Generally, a municipality’s functions are two fold:
- Governmental; and
- Private or Proprietary.
While performing a governmental function, a municipality acts as an agency of the state. Governmental functions are performed by a municipality to enable it to better govern the people residing within the municipality’s corporate limits. For this purpose, certain powers and duties are delegated to a municipality. A municipality exercises these powers for the benefit of the public. While exercising these governmental powers, a municipal corporation is exempted from liability for its failure to exercise them and for exercising them in a negligent or improper manner. Such immunity is based on the theory that a sovereign can not be sued without its consent and an agency of the sovereign is immune from liability.
In the performance of municipality’s proprietary functions, the general public may derive a common benefit. These powers and privileges are granted and are assumed primarily for the benefit of a municipality. When an injury results from negligence in exercise or performance, a municipality is liable in a civil action for damages in the same manner as an individual or private corporation[i].
The establishment and maintenance of recreational grounds and swimming pools by a municipality constitutes the performance of a governmental function[ii]. In boating injury claims, a municipal corporation or other public body is immune from tortuous liability if it was engaged in governmental functions. Liability cannot be imposed for the mere fact that a city and a park commission are entrusted with the duty of maintaining parks and are given the authority to provide the funds needed. A city, through park and school boards, provides playgrounds equipped with various instrumentalities for exercise and amusement. Cities are discharging these functions for the public good. In discharging these functions, cities and their servants are to be regarded as agencies of the government. They are not acting in a proprietary character to make them liable[iii].
A municipality is not an insurer of the safety of children playing on its public playgrounds[iv]. However, where a city undertakes to manage and supervise properties like public parks and playgrounds, care must be taken to keep that property in a reasonably safe condition. Safeguards include the sufficient policing of the grounds to protect children[v].
In order to sustain a claim of liability for negligence, a plaintiff must prove that a defendant municipality acted or failed to act upon a duty owed by the defendant to the plaintiff. That negligence is usually the actual and proximate cause of plaintiff’s injury. Moreover, in order to succeed on a negligence claim, a plaintiff must show that:
- the defendant’s negligence was a material and substantial element in bringing about the plaintiff’s injury; and
- a reasonable person would have foreseen the injury as a likely result of his conduct[vi].
A city maintaining waters contiguous to a public park as a place for leisure boating has a duty to exercise reasonable care to keep the waters in a reasonably safe condition. A city is also required to exercise care appropriate to the dangers likely to occur and reasonably to be anticipated from the use of the waters as a place for boating. When a municipality maintains a park in such a way as to constitute a public nuisance and injuries were caused by such nuisance, the municipality can be held liable for boating injuries. However, a city owning and operating a water system and selling water to individuals is engaged in a proprietary capacity and not in a governmental capacity. While acting in its governmental capacity, a city cannot be held liable for negligence[vii].
[i] Hoggard v. Richmond, 172 Va. 145, 147-148 (Va. 1939)
[ii] Prickett v. Hillsboro, 323 Ill. App. 235 (Ill. App. Ct. 1944)
[iii] Emmons v. Virginia, 152 Minn. 295, 297 (Minn. 1922)
[iv] Styer v. Reading, 360 Pa. 212 (Pa. 1948)
[v] De Simone v. Philadelphia, 380 Pa. 137, 141 (Pa. 1955)
[vi] Mazin v. Chicago White Sox, Ltd., 358 Ill. App. 3d 856, 864 (Ill. App. Ct. 1st Dist. 2005)
[vii] Eastern Illinois State Normal School v. Charleston, 271 Ill. 602 (Ill. 1916)