Moloney v. City of Columbus

• Decision Date: 09 June 1965
• Docket Number: Nos. 39038,39039,s. 39038
• Citation: 31 O.O.2d 447,208 N.E.2d 141,2 Ohio St.2d 213
• Parties: , 31 O.O.2d 447 MOLONEY, a Minor, Appellee, v. CITY OF COLUMBUS, Appellant. MOLONEY, Appellee, v. CITY OF COLUMBUS, Appellant.
• Court: Ohio Supreme Court

Page 213

2 Ohio St.2d 213

208 N.E.2d 141, 31 O.O.2d 447

MOLONEY, a Minor, Appellee, v. CITY OF COLUMBUS, Appellant.

MOLONEY, Appellee, v. CITY OF COLUMBUS, Appellant.

Nos. 39038, 39039.

Supreme Court of Ohio.

June 9, 1965.

Syllabus by the Court

A municipality which voluntarily owns and operates a zoological park primarily for the benefit and accommodation of those of its citizens who might be interested does so in the exercise of a proprietary function and is answerable for its tortious conduct. (Paragraph one of the syllabus of Crisafi v. City of Cleveland, 169 Ohio St. 137, 158 N.E.2d 379, distinguished.)

These appeals are in two actions which were originally filed in the Common Pleas Court of Franklin County.

The first action was filed by the mother of Erin Moloney, a minor, as next friend. This action seeks damages for personal injuries alleged to have been sustained by the minor when she was bitten by a wild animal on display in the Columbus Municipal Zoo, a public facility owned, operated and maintained by the defendant.

The second action, filed by Nonnie Moloney, mother of the injured minor, seeks medical and other expenses incurred as a result of the alleged personal injuries to the minor.

In the amended petitions in both actions, there is a single defendant, i. e., the city of Columbus, appellant herein.

The appellant demurred to the amended petitions filed in the above actions on the ground that the allegations do not state facts sufficient to constitute a cause of action. The demurrers were sustained by the Court of Common Pleas. Plaintiffs not desiring to plead further, the court entered judgments for the defendant.

Plaintiff perfected appeals to the Court of Appeals on questions of law. The Court of Appeals, Bryant, J., dissenting reversed the judgments of the Court of Common Pleas sustaining the demurrers.

The causes are now before this court upon the allowance of the motions of appellant to certify the records.

Gordon E. Williams, Lawis A. Rankin and James D. Booker, Columbus, for appellees.

Power, Griffith, Jones & Bell, John C. Young, City Atty., and W. N. Postlewaite, Columbus, for appellant.

HERBERT, Judge.

Recovery of damages for Nonnie Moloney, mother of the injured minor herein, is predicated upon a determination by this court that the petition of such minor does state a cause of action against the defendant herein. The two actions may, therefore, be consolidated for the purposes of appeal. Hence, only a single amended petition will be referred to herein.

The issue before this court is whether the Court of Appeals erred in reversing the judgment of the Court of Common Pleas which sustained the defendant's demurrer to the amended petition.

The amended petition reads, in pertinent part, as follows:

'3. Plaintiff further states that on the 29th day of June, 1958 * * * the defendant occupied, maintained and controlled the zoological park known as the Columbus Zoo and located adjacent to O'Shaughnessy Dam, Delaware County, Ohio; that on said date the Columbus Zoo maintained a large collection of wild animals which were on exhibit and display to members of the general public upon the presentation of a zoo membership card or upon the payment of an admission fee.

'4. Plaintiff further states that on the 29th day of June, 1958, during the afternoon hours, she and several of her companions, accompanied by her uncle, Edmund Moloney, had been admitted to said zoo as business visitors and had approached a so-called barn-yard exhibit in which an animal known as a guano or guanco was on exhibit; that said barn-yard was enclosed by a wire fence with large openings therein; that said openings were of a sufficient size to permit a child to insert an entire hand through an opening; that the plaintiff observed said animal being fed grass by other members of the public on said premises and that thereafter she attempted to do the same. That as she put her arm and hand through an opening in the fence in an attempt to feed said animal; said animal without any warning grabbed her hand in its mouth and bit, lacerated and bruised the flesh of the plaintiff's right hand thereby causing the injuries and damages hereinafter more fully described.

'5. Plaintiff further states that defendant was negligent and had created and was maintaining a nuisance upon the public grounds aforesaid in failing to have a guard present and to prevent said child from feeding said animal aforesaid; in failing to furnish a fence of such character that children would be unable to insert their hands and arms through said fence in an effort to feed said animal, in failing to warn the persons about the premises and particularly the plaintiff of the dangers and hazards incident to an attempt to feed said animal, and in negligently failing to abate said nuisance after having created the same. Plaintiff states that as a direct and proximate result of the foregoing acts, sustained the injuries and damages hereinafter more fully described.'

An examination of the record discloses two questions for this court's determination: (1) Whether the defendant is liable for its tortious conduct in operating and maintaining a municipal zoo, and (2) whether the allegations of the amended petition are sufficient to state a cause of action against the defendant.

A municipality may, in a proper case, be held liable for damages resulting from its tortious acts, just like a private corporation. 63 C.J.S. Municipal Corporations § 745, p. 29 et seq. If a municipality is engaged in a proprietary function, it is liable for its tortious acts. See, e. g., Hack v. City of Salem (1963), 174 Ohio St. 383, 189 N.E.2d 857 (negligence); Eversole v. City of Columbus (1959), 169 Ohio St. 205, 158 N.E.2d 515 (negligence); Louden v. City of Cincinnati (1914), 90 Ohio St. 144, 106 N.E. 970, L.R.A.1915E, 356 (nuisance). See, also, 38 American Jurisprudence, Municipal Corporations, Sections 571, 610 and 647.

The first question thus is whether operating and maintaining a zoo by a municipality involve the exercise of a governmental or proprietary function.

The appellant urges that this question has already been decided, citing paragraph one of the syllabus in Crisafi v. City of Cleveland (1959), 169 Ohio St. 137, 158 N.E.2d 379, which states as follows:

'Lands which are owned by a municipality and kept and maintained thereby as a combined park and zoo for the use and enjoyment of the public are public grounds, and the municipality in its management and control of such public grounds acts in a governmental capacity and is not liable in such connection, unless liability is expressly imposed by statute.'

The facts in the Crisafi case involved the liability of a municipality for damage to adjoining property owners resulting from the use of dynamite in improving public grounds, i. e., a combined park and zoo. The issue before the court in Crisafi was whether Section 723.01, Revised Code, imposed liability upon a municipality for damages to property located outside the park on account of acts performed within the park. Damage from the maintenance and operation of a zoo were not involved. The majority opinion expressly ventures that a municipality might be liable for injuries occurring to persons within the park. The status of a municipally owned zoo, governmental versus proprietary, was not considered. The Crisafi case thus does not establish judicial precedent in this cause.

Counsel in this cause do not cite, and our independent research fails to reveal, any other decision in Ohio concerning municipally owned zoos, which would serve as judicial precedent. Accordingly, the determination of the status of a municipally owned zoo is left to our judicial interpretation. See Hack v. Salem, supra, at 387, 189 N.E.2d 857.

Counsel fail to cite any decisions from other jurisdictions to aid us in this determination. Research reveals that damages were sought from a municipality or public body for injuries resulting from wild animals in at least 14 instances. ¹ An examination of those decisions which discuss governmental immunity reveals two conflicting views. The conflict among jurisdictions is noted in 38 American Jurisprudence 308, Municipal Corporations, Section 610, footnotes 19 and 20. See, also, 63 C.J.S. Municipal Corporations § 907, p. 314, footnote 37; N.C.C.A. (N.S.) 419.

Governmental immunity was granted in Hibbard v. City of Wichita, supra, and McKinney v. City and County of San Francisco, supra. Governmental immunity was denied in City of Fort Worth v. Wiggins, supra, Byrnes v. City of Jackson, supra, Guidi v. State, supra, and Barr v. District of Columbia, supra. Also, a municipality or public body has been recognized as being liable on other grounds for injuries resulting from wild animals. ²

The two decisions granting immunity reasoned that the city did not make a profit and the zoo was for the pleasure and education of the entire public; and that the zoo was for the instruction and healthful recreation of the public and for the advancement of science.

Decisions holding that the maintenance of a zoo by a municipality involved a proprietary function have reasoned either that there was no mandatory duty to maintain a zoo either as a matter of law or for the public's education or that prior decisions demanded that a zoo be classified as proprietary or that the rule of governmental immunity was inapplicable to a nuisance based on a dangerous animal.

From the above 14 cases, it must be said that the weight of authority allows suit against a municipality for injuries resulting from wild animals. Only one decision, by a divided court, absolutely denied recovery under any theory. Hibbard v. Wichita, supra.

Of the two decisions which granted governmental immunity to a municipal zoo, it is doubtful whether one of those decisions, McKinney v. San Francisco, supra, is controlling in that state in view of the fact that it is a lower-court decision and the...