Carr v. City and County of San Francisco

• Decision Date: 30 April 1959
• Court: California Court of Appeals Court of Appeals
• Parties: James Donald CARR, a minor by and through his Guardian ad litem Donnie R. Carr and Donnie R. Carr, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, First Doe and Second Doe, Defendants and Respondents. Civ. 18101.

Page 509

338 P.2d 509

170 Cal.App.2d 48

James Donald CARR, a minor by and through his Guardian ad litem Donnie R. Carr and Donnie R. Carr, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, First Doe and Second Doe, Defendants and Respondents.

Civ. 18101.

District Court of Appeal, First District, Division 2, California.

April 30, 1959.

Vernon W. Humber, James J. Reilly, San Francisco, for appellants.

Dion R. Holm, City Atty., City & County of San Francisco, Paul J. Di Noia, Deputy City Atty., San Francisco, for respondent.

DOOLING, Justice.

This appeal from a judgment of nonsuit is presented on an agreed statement.

On September 5, 1954, the minor plaintiff, who was then eight years of age, was injured when he tripped over the foot of the attendant in charge of the merry-go-round in Golden Gate Park. The minor had entered through the entrance gate in the enclosure surrounding the merry-go-round with his mother and two sisters. He started to climb on a horse and then changed his mind and started to run toward his mother and sisters who had gone to another part of the merry-go-round. As the attendant put one foot on the merry-go-round, with the other still on the ground, the minor ran against his leg and fell.

There was one attendant in charge and it was his practice, which he was following on this day, to keep both exit and entrance gates to the enclosure shut while the merry-go-round was in motion. When it stopped he would open the exit gate to permit those who had completed their rides to leave. He would then close the exit gate and open the entrance gate. After this he would board the merry-go-round and aid any children in need of assistance. He would then close the entrance gate, return to the merry-go-round and put it in motion. This accident occurred when the attendant was stepping on to the merry-go-round to get the children prepared for the next ride and while the merry-go-round was not in motion.

The merry-go-round 'is the ordinary type children's merry-go-round which has various animals mounted on a circular revolving platform which turns about a central axis housing the operating mechanism.' It is located in an area which contains, among other things, swings, slides, an animal corral, a donkey ride and a food concession.

In granting the nonsuit the court held that the operation of the merry-go-round was a governmental function and that the evidence was not sufficient to establish a cause of action under Government Code, section 53051. Appellants argue that the court erred in both conclusion and also in sustaining objections to certain evidence offered by appellants.

Our decisions are clear that in the operation of a playground for children a municipality is performing a governmental, and not a proprietary, function, Kellar v. City of Los Angeles, 179 Cal. 605, 608-609, 178 P. 505; Farrell v. City of Long Beach, 132 Cal.App.2d 818, 283 P.2d 296; Meyer v. City and County of San Francisco, 9 Cal.App.2d 361, 49 P.2d 893; Schmidt v. City of Vallejo, 122 Cal.App. 5, 10 P.2d 107. The Meyer case is not distinguishable from ours, since in that case this court held that in the operation of a miniature train in Fleischacker Playground the City and County of San Francisco was acting in its governmental capacity.

Appellants cite those cases which have held that an activity designed primarily for the amusement and entertainment of the public is proprietary rather than governmental. (Guidi v. State of California, 41 Cal.2d 623, 262 P.2d 3, fireworks and horse arena; Chafor v. City of Long Beach, 174 Cal. 478, 163 P. 670, L.R.A.1917 E, 685, public assembly hall; Plaza v. City of San Mateo, 123 Cal.App.2d 103, 266 P.2d 523, golf course; Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 223 P.2d 639, theater.) From these cases appellants argue that a merry-go-round designed for the entertainment and amusement of children is not logically distinguishable. In making this argument appellants do not take into account the difference in governmental relation to, and responsibility toward, children as distinguished from adults. The very word 'playground' has a connotation of amusement and recreation, and the determination of our courts that the maintenance of playgrounds for children is a governmental function is itself a recognition of the responsibility of government to set aside areas in which children may be amused and entertained, by indulging their normal proclivity to play away from the dangers and temptations of our city streets. Play is a normal activity of the young and a recognized part of their education and training and in these days of the widespread recognition of the dangers of juvenile delinquency and the concomitant duty of the public to the children of our cities who can question that affording to the children the facilities for play is a proper governmental function?

A merry-go-round differs from other playground equipment only in the fact that it is mechanically propelled and it is generally recognized in those jurisdictions which like ours, consider the maintenance of playgrounds a governmental function, that the furnishing of such equipment and appliances falls within the limits of governmental immunity. (Playground swings: Mayor and City Council of Nashville v. Burns, 131 Tenn. 281, 174 S.W. 1111, L.R.A.1915D, 1108; Clark v. City of Louisville, 273 Ky. 645, 117 S.W.2d 614; Royston v. City of Charlotte, 278 Mich. 255, 270 N.W. 288; Epstein v. City of New Haven, 104 Conn. 283, 132 A. 467; Etter v. City of Eugene, 157 Or. 68, 69 P.2d 1061; Slides: Schmidt v. City of Vallejo, supra, 122 Cal.App. 5, 10 P.2d 107; Grinde v. City of Watertown, 232 Wis. 551, 288 N.W. 196; See-saw: Piasecny v. City of Manchester, 82 N.H. 458, 136 A. 357; Toboggan and sled runs: Cegelski v. City of Green Bay, 231 Wis. 89, 285 N.W. 343; Ball v. City of Madison, 1 Wis.2d 62, 82 N.W.2d 894; Steele v. City of Boston, 128 Mass. 583; Willcox v. Erie County, 252 App.Div. 20, 297 N.Y.S. 287; Pohland v. City of Sheboygan, 251 Wis. 20, 27 N.W.2d 736; Merry-go-round propelled by the children: Stuver v. City of Auburn, 171 Wash. 76, 17 P.2d 614; Smith v. Iowa City, 213 Iowa 391, 239 N.W. 29; Undescribed 'appliance': Bernstein v. City of Milwaukee, 158 Wis. 576, 147 N.W. 382, L.R.A.1915C, 435.) We have no hesitation in holding that in...