Klingenberg v. City of Raleigh

• Decision Date: 15 December 1937
• Docket Number: 4530.
• Parties: KLINGENBERG v. CITY OF RALEIGH.
• Court: North Carolina Supreme Court

194 S.E. 297

212 N.C. 549

KLINGENBERG v. CITY OF RALEIGH.

No. 4530.

Supreme Court of North Carolina

December 15, 1937

Appeal from Superior Court, Wake County; J. W. Pless, Jr., Judge.

Action by Mrs. Antonie Klingenberg against the City of Raleigh. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

Ordinarily recovery can be had against municipality for injury resulting from negligent construction of street or from negligent failure to maintain street in reasonably safe condition notwithstanding construction and maintenance of streets are governmental functions.

A municipality acts in a legislative, quasi judicial, and discretionary capacity in determining the character of plan of construction of streets, sidewalks, and other public ways and is not ordinarily liable for injuries resulting from danger or defects inherent in plan of construction adopted or due solely to a mistake of judgment in adopting the plan whether plan was determined in advance or was ratified and adopted by municipality after actual work of construction.

This is an action instituted by the plaintiff for the recovery of damages for personal injuries sustained by her as a result of being thrown from the seat of an automobile in which she was riding as a guest along North Person street in the City of Raleigh. At the intersection of North Person street and East Jones street, plaintiff was thrown from the rear seat of an automobile when it struck a valley gutter constructed at said intersection. As a result thereof, she sustained serious injury.

When North Person street was paved, said valley gutter was constructed across said street at the intersection of Jones to provide for surface water. Later, by reason of the heavy traffic, the asphalt surfacing was removed and replaced with concrete. At that time the depth of the valley was decreased so that there was at the time of the accident a dip of six or seven inches in the valley.

After the jury had returned a verdict in favor of the plaintiff the trial judge set the same aside as a matter of law on authority of Blackwelder v. Concord, 205 N.C. 792, 172 S.E. 392, 90 A.L.R. 1495, and rendered judgment in favor of the defendant. The plaintiff excepted and appealed.

CLARKSON and CONNOR, JJ., dissenting.

J. M. Broughton, Wm. H. Yarborough, Jr., and Jones & Brassfield, all of Raleigh, for appellant.

Clem B. Holding, of Raleigh, for appellee.

BARNHILL Justice.

There is no allegation that the valley gutter constructed on North Person street at the point where said street intersects Jones was negligently constructed or that it was in a state of bad repair. The substance of the plaintiff's allegation of negligence is to the effect that the existence of a valley gutter of this type upon a public street makes the street dangerous for traffic and creates hazards to the public, and that it is negligence on the part of the city and a failure to exercise reasonable care to permit such condition to exist and continue.

While the construction and maintenance of public roads and streets is a governmental function, the courts have almost universally permitted recovery against a city or town where injury results from negligence in the construction of a street or from negligent failure to maintain the street in a reasonably safe condition. Where, however, the condition complained of is one which forms a part of the plan of construction of the street, determined upon and adopted by the city or town, it is held by this and other courts that no recovery may be had. The distinction is this: The adoption of plans for the construction of streets requires the exercise of quasi judicial and discretionary powers; whereas, the actual construction and maintenance of the street is ministerial.

A municipality, in determining the character or plan of construction of streets, sidewalks, and other public ways, acts in a legislative, quasi judicial, and discretionary capacity. Therefore, it is not ordinarily liable for injuries resulting from danger or defects inherent in the plan of construction adopted or due solely to a mistake of judgment in adopting the plan. The rule is not limited to cases where the plan adopted was determined in advance, but applies equally where it was ratified and adopted by the municipality after the actual work of construction. 43 C.J. 1015; Finney v. District of Columbia, 47 App.D.C. 48, L.R.A.1918D, 1103; Giaconi v. Astoria, 60 Or. 12, 113 P. 885, 118 P. 180, 37 L.R.A., N.S., 1150; Urquhardt v. City of Ogdensburg, 91 N.Y. 67, 43 Am.Rep. 91 note.

In Blackwelder v. Concord, 205 N.C. 792, 172 S.E. 392, 393, 90 A.L.R. 1495, Brogden, J., quotes from Martin v. Greensboro, 193 N.C. 573, 137 S.E. 666, with approval, as follows: "But in view of the allegations in the complaint, we must furthermore assume that the sidewalks were built and the railway track was laid in pursuance of a plan approved and adopted by the authorities of the city. We are not at liberty to conclude that they acted without deliberation or without due regard to the safety of the public. If they erred, at least the reasonable inference is that their error was one of judgment. It is generally held that a municipal corporation is not liable for injuries to person or property resulting from its adoption of an improper plan when the defects in such plan are due to mere error of this kind. It must follow that the exercise of judgment and discretion in the adoption by the city of a general plan for the improvement of its streets, the building of its sidewalks, and the selection or approval of the space to be occupied by the track of the street railway is not subject to revision by a court or jury in a private action for damages based on the theory that the plan was not wisely or judiciously chosen; although a private action may be maintained for defective construction of the work, or failure to keep it in repair. Herein is the distinction between injuries resulting from the plan of a public improvement made in a city or town and those resulting from the mode of its execution. The adoption of the general plan involves the exercise of judgment; the duty of constructing and maintaining the work done in pursuance of the plan is ministerial. The exercise of discretionary or legislative power is a governmental function, and for injury resulting from the negligent exercise of such power a municipality is exempt from liability."

McQuillan, on Municipal Corporations, 2d Ed., § 2799, states the rule as follows:

"As a branch of the rule of non-liability of municipalities for torts in connection with the exercise of governmental functions, is the rule which distinguishes (1) ministerial duties from (2) legislative, judicial and discretionary functions.

Where the duty is not governmental, but ministerial and absolute, as distinguished from legislative, discretionary, judicial or quasi-judicial, the municipal corporation is liable for damages arising because of omission to perform it, or, for negligence in its execution. * * *

However, the line between ministerial and legislative or judicial duties, is sometimes difficult to draw. The distinction would seem necessarily to rest upon a discretion had by the city to discharge or not discharge the duty because where the duty is absolute and imperative and the city has no discretion, the duty is ministerial, its discharge not depending on the exercise of judgment, but being required by law. It is by force of this reason for the distinction between ministerial and judicial duties that a duty which is judicial before the municipality has entered upon the performance of it, frequently becomes, when its performance is entered upon, ministerial. The municipality has a discretion to do or not to do the work; the duty is, therefore, judicial up to the time that it is determined to do the work; but when the work is ordered the law often requires that it be done in a particular manner, or that it be not done in a certain way, and, therefore, after the work is ordered, the duty of the municipality to do the work in the manner required and not to do it in the way forbidden, is ministerial. The municipality as to these two things has no discretion; as to them its judgment is superseded, controlled and directed by the requirements of the law, and its duty is to comply with these requirements. * * *

Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion (not so in this case).

When the municipal council acts in its legislative capacity for governmental purposes, the municipality is no more liable than the state would be for similar action taken by the legislature. Likewise, a municipality is not liable for a failure to exercise powers intrusted to the judgment and discretion of its proper authorities, or for errors committed in their exercise. Dargan v. City of Mobile, 31 Ala. 469, 70 Am.Dec. 505; Judd v. Hartford, 72 Conn. 350, 44 A. 510, 77 Am.St.Rep. 312; Vaughtman v. Waterloo, 14 Ind.App. 649, 43 N.E. 476; Stackhouse v. Lafayette, 26 Ind. 17, 89 Am.Dec. 450; Brinkmeyer v. Evansville, 29 Ind. 187; Keeley v. Portland, 100 Me. 260, 61 A. 180; Claussen v. Luverne, 103 Minn. 491, 115 N.W. 643, 15 L.R.A., N.S., 698, 14 Ann.Cas. 673; Carroll v. St. Louis, 4 Mo.App. 191; Rosenbaum v. Newbern, 118 N.C. 83, 24 S.E. 1, 32 L.R.A. 123; Hill v. City of Charlotte, 72 N.C. 55, 21 Am.Rep. 451; Richmond v. Virginia Bonded W. H. Corp., 148 Va. 60, 138 S.E. 503, 506, citing the text."

When North Person...