*1 FANNING, M. Bertha Administratrix Fanning, Deceased, Estate of Michael John Appellant (Plaintiff below), LARAMIE, Wyoming, municipal
CITY OF corporation, Appellee (Defendant below), Simpson Branch, B.
Glen and Bertha (Defendants below).
No. 3348.
Supremo Wyoming. Court of
May 18, 1965.
complaint. However, motion, neither the affidavits, challenged nor the exhibits any allegation plaintiff’s controverted complaint. They amended only showed plaintiff appeal had not taken an from the rejection by of her claim for dam- ages provided by W.S.1957. circumstances, allegations Under such plaintiff’s fact of complaint amended be taken as summary true. A sufficient allegations those are as follows. injuries The deceased died as the result of sustained in a motor vehicle be- collision by tween the vehicle driven deceased and by defendant-Simpson, a vehicle driven place desig- which occurred at a nated street of the inter- was sected a cross street at which there was erected a concealed limbs foliage planted by of trees either defendant prior prop- Bertha Branch or owners of her erty in the area between crosswalks portion op- the traveled of the street cross posite the Bertha property, Branch in viola- city creating ordinance, thereby tion of dangerous condition and at that nuisance place, proximate being failure cause of the accident. complaint
The amended alleges that charter empowered open, for, improve streets, care regulate plant- ing of ornamental and shade trees and sidewalks, use of streets and and that virtue of this motor State’s vehicle code the power was vested with the had to and it designated through street, thereby be- coming subject mandatory requirement Pence, Pence Millett and Alfred M. & signs statutory it erect conforming to Laramie, appellant. Highway Commission Stanfield, Stanfield, E. of Smith & John directives. Smith, Laramie, appellee. 'Thomas S. grounds upon based which defendant PARKER, J.,C. and HARNS- Before its motion to dismiss that the amended were McINTYRE, BERGER and JJ. complaint failed to state a claim City upon granted which relief could be Mr. HARNSBERGER delivered Justice City’s governmental because of the im- (cid:127)the of the court. munity jurisdic- and that the court lacked appeal summary judg This is from subject tion matter because 15-323 ment says, rendered in favor defendant- “When claim n Cityupon supported by disallowed, its motion affidavits part, whole or in the claimant exhibits, may appeal to dismiss amended from the decision coun- porations injuries re- tlíe district are held liable for court of the district cil to sulting from failure to streets in situated.” which said reasonably condition or safe is that appellant taken position One use and affecting abate nuisance of this statutory case law *3 both under safety, holdings in and that some cases such duty erect and City’s to the State, it was theory corporate the ai'e based on of or signs stop at intersections properly maintain emphasizes duty, in ministerial counsel that streets; permitting trees' that through of its cases, duty other where the to such a conceal overhang to governmental, liability exception' arises as an City was defect; that the street awas immunity. general to the injury as damage suffered liable Appellant liability being also claims that at defect, by reason of of such result regardless taches of who or caused what governmental exception to the rule of an provided dangerous condition, the defect or that cautions immunity. Appellant however City the notice of the same. See 63 C. liability under this position regarding her' Municipal Corporations p. 108. be con- rule should not exception § J.S. a dangex'ous And condition made an acting municipalities cases where fused with abutting owner which exists a sufficient statutory upon prerogatives entirely length City of time to the to have enabled dan- respect traffic control create to guard public safety, the enough to render the in- solely through gerous condition Municipal By advancing its liable. Cor used. strumentalities C.J.S. porations 110; liability p. City’s Osborn position respecting § Nashville, rule, 182 Term. 185 S.W.2d general through an to 514. was appellant seems concede capacity in the in acting question In the instant case the in through street establishment unimportant of duration seems because ob stop and maintenance of the erection place’ shrubbei-y struction take does not liability upon her claim sign, but rests overnight gradually, but occurs a fact which City’s duty properly main- assumed judicially we notice and which in turn must exception to sign being stop tain the brought have the claimed obstruction to the municipal immunity. rule of City’s knowledge sufficiently in advance exercising gov- Appellant insists that the accident have cure the enabled it to designate discretion to ernmental defect. Such notice therefore be im street, subject through became plied. Speas City Greensboro, 204 N. the law traffic code the State Municipal 807, 808; C. 167 S.E. 63 C.J.S. adequate only require the erection of Corp 796, p. 110. § orations streets, signs through stop at intersections of appellant’s In addition to citations of au- duty impose but also thorities, Am.Jur., it is noted that Mu- signs render the properly maintain such nicipal p. 265, Corporations, points § City subject liability negligent for its to tort liability out "The doctrine of from duty. of that violation injuries occurring in connection with the appellant’s that Another contentions is exercise of functions sub- foliage sign stop concealment of the trees’ ject exceptions and limitations.” certain independent
was
nuisance
by saying
[immunity]
This is followed
“It
City’s liability
negligence
because
fail-
frequently
application
been denied
also
ing
visible, it
became
damage
injury
has been occasioned
maintaining
liable within the
field
broader
establishment,
maintenance, or
dangerous
or permitting a
nuisance.
permission of a
nuisance.” See also Am.
quoting
Municipal
After
Jur.,
Corpoi'ations, 647,
Municipal
pp.
C.J.S.
Corporations
p.
sequens,
is said
additionally
et
it is
wherein
jurisdictions
cor-
liability
irrespective
most
said the
arises
of the.
(cid:127)”
**’
“liability
private.
cannot
question
negligence, and
and when
municipal-
ground
Wyo.
that the
be avoided on
ity
exercising governmental
“In classifying
activity
here involved
amply
of these text statements
Each
policy
determining
liability
or im-
specific
authority,
supported
case
munity,
think,
absence of
unduly burden this
citation of which would
generally accepted guide, we should take
opinion.
note
exceptions
of some
to the rule of im-
munity.”
(Emphasis supplied.)
Wyo.
analytical
argument
and forceful
77,
“A to the rule An examination uniformity lack in astonishing numerous cases cited other texts as well as the decisions of cases in which it thereunder discloses that the views applied. gov- jurisdictions Powers courts in a number of other jurisdiction agreement those ernmental in one less in with or are more or corporate private expressed in in 63 are held in Ramirez. we find So 89, 782, pp. another, Municipal Corporations, said and it has often been C.J.S. respect of mu- impossible speaking it rule is state a when repair, is nicipal duty in sufficiently prac- streets be of much exact to (cid:127) govern- that, although duty is deciding power tical noted value when a municipality municipality liability negligence mental, the dis charge governmental of a Neu function.’ regarded as an exercise Washington in the enschwander nonliability for acts done Suburban City Sanitary Commission, See Gillies v. 48 A.2d governmental duties. 187 Md. 467, 593; D.C.Minn., F.Supp. York, Kamnitzer Minneapolis, of New App.Div. that a elementary in this State 40 N.Y.S.2d 141. “It is arising torts out not liable for by desig It seems obvious that functions, performance of its nating highway, an arterial such as of its except negligence in the care as to through street, created a traf new Kansas Smith v. and sidewalks.” streets being fic there hazard. the absence of City, 158 Kan. street, or arterial drivers of ve injuries arising from defects “'(except intersecting hicles on both of two streets municipality highways) streets governed by 31-118 and W.S. performing engaged in when is not liable only require (a) such drivers ” Hagerman v. functions.’ yield right way to a vehicle which Seattle, 189 Wash. entered the intersection from different “the doctrine 110 A.L.R. highway, (b) when enter two vehicles apply does *5 highways the intersection different at from failure right action is based on time, approximately yield the same to to the corporation use ordi- municipal to right. vehicle on the But drivers of ve streets, maintaining side- nary its care upon through hicles streets which intersect reasonably ways safe walks, public in a and W.S.1957, 31-146, governed by streets are § modes.” in the usual by 1(b), travel condition for as amended Ch. S.L. of § requires Wyoming, Pirtle, Ky. which driver City of Louisville street, through by approaching a indicated 303, 304: S.W.2d stop sign, stop to his vehicle before enter others, cases, recog- and -“But the same consequence, ing the intersection. immunity in to nize an through there is both no street drivers govern- the exercise of case charged with the same exercise of care. maintaining in a functions mental Where, however, street, through there is a city’s reasonably condition the safe right the vehicle driver thereon has a to as * * * ways, and public and streets way passage is clear for his sume any in- for it liable for which is held intersections, through whereas the driver of in fail- by negligence jury produced its non-through intersecting a vehicle on the liability at- case ing so. In that to do peril subjected street is to a new and added municipality notwith- taches to entering given when the intersection unless appertain duties standing its violated superior warning right of the driver performances to the upon through street in the use of the ” * * * function. intersection. Mayor of Cum- and Council Engle v. Decisions in this State hold berland, “ 25 A.2d Md. municipalities possess governmental that application exception to the 'There is an immunity recognize by that statute the rule injuries caus- rule in cases abrogated. Maffei v. be modified or keep duty municipal to a- failure ed Kemmerer, Wyo. Incorporated Town of in safe condition highways and streets 808, 811, rehearing denied of Cincin- Wall travel.’ Therefore an examination 759. 411, N.E.2d nati, St. 150 Ohio “ proper. pertinent legislation is municipalities upon duty imposed 'the Laramie was chartered free streets to [by code] 15-705, W.S.1957, through and 15-667 nuisance, the rule to is an open improve empowered its streets to and liability attaches to no law that of common also, W.S.1957, use, (6), avenues, 31-86(a) and Section control right desig- into cities with restricted leaves and remove all encroachments require through highways, to all ve- nate W.S.1957. them or § IS— charter, stop crossing entering or Later, abandoning its hicles before without same, govern require and to all vehicles to qualified city manager as a ' intersections, empowered, although at entrances It further thus became § ment. W.S.1957, supervi 31-86(c), requires signs be manager, to that city have posted highway giv- highways. at entrance to its streets and and control of sion 15-342, regulation 15-337, ing of such traffic before Section notice W.S.1957. Section per W.S.1957, liability upon it becomes Inasmuch there is imposes all effective. as obstructions, dispute who, but had unauthorized sons erected, compliance in so there for travel has been render a street unsafe 31-86(c). provided “no action shall doing it was dam against city said
maintained W.S.1957, 31-85, the Act Section made persons person shall ages, unless such applicable gave local author- cities joined parties (emphasis ities, (g) defendant/1 which term as defined 31-78 recovery supplied), and added W.S.1957, (2), includes bodies persons first should be satisfied laws, aitthority having to enact traffic city, person rather than adopted express right traffic to enforce subrogation rights against giving regulations. W.S.1957, 15-343, codefendants. Section W.S.1957, required the Section city manager within requires notice place maintain such traffic con- injury says that action days of juris- upon highways trol under its devices injtiry by street against the cattsed necessary regulate, diction as deemed *6 year from warn, traffic, within guide be commenced one such devices how- defect manual and 100, ever to conform to State Chapter 2(10), S.L. happening. its § specifications. elected to erect a The W.S.1957, Wyoming, 15-4.2(10), (§ 1963 of subject at the intersection. power Cum.Supp.), gave the also planting regulate for and to
to care streets W.S.1957, 31-89, amend Section in and of ornamental and shade trees 1963, 21, 1, Wyoming, ed Ch. S.L. § regulate the streets. use of required Highway Commission State adopt specifications for a a manual and statutory provisions, taken These system traffic control devices uniform light collectively they be, should as within highways use this State for Newcastle, Opitz v. Town of far and conform so which would correlate 358, 799, City of Wyo. and 249 P. Wilson system possible to set forth in as 119, Laramie, give Wyo. on the “Manual most recent edition of legislative recognition irrespective that for Traffic Control Devices Uniform its having acted in applicable Highways.” and The Streets capacity immunity in a it is now without adopted by is “Manual the State manual one us. matter as the before Devices Uniform Traffic Control on W.S.1957, 31-146, Furthermore, (D6.1-1961 as Highways” and edi Streets § allegations Wyoming, unchallenged tion). amended Ch. S.L. complaint 1963, empowered designate forth that set amended provisions there through highways stop signs adopted. erect at manual was Its any designate properly us considera specified thereto or are before entrances fore Logan Inter this v. Pacific intersection a intersection. Section tion in case. Express Company, Wyo., P. W.S.1957, 31-12(10), as amended Ch. mountain fed 65, 1, 1963, says public pointed out that Wyoming, 2d it was S.L. of regulated cities. interstate commerce highways include streets in eral law regula- conveying message effectively. of this State such upon highways jurisdic- principle liability the law of this This much tion aswas accepted Phinney Seattle, our own prescribed regulations tion Where, true in this as it Wash.2d 208 P.2d the court legislature. required by matter, saying: were our officials specifications for a adopt a manual legis- are that the “We * system traffic control devices * * uniform lature intended to authorize upon highways within this State * * * for use counties and cities to deter- far as conform so correlate and designate mine and which roads in the system set forth possible to the highways, be arterial streets should De- Traffic Control “Manual on Uniform re- whenever such action was taken to * Highways,” and * vices for Streets quire such counties and cities allegations unchallenged stop signs; to erect maintain also highway complaint say the com- amended legislature that the that if the intended adopted the 1961edition mission June comply counties or cities failed to purposes of this manual, of such they would be liable mandate adopt- in the regulations contained case the damages highways users of the in- just the law of * * * ed manual became State jured by such default. any regulation authoriz- other as much as Seattle, City of Bradshaw v. Wash.2d In the introduction legislature. ed 42 A.L.R.2d reached manual, traffic con- page of this at distinguished its a different conclusion but discussed, appears the trol devices are Phinney decision from because the law statement, must “Placement of the device Washington changed had been State the cone of vision assure that it is within so as to make the erection of the dis- that it will command of the normal user so cretionary mandatory. As it is rather than pp. “Maintenance attention.” Also at the law of our that the erection high standards to of devices be to stop sign mandatory maintenance retained, legibility is assure been es- whenever a street has visible, removed if device is and that designated, pronounce- tablished and supplied.) longer (Emphasis needed.” Phinney applicable, ments of whereas Further, page “In the event at those of Bradshaw are not. * * * Stop sign visibility at of a *7 929, Revere, Murphy App.Div. v. De 279 restricted, sign shall be location is the 2, 589, 111 N.Y.S.2d affirmed 304 N.Y. 110 sign specified, Stop a Ahead located as 740, expressly the * N.E.2d * * in advance of the shall be erected statutory authority, village, pursuant or * * 24, “Special Stop sign”; page at artery imposed main of travel and dained weeds, care should taken to see that duty stop sign at an intersec the to erect a materials, shrubbery, snow construction tion, properly the a failure to maintain are not face of allowed to obscure the liability, citing sign gave rights to tort Nuss 267, sign”; “Signs always page at York, v. 301 N.Y. 95 N.E. State New convey placed they position in will 822; State, Foley 2d 62 v. N.Y. effectively messages without re- most N.E.2d 69. stricting sight lateral clearance or dis- adopted After had the Uni- California tance.” in form Motor Vehicle Code which City having “through highway”
The
elected to es
is defined the same as
Code, 31-78,
through
having
Wyoming
tablish the
street and
erect
it
inis
W.S.
Padelford,
required stop sign
obligated
ed the
was
it was
in Irvin v.
said
539, 544, “Having
visibility
spe Cal.App.2d
maintain its
and to exercise
trees,
shrubbery,
e.,
cial care that
i.
was not
to be a
Street
declared .Second
sign
highway
allowed to
it
under an ob-
obscure
'defendant
was
required
provisions
under the
Vehicle method
comply
the Motor
ligation to
15-323, W.S.1957,
ap-
by plain-
other
rather
by
signs or
than
providing
Code
independent
instituting
tiff’s
original
intersection with
signals at each
propriate
action
in
Street,”
court held
the district
and the
Second
provision
proximate
appeal
cause
court.
statute’s
was a
If
removal of
exclusive,
judgment
pursue
a failure
affirmed
would
of an accident
give
ap-
City.
substance to this contention of
against the
pellee. However,
statutory appeal
if the
parallel
in
appellee are not
cited
Cases
merely provides
remedy, appel-
a cumulative
traffic
because the
instant case
with the
position
lee’s
is not well taken.
required
stat-
signals
were not
involved
o', maintained.
installed
ute to be
directly passed
matter has not been
upon by this court.
acknowledges there
appellee
In its brief
gov-
exceptions
are
appellee
au
Although
offers no
upon
immunity hut relies
such
ernmental
thority
support its
lack of
claimed
spe-
only
exceptions occurring
because
no
for the reason that
jurisdiction
court’s
we find there
cial state statutes. As
rejection
City’s
appeal was taken from
affecting this
special
statutes
state
claim,
and we find no
theory
cited
case, appellee’s
cases
and the
jurisdiction has been
case where a court’s
applicable.
support
helpful or
are not
of failure to take
challenged because
rejection
question
statutory appeal from
The critical
then lies
it,
placed
presented
duty
properly
imperative
of a claim
whether an
ques
Wyoming respecting the identical
adequately main
to erect and
long
when a claim
a sufficient
at the accident
tion has
been settled
tain
rejected
Am.Jur., Municipal
and di
county has been
intersection.
See 38
273-276;
district
Corporations,
pp.
in the
rect action was instituted
Corporation
recovery of
amount
Weightman
Washington,
court
County
sought.
Black
“When to discuss disallowed, view of may appeal the claimant conclusions reached. 30-611, the district court. Sections The summary judgment reversed, [R.S.1931, 30-612 now 18- the cause is remanded for proceed- further But the decision of W.S.1957]. ings not opinion. inconsistent with this county rejecting commissioners a Reversed and remanded. adjudication claim as an is not treated which, from, appealed if not becomes Mr. participating. GRAY not Justice binding parties. on the The claimant by failing appeal does his lose Mr. McINTYRE (dissenting). * * Justice right, may but on his claim. sue As indicated in the written These decisions are in line with those from appellant-administra- Harnsberger, Justice instance, other states. For in Board of trix seems to concede the of Laramie County County Cypert, Com’rs Atoka acting capacity in 65 Okl. 166 P. 199: “ the establishment of Third Street a authorizing Hence the of an through street the erection of the appeal from the action of the board question. sign in Appellant contends merely statutory method afforded the liable, should be held allega- if her claimant, which, pursued, give if will proved, tions of negligence are on the jurisdiction the district court theory of an to the county bring county or its author- — municipal immunity. court, agents ized into so that there judicial Thus, ascertainment squarely proposition face rights parties. It judicial does not fol- whether prepared, by we are inter- low, however, pretation, that such method ac- step to take the first toward the quiring jurisdiction county is ex- governmental immunity. elimination of clusive, or that permitting the statute order appellant, to hold with we must neces- procedure such away sarily engraft does with the or- onto the con- dinary beginning method of an action grant stitutional for branches by filing petition causing government. summons of state I recognize that such to be step issued.” recently been taken courts jurisdictions. in other why feel there sound reason We is no respecting right different should be however, feel, personally I that we should of a claimant whose voucher clearly by judicial not do edict what is rejected direct to institute action for legislative function. constitution au claimed, recovery rather of the amount thorizes suits the state by appeal than proceeding under the statute legislature manner and in courts as the court, than the the district law estab- may by law direct. Article by judicial lished which authorizes decision Therefore, agree my I Constitution. county, a claimant whose voucher *9 colleagues the rule of rejected, proceed by has been direct immunity may abrogated by be modified or recovery action the district court for the however, agree, statute. I do that the of the claim. clearly authorize1 a statutes referred to summary judgment against suit de entered below for defective traffic vices. erroneous because 15-342, W.S.1957, only has to do It contains language which can be con- Section on a strued directing or obstructions or authorizing with excavations suits in 15-343, W.S.1957, provides connection with these street. functions. Section may main- action for a notice before very It well be that the rule of city, ex- but it does not tained immunity has outlived its pressly in such a case as we authorize suit days usefulness in these when insurance Also, 2(10), us. Ch. have before companies willing to insure all 15-4.2(10), (§ S.L. of W.S. my sorts of liabilities. But in Cum.Supp.), pow- do with would do well to leave the matter with the regulate legislature er of the create and streets. properly belongs. where it