129 P.2d 110 | Colo. | 1942
IN this controversy we are concerned with the liability of a municipality to plaintiff who was injured by third persons engaged in playing "crack-the-whip" on a skating pond located in a public park. The complaint, inter alia, alleges:
"That on or about the evening of December 30, 1938, during the Christmas and New Year holiday season then in celebration, the public was in heavy attendance at said Sunset Lake; and from about eight o'clock until after nine the crowd was increasing thereat in size and enthusiasm and was full of fun and revelry, and composed principally of children, adolescents and the younger social set, and there was particular need at all times for supervision and regulation and for a representative and attendant of defendant to be constantly on the job to watch, supervise and keep the revelry and fun in due and reasonable bounds; that during said evening defendant knew, or by the exercise of reasonable care and attention it should have known, that a large crowd of lively revelers and skaters would be and was in attendance in said park and upon said lake and that without proper supervision dangerous skating games would be indulged in by some; that there was and defendant furnished and maintained, which long theretofore had been its custom and practice, such a representative and attendant in said park and at said lake during said evening and until the hour of about nine o'clock, at which time he wrongfully and negligently departed from the park without notice or announcement; that beginning with and after said nine o'clock and for the remainder of the evening there was no supervision or regulation whatever by defendant nor was there any representative or watchman of or for the defendant in the park or at or near Sunset Lake, which fact was not then known to plaintiff nor learned by her until many days thereafter.
"That at and prior to the time said watchman was leaving the lake in the evening, as aforesaid, the activities *569 and fun were increasing, a spirit of recklessness on the part of some skaters was getting under way, groups were playing fast and dangerous ice games, and while plaintiff then and there was upon said lake engrossed in simple skating, and at about 9:15 o'clock, she was suddenly, unexpectedly and violently crashed into, forcibly knocked down, and rendered unconscious by a detachment of skaters who, as part of a larger group of revelers, were playing the dangerous game of `crack-the-whip,' and said detachment of skaters then proceeding at a high rate was out of control, having been rent and torn loose from the tail of the whip when it was suddenly `cracked.'"
[1] Unfortunately, the accident resulted in serious injury to plaintiff in error, plaintiff below. To the complaint the City of Longmont, defendant in error, defendant below, filed a general demurrer, which the court sustained, and, plaintiff electing to stand on her complaint, judgment of dismissal was duly entered. There is no dispute concerning the legal proposition that in this jurisdiction a municipality operating a public park does so in a proprietary and not a governmental capacity.Denver v. Spencer,
In the instant case the injury sustained by plaintiff was not caused by any negligent maintenance of the skating facilities in the park or any physical conditions connected therewith, but was caused by the action of third persons. It may be assumed that the city officials knew that without the policing of skating activities at the park, negligent or reckless behavior of some of the participants might result in injury to third persons. Recognizing this possibility, it did provide some supervision, which, however, proved to be not completely adequate for any and all contingencies.
[2] The duty of a municipality to preserve order is a governmental function, and, regardless of whether provisions for the maintenance of order are adequate or not, neglect of such duty does not, under circumstances such as are present in the instant case, create a liability in the absence of statute imposing it. The following quotation from 43 C.J., pp. 1171, 1172, § 1936, which has our approval, supports municipal nonliability: "A municipality is not liable to a person accidentally injured by the acts of licensees or other third persons in public parks. So it has been held that while the maintenance of parks is a proprietary or private function, the maintenance *571 of good order in a park, and the prevention of dangerous conditions there caused by gathering crowds or by the lawless or imprudent conduct of individuals, is a governmental function, in the exercise of which the municipality is not liable." To hold a municipality liable for the conduct of third persons, such as is alleged in the complaint before us, would, in our opinion, be contrary to sound public policy and create policing requirements difficult of fulfillment.
[3] Plaintiff, to sustain her contention of liability of defendant, places much reliance upon the case of Longmontv. Swearingen,
In view of our conclusion as above expressed, it is unnecessary that we pass upon other contentions directed to the failure of the complaint to state a cause of *572 action. The court's decision sustaining the demurrer to the complaint was proper.
The judgment is affirmed.
MR. CHIEF JUSTICE YOUNG and MR. JUSTICE HILLIARD dissent.