Griffin v. Salt Lake City

• Decision Date: 06 January 1947
• Docket Number: 6960
• Citation: 176 P.2d 156,111 Utah 94
• Court: Utah Supreme Court
• Parties: GRIFFIN v. SALT LAKE CITY

176 P.2d 156

111 Utah 94

GRIFFIN v. SALT LAKE CITY

No. 6960

Supreme Court of Utah

January 6, 1947

Appeal from District Court, Third District, Salt Lake County; A H. Ellett, Judge.

Action by Irene Josephine Griffin against Salt Lake City, a municipal corporation, for death by drowning of plaintiff's daughter in swimming pool owned and operated by city. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Stewart M. Hanson and Willard R. Hanson, both of Salt Lake City, for appellant.

A Pratt Kesler, E. R. Christensen and Homer Holmgren, all of Salt Lake City, for respondent.

McDonough Justice. Larson, C. J., and Pratt, Wade, and Wolfe, JJ., concur.

OPINION

McDonough, Justice.

Appellant, defendant below, seeks reversal of judgment against it for alleged negligence on its part whereby the 12 year old daughter of plaintiff was drowned on August 12, 1945, in the main indoor swimming pool of the Wasatch Springs Plunge.

Plaintiff's daughter Carmen with two other children paid the admission price to enter the pool on the day in question. They were admitted to the pool while it was being filled, which was contrary to the regulations. The size of the pool is 120 feet by 50 feet. A rope is always stretched across the pool to indicate the line where the water becomes deeper. Near the rope there is a lifeguard station. The diving board extends about eight feet over the deep end of the pool.

The city ordinances require a guard to be on duty at all times while a swimming pool is in use. On the day in question, these children were all on the shallow water side of the rope. The lifeguard noticed that the temperature was rather high, and stepped outside to get another guard to relieve him. A very brief interval occurred between the time the one guard left and the other one arrived at the inside pool where these children were playing in the water. During that short period when the pool was left unguarded, the tragedy occurred.

During the absence of the guard, Carmen and her two companions, by use of their hands, holding onto the drain trough at the top of the pool, worked their way into deep water. Carmen said to the other two, "Let's see how deep it is." When one of the boys, who was too short to reach the hand rail, had to pull himself up by holding onto the swimming suit of his boy companion, he became frightened and did not venture farther into deep water. Carmen released her hold on the hand rail to test the depth, and when she came up she was close to the diving board. One of the boys saw her gasp and try to call for help. She went under again, and came up closer to the diving board. She then made a gasp but uttered no sound, and then went under the water for the last time. When one of the boys observed that she did not come up again, the relief guard who had just come into the room was notified. By the time he reached the vicinity where Carmen had gone under the water, the drowning had apparently occurred. The relief guard immediately located the body lying on the bottom of the pool, and he quickly recovered it. All efforts to resuscitate the girl failed.

The public is permitted to use this swimming pool only by paying the required admission price. In 1945 the revenues exceeded the operating costs by a little over $ 1,200 if depreciation is excluded; but if depreciation is considered an item of cost of operation, there was a deficit. The admission price to the main pool is 41 cents per person for adults and 17 cents for children, which price includes soap, towel, suit, and the state and federal admission taxes.

On this appeal defendant contends: (1) That the operation of the swimming pool is a governmental function, for which it can incur no liability for death due to negligence of any of its employees; (2) that the city ordinances imposing safety and health regulations on operators of swimming pools and bathhouses are therefore inapplicable; and (3) even if such operation of said property was not in a governmental capacity, the decedent was guilty of contributory negligence as a matter of law.

Counsel for appellant concede that Burton v. Salt Lake City, 69 Utah 186, 253 P. 443, 445, 51 A. L. R. 364, which was decided on demurrer, involved the identical premises. In that case the city also contended that the operation of a swimming pool is conducted in a governmental rather than in a proprietary capacity. In that case Mr. Justice Frick stated:

"* * * Is it not pertinent to ask, What governmental function does Salt Lake City exercise in conducting the bathhouses and swimming pools in question? In what way does it discharge any governmental function? What is it that it governs or regulates or controls of a public or governmental character? * * * We confess our utter inability to perceive any act of a governmental nature which the city exercises in owning, operating, and conducting the bathhouses and swimming pools referred to in the complaint."

This court in that case held that the complaint stated a cause of action for death resulting from negligence of city employees, by showing that the charging of more than a nominal admission price and other incidents of operation indicated that the swimming pool was operated by the municipality in a proprietary capacity rather than as a governmental function. It was pointed out, however, that

"The mere fact that a fee is exacted or a charge is made is not conclusive against the city,"

to determine whether the enterprise is conducted in a proprietary rather than in a governmental capacity.

Counsel for the city in this case contend that the Burton case cannot serve as authority in the instant case because the decision was based upon the language of Sec. 570x14, C. L. U. 1917, which was altered by deletion of the word "bathhouses" by code revision when Revised Statutes of Utah 1933 were adopted. Prior to revision said statute read as follows:

"To construct and maintain waterworks, gas works, electric light works, telephone lines, street railways, or bathhouses, or to authorize the construction and maintenance of the same by others, or to purchase or lease any or all of said works from any person or corporation; * * *."

Appellant admits that at the time the Burton case was decided there was another statute which authorized the city to establish and maintain bathhouses and swimming pools, which statute was not referred to in the Burton case. Appellant contends, however, that such statute, Sec. 570x8, C. L. U. 1917, as amended by Laws of Utah 1919, chap. 11, p. 20, authorized bathhouses and swimming pools to be established and maintained only in a governmental capacity, by specifying the grant of authority in connection with functions which could be exercised only as governmental ones. That statute then read as follows:

"To lay out, establish, open, alter, widen, narrow, extend, grade, pave, or otherwise improve streets, alleys, avenues, boulevards, sidewalks, parks and public grounds and to vacate streets, alleys, avenues, parks and boulevards or parts thereof, by ordinance; and to establish, maintain and provide for the supervision of bath houses, public playgrounds, recreation places, and swimming pools." (Emphasis added.)

Counsel premise their argument that the authority granted by said section to establish and maintain bathhouses and swimming pools relates to governmental functions on the fact that a number of other activities authorized in the first part of the section are governmental functions. They claim that when enacted, such statute thereby manifested a legislative intent that swimming pools established by municipalities be maintained in their governmental capacity rather than in any proprietary capacity. However, by the 1933 code revision, the portion of the statute following the semicolon was made a separate section, to read as follows (15-8-9, R. S. U. 1933):

"They may establish, maintain and provide for the supervision of bath houses, public playgrounds, recreation places and swimming pools."

It will be noted that municipalities were not only granted the right to establish and maintain bathhouses and swimming pools, but also...