Carta v. City of Norwalk

• Citation: 108 Conn. 697,145 A. 158
• Court: Supreme Court of Connecticut
• Decision Date: 02 March 1929
• Parties: CARTA v. CITY OF NORWALK ET AL.

145 A. 158

108 Conn. 697

CARTA v. CITY OF NORWALK ET AL.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Middlesex County; Isaac Wolfe, Judge.

Action by Francesco Carta, administrator, against the City of Norwalk and others, to recover damages for personal injuries resulting in the death of plaintiff's decedent, due to defendants' negligence, tried to the jury in superior court. The court nonsuited plaintiff, and from the denial of his motion to set aside the judgment thereon, plaintiff appeals. Error, and new trial ordered.

Israel Poliner, of Middletown, for appellant.

Frederick Lovejoy, Jr., of South Norwalk, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

The plaintiff offered evidence that his decedent, Salvatore Carta, on August 3, 1926, went to a public beach known as Calf Pasture Beach, in Norwalk, and with other persons participated in bathing there; that he dove from a raft maintained in connection with the beach, struck his head against a hard object beneath the surface of the water, sustaining injuries from which he died on August 19th. Further evidence tended to prove that the obstruction which occasioned the injury was a concrete pier or post set in the ground and projecting about eight inches above the harbor bottom, but under the surface of the water, and used for anchoring the raft or float, which was attached thereto by a rope. There was evidence that the depth of water at this point varied from between three and four feet at low tide to eight or nine feet at high. The length of the rope, being sufficient to accommodate the greater depths, was such as to permit the raft to drift away from the post at low water so as to leave it several feet away from the edge of the float.

The plaintiff introduced in evidence a contract between the defendant city and parties named Keladites and Carter, by which the city granted to them the exclusive concession for the Calf Pasture Beach Bathing Pavilion for 1925, with the privilege of two additional years, the consideration to be $1,800 for 1925, $2,500 for 1926, and $2,750 for 1927. A proposal, made part of the contract, prescribes the charge to be made for the privilege of a bathhouse, and the separate charge for bathing suit and towel, and provides that prices charged for food, tobacco, candy, and liquid refreshments, which the lessee is granted the exclusive privilege of selling, shall not exceed the retail prices charged in Norwalk. It further provides that at times when there are not sufficient bathing accommodations for all, preference shall be given to residents of Norwalk. The lessor agreed " to provide a float for the use of bathers which shall be under the care of the lessee." The lessee agreed to " assume all liability for and save the city harmless from any claims under the Workmen's Compensation Act," provide sufficient competent employés at lessee's expense, and remove all refuse left on the beach as well as clean the pavilion. The lessor reserved the right to inspect the premises at all times.

The nonsuit was granted on the grounds that, so far as the evidence disclosed, the defendant city was engaged in a public governmental duty and for that reason immune from liability, and that the evidence did not show that the city was responsible for the presence of the float, or that the plaintiff's decedent was in the exercise of due care. The soundness of these reasons must be determined with due regard to the rule that, in passing upon a motion for a nonsuit, the court was bound to consider as true such of the evidence introduced by the plaintiff as went farthest in support of his claims, and to take into account every favorable inference that might legitimately be drawn from it. Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 A. 1126; Fritz v. Gaudet, 101 Conn. 52, 124 A. 841.

As to the question of governmental immunity, the plaintiff was entitled to the benefit of inferences from the above-mentioned contract that the defendant city owned or controlled the beach property in question, and that it was renting the revenue-producing features connected with it, under the specified terms and conditions, for $2,500 for the then current year (1926), instead of itself conducting the enterprise, wholly or in part, but retained a right of supervision to effect compliance with the various requirements of the agreement. The immunity or liability of the city must be tested accordingly.

The principle that a municipality is relieved from liability for injuries resulting from acts done by it in the performance of a public duty, for the public benefit, and not for its own corporate profit, has been frequently and consistently recognized and applied in this state, and has been discussed so recently in Hannon v. Waterbury, 106 Conn. 13 136...