Williams v. City of Longmont

• Citation: 129 P.2d 110,109 Colo. 567
• Decision Date: 15 June 1942
• Docket Number: 14929.
• Parties: WILLIAMS v. CITY OF LONGMONT.
• Court: Supreme Court of Colorado

129 P.2d 110

109 Colo. 567

WILLIAMS v. CITY OF LONGMONT.

No. 14929.

Supreme Court of Colorado, En Banc.

June 15, 1942

Rehearing Denied Sept. 14, 1942.

Error to District Court, Boulder County; Frederic W. Clark, Judge.

Action by Gladys Williams against the City of Longmont, a municipal corporation, for injuries sustained by plaintiff when struck by third persons engaged in playing 'crack-the-whip' on a skating pond located in a public park of defendant city. To review a judgment of dismissal entered upon order sustaining defendant's general demurrer to her complaint plaintiff brings error.

Judgment affirmed.

YOUNG C.J., and HILLIARD, J., dissenting.

James A. Marsh and Milnor E. Gleaves, both of Denver, for plaintiff in error.

Robinson & Coit, of Denver, and Rinn & Connell, of Boulder, for defendant in error.

BOCK Justice.

In this controversy we are concerned with the liability of a municipality to plaintiff who was injured by third persons engaged in playing 'crack-the-whip' on a skating pond located in a public park. The complaint, inter alia, alleges:

'That on or about the evening of December 30, 1938, during the Christmas and New Year holiday season then in celebration the public was in heavy attendance at said Sunset Lake; and from about eight o'clock until after nine the crowd was increasing thereat in size and enthusiasm and was full of fun and revelry, and composed principally of children, adolescents and the younger social set, and there was particular need at all times for supervision and regulation and for a representative and attendant of defendant to be constantly on the job to watch, supervise and keep the revelry and fun in due and reasonable bounds; that during said evening defendant knew, or by the exercise of reasonable care and attention it should have known, that a large crowd of lively revelers and skaters would be and was in attendance in said park and upon said lake and that without proper supervision dangerous skating games would be indulged in by some; that there was and defendant furnished and maintained, which long theretofore had been its custom and practice, such a representative and attendant in said park and at said lake during said evening and until the hour of about nine o'clock, at which time he wrongfully and negligently departed from the park without notice or announcement; that beginning with and after said nine o'clock and for the remainder of the evening there was no supervision or regulation whatever by defendant nor was there any representative or watchman of or for the defendant in the park or at or near Sunset Lake, which fact was not then known to plaintiff nor learned by her until many days thereafter.

'That at and prior to the time said watchman was leaving the lake in the evening, as aforesaid, the activities and fun were increasing, a spirit of recklessness on the part of some skaters was getting under way, groups were playing fast and dangerous ice games, and while plaintiff then and there was upon said lake engrossed in simple skating, and at about 9:15 o'clock, she was suddenly, unexpectedly and violently crashed into, forcibly knocked down, and rendered unconscious by a detachment of skaters who, as part of a larger group of revelers, were playing the dangerous game of 'crack-the-whip,' and said detachment of skaters then proceeding at a high rate was out of control, having been rent and torn loose from the tail of the whip when it was suddenly 'cracked."

Unfortunately the accident resulted in serious injury to plaintiff in error, plaintiff below. To the complaint the City of Longmont, defendant in error, defendant below, filed a general demurrer, which the court sustained, and, plaintiff electing to stand on her complaint, judgment of dismissal was duly entered. There is no dispute concerning the legal proposition that in this jurisdiction a municipality operating a public park does so in a proprietary and not a governmental capacity. City of Denver v. Spencer, 34 Colo. 270, 82 P. 590, 2 L.R.A.,N.S., 147, 114 Am.St.Rep. 158, 7 Ann.Cas. 1042; Canon City v. Cox, 55 Colo. 264, 133 P. 1040. Counsel for plaintiff contend that the liability of the municipality, under those...