Glirbas v. City of Sioux Falls

• Decision Date: 21 December 1935
• Docket Number: No. 7811.,7811.
• Citation: 264 N.W. 196,64 S.D. 45
• Parties: GLIRBAS v. CITY OF SIOUX FALLS.
• Court: South Dakota Supreme Court

64 S.D. 45

264 N.W. 196

GLIRBAS

v.CITY OF SIOUX FALLS.

No. 7811.

Supreme Court of South Dakota.

December 21, 1935.

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Sam Glirbas, as special administrator of the estate of John Alvin Glirbas, deceased, against the City of Sioux Falls. From an order overruling a demurrer to the complaint, defendant appeals.

Affirmed.

Hugh S. Gamble, of Sioux Falls, for appellant.

Dougherty & Flood, of Sioux Falls, for respondent.

ROBERTS, Judge.

[1] This is an action against the city of Sioux Falls to recover damages for the death by drowning of plaintiff's son. After setting forth the municipal corporate organization of the city and the maintenance of a public swimming pool on land owned and maintained by the city, the complaint alleges that: “The swimming pool was so kept and maintained without proper protection and without proper guard for the safety of minors and others who were not expert swimmers; that the water in said swimming pool was of an exceedingly cold nature and that in parts of said swimming pool the water was of great depth so as to be unsafe for minors and other persons who were not expert swimmers.” It is also alleged that the lifeguards employed by defendant city negligently failed to discover the peril of plaintiff's son. From the order overruling demurrer to the complaint, the defendant city has appealed.

This court in Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438, 29 A.L.R. 841, held that the maintenance of bathing facilities in a public park by a city does not constitute the exercise of a governmental function within the meaning of the law that exempts cities from liability for the negligence of their officials and employees in the performance of such function, and that the defendant city was liable for injuries resulting from the placing of a springboardabove the surface of shallow water. A pronounced difference of opinion exists upon the question whether such activity is a proprietary or ministerial, rather than a governmental, function. The rule of liability has been recognized in this state, and no useful purpose would be served by further discussion. The cases are reviewed in notes in 29 A.L.R. 863, 42 A.L.R. 263, and 75 A.L.R. 1196; see, also, 34 Yale Law Rev. 1, 129, and 34 Harvard Law Rev. 66. Counsel for defendant seeks to distinguish the Norberg Case from the one at bar. The park facilities in that case were under the supervision of a park board created by ordinance (sections 6434-6443, Rev. Code 1919), and no statute existed providing immunity from liability for negligence. It is the claim of counsel for defendant that the city of Sioux Falls adopted the provisions of chapter 260, Laws 1915 (sections 6444-6523, Rev.Code 1919), by a majority vote of electors voting at the city election in April, 1915; that by the provisions of this statute the parks of the city came and have since continued under the control and management of a board of park supervisors; and that the city under the provisions of section 6508, Rev. Code 1919, as amended by section 9, chapter 237, Laws 1925, is exempted from liability. This section reads in part as follows: “No action shall lie against the board or against the city or the governing body of the city to recover for injuries sustained by any person through the negligence of the officers or employees of the board while engaged in the improvement, maintenance, or operation of land owned or operated as a park or for...