Summary
In City of Cleveland v. Ferrando, a Minor (1926), 114 Ohio St. 207, the court held the city liable for an injury caused by a fireworks bomb found by a child in a city park. It was apparently left over from a fireworks display held the previous day.
Summary of this case from Gabris v. BlakeOpinion
No. 19028
Decided February 23, 1926.
Municipal corporations — Parks are "public grounds," when — Section 3714, General Code — Duty to keep free from nuisance — Unguarded, unexploded bomb in public park a nuisance per se — Liability to person injured because of failure to remove bomb.
1. Municipally owned and controlled parks, established and maintained for, and open to the general public, are "public grounds" within the meaning of that phrase in Section 3714, General Code, and by that section the duty is imposed upon municipalities to keep them free from nuisance.
2. The presence of an unguarded, unexploded bomb in a public park is a nuisance per se, and a municipality owning and controlling such public park, on proof of knowledge or notice of such nuisance, actual or constructive, is liable to persons injured by reason of its failure to remove same.
ERROR to the Court of Appeals of Cuyahoga county.
The defendant in error, a minor, brought an action in the court of common pleas of Cuyahoga county against the city of Cleveland and the Societa Santa Liberata and various members of a committee of that society.
The petition averred that the city of Cleveland owned the land included in Ambler Park, which park is and was maintained by the city as a public park for the use and benefit of the residents of the city and the public generally; that the plaintiff in error resided near and used the park; that upon the date alleged in the petition the Societa Santa Liberata obtained a permit to exhibit and explode fireworks in the park; that the fireworks were accordingly fired and exploded; that on the next morning after the exhibition of the fireworks the plaintiff, a minor of 10 years, passing through the park, found an unexploded bomb; that by reason of his tender years he did not know, nor have the means of knowing, the dangerous character thereof; that he lighted the bomb and it exploded, injuring him; "that defendants did know that said explosive had been left in said park unexploded, or could have known of the same by the exercise of ordinary care, and did know, or could have known, of its dangerous character by the exercise of * * * ordinary care."
The petition further averred that the defendant city of Cleveland "was negligent in granting a permit for the exhibition of said explosives to persons unacquainted with explosives and unfit to exhibit them, in failing to supervise the firing thereof, so that none would be left on the ground, in failing to examine the ground where and near the place where said fireworks were exploded, and in failing to find and remove the explosive that was left on the ground and later picked up by the minor aforementioned."
To this petition the defendant city of Cleveland filed a demurrer, "on the ground that the facts stated therein are not sufficient to constitute a cause of action." This demurrer was sustained.
The plaintiff, not desiring to plead further as to the city of Cleveland, judgment was entered dismissing the city from the action, and for costs.
Error was prosecuted to the Court of Appeals, and the judgment of the court of common pleas was there reversed. Error is prosecuted here to reverse the judgment of the Court of Appeals.
Mr. Carl F. Shuler, director of law, and Mr. Joseph F. Smith, for plaintiff in error city of Cleveland.
Messrs. Nicola Horn, for defendant in error.
It seems to be well settled that an action of negligence against a municipality may not be grounded upon the issuance of a permit by the municipality to persons, or organizations, to explode fireworks, nor can the municipality be held for an action of negligence grounded upon the failure of the municipality to supervise or regulate such exhibition; both the issuing of such permit and the regulation of the exhibition being police regulations and governmental in character. Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep., 857.
The petition, if it states any ground upon which an action of negligence against the city may be based, states it in the allegation "in failing to * * * remove the explosive that was left on the ground and later picked up by the minor aforementioned," taken in connection with the allegation "that defendants did know that said explosive had been left in said park unexploded, or could have known of the same by the exercise of ordinary care, and did know, or could have known, of its dangerous character by the exercise of * * * ordinary care."
There may be some question whether the allegation, "that next morning the said plaintiff * * * went as usual through said park where said fire-works were exhibited and near thereto, and * * * found a piece of explosive, which he picked up and * * * lighted, * * * which immediately exploded and injured * * * this plaintiff," does not show upon the face of the petition such facts as to preclude any theory of constructive notice to the municipality, and thereby make that particular allegation demurrable, but the averment "that defendants did know" precludes the sustaining of the demurrer upon that ground.
That the presence of an unguarded, unexploded bomb in a public park, where children are invited to come, is in itself an intolerable nuisance, is so self-evident that argument can but echo the statement.
Section 3714, General Code, imposes upon municipalities the duty to keep the public grounds free from nuisance. Municipally owned and controlled parks, established and maintained for and open to the general public, and to which the general public are invited to come, are, in the fullest sense, public grounds, and come within the provisions of that section of the General Code, and the liability of the municipality for failure to discharge the duty thereby imposed is the same as its liability in that respect with reference to its streets, alleys, and sidewalks.
The demurrer to the petition, upon the ground therein stated, was therefore not well taken.
An attempt is made in this court to raise for the first time the question of misjoinder of parties defendant, and, as a justification therefor, the statement is made in the brief of the plaintiff in error that "this right has not yet been waived, as no answer has been necessary." It would in all probability hasten the period when this litigation shall finally terminate if this court were to consider and determine that question, but we know of no provision of the Constitution clothing this court with original jurisdiction to determine questions of this character, and are not disposed to arbitrarily assume such jurisdiction.
The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.