Pardini v. City of Reno

I concur in the conclusions reached in the foregoing opinion, but will briefly state my views upon two of the points involved.

I cannot agree to the contention that the authorization by the city of the work which was done was in the exercise of a governmental function, of such a quasi judicial nature as to exempt the city from liability, as is contended.

It is true that a city can exercise a certain discretion without incurring liability because thereof; but to go to the length contended for by the city and carry such contention to its ultimate conclusion, would result in saying that the city might plan a street full of death traps, construct them in accordance therewith, and yet be free from liability. Such is not, and never was, the law. The latest case stating the law applicable to the situation in hand which we have been able to find is that of Perrotti v. Bennett, 94 Conn. 533, 109 A. 890, where it is said:

"The real question in the case is that upon which the trial court placed its decision. Did this defect in the highway inhere in the original plan of construction of the highway The finding by the trial court that the defect was in the plan does not settle the point. The principle of nonliability for error in the adoption of the plan for a municipal improvement is fully established. Cases to which the doctrine is applicable are not numerous. Some cases are mistakenly conceived to fall within the doctrine. Other cases have led to exceptions which have greatly limited the doctrine. Whenever the plan in its execution creates a nuisance, or causes direct injury to another, liability follows for the damage done. Danbury Norwalk R. Co. v. Norwalk,37 Conn. 109; Buckley v. New Bedford, 155 Mass. 64, 29 N.E. 201; Seifert v. Brooklyn, 101 N.Y. 136, 4 N.E. 321 [54 Am. Rep. 664]; 19 R.C.L. p. 1091, sec. 376. The execution of the plan, or the operation of the improvement in accordance with the plan, are ministerial acts, and if the plan be executed or the improvement be operated with negligence, the municipality will be liable for the resulting damage. Jones v. New Haven, 34 Conn. 1. If the plan be so designed that it makes, for example, the street or sewer dangerous, the municipality will be liable for the resulting damage. Collett v. New York City, 51 App. Div. 394,64 N.Y.S. 693; 28 Cyc. 1371. If the plan be defective from the beginning, or if its defect originate shortly after the completion of the improvement, and injury be ultimately necessarily the inevitable or probable result, the municipality will be liable. Clearly this is just. Upon this assumption the city created the defective improvement and either knew of it or was chargeable with knowledge of it. Every moment of its continuance was an act of negligence by the municipality. The injury grew out of and was attributable to this negligent continuance and not to the plan so defectively conceived of, but to the operation of the plan after its defective condition was known or ought, in the exercise of reasonable diligence, to have been known to the municipality. As soon as the fault of the construction is known, or ought to be known by the municipality, it is in duty bound to remedy the defect if this can be done, or if not, to cease the operation of this public agency until the defect is remedied; the penalty of refusal after reasonable notice will be the liability in damages for the injuries caused by the defect. Dayton v. Taylor, 62 Ohio St. 11, 16, 56 N.E. 480; Ward v. Salt Lake City, 46 Utah, 616, 151 P. 905; Beebe v. Scott's Bluff County, 92 Neb. 504, 138 N.W. 737; Collett v. New York City, 51 App. Div. 394, 64 N.Y.S. 393 [693]; Teager v. Flemingsburg, 109 Ky. 746, 60 S.W. 718 [53 L.R.A. 791, 95 Am. St. Rep. 400]; Gould v. Topeka, 32 Kan. 485, 4 P. 822 [49 Am. Rep. 496]; 4 Dillon on Municipal Corporations (5th ed.), sec. 1746. The circumstances surrounding the defect must be such as to charge the public authorities with notice of it. Stoddard v. Winchester, 154 Mass. 149, 151, 27 N.E. 1014 [26 Am. St. Rep. 223]; Dillon on Municipal Corporations (5th ed.), sec. 1746. In Conlon v. St. Paul, 70 Minn. 216, 218, 72 N.W. 1073, the Supreme Court of Minnesota said: `But, if there is such gross error of judgment as to show that in fact the city authorities never exercised an intelligent judgment at all, the city may be liable for constructing or maintaining the improvement on the defective plan or scheme adopted.' Other authorities speak similarly."

In Klipp v. City of Hoyt, 99 Kan. 14, 16, 160 P. 1000, 1001, in disposing of a similar question, the court said:

"No matter how carefully plans of improvement were considered, and no matter how faithfully the adopted plan was executed, if the result were actual peril to persons using the street with due care the duty to make and keep the street reasonably safe for travel was not fulfilled and an action would lie in favor of one suffering injury consequent upon the breach of duty."

See, also, Quest v. Town of Upton, 36 Wyo. ___, 252 P. 506; City of St. Paul v. Seitz, 3 Minn. 297 (Gil. 205), 74 Am. Dec. 753; Noble v. City of Richmond, 31 Grat. (Va.) 271, 31 Am. Rep. 726; Wilson v. Wheeling, 19 W. Va. 323, 40 Am. Rep. 780; Evans v. City of Hutchinson, 99 Kan. 477, 162 P. 342.

But, if the rule contended for were accepted, the city was guilty of negligence, as I understand the allegations of the complaint, in that the plans adopted provided that a guard should be constructed along the wall in question, since none was erected.

Furthermore, the complaint alleges, as contended by counsel for the plaintiff, that the place where the deceased was killed is inherently dangerous. This being true, the complaint clearly states a cause of action, and, under the well-recognized rule that if a complaint states a cause of action upon any theory, a general demurrer is not good.

It is also said that the city is not liable for its negligence nor for that of its officers. This contention is based upon the proviso in section 2, art. 16, of the charter of the city. Section 1 provides for the regulation of salaries and compensation for services by ordinance; the filing of claims against the city; and matters connected therewith. Section 2 provides that the holder of any claim "mentioned in this charter (of which plaintiff's is not one) which has been rejected in whole or in part may commence suit within six months from the date of its rejection, and other matters incident to such suit, and concludes with a proviso which reads:

"Provided, nothing herein shall be so construed as to make the city liable for any damages suffered or incurred by any person for or by reason of any neglect of the city or any of its officers."

Counsel for the city say:

"It was the contention of respondent in the court below, as it shall be in this court, that a proper construction of the proviso as a matter of concrete legislation, requires it to be read substantially as follows:

"`The provisions of this act notwithstanding, the city shall not be liable for any damages suffered or incurred by any person for or by reason of any neglect of the city or any of its officers.'

"To give to the proviso in question any different meaning, would be to charge the legislature with employing language entirely meaningless; a thing which the courts cannot and will not do and `a statute should be so construed as to avoid absurd results.'"

It is a well-recognized rule that the courts should so construe a statute as to avoid absurd results, and that the intention of the legislature controls in the construction of a statute. But, when the language used is clear, plain, and unambiguous, the legislature must be understood to mean just what it has plainly and explicitly expressed. Odd Fellows Bank v. Quillen, 11 Nev. 109. In the case last cited this court quoted with approval language to the effect that, to ascertain the legislative intent, the first resort in all cases is to look to the natural significance of the words employed. If, thus regarded, the words convey a definite meaning, which involves no absurdity, and no contradiction between different parts of the same statute, then that meaning, apparent upon the face of the statute, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument; and the courts have no right to add to, or take away from, that meaning.

The language of the proviso is clear, unambiguous, and not subject to any interpretation save that expressed. There can be no doubt that, if a sentence of a statute or part of a sentence clearly expresses an idea, but the entire statute clearly shows a contrary intention, the courts will give effect to the clear purpose of the statute. State v. Brodigan, 37 Nev. 245,141 P. 988. But such a rule, we emphasize, is applicable only when the language of the statute clearly expresses a contrary intent, or a contrary view is clearly manifested from the history of the legislation on the subject, or the wrongs or evils sought to be remedied. No such situation is here presented. Look where we may we find no language expressing clearly or dimly any such interpretation for the proviso as is contended for by the city, either in the section in which the proviso is found, or elsewhere. In the face of this situation we would certainly be straining to the breaking point every rule to adopt the contention of the city.

Besides, to give the proviso the interpretation contended for would work manifest injustice, and the courts do not favor construing a statute, even if doubtful, so as to work injustice, as the construction contended for by the city would do. Goldfield Con. M. Co. v. State, 35 Nev. 183, 127 P. 77.

Besides, it is a well-known rule that:

"An exemption from a recognized liability cannot be claimed unless it is clearly and expressly given; and a doubt as to whether a particular case falls within the exemption will be resolved against the municipality." 43 C.J. 932, sec. 1707.

In the face of the rule just stated, would it be seriously contended that the proviso would be explicit and broad enough to exempt the city from liability in case there were a general statute in this state to the effect that all municipal corporations should be liable for their negligence and the negligence of their officers? We think not. We cannot see any difference if such were the fact from the situation here existing where the common law liability exists.

Furthermore, if we were to accept the interpretation contended for, there is nothing in the proviso exempting the city from liability arising as the result of an injury sustained due to work of the city which is inherently dangerous.