Smith v. City of Jefferson

• Citation: 99 N.W.2d 119,8 Wis.2d 378
• Parties: Richard C. SMITH, Gdn. ad litem for Patricia Smith, a minor, Appellant, v. CITY OF JEFFERSON, a Wis. Municipal Corp., et al., Respondents. Walter SMITH, Appellant, v. CITY OF JEFFERSON, a Wis. Municipal Corp., et al., Respondents.
• Decision Date: 03 November 1959
• Court: United States State Supreme Court of Wisconsin

Page 119

99 N.W.2d 119

8 Wis.2d 378

Richard C. SMITH, Gdn. ad litem for Patricia Smith, a minor, Appellant, v. CITY OF JEFFERSON, a Wis. Municipal Corp., et al., Respondents.

Walter SMITH, Appellant, v. CITY OF JEFFERSON, a Wis. Municipal Corp., et al., Respondents.

Supreme Court of Wisconsin.

Nov. 3, 1959.

Dempsey & Robinson, Whitewater, for appellant.

Frank M. Coyne, Madison, Francis Garity, Jefferson, for respondent.

CURRIE, Justice.

Counsel for the plaintiffs contend that the allegations of the complaint are sufficient to spell out a cause of action on any one of the following four theories:

(1) Attractive nuisance.

(2) Actual nuisance.

(3) Liability under sec. 81.15, Stats., for a sidewalk defect.

(4) Liability under sec. 270.58, Stats., for negligent acts performed in good faith by a city officer.

Attractive Nuisance

The liability for an attractive nuisance is grounded upon negligence and not nuisance. See concurring opinion in Flamingo v. City of Waukesha, 1952, 262 Wis. 219, 55 N.W.2d 24, and authorities cited therein. In Wisconsin, a municipal corporation enjoys immunity from tort liability grounded on negligence while acting in a governmental capacity, except for some statutory modifications of such common law immunity doctrine. None of such statutory modifications are material to the instant appeals with the exception of those contained in secs. 81.15 and 270.58 which will be hereinafter considered.

Plaintiffs' counsel attempt to escape such immunity doctrine by contending that the city's alleged negligence did occur while it was acting in a proprietary capacity. In support of such contention there is cited the case of Britten v. City of Eau Claire, 1952, 260 Wis. 382, 51 N.W.2d 30. In that case a minor boy was injured while playing about a road scraper which had been parked on a vacant lot after it had been used in road work. Recovery was permitted against the city on the theory of attractive nuisance. The rationale of the holding was that, in storing the scraper on the empty lot, the city had ceased to act in a governmental capacity and instead was then acting as a proprietor of property.

In the instant cases the flares were being used to warn users of the walk of a defect therein. We interpret the allegations of the complaints as stating that Kriederman was using them as bailee of the city in his individual capacity as an adjoining property owner. However, even if the allegations could be stretched so as to be construed as alleging that Kriederman, in so acting, was an officer or agent of the city, the city's negligent occurred while it was acting in a governmental capacity. This is because the use of flares by the city to warn the public of a sidewalk or street defect would be the performance of a governmental function. The negligence in failing to extinguish them during the daytime, or to remove them off the walk, did not amount to a storing of city property so as to bring the facts within the rule of the Britten case.

Recent attempts made in the Wisconsin legislature to abolish the tort immunity for negligence of municipalities have failed. At the 1953 legislative session, Bill 272A was introduced to accomplish such result; and again in the 1955 session, Bill 386A was offered having the same objective. However, both bills were defeated. This is strong evidence of legislative intent that such immunity should not be abolished.

It is our conclusion that the complaint fails to state a cause of action against the city for attractive nuisance.

Actual Nuisance

Obstructions negligently or intentionally placed on public sidewalks or streets are uniformly held to constitute public nuisances. Smith v. Congregation of St. Rose, 1953, 265 Wis. 393, 400, 61 N.W.2d 896. Counsel for the plaintiffs claim that the lighted flares on the sidewalk in the daytime constituted such a public nuisance.

However, this court has repeatedly held that a municipal corporation is not liable for a public nuisance when the relationship of governor and governed exists between it and the injured person. Laffey v. City of Milwaukee, 1958, 4 Wis.2d 111, 89 N.W.2d 801, and Hoepner v. City of Eau Claire, 1953, 264 Wis. 608, 60 N.W.2d 392. For an analysis of the many Wisconsin cases so holding, see Annotation, 56 A.L.R.2d 1415 at pages 1428, et seq. This rule is stated in the Laffey case as follows (4 Wis.2d at page 116, 89 N.W.2d at page 803):

'It is commonly said that while plaintiff is using the public facility for the purpose for which it is intended, the relationship of governor and governed exists between the parties, and where such relationship exists, the doctrine of sovereign immunity protects the municipality from liability.'

The complaint alleges that Particia was playing at the time her dress came in contact with the flame of the lighted flare. Prior cases have held that a child has the right to play on public sidewalks or in the street and has the same rights there as other travelers. Reed v. City of Madison, 1892, 83 Wis. 171, 53 N.W. 547, 17 L.R.A. 733, and Busse v. Rogers, 1904, 120 Wis. 443, 98 N.W. 219, 64 A.L.R. 183. Therefore, the relationship of governor and governed existed between the city and Patricia at the time the accident occurred and there can be no recovery grounded on the theory of public nuisance.

Liability Under Sec. 81.15, Stats.

Only the complaint in behalf of the injured minor attempts to allege a cause of action under sec. 81.15, Stats. Such statute expressly provides that no action shall be maintained under it by a parent 'on account of injuries received by a minor child.' Sec. 81.15 confers a cause of action against a city for damages sustained 'by reason of the insufficiency or want of repair of any highway.' The word 'highway' in such statute includes a public sidewalk. Trobaugh v. City of Milwaukee, 1953, 265 Wis. 475, 61 N.W.2d 866.

19 McQuillin, Municipal Corporations (3rd ed.), p. 260-261, sec. 54.80, states:

'What is a defect or obstruction in or on a sidewalk which will constitute negligence on the part of the municipality is governed by no fixed rule, but is to be determined by the facts of the particular case and surrounding circumstances, * * *'

We have no hesitancy in holding that to permit a lighted flarepot to remain on the sidewalk at 10:30 o'clock in the morning constitutes an insufficiency or defect in the walk. The crucial question is whether the complaint in behalf of the minor alleges facts sufficient to establish that the city had actual or constructive notice of such insufficiency or defect. It clearly appears from the complaint that Kriederman was maintaining such flares as an abutting property owner and not as a city officer. Therefore, the city would not be chargeable with actual notice because Kriederman's knowledge was not that of the city.

However, such complaint does allege that the flares remained...