MacY v. Town of Chelan

Rosellini, J.

Jack A. Macy, who will be referred to hereafter as the respondent, was injured when he dived from a pier maintained by the appellant town in the waters of Lake Chelan, just off shore from a public park which it owned and maintained. The water was a little over six feet deep at the point where he dived, and the pier was 17.6 feet high. No warning signs were posted. However, the respondent was aware of the approximate depth of the water and of the fact that it was below the level at which the pier was designed to be used as a diving facility, inasmuch as he had to scale some eight feet of piling in order to reach the lower rung of a ladder attached to the piling. His awareness of the possible danger was also demonstrated by the fact that he asked a companion whether he thought it was safe to dive.

The water level in the lake rises each spring and falls after each summer, due to the activities of a local public utility district, which was licensed by the Federal Power Commission to use the top twenty-one feet of the water for power storage. The safety of the pier, for diving purposes, diminishes as the water level falls and increases as it rises. By July 4th of each year, the water reaches its maximum height. This accident occurred on May 23, 1958. Although the pier had been in use for many years, no divers had been injured before so far as the evidence disclosed. There was no evidence of a generally accepted or recommended standard of safety for such diving facilities.

In bringing this action, the respondent alleged that the pier was inherently dangerous and constituted a nuisance. The case was submitted to the jury on this theory, and the jury returned a verdict in which it answered interrogatories, saying that the pier was inherently dangerous if used for diving, that it constituted a nuisance, and would constitute a nuisance whether or not there were warning signs posted.

Error is first assigned to the denial of the appellant’s motion to dismiss at the close of the evidence. This motion was founded upon the theory that the evidence had failed to disclose the existence of a nuisance of a type for which the appellant could be held liable, as well as the contention that contributory negligence was established as a matter of law.

We need not consider the latter contention inasmuch as we are convinced that the undisputed facts reveal a case grounded on negligence in the performance of a governmental function and the appellant is therefore entitled to the defense of governmental immunity.

In the recent case of Kilbourn v. Seattle, 43 Wn. (2d) 373, 261 P. (2d) 407 (1953), this court considered at length a proposal to judicially repeal the body of law which gives to municipal corporations immunity for acts of negligence of their agents and employees, and gave its reasons why it was convinced that such a reform must be initiated by the legislature. In that case, this court also set forth the distinction between the kind of nuisance for the creation and maintenance of which a municipal corporation may not escape liability, and the kind of negligence labeled “nuisance” for which it cannot be held.

In brief, we said that if the governmental body creates or maintains a condition or is guilty of an act or omission or use of property which is not permissible or excusable under any circumstances, that is, a nuisance per se, it is liable, regardless of whether negligence of its agents or servants is involved. But if negligent commissions or omissions on its part result in a situation or condition that may, according to one of the many definitions of that word, be termed a “nuisance” under certain circumstances, the defense of governmental immunity will be sustained.

In the Kilbourn case, supra, we quoted with approval the following language from Royston v. City of Charlotte, 278 Mich. 255, 270 N. W. 288 (1936):

“ ‘Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.’ ”

Our research has revealed only one case concerned with a dangerous diving facility in a place of public amusement wherein liability was assessed on the nuisance theory, and that, of course, was a case involving a municipal corporation. Hoffman v. City of Bristol, 113 Conn. 386, 155 Atl. 499, 75 A. L. R. 1191 (1931), was a case in which the defendant city had constructed a diving board over opaque water, which was maintained at a constant level of three feet, and had posted no warning signs. The court held the theory of nuisance applicable because the city had created the condition of danger, that is, it had built the diving board over three feet of opaque water. The diving facility in that case was dangerous at all times, and there was no showing that the water level was not under the control of the city.

In cases involving privately owned swimming and diving facilities, at which admission fees are charged, it is firmly established that the owner is not an insurer of the safety of patrons but owes a duty of ordinary care to see that known dangerous conditions are made safe or to give adequate warning to enable his patrons to avoid them. A few of the most recent cases so holding, all of which pertain to diving accidents, are: City of Fort Worth v. Barlow, (Tex. Civ. App.) 313 S. W. (2d) 906 (1958); Webb v. Thomas, 133 Colo. 458, 296 P. (2d) 1036 (1956); Perkins v. Byrnes, 364 Mo. 849, 269 S. W. (2d) 52, 48 A. L. R. (2d) 97 (1954); Vukas v. Kuivira, 166 Kan. 439, 201 P. (2d) 685 (1949); and Johnson v. Bauer, 292 Mass. 534, 198 N. E. 739 (1935). In Ide v. City of St. Cloud, 150 Fla. 806, 8 So. (2d) 924 (1942), where the defense of governmental immunity was apparently not available, a demurrer to a complaint alleging negligence in the maintenance of a bathing beach, was overruled, the court stating that the city was held to the same degree of care as private persons.

In our own jurisdiction, we have the definitive case of Grove v. D’Allessandro, 39 Wn. (2d) 421, 235 P. (2d) 826 (1951), wherein an action was brought against the operators of a beach resort for personal injuries sustained when the plaintiff dived off a tower and struck bottom because of the shallowness of the water. In sustaining a verdict for the plaintiff, this court stated the applicable rule of law to be that which pertains in any case involving a business invitee, quoting the same from Leek v. Tacoma Baseball Club, 38 Wn. (2d) 362, 229 P. (2d) 329 (1951):

“ ‘Generally speaking, the possessor of land is liable for injuries to a business visitor caused by a condition encountered on the premises only if he (a) knows or should have known of such condition and that it involved an unreasonable risk; (b) has no reason to believe that the visitor will discover the condition or realize the risk; and (c) fails to make the condition reasonably safe or to warn the visitor so that the latter may avoid the harm.’ ”

We think that if the appellant was at fault at all in this case, its fault was in failing to discover that the condition at the pier created an unreasonable risk of danger, if there was such an unreasonable risk, and in failing to warn the respondent of that danger. If it were guilty of any breach of duty at all, that breach was negligence. In allowing the jury to find that its fault was in creating a “nuisance,” the trial court not only deprived the appellant of its cloak of governmental immunity (which it is entitled to wear until the legislature decrees otherwise), but expanded the liability which it would otherwise have had—removing the defense of contributory negligence— and made of it an insurer of the public. We know of no principle of law or reason of public policy which would justify a holding that would place upon a municipality, which offers its recreational facilities to the public free of charge, a more onerous duty than that which rests upon a proprietor who provides the same facilities for private profit.

The judgment is reversed and the action dismissed.

Ott, J., concurs.

Hill, J., concurs in the result.