Barker v. City of Santa Fe.

• Citation: 47 N.M. 85,136 P.2d 480
• Decision Date: 14 April 1943
• Docket Number: No. 4692.,4692.
• Parties: BARKERv.CITY OF SANTA FE.
• Court: Supreme Court of New Mexico

47 N.M. 85

136 P.2d 480

BARKER

v.CITY OF SANTA FE.

No. 4692.

Supreme Court of New Mexico.

April 14, 1943.

Appeal from First Judicial District Court, Santa Fe County; Johnson, Judge.

Action by Charles B. Barker, as administrator of the estate of Agapita Urioste, deceased, against the City of Santa Fe, New Mexico, for death of plaintiff's intestate by drowning. From an adverse judgment, plaintiff appeals.

Reversed and remanded with directions.

Complaint, alleging that city operated a sewage disposal plant consisting of tanks containing sewage on which floated a deposit with the appearance of ordinary soil, and that fence was down in several places and gates had been open for some three years, although repeated protests had been made to city, and that 10-year-old child went into the premises and stepped into a tank and was drowned, sufficiently alleged maintenance of a dangerous and “attractive nuisance” and sufficiently established city's negligent conduct.

R. P. Fullerton and Charles B. Barker, both of Santa Fe, for appellant.

M. W. Hamilton, of Santa Fe, for appellee.

BICKLEY, Justice.

The complaint alleged that the defendant, a municipal corporation, for five years had owned and operated a sewage disposal plant within its corporate limit, near a public highway, and near the dwelling where Agapita Urioste, plaintiff's intestate, a girl less than ten years of age, lived and had her home.

The plant is described, and it is alleged that it consists of tanks filled to a depth of about eighteen feet with a discharge from the sewers of the defendant city; that there was floating on top of the mass in said tanks a deposit of sludge and filth with the appearance of ordinary dirt or soil, to a depth of about two feet. There is a fence inclosing the tanks with gates for vehicles and pedestrians on the highway side of the plant.

The gates to the inclosure were open and the fence down in several places, particularly on the side toward the house of Agapita Urioste, deceased, so that children and other persons and animals could enter the inclosure unimpeded. The plant and the fence inclosing it were substantially in the same condition as they had been for more than three years prior to the date when Agapita Urioste left her home and went in and upon the premises, and being attracted to the tanks, she approached the same. The child was wearing her father's hat and the wind blew it off and into one of the tanks and upon the sludge and filth that covered the water. The child, not knowing that it was dangerous to do so, being deceived by the floating sludge and filth, stepped into the tank and upon said sludge and filth which did not bear her weight, and before she could be rescued, she was drowned.

The complaint alleged by way of conclusion that the conditions in and upon and around said tanks was a dangerous nuisance and that since the instrumentality was attractive to children, it was an attractive nuisance.

[1] There are other allegations of the complaint, but it is sufficient to say that they all, taken together, sufficiently allege a condition amounting to the maintenance of a dangerous and attractive nuisance. We also hold that the allegations of the complaint are sufficient to establish negligent conduct by the defendant.

The defendant demurred to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, for the sole reason that: “It affirmatively appears on the face of the complaint that the injury complained of occurred at the city sanitary disposal plant and, in the maintenance and operation of a sanitary sewage disposal plant, this defendant, a municipal corporation, was acting under its police powers and discharging a governmental function for the negligent performance of which it cannot be held liable or responsible for damages.”

Appellee's counsel here says that this presents the only question involved in the case. All we will consider and decide is whether the complaint will withstand the demurrer upon the ground presented.

[2] The general rule, supported by what the author of the text in American Jurisprudence, post, says is the great weight of authority, is that a city is not liable for torts committed in the exercise of governmental functions, but is liable while exercising corporate functions. 38 Am.Jur. 261-267, Secs. 572, 573; Barron v. City of Detroit, 94 Mich. 601, 54 N.W. 273, 19 L.R. A. 452, 34 Am.St.Rep. 366; 9 A.L.R. 143; Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N.E. 164, 27 A.L.R. 1504; Hoggard v. Richmond, 172 Va. 145, 200 S.E. 610, 120 A.L.R. 1376; Hughes v. City of Auburn, 161 N.Y. 96, 55 N.E. 389, 46 L. R.A. 636. See, also, Town of Gallup v. Constant, 36 N.M. 211, 11 P.2d 962.

While this distinction between governmental and ministerial or corporate functions is still a well recognized doctrine in the decisions, the holdings as to what constitute a governmental function and what is a ministerial or corporate one are so confusing that it is difficult to reconcile them.

It is asserted by some law writers and decisions that there has been a growing demand from society in general that the governmental agencies or subdivisions should not be immune from tort liability.

The writer of the Annotation, “Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance”, in 75 A.L.R. page 1196, says: “The whole doctrine of governmental immunity from liability for torts rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, ‘the King can do no wrong’, should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.”

A criticism of the reasons assigned in support of the doctrine so much under attack will be found in an article in Brooklyn Law Review, April 1932, entitled: “Should the Liability of Municipalities in Tort be Extended to Include Injury and Damage Caused in the Negligent Performance of a Governmental Function?”

[3] In an annotation “Municipal immunity from liability for torts”, in 120 A.L.R. 1376, it is stated that the doctrine of immunity rests upon three grounds: First, the technical rule that the sovereign is immune from suit; second, the ancient idea that it is better that the individual should suffer an injury than that the public should suffer an inconvenience; and third, that liability would tend to retard the agents of the City in the performance of their duties for fear of suit being brought against the municipality. The writer then proceeds with what to many would seem a plausible condemnation of each of these grounds of support of the ancient and rigorous doctrine.

Since we find it unnecessary in the case at bar to express any conviction as to the merits of the ancient rule and the so called modern tendency to depart from it, we will say no more about it except incidentally in resolving any doubts that arise as to whether the alleged negligent acts of the appellee-City were committed while in the discharge of a governmental function.

[4] In the Brooklyn Law Review article cited supra, it is said:

“Some of the more important tests are: The municipality acts in a governmental capacity

“I. When it performs a duty imposed by the legislature of the state.

“II. Only when such imposed duty is one the state may perform and which pertains to the administration of government.

“III. When the municipality acts for the public benefit generally, as distinguished from acting for its immediate benefit and its private good.

“IV. When the act performed is legislative or discretionary as distinguished from ministerial.”

[5] We find from an examination of our statutes that municipalities have authority to build and maintain sewers but there is no imperative legislative command that they do so. Such facilities do not pertain to the administration of government, to say the least, not to state government. See City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498. It can hardly be said that a municipality in the construction and maintenance of a sewer system acts for the state-wide public generally. It is a local improvement and is paid for generally by local assessments on the theory of benefits to the properties served and the owners and users thereof. And we take judicial notice of the fact that the cost of maintenance of the sewer system in Santa Fe may be defrayed by levy of a special tax upon those who are served through connections with the system, including disposal plants. See N.M.S.A.1941, Sec. 14-3637. Some courts have emphasized the voluntary assumption of duty, i. e., its permissive rather than mandatory character. For example, the Court of Appeals of New York, in Augustine v. Town of Brant, 249 N.Y. 198, 163 N.E. 732, 62 A.L.R. 551, decided: “Town held not exempt from liability for negligence causing death in park, on ground that maintenance of town park was exercise of governmental function, notwithstanding that establishment of a park may incidentally benefit the public health.”

The Oklahoma Supreme Court in City of Anadarko v. Swain, 42 Okl. 741, 142 P. 1104, imposed liability on the basis that one of the main purposes of instituting a system of public parks is to furnish a safe place for children to play, and therefore the city should have the duty of using reasonable care. See also Van Dyke v. City of Utica, 203 App.Div. 26, 96 N.Y.S. 277.

It has been said that a meandering but steady trend toward holding...