Florey v. City of Burlington

• Decision Date: 13 December 1955
• Docket Number: No. 48839,48839
• Citation: 247 Iowa 316,73 N.W.2d 770
• Parties: Garnet Fay FLOREY, a Minor, by Andrew J. Florey, her father and next friend, Appellee, v. CITY OF BURLINGTON, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 770

73 N.W.2d 770

247 Iowa 316

Garnet Fay FLOREY, a Minor, by Andrew J. Florey, her father and next friend, Appellee, v. CITY OF BURLINGTON, Iowa, Appellant.

No. 48839.

Supreme Court of Iowa.

Dec. 13, 1955.

F. M. Holsteen, City Atty., Burlington, and Ben P. Poor, Burlington, for appellant.

Pryor, Hale Plock, Riley & Jones, Burlington, for appellee.

SMITH, Justice.

Defendant City of Burlington maintains Crapo Park, situated on a bluff overlooking the Mississippi River. On July 30, 1953, plaintiff, Garnet Fay Florey, a thirteen year old girl, fell off a cliff in the park and suffered personal injuries for which she brings this action by next friend. The jury returned verdict in her favor upon which judgment has been entered. The defendant has appealed.

The action is based on alleged negligence of the city in failing to maintain a fence, guard rail or other barrier, to post warning signs or notices to advise of danger, or to have on duty a guard to warn plaintiff and the public generally of the danger of the trail or path plaintiff claims she was traversing when she fell. The city claims 'governmental immunity,' among other defenses.

The statement of facts and description of the location as set out in defendant's brief is accepted by plaintiff as substantially correct. We adopt it herein, somewhat condensed and in part directly quoted:

Plaintiff, a resident of Beardstown, Illinois, with her brother-in-law, Charles Burton and family who live in Burlington, and another sister, Pat, 16 or 17 years old, were picnicking in the park. Mr. Burton (28) volunteered to take the girls to Black Hawk Cave and Spring in a lower part of the park. Burton led the way. Plaintiff followed with Pat behind her.

'They went down the concrete block steps below the horseshoe' (name of an oval shaped drive) 'to the upper of two formal nature trails running longitudinally along the side of the bluff. Proceeding northeasterly upon such nature trail they skirted the barrier along its easterly side and went around the end * * * and onto the steep face of the bluff that had a 55% grade running down 40 feet southeastwardly to the brink of a 12 1/2 foot stone cliff extending to the lower level nature trail.'

There is a dispute of fact at this point. Plaintiff's witnesses refer to a 'path' which ran down a steep slope to the brow of the cliff. Defendant's witnesses positively deny its existence. There is some suggestion that the 'path' was due to water erosion, rather than to human travel.

Defendant's statement continues: 'The steepness of the grade forced both the plaintiff and Mr. Burton into a run. Burton veered to the north when he got to the cliff and grabbed a hold of some trees. * * * Plaintiff was not so fortunate and went over the cliff and suffered the injuries for which she asks damages in this case.'

By a complex system of division and classification defendant's brief states the 'issues' in 'divisions' numbered I to X and then sub-divides them into 'points' I to XX. We shall try to cover the ground without following the same order of arrangement. It may be conceded the legal trail, like the park 'path,' is controversial.

I. Defendant first cites numerous cases to the proposition that: 'Iowa is firmly committed to the doctrine' municipalities are not subject to the rule of respondeat superior 'while performing a public service,' i. e. that they enjoy so-called 'governmental immunity.' Most of these cases relate to negligence of municipal agencies and employees in various activities--enforcement of sanitary regulations by the board of health, making of arrests by peace officers, acts of firemen in performance of their duties, negligence of city employee in mowing weeds or in operating a grading machine, or a city owned car or truck, negligence in the operation of a bathing beach and a municipal airport. These and many other cases make clear that Iowa courts do not reject the doctrine entirely.

The municipal corporation is not liable for negligent acts of its employees engaged in performing governmental functions. But it is liable, as is a private corporation, for their negligence in performing proprietary duties; and it is no immune from liability for damage due to dangerous conditions resulting from its own misfeasance or non-feasance in governmental matters.

The immunity doctrine, as to cities and towns, doubtless came with the emergence of the municipality as a corporate body, more definite than a mere territorial subdivision, and with certain governmental and proprietary powers delegated to it by the sovereign state. The dual character of the corporation thus created probably accounts in a measure for the problems of immunity that have arisen. The analogy between the doctrine and the ancient (and archaic) maxim, 'the King can do no wrong' probably had a part in its inception, but more practical considerations have been urged both for and against it. It is not complete immunity from judicial accountability such as is accorded the state--only freedom from the rule of respondeat superior where the servant is engaged in governmental activity.

This immunity doctrine is said to have been first announced in 1798 in an English case, Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359. See Prosser on Torts, 1955 Ed. 774.

Various tests for determining whether immunity does or does not exist in a given case have been suggested: Is the proposed activity or function governmental or proprietary? Is it ministerial or administrative or judicial? Is its performance mandatory or discretionary?

It has been urged in support of the doctrine that the corporation derives no profit from the exercise of governmental functions which are solely for public benefit and are frequently mandatory, and that it would be unfair to hold it liable under the rule of respondeat superior; and on the other hand that it is better the losses due to tortious conduct of municipal employees in such affairs should fall on the municipality as a cost of administration than on the injured individual. See Prosser on Torts, supra. The trend is said to be away from the immunity doctrine, see Annotation 75 A.L.R. 1196; 63 C.J.S. Municipal Corporations, § 746, p. 33. Possibly this is, as defendant suggests, an 'intrusion of personal ideas and impulses into the deliberations of sober, calm and educated thought and research.'

Our own opinion is that though the doctrine is largely of common law origin, any substantial modification of it must come by legislation. Our duty is to interpret our statutes and precedents and apply them to conditions as they arise.

II. The municipality, like any private corporation, is subject to tort liability and the rule of respondeat superior, when engaged in purely proprietary activity. The problem arises when it performs governmental functions committed to it by the state. Such functions do not become proprietary by their delegation. Nevertheless tort liability may arise if the municipal corporation negligently fails to perform its governmental duty and dangerous conditions result which cause injury to one properly availing himself of the tendered service.

In a quite early day (1868) Judge Dillon, speaking for our court laid down the broad principle: 'Thus incorporated cities and towns, wherever they are invested by their organic or constituent acts with general supervision and control over their streets, with power to grade and improve them, and with the power to levy taxes or raise revenue, which may be used for the purposes of such repair, are held liable, without any statute expressly giving the action, for injuries caused by unsafe and defective streets. (Emphasis supplied.)

'To this effect may be found decisions in almost all, if not in every state of the Union.' Soper v. Henry Co., 26 Iowa 264, 268. He then cited Rusch v. Davenport, 6 Iowa 443; McCullom v. Blackhawk Co., 21 Iowa 409; and twelve cases from other jurisdictions.

Our decisions since have not run counter to that pronouncement. There is however frequent reference in cases of this character to the statute now known as section 389.12, Iowa Code 1954, I.C.A.: 'They (cities and towns) shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.' This statute was formerly section 5945, Code of 1939. It originated in substantially the present form in 1858, and has persisted through all succeeding codes. In many of our cases it seems to be assumed the municipal liability for tort springs from the statutory mandate embodied in the last clause of the statute. We agree however with Judge Dillon's statement above quoted that it arises from the delegation of power and failure to maintain highways and public premises in safe condition for use by the public. With equal logic it applies in case of public parks.

The functions enumerated in the statute are not merely public but are, in modern practice at least, essentially governmental in character. The first four are overlapping and refer to passageways or thoroughfares, no longer thought of as adapted to private management and maintenance or exploitation. The same is true of 'public squares, and commons within the city.'

Time and custom have converted all these activities into functions of government. This does not mean they belong in the category of 'public utilities.' The statute, in placing them under municipal control, has not converted them into proprietary functions, comparable to municipal lighting or transportation.

But in delegating them the state has commanded the municipality to 'cause the same to be kept open and in repair and free from nuisance.' The latter is merely declaratory of the implied mandate of the common law, implicit in the delegation. If a failure to...