Alder v. Salt Lake City
Decision Date | 30 December 1924 |
Docket Number | 4172 |
Citation | 231 P. 1102,64 Utah 568 |
Court | Utah Supreme Court |
Parties | ALDER v. SALT LAKE CITY |
Appeal from District Court, Third District, Salt Lake County; G. A Iverson, Judge.
Action by Elsie Alder against Salt Lake City. From a judgment of dismissal, plaintiff appeals.
AFFIRMED.
A. A Duncan, of Salt Lake City, for appellant.
Wm. H Folland, City Atty., and Shirley P. Jones and W. A. Fraser, Asst. City Attys., all of Salt Lake City, for respondent.
THURMAN, J., did not participate.
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 this court cited with approval the following quotation from 20 A. & E. Enc. Law, 1193:
The principal was restated in the later case of Sehy 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 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. 387 114 N.E. 722, L.R.A. 1917B, 1285, the court said:
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 case...
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