Cornelisen v. City of Atlanta

• Citation: 91 S.E. 510,19 Ga.App. 436
• Decision Date: 27 February 1917
• Docket Number: 6388.
• Parties: CORNELISEN v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

91 S.E. 510

19 Ga.App. 436

CORNELISEN v. CITY OF ATLANTA.

No. 6388.

Court of Appeals of Georgia, First Division

February 27, 1917

Syllabus by the Court.

"Where a city maintains a park primarily for the use of the public intended as a place of resort for pleasure and promotion of health of the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park. But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial and municipal liability would attach for breach of such duty." Cornelisen v Atlanta, 91 S.E. 415, decided by the Supreme Court February 13, 1917.

(a) It being apparent from the allegations in the plaintiff's petition that the "public recreation park," therein asserted to be "owned and controlled" by the city of Atlanta at the time of the injury complained of, was maintained "primarily for the use of the public intended as a place of resort for pleasure and promotion of health of the public at large," no municipal liability attached on account of the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. Considering the allegations in the petition as made, it is plain that any profit resulting to the city from the operation or management of the park was purely incidental.

(b) The trial court therefore did not err in sustaining the demurrer and dismissing the case as to the city of Atlanta.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Martin Cornelisen against the City of Atlanta. Judgment for defendant sustaining demurrer to bill and dismissing the case, and plaintiff brings error. Affirmed.

See, also, 91 S.E. 415.

Geo. H Gillon and Dean E. Ryman, both of Atlanta, for plaintiff in error.

Jas. L Mayson and W. D. Ellis, Jr., both of Atlanta, for d...