Grover v. City of Manhattan

• Decision Date: 04 March 1967
• Docket Number: No. 44626,44626
• Citation: 198 Kan. 307,424 P.2d 256
• Parties: Jimmy Lee GROVER, a minor, by and through his father and next friend, Calvin Grover, Appellant, v. CITY OF MANHATTAN, Kansas, a municipal corporation, Appellee.
• Court: Kansas Supreme Court

Page 256

424 P.2d 256

198 Kan. 307

Jimmy Lee GROVER, a minor, by and through his father and next friend, Calvin Grover, Appellant, v. CITY OF MANHATTAN, Kansas, a municipal corporation, Appellee.

No. 44626.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. In determining whether activities of a municipality are governmental or proprietary, it is proper to consider whether the activity is primarily for the advantage of the state as a whole or for the special local benefit of the community involved, and to further consider whether the activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege granted by the sovereign power; but such tests are not conclusive in determining the capacity in which the city's activities are conducted. (Following Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265.)

2. The maintenance of a zoo in a public park by a municipality is a governmental function.

3. Absent a statute expressly imposing liability, a municipality is not liable for the negligence of its officers or employees in their performance of its governmental functions.

4. The doctrine of governmental immunity stated in the preceding syllabus does not extend to a case where the conduct of a municipality results in the creation or maintenance of a nuisance.

5. In an action by a ten-year-old boy against a municipality for the recovery of damages for injuries allegedly received when he was attacked and bitten by a coyote which had escaped from its enclosure at the city zoo and was running loose in the area frequented by visitors, it is held, the district court did not err in sustaining the city's motion for summary judgment on the grounds that (1) the city was engaged in a governmental function, and (2) the conduct of the city did not result in the creation or maintenance of a nuisance.

Daniel A. Young, Lawrence, argued the cause, and Jerry L. Mershon, Manhattan, was with him on the brief for appellant.

Donn J. Everett, Manhattan, argued the cause, and was on the brief for appellee.

O'CONNOR, Justice.

This is a damage action instituted by the plaintiff against the City of Manhattan and one of its employees. From an order of the district court sustaining the city's motion for summary judgment, the plaintiff has appealed. The employee is not a party to this appeal.

The question presented concerns the liability of a municipality in the operation and maintenance of its zoo.

The events giving rise to the appeal may be briefly summarized. Jimmy Lee Grover, age ten, while visiting the Sunset Zoo on September 23, 1962, suffered injuries as a result of being attacked and bitten by a coyote which had escaped from its enclosure at the zoo and was running loose in the area frequented by visitors. Plaintiff alleges that the city was negligent in failing to properly restrain the coyote in its pen, and that the city created a nuisance by allowing the animal to run loose. At the pretrial conference the city moved for summary judgment, contending that in the operation of the zoo it was performing a governmental function, and thus was not liable. The lower court, in a memorandum opinion, held that the city was entitled to the protective cloak of governmental immunity on the grounds that (1) the operation and maintenance of the zoo was a governmental function, and (2) 'the coyote running loose' did not constitute a nuisance. These grounds, upon which the lower court bottomed its ruling, are the points of error asserted by plaintiff on appeal.

Municipal corporations exist and function in a dual capacity-one governmental, the other proprietary. Generally, municipalities, as arms of the state, are not liable for negligence in the discharge of their governmental functions, but immunity from liability is not extended to municipalities in the exercise of their proprietary functions. In the latter instance, the liability of a city is equivalent to that of an ndividual or a private corporation. (Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265; Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227, 5 A.L.R.2d 47.)

Plaintiff first asks us to reject the immunity doctrine as it applies to the liability of a municipality in the discharge of its governmental functions, just as we have abandoned it as it applies to charitable institutions and church corporations. The same contention was advanced in the recent case of Parker v. City of Hutchinson, 196 Kan. 148, 410 P.2d 347, where the subject was considered in depth. We adhere to our holding that absent a statute expressly imposing liability, a municipality is not liable for the negligence or misconduct of its officers or employees in their performance of its governmental functions. (Also, see McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73, involving the immunity of a state agency.)

Plaintiff next contends the trial court erroneously concluded that the operation and maintenance of the zoo by the defendant city was a governmental instead of a proprietary function.

No single test or rule is relied on by this court in determining whether activities of a municipal corporation are governmental or proprietary. The tests to which plaintiff attaches great weight, in his assertion that the city was acting in its proprietary capacity, are well stated in Wendler, where it is held to be:

'* * * proper to consider whether the activity is primarily for the advantage of the state as a whole or for the special local benefit of the community involved, and to further consider whether such activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege given by the sovereign power, but such tests are not conclusive to determine the capacity in which the city's activities are conducted.' (Syl. 3.)

There is substantial authority that maintenance of a public park by a municipality is a governmental function (Anno. 29 A.L.R. 863, 42 A.L.R. 263, 99 A.L.R. 686, 142 A.L.R. 1340; 18 McQuillin, Municipal Corporations (3d Ed.Rev.) § 53.112), and this proposition is supported by our decisions. In the early case of Harper v. City of Topeka, 92 Kan. 11, 139 P. 1018, 51 L.R.A., N.S., 1032, it was determined that the maintenance of a city park for the sole benefit of the public, and not for any profit or benefit to the municipal corporation, was a governmental, or public, function. Also, see Warren v. City of Topeka, 125 Kan. 524, 265 P. 78, 57 A.L.R. 555.

In Hibbard v. City of Wichita, 98 Kan. 498, 159 P. 399, L.R.A.1917A, 399, under facts nearly identical to those here, the liability of a city in maintaining a zoo as part of its park was equated to that of its maintaining a public park. There, it was held:

'The maintenance of a zoological garden in a public park by a city is a 'governmental function,' and the city is not liable in damages for injuries inflicted on visitors by animals through the negligence of the city's officers or agents in not properly confining the animals.' (Syl.)

This decision, approbated in many of our later cases, has never been overruled. (E. g., Rose v. City of Gypsum, 104 Kan. 412, 179 [198 Kan. 310] P. 348; Warren v. City of Topeka, supra; Perry v. City of Wichita, 174 Kan. 264, 255 P.2d 667; Freeburne v. City of Emporia, 176 Kan. 503, 271 P.2d 298; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P.2d 123, adhered to on rehearing 181 Kan. 225, 310 P.2d 888.)

Plaintiff, although recognizing the force of the Hibbard decision, seeks to distinguish it from the instant case by arguing that the maintenance of a zoo as a part of the city park by the City of Manhattan under authority of K.S.A. 12-1301 is 'permissive,' whereas the maintenance of a zoo by the City of Wichita under authority of K.S.A. 13-1301 is a 'mandatory' duty imposed by the state; therefore, under...