Summary
In Hall, the Ohio Supreme Court held that "[t]he maintenance of fire hydrants, which are an incidental part of a city water system, is a function proprietary in nature, and a city is amenable to an action for any damages caused by its negligent failure to maintain in proper working condition the hydrants included in that water system."
Summary of this case from Landwehr v. BataviaOpinion
No. 41382
Decided July 10, 1968.
Municipal corporations — Construction and maintenance of water supply system — Maintenance of fire hydrants — Proprietary functions — Negligence — Failure to maintain hydrants in proper condition — Firemen impeded in extinguishing fire — Death resulting as proximate cause — Sovereign immunity not bar to action.
1. In the construction and maintenance of a system for supplying water to its inhabitants, a municipality acts in a proprietary capacity. (Paragraph two of the syllabus of Barberton v. Miksch, 128 Ohio St. 169, approved and followed.)
2. The maintenance of fire hydrants, which are an incidental part of a city water system, is a function proprietary in nature, and a city is amenable to an action for any damages caused by its negligent failure to maintain in proper working condition the hydrants included in that water system.
3. Where circumstances are such that firemen, upon arriving at the scene of a fire, are impeded in their efforts to put out that fire by reason of their attempt to use the nearest fire hydrant, which is part of a municipal water system and is inoperative due to the negligent failure on the part of the municipality to maintain that hydrant in good operating condition, and the death of an individual occurs as the direct and proximate result thereof, the doctrine of sovereign immunity does not bar an action against the municipality to recover damages for wrongful death.
APPEAL from the Court of Appeals for Mahoning County.
Joshua Hall, Jr., aged 12, died as a result of a fire which consumed his home in Youngstown, Ohio, in the early morning hours of December 31, 1963. Plaintiff, Mary Hall, mother of the decedent and administratrix of his estate, instituted this action against the defendant, city of Youngstown, in the Common Pleas Court of Mahoning County on December 8, 1965. Plaintiff seeks to recover damages from the defendant for the death of her son, Joshua Hall, Jr., and for pain and suffering he endured before his death.
In her petition, plaintiff alleges that the defendant is a municipal corporation which maintains and operates a water system and also maintains fire hydrants as a part thereof; that, due to the negligence of the defendant, the fire hydrant nearest to plaintiff's (and decedent's) residence was not in operating condition on December 31, 1963, at the time the fire occurred; and that the resultant delay caused to the firefighters, who attempted to use that hydrant in treating the fire with water, was the proximate cause of the death of Joshua Hall, Jr.
The defendant, in its answer, admits its status as a municipal corporation and also that it "maintains and operates a water system * * * which contains fire hydrants," but denies all other allegations in plaintiff's petition and denies that it violated any duty owed to plaintiff under the law of Ohio.
The cause came to trial before a jury on November 9, 1966, and plaintiff presented all her evidence in the case. At the close of plaintiff's evidence, defendant made a motion for a directed verdict on the ground that plaintiff's proof could lead reasonable minds to only one conclusion — that, in the maintenance and care of fire hydrants as part of a city water system, the defendant was acting in a governmental and not in a proprietary capacity, and, therefore, is not amenable to suit by reason of the doctrine of sovereign immunity. The trial court sustained the motion and entered judgment for the defendant.
Upon appeal, the Court of Appeals reversed that judgment and ordered a "re-trial or further proceedings according to law."
The cause is here pursuant to the allowance of a motion to certify the record.
Mr. Daniel L. Rossi, for appellee.
Mr. P.J. Melillo, director of law, and Mr. William J. Higgins, for appellant.
The only question to be resolved by this court in this case is whether the defendant was acting in a governmental capacity or a proprietary capacity in providing the allegedly defective hydrant.
Defendant relies heavily on prior decisions of this court as reason for this court to decide the issue before us adversely to plaintiff. The earliest case relied upon by defendant is the case of Wheeler v. Cincinnati, 19 Ohio St. 19. The syllabus in the Wheeler case provides:
"The power conferred by the statute, on cities of this state, to organize and regulate fire companies, and provide engines, etc., for extinguishing fires, is, in its nature, legislative and governmental; and a city is not liable to individuals for damage resulting from a failure to provide the necessary agencies for extinguishing fires, or from the negligence of officers or other persons connected with the fire department." (Emphasis added.)
In Wheeler, the suit was against the city for property damage allegedly caused by the city's failure to provide any means with which to extinguish fires in the immediate vicinity of plaintiff's property. The sustaining of defendant's demurrer to the petition was affirmed on appeal, and this court refused leave to file a petition in error.
The Wheeler case has never been overruled and is still authority today for the proposition that a municipality is not amenable to suit for failing to provide adequate facilities for fighting fires in a particular area or areas of the city. However, Wheeler gives no clue as to the propriety or impropriety of a distinction sought by plaintiff in this case, i.e., that a city might be acting in a governmental capacity in providing men and equipment with which to fight fires and nevertheless be acting in a proprietary capacity in providing hydrants (from which water might be obtained to fight fires) as part of a municipal water system.
The cases of Blunk v. Dennison Water Supply Co., 71 Ohio St. 250; Aldrich v. Youngstown, 106 Ohio St. 342; Wooster v. Arbenz, 116 Ohio St. 281; Eversole v. Columbus, 169 Ohio St. 205; Hyde v. Lakewood, 2 Ohio St.2d 155; and Gabris v. Blake, 9 Ohio St.2d 71, also cited by appellant, are likewise of no benefit to the disposition of this case.
Except for the Blunk case, those cases merely restate and reiterate the established principle that where a municipality acts in a governmental capacity it is not amenable to suit for the tortious conduct of its agents, and where it acts in a proprietary capacity it is.
In Blunk, the defendant was a private water company which had contracted with the village of Urichsville to supply water and furnish fire fighting equipment. Plaintiff alleged that, due to the fact that the contractual obligation was not met, her house burned down, and she sought recourse against the defendant. This court recognized the action as being founded upon contract, rather than tort, liability, and held that plaintiff (being only an incidental beneficiary of the contract) had no right to bring suit.
The Blunk case was followed in the recent Court of Appeals case of Clark v. Meigs Equipment Co., 10 Ohio App.2d 157, also cited by appellant.
Plaintiff in this case admits the principle that a municipality in its capacity as a firefighter is immune from suit, but strongly urges that in its capacity as a provider of water it is not immune from suit.
Plaintiff is seeking to have this court extend its holding in the case of Barberton v. Miksch, 128 Ohio St. 169, where, in paragraph two of the syllabus, we held:
"In the construction and maintenance of a system for supplying water to its inhabitants, a municipality acts in a proprietary capacity."
The Barberton case involved seepage of water from a city reservoir onto the land of plaintiff, causing damage. It was clearly a trespass, and this court held that the city was amenable to suit.
Plaintiff has cited several cases from foreign jurisdictions wherein recovery was allowed for property damage caused by leaks from hydrants or branches servicing hydrants. Boyle v. Pittsburgh, 145 Pa. Sup. 325; Stiffel v. St. Louis (Mo.), 181 S.W. 577; Dunstan v. New York, 91 App. Div. 355, 86 N.Y. Supp. 562. Those cases, of course, represent applications of the principle of the Barberton case to that particular element of a city water system involved in this proceeding, viz., hydrants. However, none of them are concerned with the precise issue presented to this court by this case.
However, plaintiff has also directed this court's attention to a recent decision of the Supreme Court of Pennsylvania in Malter v. South Pittsburgh Water Co. and Whitehall Borough, 414 Pa. 231, 198 A.2d 850 (decided March 17, 1964), which appears to be directly in point.
In that case, the plaintiffs owned a house in Whitehall, Allegheny County, Pennsylvania, which was destroyed by fire on March 9, 1960. The plaintiffs sued the Borough of Whitehall (a municipal corporation) and the South Pittsburgh Water Company, claiming that the defendants failed to properly maintain several hydrants servicing the area and that the loss of the house would not have occurred had those hydrants not been allowed to become "rusted, decayed and clogged." The Common Pleas Court of Allegheny County sustained preliminary objections to the complaint by the defendants on the ground that the averments did not state a cause of action. The Supreme Court of Pennsylvania reversed, determining that the maintenance of fire hydrants, which are an incidental part of a city water system, is a function proprietary in nature, and that a city is amenable to suit for damages caused by its negligent failure to maintain in proper working condition whatever hydrants are included in that water system.
The Malter case is directly in point, and though it is persuasive authority only, we feel that it represents the better view.
Under prior decisions of this court, it is clear that a muncipality is acting in a governmental capacity in the acquisition and allocation of resources for fighting fires. Wheeler v. Cincinnati, supra ( 19 Ohio St. 19). Likewise, a municipality acts in a governmental capacity when it brings those resources into action. Frederick v. Columbus, 58 Ohio St. 538. See Aldrich v. Youngstown, supra ( 106 Ohio St. 342). However, in maintaining a municipal water supply system it acts in a proprietary capacity. Barberton v. Miksch, supra ( 128 Ohio St. 169).
It is a rather elemental conclusion that the utility of a hydrant stems from its connection with a water supply system. Its primary use is to make immediately available a supply of water for the extinguishment of fires. That supply is accessible only because piped to the hydrant area through water mains. The problem in this case, as we see it, is the question of where water supply (proprietary in nature) ends, and fire fighting (governmental in nature) begins. We believe it to be at the hydrant nozzle.
Accordingly, we view the circumstances of this case as inappropriate for applying the doctrine of sovereign immunity.
The admittedly governmental function of fighting the fire at plaintiff's residence on December 31, 1963, may have been impeded due to the defendant's failure to maintain an existing component of its water system (the fire hydrant nearest plaintiff's house) in proper working condition. If the defendant's failure to maintain that hydrant in operating order was due to the negligence of its agents charged with the maintenance of that part of the city water system, and that negligence was the proximate cause of the death of plaintiff's minor son, then plaintiff may recover.
It follows that the Court of Appeals was correct in its judgment remanding the cause to the Court of Common Pleas, and we, therefore, affirm the judgment of the Court of Appeals.
Judgment affirmed.
ZIMMERMAN, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TAFT, C.J., concurs in paragraph one of the syllabus, but dissents from paragraphs two and three thereof and from the judgment.