Hoffman v. City of Bristol

• Decision Date: 22 June 1931
• Citation: 113 Conn. 386,155 A. 499
• Court: Connecticut Supreme Court
• Parties: HOFFMAN v. CITY OF BRISTOL.

155 A. 499

113 Conn. 386

HOFFMAN v. CITY OF BRISTOL.

Supreme Court of Errors of Connecticut.

June 22, 1931

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Action by Henry Hoffman against the City of Bristol to recover damages for personal injuries alleged to have been caused by the negligence of the defendant and by a nuisance erected and maintained by it, tried to the jury. From the refusal to set aside a general verdict for the plaintiff, the defendant appeals.

No error.

William J. Malone and Francis V. Tracy, both of Bristol, for appellant.

Josiah Peck, Jacob Schwolsky, and George Schwolsky, all of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, J.

The complaint alleged, in the first count, that the defendant city was negligent in maintaining a diving board above shallow water at a bathing beach in a park owned and maintained by it, and in failing to give warning of the danger connected with its use, and, in a second count, that " the action of defendant in constructing and maintaining said diving board *** was imminently and inherently dangerous and made the use of said diving board unsafe and dangerous to the people lawfully using the same, wrongfully exposed such users to injury and the same was at all times a nuisance." It also alleged the circumstances of the plaintiff's use and injury, which sufficiently appear hereafter. The defendant pleaded a denial, except as to ownership and maintenance of the park, and, as a special defense, that it maintained the park solely for the public benefit and without profit, in performance of a governmental duty. The appeal is from the refusal of the trial court to set aside the general verdict for the plaintiff only, and, aside from a claim that the jury could not, upon the evidence, have found the plaintiff free from contributory negligence, rests largely upon the contention that immunity, arising from the facts alleged in the special defense which the appellee appears to concede to have been established, not only applies to liability for negligence alleged in the first count, but also extends to nuisance if the facts proven under the allegations of the second count constitute such.

Except as to the existence, number, and location of warning signs, there was little conflict of evidence as to the physical situation. In the park in question there is a pond or lagoon on the shore of which a bathing pavilion and various appurtenances were erected and maintained by the city. About 22 feet in front of the building a stone wall extends along the shore; the top being about 4 feet above the surface of the water. Two abutments of this wall extend out into the water 4 or 5 feet, and to these were fastened diving boards extending out over the water 5 or 6 feet beyond the abutments. The depth of the water, which varied but little from time to time, was only 3 to 3 1/2 feet under the end of the diving board in question. The water was dirty or roily and of greenish color, so that the depth could not be seen from the springboard. There was testimony that no signs indicating the shallowness of the water or the danger of diving from the board were displayed at the time of plaintiff's accident. The jury could have so found, and the most that they could reasonably have found in this respect was that one sign was located in a recessed window of the ladies' locker room of the bathing pavilion, some 20 feet east from the diving board, and of doubtful visibility to one approaching the board, as did the plaintiff, from the west.

The plaintiff, with several companions, went to the park on the afternoon of July 7, 1929, and spent some time bathing at a point some distance from the diving boards, paying no attention as to whether they were being used. Being about to cease bathing, he, with three girl companions, walked along the wall to the first diving board, and the girls entered the water by means of steps near-by, while the plaintiff went to the end of the springboard. He was experienced and competent in diving, and dove in the ordinary manner, but, owing to the shallowness of the water, first his hands and then his head struck violently against the bottom, and he sustained very serious and lasting injuries.

As to the cause of action based upon negligence, it is manifest that the facts of the special defense suffice to relieve the defendant from liability, through the immunity which we have recognized as attaching to the performance by a municipality of a public duty, for the public benefit, and not for its own corporate profit. Carta v. Norwalk, 108 Conn. 697, 701, 145 A. 158; Hannon v. Waterbury, 106 Conn. 13, 136 A. 876, 57 A.L.R. 402. It remains to be considered whether the same defense is efficacious to defeat recovery upon the cause of action grounded on nuisance.

Where a municipal corporation creates and maintains a nuisance, it is liable for damages to any person suffering special injury therefrom, irrespective of whether the misfeasance or nonfeasance causing the nuisance also constituted negligence. This liability cannot be avoided on the ground that the municipality was exercising governmental functions or powers, even in jurisdictions where, as here, immunity is afforded from liability for negligence in the performance of such functions. 6 McQuillin on Municipal Corporations, 815 et seq.: 43 Corpus Juris, p. 956. " If the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as a matter of fact; but, if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as a matter of law." Melker v. New York, 190 N.Y. 481, 488, 83 N.E. 565, 16 L.R.A. (N. S.) 621. 13 Ann.Cas. 544.

While as we have seen, Connecticut has so far aligned with those states which do not hold a municipality liable for negligence in the performance of governmental functions and duties, we have definitely and repeatedly recognized that a similar immunity does not attach to nuisances created by it. In Mootry v. Danbury (1878) 45 Conn. 550, page 556, 29 Am.Rep. 703, an action against the town for damages for constructing a bridge and road in such a manner as to set the water of a stream back upon land of the plaintiffs, it was held that " towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals. And if a nuisance is thus created, whereby another suffers damage, towns like individuals are responsible." In Colwell v. Waterbury, 74 Conn. 568, pages 572, 573, 51 A. 530, 532, 57 L.R.A. 218, it was stated that the rule which exempts municipalities from liability when they or their servants are acting in the discharge of a public duty does not relieve them " from liability for the consequences of the particular acts which the municipality has directed to be performed, and which from their character, or the manner in which they are so ordered to be executed, will naturally work a direct injury to the property of others, or create a...