Opinion
No. 21496
Decided May 29, 1929.
Municipal corporations — No duty to guard bodies of water not maintained for bathing — Section 8714, General Code.
The provisions of Section 3714, General Code, do not impose upon municipalities the duty of maintaining guards or other means to prevent persons from entering the waters of ponds, lakes or streams within its boundaries, which are not maintained as bathing places and to enter which no invitation express or implied has been extended; or create a liability for failure so to do.
ERROR to the Court of Appeals of Lucas county.
This action was brought in the common pleas court of Lucas county to recover damages resulting from the death of George Cummings, who was drowned in a creek known as Duck creek, running through Ravine park in the city of Toledo. The petition charged that the city had caused or permitted a dangerous hole, pond, or lake to be made by the depression between a roadway and the embankment of the Hocking Valley Railroad, the water therein standing from two to four feet deep, and that a ditch had been constructed therein about five feet wide and eight feet deep connected with a drain going under the Hocking Valley Railroad embankment; that the city permitted water to accumulate or remain so that it became a nuisance; that the decedent, a boy 14 years of age, was attracted to this pond, and, while wading therein, and being unable to swim, fell into said ditch and was drowned. It was averred that the city knew or by the exercise of reasonable care should have known that children who were unable to swim frequented this pond, and that the city was negligent in failing to enclose the pond, or to place guards so as to keep children out; and in failing to place life guards on the banks or to place warning signs indicating the depth of the water and the danger consequent upon entering the pond.
The answer was a general denial and an averment of contributory negligence.
At the close of the evidence adduced by the plaintiff the trial court directed a verdict in favor of the defendant. On proceedings in error to the Court of Appeals, that court reversed the judgment and remanded the cause to the common pleas court for a new trial. Thereafter, upon motion, the record was ordered certified to this court.
Mr. George W. Ritter, director of law, and Mr. Mark Winchester, for plaintiff in error.
Mr. Benjamin B. Moses, for defendant in error.
The asserted liability of the city is based upon its alleged failure to perform the duty imposed upon it by the provisions of Section 3714, General Code, wherein it is charged with "the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation" and required to "cause them to be kept open, in repair, and free from nuisance."
It has been recently held by this court that municipal parks, open to the general public, are public grounds within the meaning of that phrase of the statute, and that the duty is thereby imposed of keeping them free from nuisance. City of Cleveland v. Ferrando, 114 Ohio St. 207, 150 N.E. 747.
The record discloses that the conditions complained of had existed for several years, and the question is therefore squarely before us whether the provisions of this statute apply to such a situation as is here presented. Ravine park is an uninclosed tract of land, wholly unimproved, the natural banks of which are 30 feet or more in height. Duck creek is in the center of this ravine. Three railroads cross the ravine, and the record discloses that at some time a culvert six or seven feet in diameter was constructed, and from this culvert a ditch was dug, and a row of tile of about two and one-half feet in diameter had been put underneath the tracks of the Terminal Railroad for drainage purposes, but that some years ago the same became clogged, and, during the rainy season, water would accumulate and remain. While this tract was denominated a public park in that it was public ground belonging to the city, it was not in any wise improved, and no amusements or attractions of any sort were provided or maintained, and no provision whatever had been made for using this pond as a swimming pool. The boys of that vicinity having the instincts and inclinations of boys generally waded and swam in this pond, and upon at least one previous occasion George Cummings was with other boys in this water. The record discloses that on the day in question the older boys were out in the center of the pond, some of them diving from the top of the drain, a height of six or eight feet above the water. All were in bathing suits, and some of them were on a raft out in the deeper portion of the pond. The evidence was in conflict as to the knowledge of the decedent regarding the depth of the water, but the record shows that he swam some, and that he had theretofore crossed that portion of the pond.
In the consideration of the question presented as to the duty and liability of a municipality under the conditions disclosed by the record we deem the cause of the accumulation or retention of this body of water to be immaterial. Within the boundaries of many cities are bodies of water — ponds, lakes, and running streams. Toledo is no exception, and within the boundaries of its park system are creeks, rivers, and lakes. Many cities procure their water supply from streams by erecting retaining dams which materially increase the depth of the water, and in some instances purchase the land on either side for park purposes. A very serious extension of liability on the part of the municipality would be involved if it were to be held that every pond or lake or stream must be abated, or that guards must be provided to patrol the vicinity of every such body of water, or fences or walls or barricades be erected to prevent persons from entering them. Boys have a natural inclination to climb trees, but certainly no one would contend that the trees in public parks are a nuisance which must be abated, or that guards must be maintained to restrain children from climbing into them, or that the municipality may be held to respond in damages for an injury sustained by a fall from a branch of any such tree, even though it be defective. We would have an entirely different situation, if the city, acting in its proprietary capacity, were maintaining a bathing beach and extended an invitation expressly or impliedly to enter the waters of the lake or stream under its control and supervision.
In our opinion the common pleas court did not err in directing a verdict. The judgment of the Court of Appeals is reversed, and that of the common pleas is affirmed.
Judgment reversed; common pleas court affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, DAY and ALLEN, JJ., concur.