Opinion
No. 40171
Decided February 8, 1967.
Municipal corporations — Liability for negligence in performing governmental functions — Police department — Maintenance and operation of governmental function — Not liable for negligence of members — Duty to keep streets free from nuisance — Section 723.01, Revised Code, strictly construed — Not liable for result of defective condition of police vehicle.
1. Except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance of their governmental functions.
2. The maintenance and operation of a police department by a municipality is a governmental function, and under Section 701.02, Revised Code, the municipality is absolved from liability for the negligence of members of its police department engaged in police duties.
3. Section 723.01, Revised Code, requiring municipalities, inter alia, to keep their streets, highways and public grounds open, in repair and free from nuisance, embraces only those conditions affecting the actual physical conditions existing in or on highways, streets and public grounds themselves.
4. Section 723.01, Revised Code, is to be strictly construed in favor of municipalities engaged in the exercise of governmental functions.
5. A municipality is not liable for injuries caused by a defective condition of one of its police vehicles being operated over a public street in the pursuit of police duties, and a demurrer to a petition which charges negligence against a municipality for such defective condition is properly sustained.
APPEAL from the Court of Appeals for Franklin County.
This action, brought on behalf of Roger Gabris, a minor, by Gladys Gabris, his mother and next friend, and by Gladys Gabris individually, originated in the Columbus (Ohio) Municipal Court. Named as defendants are Donald K. Blake, a Columbus policeman, the city of Columbus, Wonder Bakeries, Inc., and Continental Baking Company. The petition, in its material parts, alleges in substance that Roger, five years of age, on the afternoon of June 10, 1963, was walking in a northerly direction on the west sidewalk along findley Avenue, which runs in a northerly and southerly direction and is in a residential district of Columbus where no traffic signs or signals exist; that a bread truck belonging to defendants Wonder Bakeries, Inc., and the Continental Baking Company was negligently and illegally parked in a bus-stop area on the south side of Duncan Street, which runs in an easterly and westerly direction west of the Findley Avenue intersection; that such truck was parked in such a way as to obscure the vision of motorists traveling east on Duncan Street and of pedestrians attempting to cross Duncan Street from south to north on the west side of Findley Avenue; that defendant Blake was a police officer driving a police cruiser east on Duncan Street; that the cruiser was owned by the city of Columbus and was being operated on city business at the time; that such cruiser had a broken right front headlight, from which protruded a piece of metal chrome; that, as Blake approached the intersection of Duncan Street and Findley Avenue, he failed to see Roger, who was preparing to cross Duncan Street in front of the parked bread truck; and that the protruding piece of metal chrome caught Roger on the left side of his chest and dragged him along Duncan Street for a distance of about ten feet until the cruiser was stopped, whereby he was injured.
Negligence is alleged against both Blake and the city of Columbus for the defective condition of the cruiser, and it is further alleged in effect that the combined negligence of Wonder Bakeries, Inc., the Continental Baking Company, Blake and the city of Columbus was responsible for Roger's injuries. Those injuries are then described, also the treatment and the results thereof. Damages are claimed for Roger and for his mother in caring for and maintaining him on account of his injuries.
Such petition was met by a general demurrer by the city of Columbus, which demurrer was sustained by the trial court, and, the plaintiffs not desiring to plead further, judgment was rendered for the city.
An appeal on questions of law was taken to the Court of Appeals, which court reversed the judgment below and remanded the cause. 5 Ohio App.2d 57, 214 N.E.2d 247.
A motion by the city to require the Court of Appeals to certify the record having been allowed, the cause is now in this court for decision on the merits.
Messrs. Buchanan Fuller and Mr. Otis C. Buchanan, for appellees.
Mr. John C. Young, city attorney, Mr. Alba L. Whiteside and Mr. James R. Kirk, for appellant.
It is alleged in the petition that the police cruiser was being operated on business of the city at the time it struck Roger, and bare negligence is charged against the city. The case of Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N.E. 164, holds that "the creation and maintenance of a police department by a municipality are done in the exercise of its governmental functions." And the second paragraph of the syllabus of that case reads:
"A municipal corporation is not, in the absence of a statutory provision, liable in damages to one injured for the negligent acts of its police department, or any of its members."
Although subjected to criticism and attack, a long established rule in this state is that "except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance * * * of their governmental functions." Broughton v. City of Cleveland, 167 Ohio St. 29, 30, 146 N.E.2d 301, 303, and cases cited.
Section 701.02, Revised Code, after making municipal corporations liable for the operation of vehicles by its officers, agents and servants in the circumstances described, further recites:
"The defense that the officer, agent, or servant of the municipal corporation was engaged in performing a governmental function, shall be a full defense as to the negligence of:
"(A) Members of the police department engaged in police duties."
In reversing the judgment of the Municipal Court, the Court of Appeals relied on Section 723.01, Revised Code, which provides:
"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."
This court has recently reiterated that such section is to be strictly construed in favor of a municipality engaged in the exercise of governmental functions. Geideman v. City of Bay Village, 7 Ohio St.2d 79, 218 N.E.2d 621.
This court has also held that the scope and application of Section 723.01, Revised Code, as to public highways and streets are limited to conditions affecting the actual physical condition of the highways or streets themselves. City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518, and Standard Fire Ins. Co. v. City of Fremont, 164 Ohio St. 344, 131 N.E.2d 221. See, also, Wall v. City of Cincinnati, 150 Ohio St. 411, 83 N.E.2d 389. Compare Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, 161 A.L.R. 1391; Imfeld, Admr., v. City of Hamilton, 166 Ohio St. 11, 138 N.E.2d 649; and Fritz, a Minor, v. City of Columbus, 5 Ohio St.2d 53, 213 N.E.2d 730.
The case of Gottesman, Admr., v. City of Cleveland, 142 Ohio St. 410, 52 N.E.2d 644, involved a dangerous condition in a public park, which had existed for a long time and of which the city was cognizant.
The case of Gaines v. Village of Wyoming, 147 Ohio St. 491, 72 N.E.2d 369, had to do with a situation where on public grounds the city over a period of time had permitted, encouraged and provided the means for the unlawful discharge of firearms, whereby one lawfully on such grounds was wounded.
The two cases last cited dealt with unsafe conditions permitted by municipalities on public grounds over appreciable lengths of time which constituted nuisances, and, because of which, injury to persons frequenting the grounds was fairly to be anticipated.
We submit that the Gottesman and Gaines cases, grounded on nuisance, are distinguishable from the present one, where a moving police vehicle at a particular time was proceeding on governmental business, with negligence claimed as to its condition and operation.
In several of its decisions this court has suggested that, if municipal corporations are to be made generally liable for torts committed by them in governmental operations, the General Assembly is the agency to say so. As yet, the legislative body has not responded to the suggestion.
The judgment of the Court of Appeals is reversed and that of the Municipal Court affirmed.
Judgment reversed.
MATTHIAS, O'NEILL and BROWN, JJ., concur.
TAFT, C.J., HERBERT and SCHNEIDER, JJ., dissent.
TAFT, C.J., dissents for the reasons stated in the opinion of the Court of Appeals ( 5 Ohio App.2d 57, 214 N.E.2d 247).
HERBERT and SCHNEIDER, JJ., concur in the foregoing dissent.