Flamingo v. City of Waukesha

Brown, J.

It is well settled that the maintenance of streets and highways in a condition fit for travel is a governmental function. Bruhnke v. La Crosse (1914), 155 Wis. 485, 144 N. W. 1100; Stoehr v. Red Springs (1928), 195 Wis. 399, 216 N. W. 487, 219 N. W. 98; Larsen v. Kewaunee County (1932), 209 Wis. 204, 244 N. W. 578. It is also a governmental function for a city to maintain a dump for the disposal of unwanted material.

“While diversity of judicial views still prevails, late cases generally hold, with some exceptions, that the functions of cleaning of streets, the collection of garbage, and the establishment and maintenance of dumping grounds and incinerators are governmental, rather than proprietary, exercised by the municipality as an administrative agency of the state or for the public in the interest of the public health and general welfare, and hence, negligence relating thereto creates no *222municipal liability, unless, in the exercise of such power a nuisance in fact is thereby created and maintained by the municipality, . . .” 18 McQuillin, Mun. Corp., p. 267, sec. 53.46. See also Bruce v. Kansas City (1929), 128 Kan. 13, 276 Pac. 284, and Anno. 63 A. L. R. 332.

Of course it cannot be held that in dumping the snow between the street and the river, where it did not interfere with travel on the highway, the city created or maintained a public nuisance or a nuisance in fact. The plaintiff, therefore, relies on the doctrine of attractive nuisance. Assuming, but not holding, that a boy of ten years is young enough to come within the protection of that doctrine when the other facts make the doctrine applicable, it is inapplicable here because the snow pile was created and existed in the defendant’s performance of a governmental function.

“The doctrine of attractive nuisance . . . can have no application in cases in which the negligence occurred or the attractive condition was created in the exercise of a governmental function.” 38 Am. Jur., Municipal Corporations, p. 283, sec. 588, cited in Britten v. Eau Claire (1952), 260 Wis. 382, 51 N. W. (2d) 30.

It has been urged upon us that Wisconsin precedents have modified the rule of municipal immunity so that now a municipality is responsible for the negligent acts of its officers or servants even in the performance of a governmental function unless it appears that at the time of injury the injured party was enjoying some privilege extended to him by the municipality which embraced or included the defective condition or negligent conduct, so that between the parties the relationship of governor to governed existed. We do not consider that the authorities sustain the argument.

In Erickson v. West Salem (1931), 205 Wis. 107, 236 N. W. 579, a child playing in a public park was drowned in a sewer negligently constructed and maintained there by *223the city. In holding that the city was not liable, Mr. Justice Nelson said (p. 109):

“The law is established by numerous decisions of this court that a municipal corporation, such as a city or village, is not liable for the negligence of its officers or servants when engaged in the performance of a governmental function or when the relation between the person injured and the municipality is purely governmental in its nature.” (Emphasis supplied.}

It is important to note that the reasons for denying liability are alternative; disjunctive and not conjunctive. If the city’s function is governmental it is not liable for the negligence. If by its performance it creates a nuisance in fact, the city cannot defend by showing its governmental purpose but it may still escape liability by showing that the injury was suffered by one whose relationship to the city was, at that time, governmental.

In Folk v. Milwaukee (1900), 108 Wis. 359, 364, 84 N. W. 420, we stated that “. . . a municipal corporation may not construct or maintain a nuisance in the street. . . .” Accordingly, in Robb v. Milwaukee (1942), 241 Wis. 432, 6 N. W. (2d) 222, where the jury had found that the presence of a municipal playground made the street unsafe, we held that the playground constituted a nuisance and allowed recovery to a pedestrian on the sidewalk who was struck by a ball batted into the street. The governmental-function defense did not avail the city because by its playground it created and maintained the hazard to the street traffic,— the nuisance, — and the relationship between the parties was not that of governor and governed because the pedestrian was not using the playground. In Virovatz v. Cudahy (1933), 211 Wis. 357, 247 N. W. 341, the nuisance existed but the person harmed had no right of action because he was enjoying the facilities of the swimming pool which contained the defect. We said (p. 360) :

*224“Thus, it is apparent that the right to recover from a municipality, for injuries sustained because of its creation or maintenance of a nuisance in its governmental capacity, does not exist in favor of a person toward whom the municipality was likewise acting in its governmental capacity.”

In Holl v. Merrill (1947), 251 Wis. 203, 28 N. W. (2d) 363, the county maintained a jail and jail yard, and in so doing undermined the city sidewalk so as to make it unsafe, whereby the plaintiff was injured. We held that the active interference by the county with the city sidewalk created a nuisance, so that the governmental-function defense was not available to the county and, as the plaintiff was not taking advantage of any county facilities which included the nuisance, neither did the county have the defense of a governmental relationship between the parties. A cause of action existed, therefore, against the county.

In the case of Matson v. Dane County (1920), 172 Wis. 522, 179 N. W. 774, upon which plaintiff relies, liability was expressly based upon the duty which the county owed, as an adjoining landowner, to the plaintiff, and upon no other ground. Therefore, the county was held liable because of its proprietary, not its governmental nature. The present facts do not permit the use of that case to establish liability here.

Enough has been said, we think, to demonstrate that Wisconsin municipalities avoid liability for damage caused by their negligence in carrying out governmental functions where they have not created a nuisance in fact, and even where such a nuisance has been created, liability is not imposed if the relationship of governor and governed exists between the municipality and the injured party. That relationship was not present in the instant case, but on the facts alleged in the complaint no nuisance in fact was created or maintained, and there appears to be nothing which can take the case out of the general rule that the city is not liable for the *225negligence of its agents in carrying out a governmental function. We must say then, as we have said before in Erickson v. West Salem and Britten v. Eau Claire, supra, that if it is desirable to change the established law so as to impose greater liability upon municipalities for negligence in carrying out governmental functions, the legislature and hot the courts should make the change.

Appellant has also contended that the city deposited snow upon the river bed contrary to the provisions of secs. 30.02 (1) (b) and 31.25, Stats., quoted as follows:

30.02 (1) (b) “It shall be unlawful to deposit any material . . . upon the bed of any navigable water . . . beyond such shore line. . . .”
31.25 “Every dam, bridge, or other obstruction constructed or maintained in or over,any navigable waters of this state in violation of . . . chapter 30, ... is hereby declared to be a public nuisance, . . .”

The complaint alleges that the snow was deposited upon the city property and extended over the water. It does not allege that anything was deposited on the river bed, or that the river is navigable or that navigation was obstructed, or that the deposit was unlawful or without a permit granted by the state. The argument that the city violated the statute and thereby created and maintained a nuisance which caused the death of a person not standing in a governmental relationship to the city is one that cannot be made from the allegations of this complaint.

We conclude that the demurrer was well taken and the order sustaining it must be affirmed.

By the Court. — Order affirmed.