Brinkerhoff v. Salt Lake City, 9456

• Decision Date: 04 May 1962
• Docket Number: No. 9456,9456
• Citation: 371 P.2d 211,13 Utah 2d 214
• Parties: d 214 Arnold BRINKERHOFF and Inez Brinkerhoff, his wife, Plaintiffs and Respondents, v. SALT LAKE CITY, a municipal corporation, Defendant and Appellant.
• Court: Utah Supreme Court

Page 211

371 P.2d 211

13 Utah 2d 214

Arnold BRINKERHOFF and Inez Brinkerhoff, his wife Plaintiffs and Respondents, v. SALT LAKE CITY, a municipal corporation, Defendant and Appellant.

No. 9456.

Supreme Court of Utah.

May 4, 1962.

Norman W. Kettner, A. M. Marsden, Asst. City Attys., Salt Lake City, for appellant.

Stewart, Topham & Harding, Gerald R. Miller, Salt Lake City, for respondents.

HENRIOD, Justice.

Appeal from a judgment after verdict in favor of plaintiffs, incident to the loss of their two-year-old child by drowning in a canal used by the City. Reversed, with no costs awarded.

A count based on attractive nuisance was rejected by the trial court, and rightly so. ¹ The remaining count alleged that the City 'negligently designed, laid out, constructed and maintained the bridge, street and sidewalks along Charlton Avenue without providing an adequate fence or other barricade along said canal or between the canal and the sidewalk where the sidewalk passes over the canal,' in which plaintiffs' child, residing several houses east thereof, was drowned. The allegation was proper under Title 10-7-77, Utah Code Annotated 1953, having to do with defective streets, alleys, sidewalks, bridges and the like. Under that title, so far as negligent maintenance of such facilities by a city is concerned, immunity is waived, if certain statutory procedures are closely followed with respect to notice of and filing of claims, otherwise, such defense would be assertable.

There was no pleading or proof that the City used the canal in any but a governmental capacity. This differentiates the instant case from Brown v. Salt Lake City, ² relied upon in plaintiffs' memo to the trial court.

Conceding that we review in a light most favorable to the verdict, the evidence conclusively indicated that the street, sidewalks, and bridge were neither defective nor negligently designed, laid out, constructed and maintained, which evidence we cannot ignore, and there appears to be nothing to indicate that any such defect had any causal connection with the resulting death. The only complaint left was that the street, sidewalks and bridge should have been supplemented with a fence or barricade other than the bridge abutments which were shown to have been of standard construction. Nonetheless, the court, over objection and a claim of immunity, permitted an enlargement of the issue to include the question whether the city was negligent in failing to fence the canal itself.

Plaintiffs' points 2 and 3 on appeal urge that the City was negligent a) because it 'maintained an open canal in a residential area' and that b) 'a property owner is liable for injuries to trespassing children if he has knowledge that children trespass thereon, yet maintains an artificial condition which involves unreasonable risk of death or injury to them, and which they are not likely to discover, where the utility of such condition is slight as compared to the risk to children.' ³ It was undisputed that the City patrolled the stream regularly and warned children to stay away. Natural growth and a pathway along the canal were shown to exist. It was as it is, before the advent of housing nearby. An expert said 'unless I miss my guess * * * part of the canal * * * was put in by Brigham Young in helping to transport granite blocks from out of the canyons into Temple Square, where they were building the temple.' The stream was diverted from a natural waterway years ago, and except for such rerouting, has been and still is in all respects a natural waterway with banks and characteristic shrubbery along its course. The people came to it, and the physical attributes thereof, in logic or reason, cannot charge it with any greater tortious proclivity in its ancient flow of upwards of 100 years, than could be charged to the Weber, Sevier, City Greek, Cottonwood, Millcreek or a thousand other streams in the state.

It is admitted that the child could have had access to the canal at various points along the canal on both sides of the bridge, and there was some testimony that indicated that a small dog companion was seen to be barking at a point where the bridge spanned the current. This circumstance would seem to be non-probative of the claim of defect in the street or bridge or indicative of any duty to fence a stream.

We have difficulty in seeing where the City was negligent at all, since it has no statutory or other duty generally to fence such a stream. But assuming a case where there might be such an issue, we believe that where there are no defects in the street or bridge allowing suit against a city by special legislative interdiction permitting it, the expansion of the issues to include one for negligence in failing to fence, transports the case from the realm of statutory permission to sue, into the area where a governmental agency may assert the defense of immunity, and also to assert non-negligence in failing to fence a stream of long standing.

Heretofore, we have held that there was such immunity in the case of flood waters, ⁴ injuries resulting from burns incident to a schoolyard incinerator, ⁵ operation of a recreation area, ⁶ collapse of a grandstand at a July 4th pageant, ⁷ operation of a sleigh-riding area, ⁸ a golf course, ⁹ an airport waiting room, ¹⁰ and a sewer. ¹¹

Since the trial court rejected the attractive nuisance theory urged by plaintiffs, it becomes difficult to conclude that failing to fence the stream would generate liability simply because natural growth of brush and trees along the channel's banks made it less, not more attractive to children. Nowhere was there any assertion of liability for failure to remove such growth, but the jury was relegated to the determination of negligence on a failure to fence.

The impact of this case becomes obvious. Simply it is this: that to conclude that a city is liable for such failure, the jury might determine that every hamlet, village, town, city, county or private property owner would have the onus of responding in damages if, when others construct a home or homes nearby, the flow of a natural river, stream, open canal or ditch, were not fenced. The implication would be that thousands of miles of rivers, streams, irrigation canals and ditches, including such rivers as the Sevier, Virgin, Cottonwood, City Creek, Millcreek, American Fork, the Provo, Jordan, Duchesne, Green, the Surplus Canal, and hundreds of others would require fencing if people chose to build near the stream. This court negatived any such concept in the Charvoz case, involving the death of a child in a city ditch carrying water 10 to 12 inches in depth.

In Niblock v. Salt Lake City, ¹² we pointed out that 'the duty to repair or construct streets * * * is a governmental one and that in the absence of a statute no liability devolves on a municipality for the defective condition of its streets.' There is nothing in the instant case showing that the city operated the stream in a proprietary capacity, rather than governmental ¹³ or could not assert the defense of immunity.

Inescapably, therefore, it follows that under existing pronouncements of this court, the operation of an open, ancient canal, cannot impose liability on a city upon the advent of building near it, without legislative sanction. Inescapably it follows that the plaintiffs, failing to tie down the gravamen of their complaint of defective street, have no recourse to an issue created during trial, basis for which has no legislative or judicial support.

(Emphasis ours.)

CALLISTER and CROCKETT, JJ., concur.

McDONOUGH, Justice (dissenting).

I dissent. The record discloses that on the 17th day of September, 1957, Paul Arnold Brinkerhoff, the deceased two year and two-month old son of the plaintiffs, was drowned in the Jordan and Salt Lake City Canal. His body was found in the canal where it crosses under 27th South Street at approximately 12th East in Salt Lake City. The parents of the child, at the time of the death, resided four houses and approximately 200 feet east of the canal. The surrounding neighborhood is heavily populated.

The Jordan-Salt Lake Canal is an artificial canal constructed about a hundred years ago. It is from six to ten feet wide and from three to four feet deep. The canal has the appearance of being a natural waterway, because of its long existence, as compared with the residential area that has grown up around it. The canal is uncovered and unfenced. The banks or sides are smooth in places and bushy, and steep in others, containing heavy vegetation and trees, sticks and debris on the banks. Paul could have reached the canal by a number of routes, that were well trodden and used extensively by children. The City employed a man to check the canal periodically and to remove debris from the trash gates. He testified that he often told children to leave the area of the canal and to not play by the canal.

In the past years, because of several near-drownings, the residents of the area had prepared and presented to the City a petition seeking affirmative relief from the dangers of the canal. On one occasion the Mayor visited the area and met with the citizenry, but the canal remained uncovered or unfenced because of apparent lack of funds in the municipal corporation. Shortly after the accident herein, the canal was covered and enclosed in a pipe.

I am of the opinion the defendant was negligent in maintaining an open, unbarricaded canal through a residential area of the City. The lower court, sitting with a jury, held the defendant City liable. I agree the court was right in rejecting the count based on attractive nuisance.

The plaintiffs argue and rely upon Restatement of Torts, Section 339: ¹

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by structures or other artificial conditions which he maintains upon the land if:

'(a) the place where the condition is maintained is one upon...