Emmons v. City of Va.

• Decision Date: 02 June 1922
• Docket Number: No. 22839.,22839.
• Citation: 188 N.W. 561,152 Minn. 295
• Parties: EMMONS v. CITY OF VIRGINIA et al.
• Court: Minnesota Supreme Court

152 Minn. 295

188 N.W. 561

EMMONS

v.CITY OF VIRGINIA et al.

No. 22839.

Supreme Court of Minnesota.

June 2, 1922.

Appeal from District Court, St. Louis County; Edward Freeman, Judge.

Action by Margaret G. Emmons against the City of Virginia and the Park Commission of such city, and from an order sustaining a demurrer to the complaint, the plaintiff appeals. Order affirmed.

Syllabus by the Court

Upon the ground that municipal corporations are not liable for negligence in the performance of governmental functions, a city which, through its park commission, provides free to its inhabitants instrumentalities for diversion or exercise in a public park is not liable to persons injured while using such instrumentalities because defective or out of repair, due to negligence of the city, its servants or agents.

A municipality may function as a governmental agency in matters left optional to it as well as in those imposed by law.

The complaint does not allege the existence of a nuisance as ground of recovery. Archer & Pickering, of Virginia, for appellant.

Geo. F. Shea, City Atty., of Virginia, and Abbott, MacPherran, Gilbert & Doan, of Duluth, for respondents.

HOLT, J.

The park commission of the city of Virginia maintains a slide in a public park of the city. Plaintiff in using it was injured because of an alleged defect therein. She sued the park commission and the city for damages. This appeal is from the order sustaining a demurrer to the complaint.

It a city which equips its public parks with instrumentalities for diversion and exercise, for the free use of its inhabitants, liable in damages to one injured in their use because of negligent construction or maintenance? The answer to the question determines the appeal. In some states it has been answered in affirmative, in others, in the negative. Liability was held in Denver v. Spencer, 34 Colo. 270, 82 Pac. 590,2 L. R. A. (N. S.) 147, 114 Am. St. Rep. 158,7 Ann. Cas. 1042;Pennell v. Wilmington, 7 Pennewill (Del.) 229, 78 Atl. 915;Anadarko v. Swain, 42 Okl. 741, 142 Pac. 1104;Weber v. Harrisburg, 216 Pa. 117, 64 Atl. 905. Nonliability was held in Harper v. Topeka, 92 Kan. 11, 139 Pac. 1018,51 L. R. A. (N. S.) 1032;Board of Commissioners v. Prinz, 127 Ky. 460, 105 S. W. 948;Bolster v. Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285;Heino v. Grand Rapids, 202 Mich. 363, 168 N. W. 512, L. R. A. 1918F, 528;Bisbing v. Asbury Park, 80 N. J. Law, 416, 78 Atl. 196,33 L. R. A. (N. S.) 523; Blair b. Granger, 24 R. I. 17, 51 Atl. 1042;Mayor v. Burns, 131 Tenn. 281, 174 S. W. 1111;Bernstein v. Milwaukee, 158 Wis. 576, 149 N. W. 382, L. R. A. 1915C, 435. Whether the courts in the states referred to rendered their decision upon facts and statutes similar to those here present we shall not stop to inquire; for we think the legal principle herein controlling had been established for such a length of time in this state that a departure, if desirable, should originate with the Legislature and not the court.

In the discharge of duties placed on municipal corporations by law they and their servants are regarded as governmental agencies, and not answerable for negligence at the suit of a private party. Especially is this true of quasi municipal corporations. Dosdall v. County of Olmsted, 30 Minn. 96, 14 N. W. 458,44 Am. Rep. 185;Bank v. Brainerd School District, 49 Minn. 106, 51 N. W. 814. The case of Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763,18 L. R. A. 151, involved a municipal corporation proper, and it was held not liable to the one injured because of the negligence of the city's servants in operating an elevator in its city hall. The liability of such a corporation for negligence in the care of its streets is there stated to be an exception to the rule which might be rested upon certain special considerations of public policy or upon the doctrine of stare decisis. That decision was followed in Gullikson v. McDonald, 62 Minn. 278, 64 N. W. 812. In Ackeret v. City of Minneapolis, 129 Minn. 190, 151 N. W. 976, L. R. A. 1915D, 1111, Ann. Cas. 1916E, 897, the city was held liable for a defect in a walk or footpath maintained in its park, but this holding was predicated upon the exception mentioned. One division of the syllabus reads:

‘Cities and villages are liable for injuries resulting from dangerous conditions in their streets; but, with this single exception, municipalities are not liable in damages for negligence in performing their governmental functions, unless such liability has been imposed by statute.’

The decision points out that the pathway there involved was not merely for purposes of pleasure and recreation, but was a thoroughfare for passing from one part of the city to another. Liability is not imposed by the mere fact that the city and park commission are charged with the duty of maintaining the parks and are given the authority to provide the funds needed therefor.

Cities, through park and school boards, have of late provided playgrounds equipped with various instrumentalities for exercise and amusement. Where this is done for the public good and gratuitously, the cities and their servants are to be regarded as agencies of the government, and are not acting in a proprietary character. The weight of authority and the better reasoning is to that effect, as will be found upon examination of the opinions above...