*1 The further that he is entitled to relief plaintiff contends Stats., under for the sec. 102.03 provisions (1) (f), reason that he was an extra in being hazard subjected to travel from his to the The record compelled home garage. miles shows that home was located about four plaintiff’s from the courthouse. and about six miles from garage was about The distance from the to the courthouse garage The that the condition miles. record does not show eight from than the route Silver road was worse Spring any therein to the There is home courthouse. nothing plaintiff’s hazard. the contention that there was additional to sustain any affirmed. By Judgment Court.— City Administrator, vs. Special Appellant, Flamingo, Respondent.* Waukesha, September 16—October 1952. * denied, costs, rehearing Motion for with on December $25 2.
1952.
For the there was a brief appellant James by D’Amato and Aiken, Waukesha, J. Ray both of and oral argument by Mr. D1Amato. Callow,
William G. and Richard attorney, S. Hippenmeyer counsel, Waukesha, of both of for the respondent.
Brown, It is well settled that the maintenance of J. streets and in a highways condition fit for travel is a govern mental function. Bruhnke v. La Crosse (1914), 485, 144 1100; N. W. Stoehr v. Red Springs (1928), 399, 487, N. 98; 219 W. Larsen v. Kewau 204, nee County 209 Wis. (1932), W. 578. It is a also function for a governmental to maintain a dump for the of unwanted material. disposal “While of views still diversity judicial late prevails, cases hold, with some generally exceptions, functions of streets, of the collection of cleaning and the garbage, estab- lishment and maintenance of dumping grounds inciner- ators are rather than governmental, proprietary, exercised the as an administrative municipality of the agency state or for the interest of the public health public and general hence, welfare, and negligence relating thereto creates no unless, in of a the exercise such municipal liability, power fact is thereby created and maintained . . .” 18 Mun. municipality, sec. McQuillin, Corp., p. Bruce 53.46. See also v. Kansas City Kan. 276 Pac. and Anno. 63 A. L. R. 332. Of course it cannot be held that in the snow dumping river, between the street and the where it not interfere did with travel on the created or maintained highway, a a nuisance or nuisance fact. The there- plaintiff, fore, relies nuisance. doctrine attractive Assuming, but not that a of ten boy holding, years young enough come within the of that doctrine when the other protection here make the it is facts doctrine applicable, inapplicable because the snow was created and existed in defend- pile ant’s aof function. performance
“The doctrine of attractive nuisance . . . can have no in cases in occurred application attractive condition was created in the exercise of govern- Am. mental function.” 38 Jur., Municipal Corporations, sec. in Britten v. Eau cited Claire p. 382, 51 N. 260 Wis. 30.
It been us that has Wisconsin have urged upon precedents so that modified the rule of now municipal immunity offi- for the acts its municipality responsible negligent cers or servants even *4 the that at the time of injury unless it
function appears extended to him some enjoying privilege was injured party included the defective which embraced or the municipality by conduct, the so that between parties or condition negligent not existed. We do to governed the relationship governor sustain the argument. that the authorities consider 107, 205 Wis. Erickson v. West Salem (1931), In was drowned 579, park a child playing 236 N. W. there maintained by constructed and in a sewer negligently liable, In that the was not city. holding Mr. city Justice said (p. 109): Nelson
“The law is established numerous court by decisions this that a such as a or municipal corporation, city village, not liable for the of its officers servants when of a engaged function or performance governmental when the relation between the and the munic- person injured ipality governmental its nature.” purely (Emphasis supplied.}
It is to note that important the reasons for denying liability are alternative; disjunctive and not If the conjunctive. city’s function is it is not liable for the negligence. If its by fact, it creates a nuisance in the city cannot defend its by showing but it purpose still may escape liability by showing was injury suffered one was, whose by at relationship that time, governmental.
In Folk v. Milwaukee 359, 364, 108 Wis. (1900), N. we W. stated that “. . . a municipal corporation not construct or maintain a may nuisance in the . street. . .” Robb v. Milwaukee Accordingly, where the had that jury found the pres- unsafe,
ence aof made municipal the street we playground held that the constituted a nuisance playground and allowed ato on the recovery sidewalk who was pedestrian struck a ball batted into the street. The governmental-function not defense did avail because its playground traffic,— maintained the hazard created and to the street nuisance, between the was parties —and not that of because the governed pedestrian In not Virovatz v. using playground. Cudahy the nuisance existed no harmed had action because he right but person the facilities of the swimming pool contained enjoying said : 360) We (p. the defect.
“Thus, it is a to recover from apparent right for of its creation injuries sustained because municipality, or maintenance of nuisance in its governmental capacity, does not exist in favor of a toward whom munic- person was likewise in its ipality acting governmental capacity.” In Merrill Holl v. maintained a and and so jail jail yard, county unsafe, undermined the sidewalk so as to make it
doing city held that the injured. We active whereby plaintiff interference with sidewalk county created nuisance, so that the defense was not governmental-function and, as the not available to county plaintiff taking facilities which included the nui- county advantage any sance, have the of a neither did the defense county govern- mental between the A cause of action parties. relationship existed, therefore, the county. against County
In the case of Matson v. Dane relies, upon plaintiff liability owed, which the based upon duty county was expressly landowner, to the no as an and plaintiff, upon adjoining Therefore, the was held liable other because county ground. its nature. The of its not present proprietary, that case to establish the use of liability facts do not permit here. said, think, demonstrate that has been we
Enough for avoid caused liability damage Wisconsin municipalities functions out where their negligence carrying fact, and not created even where have they created, has been is not imposed a nuisance such exists between if the relationship governed That and the injured the municipality party. case, but the facts in the instant alleged
was not present in fact was or main- no nuisance created complaint tained, to be which can take the and there appears nothing rule that the is not liable for the of the case out general *6 of its in aout func- negligence carrying agents governmental then, tion. We must as before in Erickson we have said say Claire, v. West Salem and Britten v. Eau if it is supra, that desirable to the established law so as to change impose in for greater liability upon municipalities carrying functions, hot the out and courts legislature make should the change. has that the snow also contended city deposited
Appellant to the of secs. the river bed contrary provisions upon 31.25, Stats., as and follows: 30.02 quoted (1) (b) to 30.02 “It shall be unlawful mate- deposit (1) (b) any . . . rial . . . the bed of water navigable beyond upon any . . such shore line. .” dam,
31.25 or other obstruction constructed “Every bridge, or in in maintained waters of this state over,any navigable violation . . ... is . declared to be chapter hereby nuisance, . . .” The that the snow was complaint alleges deposited upon and extended over the water. It city does not property bed, that was on the river or that allege anything deposited obstructed, the river is or that navigation navigable or that the was unlawful or without deposit permit granted the state. The violated the statute argument created and maintained nuisance which caused and thereby in a of a not relation- standing the death person one that cannot be made from the allega- ship of this complaint. tions was well taken that the demurrer and conclude
We must be affirmed. order sustaining affirmed. the Court.—Order By case, in The decision this
Currie, {concurring). J. of the defendant immunity city, issue of governmental that an narrow “attractive nuisance” the very point turns on a true nuisance. is not
If the of a an attractive for municipal corporation to a tender child of resulting injury years nuisance, the same as its for an liability maintaining ordinary then as be out in the there would pointed majority opinion, no because the immunity, gov- n not erned did exist case. The decisions present Robb v. Milwaukee 6 N. W. (2d) and Holl v. Merrill establish that a clearly municipal corporation liable for from a nuisance created personal injuries resulting *7 rela- it in a function if the of by of and does not exist between tionship governor governed The rela- injured. and municipal corporation party of and exists where party tionship governor governed a of was the benefit of at the time injured injury enjoying in the which resulted injury. activity particular governmental 107, Salem Erickson v. West v. Sheboygan (1947), and Pohland cases in which the relation- are 27 N. W. (2d) typical exist, as each of the did and of governor governed ship the benefit of in both cases was enjoying injured parties when maintained the defendant a area the use of park from in the premises resulting result of defects as the injured benefits he was whose activity particular enjoying. activity resulting case the governmental the instant
In was either that of condition dangerous the alleged creating Patrick dump. maintaining the streets or cleaning deceased, the benefits of not enjoying Flamingo, of his time and drown- place at the activities those either of and existed. governed relationship governor that no so ing, liability predicated in cases It is only court has that this enforced a nuisance the maintenance rule, is not that a municipal corporation to the exception from a function in its performed resulting injuries liable for as from its governmental capacity, distinguished proprietary if the of capacity, by imposing liability to the does not exist. This general governed exception rule does not in cases where upon apply liability predicated alone, as from nuisance. distinguished then, the court in the instant
The which faces question, be extended to cases case is whether this should exception nuisance,” be or whether should limited of “attractive a true nuisance. cases where the is based on strictly been nuisance” has often of the term “attractive The use a correct term. as not descriptive criticized being Fruchter A. York, H. R. Co. v. C. (C. In New N. H. & 419, 421, it was stated: Fed. 1921), comment that the court below “It is too obvious to need are known as as covered what treated the claim suit ‘lure,’ nuisance,’ cases. or the ‘attractive ‘trap’ “ Since, States are far as the courts of United so (1) concerned, Railroad are all assumed to rest on Co. these cases Stout, the word ‘nuisance’is 21 L. Ed. v. inappropriate. hurt, 17 Wall. worketh A nuisance is that which ‘unlawfully inconvenience, the turntable and neither damage,’ electric wire here to be considered nor the the Stout Case nuisance; But lawful many were lawful enough. both *8 handled, or maintained managed, be so may negligently thing in tort. The true doctrine is action rise to causes of as to give lures or attracts the matter which of that any composition to its own harm must be of childhood ignorance confiding cir- and of course the circumstances require, as safeguarded cumstances instance.” every in almost (Emphasis sup- vary plied.) criticizes the Torts, sec. also use of
Prosser, p. and states: nuisance” “attractive the term of the American courts have thirds two “Accordingly, doctrine, has been miscalled the sadly which developed name of nuisance,’ the of land making occupier ‘attractive which are to highly it dangerous on conditions for liable children.” trespassing 339, Restatement, Torts, entitled,
Sec. “Arti- p. ficial Conditions to Chil- Highly Dangerous Trespassing dren,” and sets forth the of law in cases principles applicable embraced within the doc- “attractive-nuisance” ordinarily trine, text of this but the section the use of carefully avoids the term A inference “attractive nuisance.” reasonable from this be that the would Committee on Torts of the American Law the Restatement of the Law of Institute drafted the term. Torts of use of the disapproved Both and Corpus American Secundum Jurisprudence Juris title, of nuisance” treat “attractive under subject title, “Nuisances,” rather than the which is “Negligence,” of these that the editorial staffs two leading legal indicative of law of attrac- consider principles encyclopedias of are based on the rather theory tive nuisance negligence than nuisance. clear that an attractive liability
It therefore seems for of the for Inas- but nuisance is phase negligence. has to as court never recognized any exception much this that a is not liable corporation municipal the general principle from injuries resulting for where capacity, in its except
of activities created, would be in an we act engaging nuisance true if we were to extend the injudicious judicial legislation cases to this case. While recognized exception a number of occasions criticized this rule court has this corporations to as municipal being of immunity applicable with of fundamental principles not consistent archaic nevertheless, have that we also declared repeatedly justice, and not of this court legislature function is the rule. abolish