Pardini v. City of Reno
| Decision Date | 06 February 1928 |
| Docket Number | 2768. |
| Parties | PARDINI v. CITY OF RENO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Clark J. Guild, Judge.
Action by Virginia Pardini, as administratrix of the estate of Emma K. Revera, deceased, against the City of Reno. From a judgment dismissing the action, entered on an order sustaining demurrer to amended complaint, plaintiff appeals. Reversed, with leave to defendant to answer.
Prince A. Hawkins, Price & Hawkins, all of Reno (Clyde D. Souter, of Reno, of counsel), for appellant.
Le Roy F. Pike and E. F. Lunsford, both of Reno, for respondent.
This action was instituted to recover damages for the death of Emma K. Revera, which was occasioned by the automobile in which she was riding falling over an unguarded concrete retaining wall constructed by the authorities of the city of Reno at the intersection of Ralston and Maple streets within the city.
The action was brought under sections 5647 and 5648, of the Revised Laws of Nevada, in the name of Virginia Pardini, as the personal representative of the deceased, against the city of Reno alone. The case comes to this court upon appeal from the judgment of dismissal of the action, entered upon an order sustaining the defendant's demurrer to the plaintiff's amended complaint.
The legal questions presented by the rulings upon the demurrer are: First, does the statute which constitutes the defendant's charter exempt the city from liability for a wrongful death occasioned by the neglect of the city to make and keep its streets reasonably safe for travel? Secondly has plaintiff, as the personal representative of her deceased minor daughter, legal capacity to sue?
The undisputed facts are these: The statute which constitutes the defendant's charter grants to the city council, among other things, exclusive authority and control over the streets of the city, coupled with power to raise means for their maintenance, improvement, protection, and repair. In the exercise of their powers, the authorities of the city undertook to improve Ralston and Maple streets at the place where they intersect by dividing each street into two public ways, a high street and a low street. On the dividing line of each street there was constructed a concrete retaining wall varying in height from three to ten feet. On the west side of the wall on Ralston and on the north side of the wall on Maple the street was filled, graded, and paved level with the top of said wall for its entire length. Prior to, and on December 28, 1924, the high and low portions of each street were open and used by the public for travel. On said date an automobile in which Emma K. Revera was riding was proceeding northerly along the high and paved portion of Ralston street, when it fell over said concrete retaining wall, and dropped a distance of ten feet, killing her. At the time of her death she was 17 years of age, unmarried, and contributing by her labor to the care, support, and maintenance of herself and her mother. She left surviving her as her only next of kin her mother, Virginia Pardini. Letters of administration on her estate were issued to her mother, who caused to be filed with the clerk of the city of Reno a claim or demand for $20,000 as damages accruing from the death of her daughter, which claim or demand was considered by the city council and rejected. Thereupon this action was begun by plaintiff in her capacity as administratrix to recover both punitive and compensatory damages accruing to her from the death of her daughter.
The complaint contains two charges of negligence: One, that the defendant, with full knowledge of the dangerous condition in which Ralston and Maple streets were left by the work undertaken for their improvement, willfully, wantonly, and negligently placed no railing, barrier, or other protection along and on top of said retaining wall for the safety of travelers. The other, that the defendant, with full knowledge of the dangerous condition of said streets, willfully, wantonly, and negligently failed, refused, and neglected to complete the work of construction of said retaining wall according to the plans and specifications adopted for the improvement of said streets by the erection and maintenance thereon of a strong iron guard rail for its entire length. The complaint assumes that it was the duty of the city, under the grant to it of exclusive authority and control over its streets, coupled with power to raise means for their improvement, to exercise ordinary care and diligence to see that its streets were reasonably safe for travel, and charges that the death of the plaintiff's intestate was caused by its neglect to perform this duty.
The first legal question presented by the defendant's general demurrer to the complaint arises out of a proviso appearing in section 2 of article 16 of the statute which constitutes the defendant's charter, which reads:
"Provided, nothing herein shall be so construed as to make the city liable for any damages suffered or incurred by any person for or by reason of any neglect of the city or any of its officers."
The trial court was of the opinion that the proviso defeated plaintiff's right of recovery in this action. The proviso is nothing more than a legislative declaration that nothing contained in the act shall be construed so as to make the city liable for any damages suffered or incurred from its own neglect, or the neglect of any of its officers. If, then, there is nothing in the act which either expressly or by necessary intendment makes the city liable for damages suffered or incurred from its negligent failure to keep its streets in safe condition, the proviso is ineffective to defeat plaintiff's right to recover. The only provision contained in the defendant's charter with respect to streets is to be found in article 11, which creates the office of superintendent of streets, and in section 10 of article 12, as amended by the Statutes of 1923, p. 113, c. 77, which provides that the city council, among other things, shall have power to lay out, extend, change the grade, open, vacate, and alter the streets and alleys within the city, and by ordinance require and provide for the improvement thereof, and for that purpose, and for the purpose of defraying the expense thereof, may divide the city into districts. There is nothing in the language of section 10 as amended imposing the exercise of these powers upon the council as a duty. The section, as we interpret it leaves it optional or discretionary with the corporate authorities whether they will exercise the powers or not.
Such was the interpretation placed on a similar provision contained in the statute which constituted the charter of Virginia City. McDonough v. Virginia City, 6 Nev. 90. It was held in that case that, even though Virginia City under its charter was not obliged to open a street, nor to repair one after it was opened, yet, if a street, when opened, was left in such a defective condition that injuries resulted therefrom to persons exercising proper care, the city was liable therefor, for the reason that, if the city undertake to exercise its optional powers over its streets, the act must be done with that degree of care for the rights and personal safety of individuals which natural persons are required to exercise under similar circumstances. This doctrine is but the affirmance of the rule favored by the great majority of courts that for a failure to keep streets in repair there is an implied common-law liability for resulting injury resting upon every chartered municipality. Cooley's Municipal Corporations (Hornbook Series), § 118. The latest expression of the doctrine may be found in 43 Corpus Juris, 974, where it is stated that in most jurisdictions municipalities are held liable, irrespective of any statute expressly imposing liability, for injuries from negligent failure to keep streets in a safe condition, on the ground of implied liability, the authorities holding that, where such corporations are invested with exclusive authority and control over the streets, and with means for their construction, improvement, and repair, a duty arises to the public from the nature of the powers granted to keep the streets in a reasonably safe condition, and a corresponding liability exists on the part of the municipality to respond in damages to those injured by a neglect to perform the duty, unless the charter giving such exclusive control expressly exempts the municipality from liability for failure to discharge the implied duty.
Since the defendant's charter which gives to it exclusive authority and control over its streets does not expressly exempt the city from liability for failure to discharge its implied duty to make and keep its streets reasonably safe for travel, we are of opinion that the rule of implied liability obtains, notwithstanding the omnibus proviso which purports to cover everything, but really touches nothing in particular. The charter of the defendant does not create a liability for neglect to exercise ordinary care and diligence to see that its streets are reasonably safe for travel. So if the plaintiff can recover in this action, it is because of the doctrine of the defendant's implied common-law liability, and not because of anything contained in its charter. The duty of the defendant, implied from the grant of exclusive control over its streets, is not a public duty owing to the public alone, but a private, corporate duty, which (when not expressly imposed) is necessarily implied from such grant. Shearman & Redfield on Negligence (6th Ed.) § 289. The proviso under consideration was introduced into section 2 of article 16 to avoid misinterpretation, and...
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