Smith v. Iowa City

• Decision Date: 17 November 1931
• Docket Number: No. 41045.,41045.
• Citation: 213 Iowa 391,239 N.W. 29
• Parties: SMITH v. IOWA CITY ET AL.
• Court: Iowa Supreme Court

213 Iowa 391

239 N.W. 29

SMITH

v.IOWA CITY ET AL.

No. 41045.

Supreme Court of Iowa.

Nov. 17, 1931.

Appeal from District Court, Johnson County; R. G. Popham, Judge.

Action at law to recover damages for personal injuries. The record is fully stated in the opinion. The court sustained demurrers to the petition, and, plaintiff electing to stand thereon, judgment was entered against him, and he appeals.

Affirmed.W. R. Hart and Frank F. Messer, both of Iowa City, for appellant.

Davis & Davis and W. J. Hayek, all of Iowa City, for appellees.

STEVENS, J.

Appellant's cause of action is stated in the petition in three counts. The ultimate facts relating to the injury complained of, as alleged, are, in substance, that the appellee city has established and, by the functioning of a park board, maintains a certain public square or commons, known as the city park, within the confines of which there has also been established and maintained a tourist camping ground. As a part of the equipment of the park, there has been placed therein a combined teeter-totter and merry-go-round.

On or about September 3, 1929, Geraldine Smith, a minor child about nine years of age, went from the camp ground to the park, and, while engaged in playing with the instrumentality above named, was severely injured. This action is brought to recover damages on account thereof.

[1] The second count of the petition is based upon the so-called attractive nuisance doctrine. We dispose of this count first for convenience in discussion. It is alleged that the teeter-totter and merry-go-round had been permitted to get out of repair for a long period of time and to be, and remain, in a condition dangerous to children who sought to avail themselves of the privilege of using the device. The purpose of the establishment and maintenance of the park and of the particular, and perhaps other, devices therein was for the use and pleasure of children. Such was the only purpose for which the device complained of was installed. It was in its nature and purpose designed to be attractive to children. It therefore very clearly does not come within the definition of an attractive nuisance. Solomon v. Red River Lbr. Co., 56 Cal. App. 742, 206 P. 498. Trespass is the basic requirement of an attractive nuisance. The very theory of an attractive nuisance is that the device or thing claimed to be such is, by its character or nature, calculated and likely to attract children on the premises, where they may suffer injury. Because of the attractive character of the instrumentality, the trespass is excused. Edgington v. R. R. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561;Hensley v. Incorporated Town of Gowrie, 203 Iowa, 388, 212 N. W. 714;Radenhausen v. C., R. I. & P. R. Co., 205 Iowa, 547, 218 N. W. 316;Bloomquist v. City of La Grande, 120 Or. 19, 251 P. 252, 253;Hayko v. Colo. & U. Coal Co., 77 Colo. 143, 235 P. 373, 39 A. L. R. 482; 7 Iowa Law Bulletin, 65. This court has always been reluctant to extend the doctrine of attractive nuisance. The park was designed as a recreation and playground, and, as such, intended to be attractive to the public. There is no theory suggested upon which the doctrine can be applicable to the facts of this case. Hensley v. Incorporated Town of Gowrie, supra.

[2] II. Count III of the petition is based upon the thought that the device or instrumentality previously described, kept and maintained in the park by appellees in a dangerous condition for many months, with full notice and knowledge on the part of the park commissioners and the officers of said city, constituted a nuisance. The device was in no sense, per se, offensive or dangerous to the public. It affected neither the comfort, morals, or health thereof. It was not an annoyance to any one and in no way operated to disturb, inconvenience, or injure the public. It does not therefore come within the common-law definition of a nuisance, nor does it come within the statutory classification thereof. A public nuisance is the doing, or the failure to do, something that injuriously affects the safety, health, or morals of the public, or that works some substantial annoyance, inconvenience, or injury thereto. Commonwealth v. South Covington & C. St. R. Co., 181 Ky. 459, 205 S. W. 581, 6 A. L. R. 118;Soderburg v. Railway, 167 Iowa, 123, 149 N. W. 82;McGill v. Pintsch Co., 140 Iowa, 429, 118 N. W. 786, 20 L. R. A. (N. S.) 466;Percival v. Yousling, 120 Iowa, 451, 94 N. W. 913;Mitchell v. Flynn Dairy Co., 172 Iowa, 582, 151 N. W. 434, 154 N. W. 878;Dunsmore v. Central Ia. Ry. Co., 72 Iowa, 182, 33 N. W. 456;State v. Railway Co., 166 Iowa, 494, 147 N. W. 874;State v. Stillwell, 114 Kan. 808, 220 P. 1058; subdivision 19, § 6329 and sections 12395 and 12396, Code 1927.

[3] If the device constituted a nuisance, it could, under the allegations of the petition, be such only because of the alleged negligent failure of the appellee park board to maintain the same in a condition safe and suitable for the purpose designed. A nuisance may result either from wrongful affirmative acts, or from negligence. If the device or instrumentality complained of could, upon any theory, be said to constitute a nuisance resulting from the negligence of the officers of the municipality, then the question at once arises: Is either the municipality or the park commissioners liable for damages for the injuries complained of? Municipalities possess what is often described as a dual character. They exercise purely governmental functions, and also those which are ministerial and proprietary in character. In so far as the acts performed are purely municipal or ministerial, the municipality may be liable upon the same basis as a private corporation or individual.

[4] The construction and maintenance of a public park by a municipality has been repeatedly held in this state to be a purely governmental function. Norman v. City of Chariton, 201 Iowa, 279, 207 N. W. 134;Mocha v. City of Cedar Rapids, 204 Iowa, 51, 214 N. W. 587;Hensley v. Incorporated Town of Gowrie, 203 Iowa, 388, 212 N. W. 714;Rowley v. Cedar Rapids, 203 Iowa, 1245, 212 N. W. 158, 53 A. L. R. 375.

[5] The rule long established in this state is that a municipality, in the exercise of its purely governmental function, is not liable for negligence. Saunders v. City of Fort Madison, 111 Iowa, 102, 82 N. W. 428;Ford v. Board Park Commissioners, 148 Iowa, 1, 126 N. W. 1030, Ann. Cas. 1912B, 940;Fitzgerald v. Town of Sharon, 143 Iowa, 730, 121 N. W. 523; Hensley v. Incorporated Town of Gowrie, supra; Mocha v. City of Cedar Rapids, supra; Norman v. City of Chariton, supra; Harris v. City of Des Moines, 202 Iowa, 53, 209 N. W. 454, ...