Beebe v. City of Toledo

• Decision Date: 09 July 1958
• Docket Number: No. 35337,35337
• Parties: , 6 O.O.2d 1 BEEBE, Appellee, v. CITY OF TOLEDO, Appellant.
• Court: Ohio Supreme Court

Page 203

168 Ohio St. 203

151 N.E.2d 738, 6 O.O.2d 1

BEEBE, Appellee, v. CITY OF TOLEDO, Appellant.

No. 35337.

Supreme Court of Ohio.

July 9, 1958.

Syllabus by the Court

1. A municipal corporation operating a public dump has no duty to inspect the rubbish placed thereon to prevent the dumping of materials which might be harmful to subsequent users of the dump.

2. In order to charge a municipality with constructive notice of a nuisance for which it may be liable under the provisions of Section 723.01, Revised Code, it must appear that such nuisance existed in such a manner that it could or should have been discovered, that it existed for a sufficient length of time to have been discovered, and that if it had been discovered it would have created a reasonable apprehension of a potential danger or an invasion of private rights.

On July 31, 1954, at about four p. m., plaintiff, together with his brother-in-law, drove a truckload of rubbish to a city dump operated and maintained by the city of Toledo for the use and benefit of its residents. The truck was driven onto the dump, and plaintiff and his brother-in-law unloaded the rubbish. When they were through, they threw their shovels out of the truck onto the ground, and plaintiff got out while his brother-in-law swept out the truck bed. After a few minutes, plaintiff walked over to pick up his shovel, and as he stooped to pick it up an explosion occurred injuring him severely.

City police and firemen investigated the accident and discovered a discarded dresser about 50 feet from the place where plaintiff had dumped his rubbish. In a drawer of the dresser they found a cardboard container, very similar in appearance to a mailing tube, which contained what is known as a phosphorous grenade. About 10 feet from the dresser, in a direct line with plaintiff's rubbish, were discovered the two parts of an empty container, identical to the one found in the dresser drawer. There is no evidence in the record as to when or how the dresser or the grenade which is alleged to have exploded came to be on the dump, although there is evidence from which it might be inferred that the dresser was placed on the dump sometime after 2:30 p. m. on the day of the injury.

Plaintiff brought an action against the city to recover damages for the injuries he received in the explosion.

At the trial of the action, after the conclusion of all the evidence, both plaintiff and defendant moved for directed verdicts at which time the trial court discharged the jury and, in spite of defendant's request that the case be submitted to the jury, rendered a verdict in favor of plaintiff.

Upon appeal to the Court of Appeals, the judgment was reversed on the ground that the issues should have been submitted to the jury, and the cause was remanded for a new trial.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Charles T. Lawton, Director of Law, and William D. Driscoll, Toledo, for appellant.

James M. Evans, Thomas J. Mattimoe and Daniel J. McKenna, Toledo, for appellee.

MATTHIAS, Judge.

The taking of the case from the jury by the trial court upon the making of consecutive motions by counsel for both parties was urged as error, but such claim was abandoned upon the announcement by this court of its decision in Carter-Jones Lumber Co. v. Eblen, 167 Ohio St. 189, 147 N.E.2d 486. The Court of Appeals found that the trial court properly overruled the defendant's motion for a directed verdict. We will now proceed to a consideration of that finding.

The determinative issue here is whether a municipal corporation, which maintains a public dump for the use and benefit of the residents of the municipality, is liable to a user of such dump for injuries resulting from the explosion of a hand grenade which had been deposited on said dump by some unknown person.

Tort liability of a municipal corporation arising from the performance of one of its functions is dependent upon the nature of the function. It may generally be said that a municipality is liable to the same degree as private individuals for injuries arising from negligence in the performance of its proprietary functions, whereas in the performance of its governmental functions, in the absence of some statutory provision creating liability, a municipality is not liable for injuries arising from negligence.

Since there is evidence in the record that the defendant, through a contract with a scavenging company, received certain revenues from the operation of its dump, which might give rise to the argument that the operation was proprietary rather than governmental, and since negligence is not only the basis for recovery for injuries received while a city is acting in a proprietary capacity but may also be the basis of nuisance under Section 723.01, Revised Code, we will first consider the question of negligence.

The plaintiff contends that defendant should have anticipated that sometime someone would place an explosive or other dangerous substance on the dump, if preventive measures were not adopted, so that there was a duty on the city to provide some system of inspection to forestall such danger. In other words, under plaintiff's theory, the city would have the duty to inspect each load of rubbish which is brought to the dump. The mere statement of the proposition is sufficient...