Opinion
March 5, 1964 —
March 31, 1964.
APPEAL from an order of the circuit court for Price county: LEWIS J. CHARLES, Circuit Judge. Modified and, as modified, affirmed.
For the appellants there was a brief and oral argument by Donald G. Olson and John W. Slaby, both of Phillips.
For the respondents there was a brief by O'Melia Kaye of Rhinelander, for the city of Park Falls, and Powell, Sprowls Gee of Superior, for Joint School District No. 2, and oral argument by Walter F. Kaye and Robert H. Gee.
The plaintiffs appeal from an order sustaining demurrers to their complaint. The plaintiff, Marie Wohlleben, fourteen years of age, brought this action by her general guardian for personal injuries. Another plaintiff, Creda Wohlleben, the mother of Marie, together with Arthur Wohlleben, the adoptive father of Marie, joined in the action to recover damages for medical bills, loss of society and companionship, and for loss of services. The defendant city and defendant school district both demurred on the principal ground that the complaint failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrers.
The facts as alleged in the complaint are as follows. On August 4, 1962, the plaintiffs gave notice of claim to the city, and on October 25, 1962, the plaintiffs gave notice of claim to the school district, but neither claim was paid. On August 8, 1961, the city owned and operated a swimming pool located within the city; this was a public swimming pool which the general public was invited to use. The school district operated the swimming pool owned by the city, and as a part of such operation, the school district provided lifeguard services for the pool.
On August 8, 1961, and for a number of days prior to that, two large logs, approximately eight feet in length and two feet in diameter, were permitted to float in this pool with the knowledge and consent of both the city and the school district. The plaintiff Marie, while swimming in the public pool on August 8, 1961, was injured when struck in the face by the foot of one Carol Neiratka, who was using the pool along with the plaintiff. The injury occurred while Carol Nieratka was standing or attempting to stand on one of the two logs floating in the pool. Carol Nieratka fell off the log, and her foot struck Marie in the face, causing the injuries. The plaintiffs allege that the city was negligent in the following principal respects:
(a) The logs which the city permitted to be placed in the pool were dangerous instruments, and the city knew or should have known that such logs created a hazard.
(b) The city failed to exercise reasonable care in the provision of adequate management and supervision at the pool.
(c) By allowing the logs to be placed in the pool and allowing them to remain there, the city created an attractive nuisance which it knew or should have known would entice and attract children to play on and about such logs.
(d) The city created and maintained a nuisance or a public nuisance by permitting and allowing the logs to be placed in the pool and permitting such logs to remain, when the city knew or should have known that the logs would endanger the safety of anyone using the pool.
The plaintiffs also make substantially the same allegations of negligence against the defendant school district. In addition, they allege that the employees of the school district, the lifeguards, permitted the plaintiff Marie and the general public to go into the pool and swim and otherwise use the pool when the logs were in the pool, when the school district knew or should have known, through reasonable care, that the presence of the logs, so placed, was dangerous and that the logs would be used by persons in the pool to frolic upon.
The plaintiffs further allege that the school district was negligent in that its employees permitted persons in the pool to climb upon the logs when the defendant school district, through its employees, the lifeguards, knew or should have known that this conduct would cause injuries to persons using the pool.
The plaintiff was struck in the left orbit and eye by the heel of Carol Nieratka, who fell from the log. The complaint recites the alleged injuries which resulted. The plaintiff Marie seeks damages of $20,000 for the injuries. The plaintiff Creda Wohlleben seeks additional damages of $8,000. The plaintiff Arthur Wohlleben seeks additional damages of $13,000.
In the order sustaining the demurrers, the trial court denied the plaintiffs leave to plead over. It does not affirmatively appear that the question was ever presented to the trial court. However, on this appeal, the plaintiffs contend that they should be allowed to plead over on the basis that by the obtaining of liability insurance, the defendants chose to waive whatever sovereign immunity they may have had.
The plaintiffs contend that the trial court erred in sustaining the demurrers and, in the alternative, that there was error in denying the plaintiffs leave to plead over,
Because the injuries in this case occurred prior to the effective date of Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, the defendants have the protection of governmental immunity. It therefore becomes necessary for us to determine what we have referred to as the "elusive issue" of governmental function versus proprietary function (see Holytz Case, p. 29).
The instant case is governed by our decisions in Virovatz v. Cudahy (1933), 211 Wis. 357, 247 N.W. 341, and Gensch v. Milwaukee (1922), 179 Wis. 95, 190 N.W. 843. In the Virovatz Case, a child was drowned while bathing in a municipal swimming pond in the city of Cudahy. It was determined that the city, in maintaining the swimming pond, was performing a governmental function and could not be held liable for the child's death. In the Gensch Case, a boy was killed when a large wooden locker which had been placed adjacent to a bathhouse of a city bathing beach fell upon him; this court held that there could be no recovery against the municipality, since the city was performing a governmental function.
The appellants contend that there is no governmental function involved in the instant case because, by permitting the logs to remain in the pool, the city allowed a dangerous instrumentality in the pool; it is urged that the logs did not further the regular usage of the pool. We do not believe that the logs can fairly be denominated as dangerous instrumentalities, nor did the introduction of such logs transform the pool from a governmental function to a proprietary one.
The appellants' argument concerning the introduction of a foreign element would seem more logically to be an assertion of the existence of a nuisance. However, it is clear that the relationship of governor to governed existed between the respondents and Marie Wohlleben, and thus there can be no valid cause of action based either upon negligence or upon nuisance.
The appellants' reliance upon Britten v. Eau Claire (1952), 260 Wis. 382, 51 N.W.2d 30, is misplaced. There the municipality was deemed to be operating in a proprietary capacity when it parked its road-grading equipment overnight upon a vacant lot which was not owned by the city. The city became responsible for maintaining an attractive nuisance which was thereby created.
We do not consider that the case of Robb v. Milwaukee (1942), 241 Wis. 432, 6 N.W.2d 222, supports the appellants' position. The injured plaintiff in the Robb Case was struck by a baseball while she walked on a public sidewalk outside the baseball park. The court held, at page 441, that Marie Robb "was not availing herself of the benefit of the instrumentality furnished by the city for the general good, and the relation of governor and governed did not exist between the city and her."
The trial court properly sustained the demurrers to the complaint. However, the appellants also complain that the trial court denied to them the right to plead over. They assert that under Marshall v. Green Bay (1963), 18 Wis.2d 496, 118 N.W.2d 715, they should be permitted to plead a cause of action based upon the waiver of governmental immunity which flowed from the purchase of insurance by the defendants. Since the case is here on demurrer, there is not an adequate record to establish whether the plaintiffs can qualify under the Marshall Case. We conclude that the plaintiffs should be afforded the right to plead over.
Although the order entered by the trial court must be modified in favor of the appellants, we nevertheless consider that, so far as costs are concerned, it is the respondents who have prevailed on this appeal, and, therefore, costs should be awarded to the latter.
By the Court. — Order modified to provide that plaintiffs may file an amended complaint within twenty days after the return of the record to the circuit court and, as so modified. affirmed. Respondents to have their costs on this appeal.