Husband v. Salt Lake City

I concur in the order affirming the judgment. I dissent from the grounds of Mr. Justice HANSON'S decision and the results reached on those grounds. I do not think that this sprinkling wagon being operated along a park pathway in order to settle the dust is a nuisance in the legal sense. It may be an inconvenience to some one wanting to use the pathway, but even if a nuisance in this sense, I see no connection between the nuisance in that sense and the injury. No one was injured because the sprinkling wagon compelled them to conduct themselves as they might not otherwise have done if it were not for the wagon. An obstruction in the street might cause a congestion of traffic and this, by cause and effect, result in some injury or might be the direct cause of injury by some one running into it. If it was a nuisance to the public, such might also be the basis for a damage caused by the nuisance to one of the public. But here, rather than being a nuisance to the children, it attracted them. After they were attracted, by active intermediation of one child pushing another, the injury happened.

The prevailing opinion by its own definition eliminates the driving of a sprinkling truck as a nuisance. The holding of the operation of this sprinkling truck as a nuisance depends on whether it involves a condition dangerous to persons who, in the ordinary pursuit of their business or rights, may come in contact with it or may thus cause injury to their property.

It must be, as says the opinion, dangerous. There was no dangerous condition in this slow moving truck except as it was created by the active alliance of children pushing each other into its moving parts. A pin cushion might in that sense be dangerous if one child pushed another down on it. Any moving auto would be dangerous and a nuisance in this respect and especially if it were a calliope attracting children. If there had been animals in the park and a hay wagon filled with hay had gone in once a day — the children romping about and pulling the hay, it would be as much a nuisance as this sprinkling wagon. But it would not be because of a condition created, but because of some one actively co-operating to place himself or another in reference to the wagon so that an injury occurred. Nuisance usually has the idea of something static, stationary, comparatively continuous, as it affects the enjoyment of property. A single noisy party one night in the year next door would not constitute a nuisance. But a resort where people congregated in boisterous and rowdy fashion repeatedly so as to materially affect enjoyment of property might be. This idea has been carried over in cases where a condition is created which in relation to the ordinary expected activities of people is likely to cause injury. The creator or party responsible for this condition is negligent in creating a nuisance, but that does not mean that every one who is negligent has created a nuisance.

Here the injury occurred, not by reason of a condition, but by the child becoming entangled in the wheel of the truck. I do not think the cases cited in the opinion bring this sprinkling wagon under the definitions therein given as a nuisance. The "natural tendency of the acts complained of" was not "to create danger or inflict injury." The natural tendency of a sleepily driven sprinkling truck is not to create danger or inflict injury. It is quite the reverse. It is only when some one does something which places him in a situation where the otherwise innocent implement does him harm. In the same sense, many thousands of pieces of equipment would be nuisances, although none of them used in the fashion for which intended would have a natural tendency "to create danger or inflict injury."

But I am willing to hold the city liable on the theory of respondeat superior for the negligence of the driver of this sprinkling wagon. I think the decisions have gone to ridiculous lengths in giving municipalities immunity from the negligence of their employees on the ground that the work in which such employees were engaged was in pursuance of governmental purpose. In the case of Lehi City v. Meiling, 87 Utah 237,48 P.2d 530, I had something to say about the continual growth in the extent and kind of municipal functions and the obscurity of the line between governmental and proprietary functions. I see no difference essentially in the conduct of a municipal park and a municipal bathhouse, golf club, play ground, or dance hall. As pointed out in the writer's opinion in the Lehi City Case, these municipal activities represent an expansion of municipal functions. Even the fact that fees are charged in some and not in others may not work any destruction in the essential nature of the undertakings. They are all recreational as distinguished from protective. I have no objection to including civic recreational projects as governmental, but I do not think the city should be insulated against responsibility for negligence of an employee on civic recreational undertakings. Moreover, there is such a matter as treating a particular activity of a municipality as governmental for one purpose and corporate or proprietary for another purpose.Brush v. Com'r of Internal Revenue (Oct. 1936) 57 S. Ct. 495, 81 L.Ed. . . ., 108 A.L.R. 1428.

I am in favor of restricting municipal immunity for the negligence of its employees while engaged in the city's business to that committed in the pursuit of actual protection of persons and property or preserving the peace of the community or some other police duty which it exercises as an agency of the state. The doctrine originated on the theory that the city was an agency of the state in its function of preserving the peace and protecting persons and property, and since the state could not be sued for negligence of its employees in performing such functions, neither should the agency be required to respond when its servant so engaged was guilty of negligence. I have some question about the soundness of the original doctrine, but as then restricted, it did not produce the unfairness which now ensues because of the greater and greater expansion of municipal activities construed to be for governmental purposes. The cases of Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714, 12 L.R.A. (N.S.) 537, 13 Ann.Cas. 1016, Sehy v. Salt Lake City,41 Utah 535, 126 P. 691, 42 L.R.A. (N.S.) 915, and Rollow v.Ogden City, 66 Utah 475, 243 P. 791, are all cases where the employees were pursuing a duty of policing the community, such a duty as primarily devolved on the state, and were thus doing it for the state. I think even this can be stretched to a nonsensical extent. The case of Alder v.Salt Lake City, 64 Utah 568, 231 P. 1102, held that the maintenance of parks and playgrounds was a public and governmental function and that the city was not liable for the negligence of its agents and servants in connection therewith, citing cases for and against the proposition. I am as before said, not concerned whether such city function is called "a public and governmental act." If it is a governmental act, it is not such as deals with the policing or protection of the community and, therefore, not one done in behalf of the state as an agent of the latter to carry out its policing functions; but one done by the local community for a local civic purpose, to wit, the furnishing of public recreation. That, to my mind, was never meant to be included under the original doctrine which had in mind the policing and protective functions of the state.

For the reasons stated herein, I think the demurrer to the complaint was improperly sustained, but since I cannot obtain the concurrence of my associates in this view and cannot concur in the holding that it is a nuisance, the judgment must be affirmed.