Mola v. Metropolitan Park Dist. of City of Tacoma

• Decision Date: 19 March 1935
• Docket Number: 25404.
• Citation: 181 Wash. 177,42 P.2d 435
• Court: Washington Supreme Court
• Parties: MOLA v. METROPOLITAN PARK DIST. OF CITY OF TACOMA.

42 P.2d 435

181 Wash. 177

MOLA v. METROPOLITAN PARK DIST. OF CITY OF TACOMA.

No. 25404.

Supreme Court of Washington

March 19, 1935

Department 2.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by Ruth Mola, as administratrix of the estate of Jake J Mola, against the Metropolitan Park District of the City of Tacoma. From an order granting defendant's motion for nonsuit, plaintiff appeals.

Affirmed.

Albert C. Bise, Wright & Wright, and Felix Rea, all of Seattle, for appellant.

John M Coffee, Leo Teats, and Ralph Teats, all of Tacoma, for respondent.

HOLCOMB Justice.

This action was instituted by appellant as administratrix against respondent, a municipal corporation, for damages for the death of appellant's decedent, her husband.

There is little dispute in the facts in the case. At the conclusion of the testimony offered on behalf of appellant, the lower court granted the motion of respondent for a nonsuit, and judgment was entered thereon, from which this appeal results.

Respondent is an organized metropolitan park district, established and created by virtue of sections 6720 to 6741, inclusive, Rem. Rev. Stat.

Under the statutes authorizing its creation and existence property, both inside and outside a city of the first class, may be acquired and operated in connection with its park system. Respondent operates and maintains what is known as 'Titlow Beach Park and Playground,' and as a part thereof, among other things, maintains a bathing beach, or bathing logoon, sometimes known as 'Titlow Beach Legoon.' This recreation place is not within the municipal limits of Tacoma, but adjoins the city.

The lagoon is approximately 480 feet wide by 720 feet long. It is close to the waters of Puget Sound, being separated from it only by a high railroad grade, wide enough for a right of any to accommodate double tracks. A portion of th breach property is low land, which, when the tides are high, forms a lagoon. At ebb tide the lagoon is practically free from all water, which is drained, when desired, by opening gates and allowing the water to run out. The water is let in to the lagoon at high tide by two pipes about four feet in diameter, and the gates are then opened. At the entrance to the pipes into the lagoon is a concrete bulkhead or pier, which pier is placed there to hold the pipes in position and support the gates. Inside the lagoon, about 100 feet from the dam, or railroad grade, and the headgate, is a diving tower. The drain pipes, about 90 feet long, run under the grade on the ground or bottom of the lagoon, with the upper surface well below the surface of the waters of the lagoon and the lower end being toward or in Puget Sound. The depth of the water in the lagoon between the diving tower and bulkhead is over the head of an ordinary person. No guards, netting, or any other thing is maintained to prevent people from being sucked into the pipes when the gates are opened, nor was there any there at the time of the death of decedent. The gates to the pipes are opened by means of a screw which passes through the hub of an eighteen inch handwheel, which raises and lowers the cap or gates to the pipes. When the gates are opened, the water starts through the pipes with something of a whirlpool effect. This is not observable by one on a level with the water or by one in the lagoon, but can only be seen by one standing above the surface of the water. When the pipes are open, the water goes through with such force that, as one witness said, 'no human could hold himself there.'

At the time of the death of decedent, the lifeguards, or pool attendants, had opened the gates to the pipes, but gave no warning to any one of what they were doing and maintained no lookout. They had no life-saving apparatus about the premises and no ropes. For the purpose of showing that respondent was aware of that condition, testimony was given to the effect that immediately after the drowning of decedent one of the guards spoke to one of the witnesses and said that he had been trying to get Kennedy, the local park manager, to put a fence or netting out there to protect people from getting too close to the holes.

The gates were opened about 8:15 p. m., at which time decedent was swimming in the pool, and, no warning being given, swam too close to the opening of the pipes and was drawn in, which caused his drowning and death.

There is no testimony in the record to the effect that these gates were ever opened prior to this one occasion without a warning or driving swimmers away from the vicinity of the outlet pipes.

It is doubtful whether appellant has the legal right to bring an action for such damages, whether...