Piasecny Ex Rel. Piasecny v. Manchester

136 A. 357 | N.H. | 1926

Although the decisions in other jurisdictions are not harmonious, the law limiting the liability of municipalities for tort is well settled in this state. "In the absence of a statute creating the liability, no action can be maintained against a municipal corporation for an injury arising from the neglect of a public corporate duty, from the performance of which the corporation receives no special benefit, pecuniary or otherwise." Clark v. Manchester, 62 N.H. 577; Edgerly v. Concord, 62 N.H. 8; Rhobidas v. Concord, 70 N.H. 90, 107; O'Brien v. Derry, 73 N.H. 198; Gates v. Milan,76 N.H. 135. "It has always been understood that it was essential for a plaintiff to show the breach of a duty owed to him privately as distinguished from one owed to the public." Stevens v. Manchester,81 N.H. 369. No argument is required to establish the fact that .municipal playgrounds, like schools, are public institutions open to enjoyment by all the people, from which the city in its corporate capacity receives no special advantage. There is nothing in the facts stated in the reserved case from which it could be found that the defendant owed the plaintiff any other duty than that Which it owed to all members of the public for whose benefit the playground in question was maintained. For the non-performance of this duty there can be no recovery under the rule above stated.

The fundamentals of the situation and the rule of law applicable thereto are not varied by calling the defective seesaw a nuisance.

The nonsuit was therefore properly ordered.

Exception overruled.

All concurred.