Orrison v. City of Rapid City

• Decision Date: 30 January 1956
• Docket Number: No. 9495,9495
• Citation: 74 N.W.2d 489,76 S.D. 145
• Parties: Willamae ORRISON, An Infant, By Mary Orrison, Her Guardian Ad Litem, Plaintiff and Respondent, v. CITY OF RAPID CITY, A Municipal C poration, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 489

74 N.W.2d 489

76 S.D. 145

Willamae ORRISON, An Infant, By Mary Orrison, Her Guardian Ad Litem, Plaintiff and Respondent, v. CITY OF RAPID CITY, A Municipal C poration, Defendant and Appellant.

No. 9495.

Supreme Court of South Dakota.

Jan. 30, 1956.

Hanley & Costello, Rapid City, for defendant and appellant.

John C. Farrar and H. F. Fellows, Rapid City, for plaintiff and respondent.

RENTTO, Judge.

The plaintiff, by her guardian, sued defendant city for damages sustained when she stepped on a piece of a broken glass soft drink bottle on the floor of the girls' dressing room at a public swimming pool operated by the defendant city in one of its public parks. She was then about sixteen years old. Negligence is alleged as the basis of her claim. The city admitted its operation of the facility and plaintiff's injury therein, but denied the charge of negligence. It urges these additional defenses: (1) Governmental immunity; (2) Lack of notice of the condition causing the injury; (3) Plaintiff's contributory negligence; and (4) Assumption of risk. Defendant's motion to dismiss and motions for a directed verdict were denied. The jury found for plaintiff and awarded her $1,000. A new trial was denied. This appeal is from the judgment entered on the verdict, and from the denial of a new trial.

Throughout the trial counsel for the city contended that no liability exists for the reason that the activity involved is a governmental function. The rejection of this contention by the trial court is the basis for a group of the errors assigned. The difference of opinion which exists concerning this matter has been noted by this court. No useful purpose would be served by a further discussion. The view adopted by the trial court is the rule that prevails in this jurisdiction. Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438, 439, 29 A.L.R. 841; Norberg v. City of Watertown, 53 S.D. 600, 221 N.W. 700; Glirbas v. City of Sioux Falls, 64 S.D. 45, 264 N.W. 196. See also Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280. It is our view that in operating this swimming pool and its related facilities the defendant city was acting in a proprietary rather than a governmental capacity. The city offered to prove that its operation of the facilities involved resulted in a financial loss. This offer was properly rejected. The fact that a municipality incurs a deficit in the operation of the pool does not change it from a proprietary activity to a governmental function. Flesch v. City of Lancaster, 264 Wis. 234, 58 N.W.2d 710.

In connection with the pool, which is an outdoor facility, and adjacent thereto, the city maintains an office, a boys' dressing room and a girls' dressing room. It was first operated in the summer of 1951. During that year a coin-operated soft drink vending machine was stationed in the office. The pool opened for the summer of 1952 on June 10th, the day before plaintiff suffered her injury. At that time the maintenance of the soft drink vending machine in the office was discontinued because it created a congestion. Instead one was placed in the boys' dressing room and another in the girls' dressing room. These machines delivered the soft drink in glass bottles. The girls' dressing room is thirty feet by twenty feet in size with a concrete floor. There is a row of benches along the south wall and a row of benches down the middle. Along the north wall is a row of dressing stalls. It was estimated that the facilities would accommodate about one hundred fifty to two hundred girls. Those who used the pool for swimming paid their admission at the office and received a basket, with a key therefor, into which they put their clothes and personal effects while using the pool. These baskets were left on racks in the dressing room.

The pool was not used for public swimming in the mornings. In the afternoon of June 11, 1952 plaintiff was swimming in the pool. She was called to report at the office so she left the pool and went to the dressing room to get her shoes which were in her basket. After entering and taking a few steps into the room she stepped on a small piece of glass with her left foot. This caused a minor injury--not the one involved in this suit. So that she might sit down and examine her injury she started toward a bench which was a couple of steps away. Just as she was about to sit down or just as she was to get up from the bench, she placed her right foot on the broken bottom of a glass soft drink bottle. This piece of glass was under the bench. It inflicted a deep cut severing tendons in her foot. That afternoon the girls' dressing room was being used by some one hundred fifty to one hundred ninety girls. Most of them were youngsters. At the time plaintiff was injured there were quite a few girls in the dressing room. The floor was covered with water. Apparently it was permissible to drink soft drinks in the dressing room. The city contended that it provided containers for the empty bottles. The plaintiff and one of her witnesses said they did not see any. Empty bottles were left on the vending machine, on the benches, and on the floor. The vending machine was very busy that afternoon.

The city had two lady attendants and a cashier on duty in the office and at the girls' dressing room. The cashier spent most of her time at the office. The attendants also were at the office handing out keys and baskets. They divided their time about equally between the office and the girls' dressing room. From the office they could not see what was happening in the dressing room, but from time to time, as the work in the office permitted or when they were called, they would leave the office and go into the dressing room. Apparently there were times when the cashier and both attendants were at the office.

The girls' dressing room was cleaned each noon before it was opened to the public. On the day before plaintiff was hurt broken glass had been swept from the floor of the girls' dressing room. On the afternoon of plaintiff's injury it had been necessary to sweep broken glass from the floor of the girls' dressing room several times prior thereto. Witnesses for the city testified that the broken glass had been swept up just before plaintiff's injury, however, a witness for plaintiff said that she had been in the dressing room for about one-half hour before plaintiff was injured and didn't see anyone sweep the floor. On this same afternoon before plaintiff was injured two other girls stepped on glass in the girls' dressing room suffering only minor injuries. One of the attendants said that she knew that bottles were being broken in the girls' dressing room from time to time prior to plaintiff's injury. An assistant lifeguard, who cleaned the dressing room on Sunday, said that a broom and dust pan were kept in the office 'because there was a chance for broken glass on the floor'. This arrangement was made in the 1951 season. During that year, when the vending machine was kept in the office, it had been necessary to sweep up broken glass in the dressing room. The attendants had been instructed 'to watch and see that there was no broken bottles in the dressing room'. The attendants testified that whenever they knew or learned of broken glass on the floor they swept up every piece they could find but did not sweep the entire room.

The defendant city is not an insurer of the safety of the patrons using the dressing room. However, it was the duty of the city to use reasonable care to maintain the floor in the girls' dressing room in a reasonably safe condition for the patrons using that room for the purposes for which that room is ordinarily used. Jensen v. Juul, supra. This duty includes the duty of reasonable and ordinary care against foreseeable dangers. McQuillin Municipal Corporations, 3rd Ed., Vol. 19, § 54.13. Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441; Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848; Braatz v. City of Fargo, 19 N.D. 538, 125 N.W. 1042, 27 L.R.A.,N.S., 1169; 65 C.J.S., Negligence, § 5(c)(2)(a). If the dangerous condition that caused plaintiff's injury was reasonably foreseeable the city would be negligent if it did not use reasonable care to provide against it. What degree of care is reasonable necessarily depends upon the attendant circumstances. Under the circumstances disclosed by the evidence these were matters for the jury to determine.

The city argues that it is not liable unless it had notice of the specific difficulty claimed to have caused plaintiff's injury. By this argument it contends that each time broken glass got on the floor of the dressing room, if the city didn't have actual knowledge, it could not be charged with constructive knowledge unless a sufficient period of time had elapsed to allow it to take remedial measures. 'As a general rule, in order to render a municipal corporation liable under the common law for injuries resulting from a defective condition in a street or sidewalk, which it has not itself created or authorized, it must have had knowledge or notice thereof a sufficient length of time before an injury to afford a reasonable opportunity to remedy the condition or to take other precaution to guard against injury.' Williams v. Wessington Twp., 70 S.D. 75, 14 N.W.2d 493, 494. It is to be noted that the quoted rule contains the exception 'which it has not itself created, or authorized'. This is the general rule. McQuillin Municipal Corporations, 3rd Ed., Vol. 19, § 54.104. The exception concerns negligence that is sometimes called 'original'. The condition complained of, if foreseeable, comes within the exception, and is not a subsequently occurring defect. To adopt the city's contention would relieve it of all duty to protect against foreseeable dangers. We think a municipality which extends to its citizens an invitation to use its swimming facilities owes them this duty. While the city did not cause the broken glass to be on the...