Piasecny v. City of Manchester
| Decision Date | 07 December 1926 |
| Citation | 136 A. 357 |
| Parties | PIASECNY v. CITY OF MANCHESTER. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Burque, Judge.
Action by Thadeus Piasecny, by his next friend, Stanislaus Piasecny, against the City of Manchester. Defendant's motion for a nonsuit was granted, and plaintiff excepts. Exception overruled.
Case for personal injuries. Trial by jury. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted, and the plaintiff excepted.
The plaintiff was injured by falling from a seesaw owned and maintained by the city in a public playground, located in a public park. There was evidence that the seesaw had been defective for a long time. The plaintiff's declaration contained two counts. The first count charged that the defendant, with full knowledge of the defective condition of the seesaw, encouraged and permitted children to make use of it. The second count charged that the defective seesaw was a nuisance. No briefs were furnished by either party.
Osgood & Osgood, of Manchester, for plaintiff.
Thomas J. Bois, City Sol., of Manchester, for defendant.
Although the decisions in other jurisdictions are not harmonious, the law limiting the liability of municipalities for tort is well settled in this state. "In the absence of a statute creating the liability, no action can be maintained against a municipal corporation for an injury arising from the neglect of a public corporate duty, from the performance of which the corporation receives no special benefit, pecuniary or otherwise." Clark v. Manchester, 62 N. H. 577; Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533; Rhobidas v. Concord, 70 N. H. 107, 47 A. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; O'Brien v. Derry, 73 N. H. 198, 60 A. 843; Gates v. Milan, 76 N. H. 135, 80 A. 39, 35 L. R. A. (N. S.) 599. "It has always been understood that it was essential for a plaintiff to show the breach of a duty owed to him privately, as distinguished from one owed to the public." Stevens v. Manchester, 81 N. H. 369, 127 A. 873. No argument is required to establish the fact that municipal playgrounds, like schools, are public institutions open to enjoyment by all the people from which the city in its corporate capacity receives no special advantage. There is nothing in the facts stated in the reserved case from which it could be found that the defendant owed the plaintiff any other duty than that which it owed...
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