Jones v. City of Birmingham
| Decision Date | 26 June 1969 |
| Docket Number | 6 Div. 653 |
| Citation | 284 Ala. 276,224 So.2d 632 |
| Parties | Mrs. M. W. JONES, a/k/a Marie Walker Jones v. CITY OF BIRMINGHAM, a Municipal Corporation. |
| Court | Alabama Supreme Court |
Smyer, White, Reid & Acker and William M. Acker, J., and Manly & Manly, Birmingham, for appellant.
Beavers, Shannon, Harrison & Odom, Birmingham, for appellee.
This appeal is from a judgment of nonsuit which appellant was forced to take when demurrers were sustained to both counts of her complaint as last amended.
Appellant initially filed her suit in the Civil Court of Jefferson County claiming damages of $3,000.00, alleging that she sustained a broken arm and other injuries as a proximate result of the negligence of the defendant, City of Birmingham, in failing properly to maintain the sidewalk where she was injured. The demurrer was sustained and the cause dismissed and she appealed to the circuit court. Demurrer was sustained in that court, the counts were amended, demurrers refiled and again sustained, whereupon she took a voluntary nonsuit.
Both counts of the complaint as last amended state that the sidewalk on which appellant was walking when injured extends an entire city block in length over and through Woodrow Wilson Park, a public park owned by the City of Birmingham. The demurrers were sustained in each instance on the ground that the City was protected by its sovereign immunity. Appellant states in brief that she wishes clearly to present the question of sovereign immunity to the trial court without the necessity of special pleas by the City to set up the fact that the sidewalk was in the park.
This identical question was argued in Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825, but that case was concluded without deciding the question. It is the sole question here presented.
A municipal corporation is liable for injuries suffered due to defects in sidewalks, streets and public ways, where it has not exercised reasonable care. Tit. 37, § 502, Code 1940; Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825; City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324, 1 A.L.R.3d 490.
It is also a well-recognized rule in this state that the maintaining by a municipal corporation of public squares, parks, playgrounds and recreational facilities is a governmental function, and that a city is not liable for injuries which result from the negligent operation of the same. Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692; Parr v. City of Birmingham, 264 Ala. 224, 85 So.2d 888; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192; Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825.
Appellant cites cases from other jurisdictions which hold that even though the maintenance and operation of a park involved the exercise of a governmental function, there are instances where a question for the jury is presented when people were injured using public streets, walks or ways in parks. We do not discuss those cases because we do not feel that we need to resort to decisions of other jurisdictions in the instant case.
The following cases, and others cited therein, Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692; Smith v. City of Birmingham, 270 Ala. 681, 121 So.2d 687; Chaffin v. City of Montgomery, 273 Ala. 492, 142 So.2d 267; Houts v. City of Birmingham, 282 Ala. 375, 211 So.2d 504, show an unbroken line of decisions that the maintenance and operation of parks and activities in them are governmental functions. We think our observation in Smith v. City of Birmingham, supra, where the alleged negligent act of the city's employees was committed in the performance of their duties in the operation and maintenance of a city-owned recreational park, which included a zoo, is appropriate here:
'We think that to hold the function public and governmental, and not merely corporate or ministerial, is in the spirit of decisions heretofore...
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