Flamingo v. City of Waukesha
| Decision Date | 07 October 1952 |
| Citation | 55 N.W.2d 24,262 Wis. 219 |
| Parties | FLAMINGO, v. CITY OF WAUKESHA. |
| Court | Wisconsin Supreme Court |
Patrick Flamingo was drowned when he fell into the Fox River at Waukesha. The special administrator of his estate has brought an action against the city for damages occasioned by his death. The complaint alleges that the city owned certain land lying between Baxter Street and the river and when it cleared snow from the streets it dumped the snow on this property. A shelf of ice or snow was thus built up overhanging the river. Patrick, who was ten years old, played on the snow-pile and the shelf gave way, dropping him into the river. The complaint charged the city with causal negligence in creating and maintaining on its lands a dangerous condition without warning of the same and under circumstances making it a trip; in maintaining upon its lands a public and attractive nuisance such that children were led to venture upon it; in failing to barricade the area against the children at play under circumstances where the city knew or should have known of the danger and that children would be attracted to it.
The defendant demurred to the complaint on the ground that it did not state a cause of action. The demurrer was sustained by an order dated January 23, 1952, and the plaintiff has appealed.
James D'Amato, Ray J. Aiken, Waukesha, for appellant.
William G. Callow, Waukesha (Richard S. Hippenmeyer, Waukesha, of counsel) for respondent.
It is well settled that the maintenance of streets and highways in a condition fit for travel is a governmental function. Bruhnke v. La Crosse, 1914, 155 Wis. 485, 144 N.W. 1100, 50 L.R.A.,N.S. 1147; Stoehr v. Town of Red Springs, 1928, 195 Wis. 399, 216 N.W. 487, 219 N.W. 98; Larsen v. Kewaunee County, 1932, 209 Wis. 204, 244 N.W. 578. It is also a governmental function for a city to maintain a dump for the disposal of unwanted material.
'While diversity of judicial views still prevails, late cases generally hold, with some exceptions, that the functions of cleaning of streets, the collection of garbage, and the establishment and maintenance of dumping grounds and incinerators are governmental, rather than proprietary, exercised by the municipality as an administrative agency of the state or for the public in the interest of the public health and general welfare, and hence, negligence relating thereto creates no municipal liability, unless, in the exercise of such power a nuisance in fact is thereby created and maintained by the municipality, * * *.' McQuillin, Municipal Corporation, Vol. 18, Sec. 53.46, p. 267. See also Bruce v. Kansas City, 1929, 128 Kan. 13, 276 P. 284, 63 A.L.R. 325, and Annotation, 63 A.L.R. 332.
Of course it can not be held that in dumping the snow between the street and the river, where it did not interfere with travel on the highway, the city created or maintained a public nuisance or a nuisance in fact. The plaintiff, therefore, relies on the doctrine of attractive nuisance. Assuming, but not holding, that a boy of ten years is young enough to come within the protection of that doctrine when the other facts make the doctrine applicable it is inapplicable here because the snowpile was created and existed in the defendant's performance of a governmental function.
'The doctrine of attractive nuisance * * * can have no application in cases in which the negligence occurred or the attractive condition was created in the exercise of a governmental function * * *' 38 Am.Jur., Municipal Corporations, sec. 588, p. 283. Cited in Britten v. Eau Claire, 1952, 260 Wis. 382, 51 N.W.2d 30.
It has been urged upon us that Wisconsin precedents have modified the rule of municipal immunity so that now a municipality is responsible for the negligent acts of its officers or servants even in the performance of a governmental function unless it appears that at the time of injury the injured party was enjoying some privilege extended to him by the municipality which embraced or included the defective condition or negligent conduct, so that between the parties the relationship of governor to governed existed. We do not consider that the authorities sustain the argument.
In Erickson v. Village of West Salem, 1931, 205 Wis. 107, 236 N.W. 579, a child playing in a public park was drowned in a sewer negligently constructed and maintained there by the city. In holding that the city was not liable, Mr. Justice Nelson said, at page 109 of 205 Wis., at page 579 of 236 N.W.:
'The law is established by numerous decisions of this court that a municipal corporation, such as a city or village, is not liable for the negligence of its officers or servants when engaged in the performance of a governmental function or when the relation between the person injured and the municipality is purely governmental in its nature.' (Emphasis supplied.)
It is important to note that the reasons for denying liability are alternative; disjunctive and not conjunctive. If the city's function is governmental it is not liable for the negligence. If by its performance it creates a nuisance in fact, the city can not defend by showing its governmental purpose but it may still escape liability by showing that the injury was suffered by one whose relationship to the city was, at that time, governmental.
In Folk v. Milwaukee, 1900, 108 Wis. 359, 364, 84 N.W. 420, 421, we stated that '* * * a municipal corporation may not construct or maintain a nuisance in the street * * *.' Accordingly, in Robb v. Milwaukee, 1942, 241 Wis. 432, 6 N.W.2d 222, where the jury had found that the presence of a municipal playground made the street unsafe, we held that the playground constituted a nuisance and allowed recovery to a pedestrian on the sidewalk who was struck by a ball batted into the street. The governmental-function defense did not avail the city because by its playground it created and maintained the hazard to the street traffic,--the nuisance,--and the relationship between the parties was not that of governor and governed because the pedestrian was not using the playground. In Virovatz v. Cudahy, 1933, 211 Wis. 357, 247 N.W. 341, the nuisance existed but the person harmed had no right of action because he was enjoying the facilities of the swimming pool which contained the defect. We said, in 211 Wis. at page 360, 247 N.W. at page 342:
'Thus, it is apparent that the right to recover from a municipality, for injuries sustained because of its creation or maintenance of a nuisance in its governmental capacity, does not exist in favor of a person toward whom the municipality was likewise acting in its governmental capacity. * * *'
In Holl v. Merrill, 1947, 251 Wis. 203, 28 N.W.2d 363, the county maintained a jail and jailyard, and in so doing undermined the city sidewalk so as to make it unsafe, whereby the plaintiff was injured. We held that the active interference by the county with the city sidewalk created a nuisance, so that the governmental-function defense was not available to the county and, as the plaintiff was not taking advantage of any county facilities which included the nuisance, neither did the county have the defense of a governmental relationship between the parties. A cause of action existed, therefore, against the county.
In the case of Matson v. Dane County, 1920, 172 Wis. 522, 179 N.W. 774, upon which plaintiff relies, liability was expressly based upon the duty which the county owed, as an adjoining landowner, to the plaintiff, and upon no other ground. Therefore, the county was held liable because of its proprietary, not its governmental nature. The present facts do not permit the use of that case to establish liability here.
Enough has been said, we think, to demonstrate that Wisconsin municipalities avoid liability for damage caused by their negligence in carrying out governmental functions where they have not created a nuisance in fact, and even where such a nuisance has been created liability is not imposed if the relationship of governor and governed exists between the municipality and the injured party. That relationship was not present in the instant case, but on the facts...
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