Kilbourn v. City of Seattle, 32043

Citation261 P.2d 407,43 Wn.2d 373
Decision Date01 October 1953
Docket NumberNo. 32043,32043
CourtUnited States State Supreme Court of Washington

C. M. McCune, John A. Godfrey, Seattle, for appellant.

A. C. Van Soelen, Arthur Schramm, Seattle, for respondent.

HILL, Justice.

The principal question presented is the liability of a city for an injury sustained in one of its parks when a dead limb projecting over a cinder path fell and injured a person on the path.

The injured person, a child then less than two years of age, was in Seward park in the city of Seattle for a family picnic and, while playing on a cinder walkway, was struck by a dead limb which fell from a madrona tree. There was no wind; the limb had been dead for four or five years, and a portion of it was almost completely disintegrated by the impact when it hit the child and the ground. Estimates of its size vary from six inches to two and one-half feet in diameter and from eighteen inches to six or seven feet in length. Testimony disclosed that the area was inspected daily and that it was normal practice to remove dead limbs.

This action was brought by the father of the child, individually and as guardian, for damages incurred as a result of her injuries. The jury brought in a verdict for the child in the amount of $4,500, and for the father in the amount of $627.42, covering hospital bills and medical expenses. The trial court granted judgment for the city notwithstanding the verdict. The father appeals, individually and as guardian.

The city urges that the operation of the park is a governmental function and that, therefore, even if negligent, it is immune from liability

It is an established rule in this state that the operation of a public park by a city (not for profit) is the exercise of a governmental function. Russell v. City of Tacoma, 1894, 8 Wash. 156, 35 P. 605, 40 Am.St.Rep. 895; Nelson v. City of Spokane, 1918, 104 Wash. 219, 176 P. 149; Stuver v. City of Auburn, 1932, 171 Wash. 76, 17 P.2d 614; Mola v. Metropolitan Park Dist., 1935, 181 Wash. 177, 42 P.2d 435.

Appellant strenuously urges that the rule of immunity from liability for negligence by a municipal corporation while engaged in the exercise of a governmental function should be changed, and cites numerous authorities.

This argument has been considered by this court and rejected. In Hagerman v. City of Seattle, 1937, 189 Wash. 694, 66 P.2d 1152, 1154, 110 A.L.R. 1110, we recognized that all of the reasons for such immunity had been subjected to vigorous attack, but said that

'* * * the doctrine has become fixed as a matter of public policy, regardless of the reason upon which the rule is made to rest, and * * * any change therein must be sought from the legislature.'

That opinion was written almost sixteen years ago. A review of cases and legal literature dealing with the government immunity defense in the intervening years offers convincing evidence of a growing demand for legislation that would require municipal corporations, if not the state itself, to bear the same responsibility for their negligence as do private corporations; but it is generally recognized, as we indicated in the Hagerman case, supra, that the rule of governmental immunity has become so firmly fixed as a part of the law of municipal corporations that it is not to be disregarded by the courts until the legislature announces a change in public policy.

Appellant urges that we have such legislation in Rem.Rev.Stat., § 951, cf. RCW 4.08.120, which reads:

'An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section [i. e., incorporated town, school district, or other public corporation of like character in this state], either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.'

The statute in question dates back to 1869, and is found, also, in practically the same words, in the code of 1881. It became the law of the state of Washington by virtue of our state constitution, Art. XXVII, § 2.

That this statute applies to incorporated towns as distinctly and specifically as it does to counties and school districts is apparent. We recognized that such was the case in our opinion in Howard v. Tacoma School Dist. No. 10, 1915, 88 Wash. 167, 152 P. 1004, 1007, wherein we pointed out that two lines of decisions had been developed in one of which, dealing with counties and school districts, it had been held that the statute abrogated the common-law rule of immunity from liability for injuries occurring through negligent performance or omissions to perform governmental duties, and in the other, dealing with incorporated towns and cities, the statute had been ignored and it had been held that incorporated towns and cities were entitled to immunity from liability under such circumstances. We at that time refused to overrule this latter line of cases because to do so

'* * * would be to unsettle the law of damages as it has been applied to corporations purely municipal almost from the beginning of statehood';

and we decided that the only practicable course was

'* * * to uphold both lines of precedent as applied respectively to the two classes of corporations in the adjudicated cases.'

We have continued both lines of precedent to the present time, with only isolated recognition of the fact that the statute applies to incorporated towns as well as to counties and school districts. In 1917, without discussing the division in our cases, we construed Rem.Rev.Stat., § 951 (then Rem.Code), as being applicable to townships, and thus placed them in the county and school district category. Orrock v. South Moran Township, 97 Wash. 144, 165 P. 1096. In 1918, in Hotel Cecil Co. v. City of Seattle, 104 Wash. 460, 177 P. 347, 350, without reference to the statute, we indicated the existence of the two lines of authority, saying:

'In the case of Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004, Ann.Cas.1917D, 792, Judge Ellis, writing the opinion, says that in the face of rather strong argument the court still adheres to its well-established view that a school district is liable for negligence in the performance of governmental duties, while a municipal corporation proper is not liable in such a case, but is only liable for negligence in the performance of proprietary or corporate duties.'

Again in 1921 we were confronted with the argument that there is no ground upon which to base the distinction we have drawn between cities and counties, and again we adhered to the determination reached in Howard v. Tacoma School Dist. No. 10, supra, saying that we had in that case 'reviewed in detail all of our decisions on this question and approved them', and stating:

'It is now the settled and fixed law in this state that a county may become, and a city is not, liable for damages done while engaged in the performance of a strictly governmental function.' Whiteside v. Benton County, 114 Wash. 463, 195 P. 519, 520.

We find no opinion since 1926 in which Rem.Rev.Stat., § 951, has been urged as the basis for abrogating the immunity of any municipal corporation (other than counties and school districts) from liability for the torts of their agents, officers, or employees. In that year a diking district was held to be immune from such tort liability because such districts were not 'public corporations' within the purview of that section. Shimada v. Diking Dist. No. 12, 1926, 139 Wash. 168, 245 P. 916.

There is some suggestion in Berglund v. Spokane County, 1940, 4 Wash.2d 309, 103 P.2d 355, 359, that Rem.Rev.Stat., § 951, applies only to 'counties and other quasimunicipal corporations' as distinguished from a 'conventional municipal corporation.' We there said:

'By Rem.Rev.Stat. § 951 [P.C. § 8394], counties and other similar public corporations are made liable 'for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.'

'The effect of these statutes [Rem.Rev.Stat., Vol. 7A, § 6450-1 et seq., and Rem.Rev.Stat., § 951], when considered together, is to subject counties and other quasi-municipal corporations to the same liability for negligence in the maintenance of its public ways, including bridges, as would, in a similar case, be imposed upon a conventional municipal corporation.'

The only legislative reaction to our decisions has not been an effort to deprive cities of the immunity which has been accorded them, but, instead, a restoration to school districts and counties of some measure of the immunity of which we had held they were deprived by Rem.Rev.Stat., § 951. Immunity from tort liability was restored to school districts for

'* * * non-contractual acts or omission * * * relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment * * *.' Laws of 1917, chapter 92, p. 332; Rem.Rev.Stat., § 4706, cf. RCW 28.58.030. See Snowden v. Kittitas County School Dist. No. 401, 1951, 38 Wash.2d 691, 231 P.2d 621.

Immunity from tort liability was restored to counties for

'* * * noncontractual acts or omissions * * * relating to the improvement, protection, regulation and control for flood prevention and navigation purposes of any river or its tributaries and the beds, banks and waters thereof * * *.' Laws of 1921, chapter 185, p. 747; Rem.Rev.Stat., § 9663, cf. RCW 86.12.180.

The reason that impelled us, in 1915, to refuse to overrule our cases upholding governmental immunity of cities and towns, i.e., because to do so

'* * * would be to unsettle the law of damages as it has been applied to corporations purely municipal almost from the beginning of statehood'. Howard v. Tacoma School Dist. No. 10, supra.

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