Caughlan v. City of Omaha

Rose, J. This is an action against the city of Omaha to recover damages in the sum of $10,000 for negligence resulting-in the death of Samuel H. Daniels; the administrator of his estate being plaintiff. A demurrer to the petition was sustained. From a dismissal of the case, plaintiff has appealed. For the purpose of reviewing the ruling on the demurrer, the facts pleaded in. the petition may be summarized as follows: Defendant maintains a public park having a municipal beach on Carter Lake. A public dock, with spring diving boards on each side, extends from the shore into the lake, for the use of persons resorting to the water for recreation and for other purposes. Daniels, in common with the public generally, was invited to use the municipal privileges and facili [727] ties. In a bathing snit he jumped head foremost from a spring- diving hoard on one side of the dock, struck his head on the bottom of the lake at a depth of three and one-half feet, and broke his neck. On the other side of the dock the water under the spring diving boards was eight or ten feet deep. The lake was murky, concealing the bottom and the depth of the water. Daniels had not been notified that the water under the spring diving board which he used was shallow, and had no knowledge of that fact. For $402 defendant had leased for a year buildings used in connection with -the public dock. Negligence in creating and in maintaining the place of danger described, and in inviting Daniels to use the spring diving board without notice or warning that the water under it was shallow, is imputed to defendant. On these facts, properly pleaded, is the petition demurrable ? Defendant justifies the dismissal of the case on the ground that the city acted in a governmental capacity, and that, therefore, it is not pecuniarily liable for personal injuries resulting from the negligence of its officers. Plaintiff insists that the city receives a substantial revenue from the bathing beach, and that it is answerable in its private or proprietary capacity for the wrongs pleaded in the petition. On the question presented the courts of the country, like the parties hereto, seem to entertain diverse views. The nature of the functions exercised by a city in maintaining a public park 1ms been a subject of extended judicial discussion in recent years. The weight of authority supports the fundamental proposition of law that a city in maintaining a public park performs a public or governmental duty. Bisbing v. Asbury Park (80 N. J. Law, 416) 33 L. R. A. n. s., note, 523. The municipal purpose is different from that of an ordinary corporation conducting a business enterprise for private gain. Health, comfort, recreation, sanitary conditions and better environments, resulting in order, happiness and increased usefulness [728] from a public standpoint, are governmental aims in tire maintenance of a public park or a municipal beach. To extend these privileges without compensation or discrimination to the poor and the other classes alike is above the aim of private or individual enterprise generally. To attain these objects is a fundamental purpose of government. Consequently, most courts, in" determining liability for negligence in cases of this kind/ make h distinction between governmental functions and private enterprise. The rule generally adopted, therefore, is that, in absence of statute, a city, in maintaining a public park or a municipal beach, is not pecuniarily liable for the negligence of city officers while exercising functions relating to this feature of municipal government. Bisbing v. Asbury Park, supra: Harper v. City of Topeka, 92 Kan. 11, 51 L. R. A. n. s. 1032; Bernstein v. City of Milwaukee, 158 Wis. 576, L. R. A. 1915C, 435, and cases cited in note; Nemet v. City of Kenosha, 169 Wis. 379. Neither the character of the municipal function nor the exemption from liability is changed by a small incidental revenue derived from the rental of city buildings used in connection with the public park or the municipal beach. Kellar v. City of Los Angeles, 178 Pac. (Cal.) 505. This view of the law results in an affirmance. AFFIRMED.