Gibbons v. Fitzpatrick, 7326.

• Decision Date: 05 March 1936
• Docket Number: No. 7326.,7326.
• Citation: 183 A. 642
• Parties: GIBBONS v. FITZPATRICK, City Treasurer.
• Court: Rhode Island Supreme Court

183 A. 642

GIBBONS

v. FITZPATRICK, City Treasurer.

No. 7326.

Supreme Court of Rhode Island.

March 5, 1936.

Exceptions from Superior Court, Providence and Bristol Counties; Hugh B. Baker, Presiding Justice.

Action of trespass on the case by Thomas F. Gibbons against Walter F. Fitzpatrick, City Treasurer. The superior court sustained a demurrer to the declaration, and plaintiff brings exception.

Exception overruled, and case remitted.

Joseph H. Coen, of Providence, for plaintiff.

John C. Mahoney, City Sol, and John T. Walsh, Asst. City Sol, both of Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case brought by the plaintiff against the city of Providence for injuries alleged to have been suffered by him from being struck by a piece of coping or metal beading which fell from the city hall while he was walking along the sidewalk on Dorrance street, a public highway in said city.

The plaintiff in his writ and declaration has described his action as "trespass on the case for negligence," but his counsel argues that the facts which he alleges in his declaration constitute a nuisance. He alleges that "on the said 8th day of July, A.D, 1921, said City of Providence had carelessly and negligently allowed and permitted said, to wit, metal beading, decoration or coping, to be and become rotten, decayed, weak, and unsecurely fastened and sustained in position, on the part thereof along said Dorrance Street over and above the entrance to said City Hall, and the same then and there was and for a long time prior thereto, to wit, many years, had been by reason of said carelessness and negligence rotten, decayed, weak and unsecurely fastened and sustained in position and was then and there likely to fall. By reason whereof it was unsafe and dangerous and it was a menace to persons lawfully on said highway, all of which the defendant then and there knew or by the exercise of reasonable diligence could have known." It is not necessary to further allege in the declaration that said facts constitute a nuisance in order for the plaintiff to be entitled to the benefit of the law of nuisance. Braun v. Iannotti, 54 R.I. 469, 175 A. 656.; Sullivan v. Waterman, 20 R.I. 372, 39 A. 243, 39 L. R.A. 773.

We shall treat the case, therefore, as an action of trespass on the case against the city for a nuisance. As was said in Braun v. Iannotti, supra, the use of the word "negligent" does not convert the action into one based on negligence merely. In that case this court looked at the whole declaration and found that the gist of the action was not negligence but nuisance.

The defendant demurred to the declaration on the following grounds: "1. Said declaration fails to state a cause of action. 2. It does not appear in and by said declaration that the plaintiff filed a claim against said defendant in accordance with the provisions of section 13 of chapter 47 of the General Laws of 1923. 3. Said declaration charges the defendant with the maintenance and repair of the city hall in Providence, said building being operated and maintained as part of the governmental function of said city."

After hearing before a justice of the superior court, the demurrer was sustained on the second and third grounds. Plaintiff filed an exception to this ruling of the trial justice, and the case is now before us on this exception.

The third ground of demurrer raises the real issue between the parties. In substance that issue is this: Is the city liable for injuries to a person while lawfully on the sidewalk of a public highway, which are caused by the unsafe and dangerous state of disrepair of the city hall amounting to a public menace, when the city had knowledge, or in the exercise of reasonable care would have had knowledge, of said state of disrepair and the resulting menace? We have here not the usual case of a person injured by some depression or some obstruction in the surface of the sidewalk, nor have we the other class of cases where recovery is sought for an alleged defect in a city hall or for some negligence in its operation whereby injury is caused to one in the building. This plaintiff was not in the city hall nor in the act of entering therein, but was merely walking along the adjacent sidewalk.

Counsel for the plaintiff urges that the declaration charges the city with creating and maintaining a nuisance, which it knew, or ought to have known, exposed persons lawfully on. a public highway to danger of bodily harm and which, in fact, resulted in bodily harm to the plaintiff. His theory is that, even though a public building may be used by a municipality in the performance of a governmental function, such use does not exempt it from liability when a nuisance is in fact created, which nuisance the municipality, with actual or constructive notice of its existence, permits to exist and continue to the damage of a person lawfully on a public highway. The plaintiff does not base his claim on our highway statute or solely on ordinary...