Cegelski v. City of Green Bay
| Decision Date | 11 April 1939 |
| Citation | 231 Wis. 89,285 N.W. 343 |
| Court | Wisconsin Supreme Court |
| Parties | CEGELSKI v. CITY OF GREEN BAY. |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Brown county; Henry Graass, Judge.
Reversed.
Action by Joseph Cegelski against the city of Green Bay. From an order entered September 26, 1938, overruling a demurrer to the complaint for insufficiency of facts the defendant appeals.
Thos. C. Dwyer, of Green Bay, for appellant.
Kaftan, Rahr & Kaftan, of Green Bay, for respondent.
[1] The case is before us on appeal from an order of the circuit court overruling a demurrer to the complaint for insufficiency of facts. The complaint states that the plaintiff was injured when a toboggan on which he was riding ran into a snow drift at the bottom of a toboggan slide. The drift had remained for three or four days without removal. It appears that no charge was made for use of the toboggan slide. It was located on the side of a hill outside the city limits. The city through its employees smoothed the surface of the ground along the course of the slide, kept it covered with snow or ice and constructed a railing alongside to guide the toboggans for a part of its course. The allegations of the complaint are sufficient to state a case of actionable negligence in favor of the plaintiff if the slide had been operated and maintained by a natural person or a corporation for gain or advantage. But it is alleged that the slide is located in a part or playground maintained by the city for the amusement and benefit of the public. The defendant claims that this allegation shows that the city was maintaining the slide in performance of a governmental function and is therefore not liable although the slide was not maintained in a condition sale for the use made of it. That an instrumentality so maintained by a municipality within its limits is not liable for injuries sustained in using it is the settled law of this state. It has been so held of a bathing beach, Bernstein v. Milwaukee, 158 Wis. 576, 149 N.W. 382, L.R.A.1915C, 435;Gensch v. Milwaukee, 179 Wis. 95, 190 N.W. 843; of a park and playground, Erickson v. West Salem, 205 Wis. 107, 236 N.W. 579; of a bathing pool in a park, Virovatz v. Cudahy, 211 Wis. 357, 247 N.W. 341; and of a street set aside by a municipality for use of children in sliding down hill, Skiris v. Port Washington, 223 Wis. 51, 269 N.W. 556; and so of a street so used by children when not set aside for such use by the municipality, Herrick v. Luberts and Town of Greenfield, Wis., 284 N.W. 27.
The plaintiff contends that the rule above stated does not apply because the allegations of the complaint above stated show (1) that the city was maintaining the slide in its proprietary as distinguished from its governmental capacity, and (2) that sec. 101.06 Stats., commonly referred to as the safe place statute, applies to municipalities and the slide is a structure within the meaning of this statute. It is true that if the city was functioning in a proprietary capacity under the allegations of the complaint, or if under the allegations of the complaint the safe place statute applies to the situation involved, the city is liable.
(1) The argument under this head seems to be twofold (a) that a city can not operate in a governmental capacity outside its limits because it has no governmental authority except within its territorial limits, and (b) that where a city owns property outside its limits it necessarily owns it in its proprietary capacity.
[2] (a) The claim of want of governmental capacity outside the city limits is grounded on the proposition that city ordinances have no extra-territorial effect. This is of course true. And it has been held that while a city may own and maintain a park outside of its limits, ordinances regulating the conduct of person in parks have no application to such parks. A fine or penalty can not be enforced against a person for acts violative of a city ordinance committed in a park maintained by a city outside the city limits, although had the act been committed in a park within the city the penalty imposed for the act could have been enforced. But it does not follow from this that a governmental function can not be exercised by a city outside its territorial limits.
[3] (b) It is true that where a city owns property outside the city, it necessarily owns the property in its proprietary capacity. But while it so holds the property it does not necessarily follow...
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