Lundahl v. City of Idaho Falls

• Decision Date: 30 October 1956
• Docket Number: No. 8484,8484
• Citation: 78 Idaho 338,303 P.2d 667
• Parties: , 61 A.L.R.2d 866 Ray E. LUNDAHL, Plaintiff-Appellant, v. CITY OF IDAHO FALLS, a municipal corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 667

303 P.2d 667

78 Idaho 338, 61 A.L.R.2d 866

Ray E. LUNDAHL, Plaintiff-Appellant, v. CITY OF IDAHO FALLS, a municipal corporation, Defendant-Respondent.

No. 8484.

Supreme Court of Idaho.

Oct. 30, 1956.

Rehearing Denied Dec. 4, 1956.

John Ferebauer, Idaho Falls, for appellant.

Albaugh, Bloem, Barnard & Smith, Idaho Falls, Richards, Haga & Eberle, Boise, for respondent.

PORTER, Justice.

The allegations in appellant's amended complaint pertinent on this appeal are generally as follows: That appellant is the owner of certain lots in the City of Idaho Falls and the garage building located thereon, and that there is a public alley immediately adjacent to such garage. That on or about the 22nd day of July, 1952, respondent entered into an employment contract for the construction of a sewer in Special Improvement District No. 23 with Coleman Plumbing & Heating Company, a co-partnership, such construction to include the installation of a sewer line along such public alley adjacent to appellant's garage. That such contract provided for an inspection of the work and materials by respondent.

That on or about the 2nd day of November, 1953, the Coleman Plumbing & Heating Company and their agents, while engaged in excavating for the purpose of sewer construction in said public alley, negligently, recklessly and carelessly, exploded large quantities of explosives at a point in said alley approximately eight feet from the south wall of such garage and 'thereby produced great and violent concussions and vibrations of the earth and air which shoot the said land and said building of the plaintiff and the air above and around them and caused great injury to the lava substrata underlying said land and building by cracking and breaking same, and causing great injury to the foundation of said building and whole superstructure, including its walls, windows, ceilings and chimneys, and rendered the same unsafe and uninhabitable. That such carelessness, recklessness and negligence of the defendant was as follows:

'1. Using dynamite in blasting to a greater extent than reasonably necessary.

'2. Using excessive and unduly heavy charges of dynamite in blasting and not protecting it in such a manner as not to damage plaintiff's said property.

'3. Failure to take proper care with regards to the place and surroundings of the blasting complained of.

'4. Failure to take the usual precautions to prevent injury to plaintiff's said property from blasting.

'5. Failure to utilize recongized and available methods of blasting to protect plaintiff's said property.

'6. Failure to use of different method of blasting after warnings and notice of damage to plaintiff's said property.'

And that on November 2, 1953, and prior to the above mentioned explosion, appellant advised the Mayor and City Engineer of the City of Idaho Falls of the negligent, careless and reckless manner in which the Coleman Plumbing & Heating Company was conducting the removal and blasting of lava rock in the alley adjacent to such garage, and asked that said blasting be stopped until such operations could be conducted in a manner so as not to endanger plaintiff's property; but that said Mayor and City Engineer of respondent refused to stop the Coleman Plumbing & Heating Company from continuing said blasting.

Respondent filed a demurrer to the amended complaint containing both a general and special demurrer. After a hearing on the demurrer the court entered an Order and Judgment of Dismissal wherein it was ordered and adjudged that defendant's demurrer to plaintiff's amended complaint be sustained, and that said action be and is dismissed. It is apparent that such order and judgment were directed to the general demurrer. No leave to amend was mentioned or granted and nothing was said in such order concerning the special demurrer. From such judgment of dismissal, appeal has been taken to this court.

The questions to be considered on this appeal are: First, whether or not a municipality is liable for the torts of its officers and employees committed in the construction of a sewer system; and Second, does such liability, if any, include torts committed by an independent contractor? The principles involved are succinctly set out in McQuillin on Municipal Corporations, (3rd Ed.) Vol. 18, pp. 488-492, as follows:

'Although the contrary has also been held by many judicial judgments, which announce that, in performing such function, a city acts in a governmental capacity, it is generally held that a municipality in constructing and maintaining drains and sewers acts in its corporate and ministerial capacity, and, therefore, is liable for negligence resulting in injury relating thereto. * * * A municipality is responsible for damages which accrue to individuals and corporations through negligence in the construction, maintenance or operation of its system of sewers because that system when constructed becomes the property of the municipality and must be so used as not to damage persons or property. This corporate duty imposed upon the municipality cannot be avoided, shifted or cast upon another as by contracting with some third person to perform this municipal obligation.'

It is established in this jurisdiction that a municipality, in the absence of a statute imposing liability, is not liable for the torts of its officers and employees when exercising a governmental function and is liable when acting in a proprietary capacity. In Strickfaden v. Greencreek Highway District, 42 Idaho 738, at page 750, 248 P. 456, at page 458, 49 A.L.R. 1057, the rule was set out as follows:

'It is well recognized that there are two kinds of duties imposed or conferred upon municipal corporations; those termed public governmental functions, where the municipality performs certain duties as an agent or arm of the state, and those other municipal activities which are sometimes termed administrative, ministerial, corporate, private, or proprietary functions, performed for the municipality's own benefit, or for the benefit of its citizens, and, while acting in the performance of its governmental functions or in a public capacity as an arm or agency of the state, the municipality is not liable for its failure to exercise these powers or for their negligent exercise, unless such liability has been imposed by statute.'

See Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Bingham v. Board of Education of Ogden City, Utah, 223 P.2d 432; Ramirez v. Ogden City, 3 Utah 2d 102, 279 P.2d 463, 47 A.L.R.2d 539; Davis v. Provo City Corp., 1 Utah 2d 244, 265 P.2d 415; Burnett v. City of San Diego, 127 Cal.App.2d 191, 273 P.2d 345, 47 A.L.R.2d 1079.

Some differences arise between the authorities as to liability in specific cases by reason of different definitions of what constitutes a governmental function. In Ramirez v. Ogden City, supra, Headnote 4 sets out one test as to whether an activity is governmental, and reads as follows:

'A 'governmental function,' as to which municipality is immune from tort liability, must be something done or furnished for the general public good, and whether there is special pecuniary beneficial profit to municipality and whether activity is of such a nature as to be in real competition with free enterprise are facts to be considered.'

In this jurisdiction the definition of governmental functions was set out in Boise Development Co. v. Boise City, supra [30 Idaho 675, 167 P. 1034], as "legal duties imposed by the state upon its creature, which it may not omit with impunity but must perform at its peril. * * * They are all imposed by statute, and are necessarily mandatory or peremptory functions. * * *" This definition of governmental functions of a municipality has been followed in Youmans v. Thornton, 31 Idaho 10, 168 P. 1141; Crane v. City of Harrison, 40 Idaho 229, 232 P. 578, 38 A.L.R. 15; Stephenson v. Pioneer Irrigation District, 49 Idaho 189, 288 P. 421, 69 A.L.R. 1225; Henderson v. Twin Falls County, supra.

Boise Development Co. v....