Glirbas v. City of Sioux Falls, 7811

• Decision Date: 21 December 1935
• Docket Number: 7811
• Citation: 264 N.W. 196,64 S.D. 45
• Parties: SAM GLIRBAS, Special Administrator of the Estate of John Alvin Glirbas, Deceased, Respondent, v. CITY OF SIOUX FALLS, Appellant.
• Court: South Dakota Supreme Court

64 S.D. 45

264 N.W. 196

SAM GLIRBAS, Special Administrator of the Estate of John Alvin Glirbas, Deceased, Respondent,

v.

CITY OF SIOUX FALLS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. John T. Medin, Judge #7811—Affirmed Hugh S. Gamble, Sioux Falls, SD Attorney for Appellant. Dougherty & Flood, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Dec 21, 1935

ROBERTS, Judge.

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, 29 ALR 841, held that the maintenance of bathing facilities in a public park by a city does not constitute the exercise of a govern mental 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 spring board above 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 2d ALR 863, 42 ALR 263, and 75 ALR 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...