. City of Lawrence, 225 Mass. 387, 390, 114 N.E. 722, 724, L.R.A.1917B, 1285, wherein the Massachusetts 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."¹ (Italics supplied.)

In the instant case, it is clear that the boat harbor was of primary service only to those inhabitants who owned boats and elected to moor them in this port for convenience and safety, and not to the public as a whole, as in the case of a public park. It was for the protection of their private property. Aside from the substantial charges made for the use of the floating dock, it is obvious that the enterprise as a whole involved an element of special corporate benefit, in that the harbor was used in part as a device for attracting to the city nonresident boat owners, who by their patronage of local business institutions contributed to the financial prosperity of the community. Gorsuch v. City of Springfield, Ohio App., 61 N.E.2d 898. As in the Storti case, supra, we here have an enterprise that was not equally for the common good of all without special corporate benefit.

The proprietary nature of the undertaking is confirmed by the decisions of other jurisdictions with respect to analogous situations. This small boat harbor with its docking facilities is closely analogous to if not practically identical with, wharves operated by municipalities in various sections of our country. The essential nature of a landing or mooring place for boats is the same, whether it be called a dock, pier, wharf or a small boat harbor. By the overwhelming weight of authority, whereever a municipality has engaged in the operation of a wharf, it has been held to be a proprietary function.²

Closely analogous to the operation of a boat harbor is that of a municipal airport. In Coleman v. City of Oakland, 110 Cal. App. 715, 720, 295 P. 59, 61, the court said:

"We have no hesitancy in deciding that in the conduct of an air port the municipality is acting in a proprietary capacity. An air port falls naturally into the same classification as such public utilities as electric light, gas, water, and transportation systems, which are universally classed as proprietary. Its nearest analogy is perhaps found in docks and wharves. `An airport with its beacons, landing fields, runways, and hangars is analogous to a harbor with its lights, wharves and docks; the one is a landing place and haven of ships that navigate the water, the other of those that navigate the air.' (Dysart v. [City of] St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 1049, 62 A.L.R. 762.)"

The operation of a municipal airport has been widely recognized as a proprietary undertaking.³

2. The verdict is sustained by the evidence. The boat harbor was located in the center of a well-established recreational area, where children, as well as adults, habitually came to play, swim, picnic and fish. On one side was the tourist park, and on the other the bathing beach, which naturally brought an influx of children. The harbor with its many boats was a fascinating place for any child. As an additional attraction, soft drinks could be bought on the premises. Aside from all these considerations, the retaining wall, an integral and essential part of defendant's proprietary undertaking, was in itself attractive to children. There was ample evidence to sustain a finding that children were frequently seen playing on the wall, a structure which was only 16 inches wide and which constituted the sheer and precipitous side of a drop off into eight or nine feet of water. It was an enticing and treacherous perch for a child eagerly reaching outward over the dangerously deep water to retrieve or play with floating objects. Dry rot and water seepage, as well as the fact that the top surface of one of the timbers was inverted, added to the peril for...