Karczmarczyk v. Quinn
| Decision Date | 15 May 1964 |
| Docket Number | No. 10589,10589 |
| Citation | 98 R.I. 174,200 A.2d 461 |
| Parties | Agnes KARCZMARCZYK v. James W. QUINN, City Treasurer of Woonsocket. Ex. |
| Court | Rhode Island Supreme Court |
Richard J. Israel, Woonsocket, for plaintiff.
Walter H. Sharkey, Woonsocket, for defendant.
This is an action of trespass on the case for negligence brought to recover for injuries sustained in a fall on a public highway in the city of Woonsocket on September 15, 1960. The case was tried to a justice of the superior court sitting with a jury and resulted in a verdict for the plaintiff in the amount of $7,500. The defendant's motion for a new trial was granted on the issue of damages unless the plaintiff filed her remittitur as to all of the verdict in excesss of $5,500. She filed the remittitur, but the defendant has prosecuted a bill of exceptions to this court.
The record discloses that in September 1960 substantial repairs were being made to the Court street bridge, a portion of the public highway system of the city of Woonsocket. The work was being done under a contract entered into between the city and Consolidated Builders, Inc., and it is not disputed that a subcontractor engaged in working on the bridge had made arrangements with the director of public works to be supplied with water under pressure for use at the bridge site. The director of public works ordered the superintendent of the water department to supply such water, who, it appears, made the arrangements now under consideration with the fire department. Pursuant to such arrangements and at the direction of a chief officer, two members of the fire department took a pumping engine to a location on Court street and connected it by a hose line to a hydrant on Main street near the corner of Court street.
It appears from the evidence that the firemen in charge of the pumper placed this hose line close to the curb on Main street and at the intersection of Main and Court streets laid it across a pedestrian crosswalk. A second hose line was connected to a discharge port on the pumper and was extended to the bridge site where employees of the subcontractor took over control of the line. It is not disputed that on September 15, 1960 the hose line that connected the pumper with the hydrant was in use supplying water to the pumper which was then delivered under pressure to the subcontractor at the bridge site.
The plaintiff testified, in substance, that on such date she was shopping in Woonsocket and at about noon left McCarthy's dry goods store by way of the Main street entrance. She proceeded to walk to the crosswalk at Main and Court streets, intending to cross to the other side of Main street. According to her testimony she waited at the curb for the traffic light to change and, when it did, she, along with several other people, started to cross the street. She testified that as she stepped from the curb, 'I catch the hose, the hose there, and I can't go no more further because that hose stopped me.' She testified further that after she fell, she looked about to see what had caused her to fall and at that time saw the hose on the street near the curbstone and noted that it was gray or dirty in color.
The amended declaration was in two counts, in each of which plaintiff, in substance, alleged that defendant was engaged in the business of collecting, supplying, and selling water; that at the time under consideration it was supplying water to the contractors for their use in repairing the Court street bridge; that the employees of defendant were negligent; that plaintiff was in the exercise of due care; and that 'first having presented her claim for damages to the City Council of said City of Woonsocket, and just and due satisfaction not having been made to her within forty (40) days, she now brings her suit as provided by statute.' She laid the ad damnum at $50,000 in each count. It is not disputed that plaintiff's allegation of compliance with the statutory provisions for notice to defendant of her claim for damages was added to the second count of the declaration by amendment during the course of trial.
The trial justice, after granting plaintiff's motion to thus amend the declaration, permitted defendant to file a fifth plea thereto wherein it alleged, in substance, that plaintiff's action was for an injury resulting from a defect in a highway and that the remedy provided for the recovery of damages for such injury in G.L.1956, § 45-15-8, is barred unless it is instituted within a period of one year after the date of the injury under § 45-15-9. The defendant contends that the instant suit was instituted more than one year after the injury and is barred under that provision. The plaintiff demurred to the fifth plea on the ground that the action is not founded on the provision of the statute obliging the city to maintain and repair the public highways and that, therefore, her notice of the claim to the city council was given properly pursuant to the provisions of § 45-15-5 and her action was not barred if brought within two years of the injury. G.L.1956, § 9-1-14. The trial justice sustained the demurrer specifically on the ground that the limitation contained in § 45-15-9 was without application.
The defendant contends that the trial justice erred in his several rulings negating defendant's common-law immunity from civil liability for the negligent performance of a governmental function. It argues, first, that plaintiff's injury was caused by the negligence, if any, of its fire department in the exercise of a governmental function, to which such immunity from liability attaches at common law. It further argues that plaintiff's injury resulted from its failure to keep the highway safe for travel under the obligation imposed upon it by the provisions of § 24-5-1 and therefore only the statutory remedy provided in §§ 45-15-8 and 45-15-9 is available to her. It being therein provided that action must be brought within one year after the injury occurs, the instant action, having been brought more than one year thereafter, is barred.
We see no merit in the contention that plaintiff's injury resulted from the negligent performance of a municipal function by members of the fire department. The operation of a fire department is a governmental function, and a municipality is immune from liability for the negligent performance thereof. However, the acts of the firemen under consideration here were in no manner essential or relevant to the exercise of that function. In Dodge v. Granger, 17...
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