Pope v. City of New Haven

The complaint alleges: that New Haven under authority of its charter made an appropriation for the celebration of Independence Day, on July 5th, 1915, and by way of such celebration had a display of fireworks upon the New Haven green, which consisted or included the sending up by its agents of certain bombs which were intended to explode in the air. Among them was an eight-inch bomb which, whether with a perfect fuse or not, was "intrinsically dangerous." The display was in a central and populous part of New Haven, in close and dangerous proximity to certain of the principal streets of New Haven upon which were large crowds of people, in ignorance of danger, witnessing the display upon invitation of the city. It is alleged that said display "rendered the said public streets and thoroughfares unsafe and dangerous for the public thereon, and especially dangerous for the explosion of eight-inch bombs in such close proximity thereto." Said eight-inch bomb contained a fuse which was defective or damp, which fact was or ought to have been known to the city, and the city was negligent in using such a bomb. Through the negligence of the city said bomb struck the ground in an open space adjoining the highway and there exploded, and did great havoc and killed the plaintiff's intestate who, in the exercise of due care, was viewing the celebration.

The complaint sets up a case of negligence, and in my opinion one of wantonness and nuisance. Under our system of pleading the story of the occurrence is told and whatever cause of action arises out of the story is part of the case. I think that the complaint fairly states that the display of fireworks in such a locality was intrinsically dangerous to the spectators who had been invited to the display, and that the discharge of a bomb intrinsically dangerous in itself, in such a locality, in the midst of such a concourse of people, constituted such discharge, as matter of law, a wanton act and a nuisance. It is too narrow a reading of the complaint to hold that it does not allege that the discharge of an intrinsically dangerous bomb in that locality, and in the midst of such a concourse of people, was itself intrinsically dangerous.

The city demurred because (1) it appeared that the fireworks were discharged in the course of a public celebration of Independence Day, and it was not alleged that the celebration was for the corporate or pecuniary benefit of the city; (2) it appeared that the injuries alleged occurred while New Haven was engaged in a public governmental function under authority conferred by a public Act; and (3) it did not appear that any liability was imposed by law for any act alleged.

When a city is engaged in the performance of a governmental duty, no liability attaches to it for injury resulting from the discharge of such duty through failure to use due care. The rule of municipal exemption does not apply to injury caused by the municipality in the discharge of a public duty for its corporate benefit. Such a duty is not a governmental duty, for it is not performed for the benefit solely of the public. Whether the municipality is discharging a governmental duty or not, is to be determined upon consideration of the nature of the duty imposed or the privilege conferred, and of the character of the act done. I assume, for the present purposes, that New Haven in conducting a celebration of Independence Day might be engaged in the performance of a governmental duty. It might conduct such a celebration for its own corporate benefit, and this might be established by proof of an admission charge or by the terms of the vote of appropriation or by other corporate act. If this were established it would not be exempt from liability for its negligence in conducting the celebration.

The complaint did not allege that the city was engaged in an enterprise for its own corporate or pecuniary benefit. This was one of the grounds of demurrer. The plaintiff seasonably moved to amend by adding: "Such celebration, discharge of fireworks and explosion of bombs, were for the corporate advantage of the defendant and for the benefit of its residents and citizens." The motion was denied. This I think was error, for the court could not say as matter of law that such a celebration might not have been undertaken for the corporate benefit of New Haven.

Moreover, the rule of municipal exemption for an act done by the municipality or its servants or agents when acting in the discharge of a public duty, does not relieve the municipality from liability for the consequences of the particular acts which the municipality has directed to be performed, and which, from their character or the manner in which they are so ordered to be executed, will naturally work a direct injury to the property of others, or create a nuisance, or occasion a wanton injury to the property or rights of other persons. Colwell v. Waterbury,74 Conn. 568, 573, 51 A. 530. A wanton injury to the person of another, or a nuisance committed against his person, creates a liability in the municipality no less than when the wanton injury or nuisance is committed against his property. Governmental immunity does not exempt from liability for a personal injury resulting from a wanton act or a nuisance. Colwell v. Waterbury, 74 Conn. 568, 573, 51 A. 530; Mootry v.Danbury, 45 Conn. 550, 556; Feudl v. New Britain,88 Conn. 125, 128, 90 A. 35; Morgan v. Danbury,67 Conn. 484, 493, 35 A. 499; Judd v. Hartford, 72 Conn. 350,354, 44 A. 510; Salzman v. New Haven, 81 Conn. 389,71 A. 500; 4 Dillon on Municipal Corporations (5th Ed.) § 1703; Willett v. Village of St. Albans,69 Vt. 330, 38 A. 72.

Whether a situation, a thing, or an act, constitutes a nuisance, is ordinarily a question of fact. Burnham v.Hotchkiss, 14 Conn. 311, 318; Stowe v. Miles, 39 Conn. 426,428. But when the facts are clear, the act in question may be held to be a nuisance as a matter of law.Jenne v. Sutton, 43 N.J.L. 257. In Speir v. Brooklyn,139 N.Y. 6, 11, 34 N.E. 727, the court said: "The discharge of fireworks in a city under any circumstances is attended with danger. . . . Under the circumstances, in view of the place, the danger involved and the occasion, the transaction was an unreasonable, unwarranted and unlawful use of the streets, exposing persons and property to injury, and was properly found to constitute a public nuisance."

In Landau v. New York, 180 N.Y. 48, 55,72 N.E. 631, the court said: "There is a distinction, well recognized by law, between the discharge of fireworks upon private property and in a public highway. There is also a distinction in this regard between highways, depending on their location, the extent of the traffic upon them and the danger involved in case of accident. Fireworks in certain streets may or may not be a nuisance, according to the circumstances, which usually present a question of fact. . . . Fireworks exhibited on an extensive scale in a great thoroughfare, in the midst of a large city, when a vast multitude of people is assembled, if not a nuisance as matter of law, may properly be found such as matter of fact."

In Herman v. City of Buffalo, 214 N.Y. 316, 319,320, 108 N.E. 451, the question at issue was whether the defendant in the erecting of a municipal building had created or participated in the creation of a nuisance. To constitute the structure a nuisance, the court say: "The structure must have been inherently and imminently dangerous and a menace to the safety of the intestate. . . . The appellant must have created or participated in the creation of the dangerous and menacing condition. . . . The creation or participation in the creation of the dangerous condition must have been with the consciousness and understanding on the part of the appellant that it was creating it; or it must have been obvious and almost certain to a reasonably prudent man, while the acts were being performed on the part of the appellant, that those acts would create or help to create it. The condition must have been a purpose or object of the appellant; it must have intended to effect it; or its acts have been so reckless and unwarranted that that intention must be conclusively implied. . . . The wrongfulness must have been in the acts themselves rather than in the failure to use the requisite degree of care in doing them, and therein lies the distinction, under the facts of this case, between nuisance and negligence." Joyce on Nuisances, §§ 19, 384, 448; Wood on Nuisances, §§ 743, 744; Cardwell v.Austin, 168 S.W. Rep. (Tex.Civ.App. 1914) 385, 387;Smith v. Jefferson, 161 Iowa 245, 142 N.W. 220; Cityof New Castle v. Harvey, 54 Ind. App. 243,102 N.E. 878, 880' Moser v. Burlington, 162 N.C. 141,78 S.E. 74; Radford v. Clark, 113 Va. 199, 73 S.E. 571; Hines v. Rocky Mount, 162 N.C. 409, 412, 78 S.E. 510. A satisfactory test for determining whether an act or acts constitute a nuisance, is that stated by the court inMelker v. New York, 190 N.Y. 481, 488, 83 N.E. 565: "Without attempting a general definition we are of the opinion that as applied to the facts of the case before us, if the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may properly be found a nuisance as matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as matter of law. . . . Locality, surroundings, methods, the degree of danger, the custom of the country are the important factors."

The display of fireworks in such a locality, intrinsically dangerous to the spectators whom New Haven had invited to witness the display, and the discharge of a bomb itself intrinsically dangerous, constituted, as matter of law, the display a nuisance. New Haven caused and created the nuisance and her act caused this injury. Her liability must follow.

But if these facts are not held to constitute a nuisance, they must be held to present an issue of fact as to whether they constitute a nuisance, and, if so, the demurrer should have been overruled and the trier been permitted to pass on this issue of fact and determine whether the acts done under the circumstances present created a nuisance. After the demurrer was sustained the plaintiff sought to amend by adding to his complaint: "The action of the city hereinbefore set out, . . . made said streets, thoroughfares and other portions of said city near said public square, unsafe and dangerous to the people lawfully thereon, and wrongly exposed these persons to injury, and the same at all of said times was a nuisance." The opinion of the majority finds the allegations of the complaint insufficient to sustain a cause of action for wantonness or nuisance. It would seem to follow such a holding that the denial of the amendment was error.

The record shows that the trial court decided the demurrer upon the authority of Tindley v. City of Salem,137 Mass. 171, and apparently did not then consider the question of wantonness or nuisance. This question of nuisance arose later in Kerr v. Brookline, 208 Mass. 190,94 N.E. 257, and the conclusion of the court upon this question seems at variance with Colwell v. Waterbury,74 Conn. 568, 51 A. 530, and other authorities upon this subject in our State.

In my opinion the demurrer should have been overruled and the amendment allowed.

In this opinion RORABACK, J., concurred.