Cleveland v. Ferrando

• Decision Date: 23 February 1926
• Docket Number: 19028
• Citation: Cleveland v. Ferrando, 114 Ohio St. 207, 150 N.E. 747 (Ohio 1926)
• Parties: City Of Cleveland Et Al. v. Ferrando, A Minor.
• Court: Ohio Supreme Court

150 N.E. 747

114 Ohio St. 207

City Of Cleveland Et Al. v. Ferrando, A Minor.

No. 19028

Supreme Court of Ohio

February 23, 1926

Municipal corporations - Parks are "public grounds," when - Section 3714, General Code - Duty to keep free from nuisance - Unguarded, unexploded bomb in public park a nuisance per se - Liability to person injured because of failure to remove bomb.

1. Municipally owned and controlled parks, established and maintained for, and open to the general public, are "public grounds" within the meaning of that phrase in Section 3714, General Code, and by that section the duty is imposed upon municipalities to keep them free from nuisance.

2. The presence of an unguarded, unexploded bomb in a public park is a nuisance per se, and a municipality owning and controlling such public park, on proof of knowledge or notice of such nuisance, actual or constructive, is liable to persons injured by reason of its failure to remove same.

The defendant in error, a minor, brought an action in the court of common pleas of Cuyahoga county against the city of Cleveland and the Societa Santa Liberata and various members of a committee of that society.

The petition averred that the city of Cleveland owned the land included in Ambler Park, which park is and was maintained by the city as a public park for the use and benefit of the residents of the ______________

Municipal Corporations, 28 Cyc. p. 1293; Public Ground, 32 Cyc. p. 756;

Id.; Nuisances, 29 Cyc. p. 1174. ______________ city and the public generally; that the plaintiff in error resided near and used the park; that upon the date alleged in the petition the Societa Santa Liberata obtained a permit to exhibit and explode fireworks in the park; that the fireworks were accordingly fired and exploded; that on the next morning after the exhibition of the fireworks the plaintiff, a minor of 10 years, passing through the park, fount[ an unexploded bomb; that by reason of his tender years he did not know, nor have the means of knowing, the dangerous character thereof that he lighted the bomb and it exploded, injuring him "that defendants did know that said explosive had been left in said park unexploded, or could have known of the same by the exercise of ordinary care, and did know, or could have known, of its dangerous character by the exercise of ordinary care."

The petition further averred that the defendant city of Cleveland "was negligent in granting a permit for the exhibition of said explosives to persons unacquainted with explosives and unfit to exhibit them, in failing to supervise the firing thereof, so that none would be left on the ground, in failing to examine the ground where and near the place where said fireworks were exploded, and in failing to find and remove the explosive that was left on the ground and later picked up by the minor aforementioned."

To this petition the defendant city of Cleveland filed a demurrer "on the ground that the facts stated therein are not sufficient to constitute a cause of action." This demurrer was sustained.

The plaintiff, not desiring to plead further as to the city of Cleveland, judgment was entered dismissing the city from the action, and for costs.

Error was prosecuted to the Court of Appeals, and the judgment of the court of common pleas was there reversed. Error is prosecuted here to...