Holytz v. City of Milwaukee

Decision Date05 June 1962
PartiesJanet HOLYTZ, a minor, by Gdn. ad Litem, Marvin Holz et al., Appellants, v. CITY OF MILWAUKEE, Respondent.
CourtWisconsin Supreme Court

This is an action by the plaintiff Janet Holytz, a minor, by her guardian ad litem against the defendant city of Milwaukee to recover damages for personal injuries. The minor plaintiff's father, Walter Holytz, is suing to recover for medical expenses incurred by him as a result of his daughter's injuries and for damages due to the loss of her society and companionship. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court entered an order sustaining the demurrer. From that order the plaintiffs appeal.

The following facts were alleged in the complaint:

The plaintiff Janet Holytz at the time of the accident was three-and-one-half years old and resided with her parents, Mr. and Mrs. Walter Holytz, in Milwaukee.

The defendant city of Milwaukee operated a playground known as a 'tot-lot' for the use and enjoyment of pre-school aged children. It is located on South 73rd Street and River Bend Drive in the city of Milwaukee. On the playground the city had constructed a drinking foundation on top of a concrete slab. On the concrete slab the city erected and maintained a steel trapdoor weighing approximately fifty pounds, which was used to cover a water meter pit. A lock device was installed in the trapdoor and a special socket wrench was required to open it. This socket wrench was in the exclusive custody of the employees of the defendant city of Milwaukee.

On June 24, 1960, the minor plaintiff was on the 'tot-lot' in the company of other children of the same age and size. On or before this day, the city of Milwaukee had, by its employees, negligently allowed the trapdoor covering the water meter pit to remain open without any caretaker present. The trapdoor fell down on the hands of the minor plaintiff, causing her injuries.

Habush, Gillick & Habush, Milwaukee, Robert L. Habush, Milwaukee, of counsel, for appellants.

John J. Fleming, City Atty., Peter M. Stupar, Asst. City Atty., Milwaukee, Richard F. Maruszewski, Asst. City Atty., Milwaukee, of counsel, for respondent.

GORDON, Justice.

The order of the trial court sustaining the respondent's demurrer to the complaint presents an issue with respect to the tort liability of a municipal corporation. The trial court found that on the facts alleged in the complaint the city was entitled to invoke the defense of municipal tort immunity. The appellants urge that the city may not invoke such defense because (a) the drinking fountain and the water meter pit trapdoor were created and maintained by the city in its proprietary capacity, or (b) the meter contraption constituted a nuisance and at the time the injury occurred the relationship of governor to governed did not exist between Janet Holytz and the city of Milwaukee, or (c) the trapdoor was an 'attractive nuisance' that was not created or maintained by the city in a governmental capacity.

Upon the facts of this case, we consider that the trial judge was correct in his conclusion that, based upon the past decisions of this court, no cause of action was asserted in the complaint. However, we are now prepared to disavow those rulings of this court which have created and preserved the doctrine of governmental immunity from tort claims. This makes it unnecessary that we rest this case on the elusive issues mentioned in the foregoing paragraph; the case turns exclusively on our abrogation of the principle of governmental immunity from tort claims.

The defendant urges that we ignore the appellants' challenge to the doctrine of governmental immunity because it was not raised in the trial court. Concededly, the general rule is that this court will not consider on appeal matters which were not presented to the trial court. State ex rel. Mattison v. Baudhuin (1955), 270 Wis. 249, 70 N.W.2d 674. In view of the unmistakable rulings of this court in a host of cases, it would have been futile to have expected the trial court to have countermanded the canon of municipal immunity. It is entirely understandable that the issue was not raised in the court below. This court has frequently considered questions on appeal which were not presented in the trial court. Discher v. Industrial Comm. (1960), 10 Wis.2d 637, 645, 103 N.W.2d 519; General Elec. Co. v. Wisconsin E. R. Bd. (1958), 3 Wis.2d 227, 246-247, 88 N.W.2d 691.

The rule of municipal tort immunity is knee-deep in legal esoterica: e. g., governmental function v. proprietary function; relationship of governor to governed. The dogma of the rule is so deeply engrained in our case law that we deem it necessary to consider the historical origins of the rule and some of the critical assaults which have been made upon it.

Historical Background of Tort Immunity

The rule of sovereign immunity developed in this county from an English doctrine and has been applied in the United States far beyond its original conception. The doctrine expanded to the point where the historical sovereignty of kings was relied upon to support a protective prerogative for municipalities. This, according to Professor Borchard, 'is one of the mysteries of legal evolution.' Borchard, Government Liability in Tort, 34 Yale L.J. 1, 4 (1924). It would seem somewhat anomalous that American courts should have adopted the sovereign immunity theory in the first place since it was based upon the divine right of kings.

The concept of municipal immunity from tort claims stems from the English case of Russell v. The Men of Devon (1788), 2 T.R. 667, 100 Eng.Rep. 359. That was a case in which an unincorported county was relieved of liability for damages which were occasioned by the disrepair of a bridge. One of the grounds advanced in the Men of Devon case was that immunity was necessary because the community was an unincorporated one and did not have funds to pay for damages. A second reason advanced was 'that it is better that an individual should sustain an injury than that the public should suffer an inconvenience.' 100 Eng.Rep., p. 362. In Maffei v. Incorporated Town of Kemmerer (1959), 80 Wyo. 33, 338 P.2d 808, 810, 340 P.2d 759, the argument was advanced that the Men of Devon case in turn relied upon an earlier authority from Brookes Abridgement. However, most historical analyses of the general thesis of municipal immunity agree that the Men of Devon case was the judicial parent of the doctrine.

The first case in the United States which adopted the doctrine of the Men of Devon case was Mower v. Leicester (1812), 9 Mass. 247, in which immunity was granted even though the county was a corporation and had corporate funds. Perhaps the leading case which adopted the rule in the United States is Bailey v. The Mayor of the City of New York (1842), 3 Hill 531.

In Wisconsin, the first case which wholly adopted municipal immunity was Hayes v. The City of Oshkosh (1873), 33 Wis. 314, 318, 14 Am.Rep. 760. That decision justified the rule on the following grounds 'The grounds of exemption from liability, as stated in the authorities last named, are, that the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or of the community; that the members of the fire department, although appointed by the city corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as public officers, or officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city, unless expressly given; and hence the maxim respondeat superior has no application.'

The rules surrounding municipal tort immunity have resulted in some highly artificial judicial distinctions. For example, the municipality may be immune or liable depending upon whether we determine that the particular function involved is 'proprietary' or 'governmental'. Our court held in Christian v. New London (1940), 234 Wis. 123, 290 N.W. 621, that a live wire which carried electricity from a municipal electrical utility to a municipal street light was maintained by the city in a proprietary capacity, but a municipal waterworks which supplied water to be used for fire fighting was operating in a governmental capacity. Highway Trailer Co. v. Janesville Electric Co. (1925), 187 Wis. 161, 204 N.W. 773. The operation of a municipal hospital, although generally a proprietary activity, may have some of its operations classed as governmental. Carlson v. Marinette County (1953), 264 Wis. 423, 59 N.W.2d 486.

In applying the 'governor to governed' test we have adopted some additional artificial rules regarding immunity or liability. We have held that this crucial relationship did exist where a plaintiff was using a public toboggan slide and slid into an unprotected quarry, Pohland v. Sheboygan (1947), 251 Wis. 20, 27 N.W.2d 736, and where a plaintiff fell into an open sewer ditch which ran through a public park, Erickson v. West Salem (1931), 205 Wis. 107, 236 N.W. 579. However, we have concluded that the relationship did not exist where a plaintiff walking on a public walk was hit by a baseball coming forth from a municipal playground, Robb v. Milwaukee (1942), 241 Wis. 432, 6 N.W.2d 222, or where a minor plaintiff was playing on a snowpile created by the city near a river, Flamingo v. Waukesha (1952), 262 Wis. 219, 55 N.W.2d 24.

Criticism of the Rule of Tort Immunity

There are probably few tenets of American jurisprudence which have been so...

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