Opinion
1 Div. 357.
January 26, 1967.
Appeal from the Circuit Court, Mobile County, Robt. T. Ervin, Jr., J.
Cunningham, Bounds Byrd, Mobile, for appellant.
The duty of a municipality to maintain its sidewalks in a reasonably safe condition for use by pedestrians is a corporate or ministerial duty of a municipality and such duty is not changed by the fact that such a sidewalk is within the limits of a public park. Code 1940, Tit. 37, § 502; 39 Am.Jur., Parks, Squares and Playgrounds, § 43; Caldwell v. Mayor and Aldermen of City of Savannah, 101 Ga. App. 683, 115 S.E.2d 403; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; City of Montgomery v. Wyche, 169 Ala. 181, 53 So. 786; Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121.
Fred G. Collins, Mobile, for appellee.
A complaint against any city or town must allege compliance with Title 37, Section 504, Code of Alabama, 1940, and this is true even though the plaintiff be a minor. Maise v. City of Gadsden, 232 Ala. 82, 166 So. 795; Hamilton v. City of Anniston, 268 Ala. 599, 109 So.2d 728, 83 A.L.R. 2d 1172; City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970. The maintenance by the municipal corporation of public walkways within public squares, parks, and playgrounds is a governmental function, and the municipal corporation is immune from liability for injuries due to defects therein. Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; Mathis v. City of Dothan, 266 Ala. 531, 97 So.2d 908; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692.
This was an action against the City of Mobile for damages brought by Robin Denise Dixon, a child five years old, suing by her father and next friend, for injuries allegedly suffered due to the negligent maintenance of a walkway in a public park within the corporate limits of the city. The court below sustained the defendant's demurrer to the complaint, and after taking a non-suit, the plaintiff has perfected the instant appeal.
The defendant's 18th ground of demurrer took the position that the complaint failed to allege compliance with Tit. 37, § 504, Code 1940, which reads as follows:
"No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed."
It is settled that compliance with § 504 is a condition precedent to the bringing of an action against a municipal corporation and, as such, compliance with the section must be both alleged in the complaint and proven. In the case of City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970, this court said:
"It is also firmly established by the decisions of this court, as well as elsewhere, that the filing of the statement is not only mandatory but is a condition precedent to the bringing of an action against the municipal corporation for any cause to which they relate. In order to maintain such action, the filing of the claim in substantial compliance with the statute must be averred in the complaint and proved."
See also Hamilton v. City of Anniston, 268 Ala. 559, 109 So.2d 728, 83 A.L.R.2d 1172.
The Weston case, supra, goes on to hold that the rule is not altered because the injured party is a minor or incompetent:
"However the act now before us contains no exemption in favor of minors or persons mentally or physically incapacitated to give the notice. It applies to all persons alike unless this court shall write into it such an exception, which, under the guise of judicial interpretation, we do not feel warranted in doing. To do so would be legislation not interpretation."
The trial court ruled correctly in sustaining the demurrer, for none of the counts make any effort to allege compliance with § 504.
Counsel for both sides to this appeal seek to have us answer the question of whether a municipality is liable for injuries suffered by one due to a defective walkway in a public park.
It is, of course, a well-recognized rule in this state that the maintaining by a municipal corporation of public squares, parks, playgrounds and recreational facilities is a governmental function, and that a city is not liable for injuries which result from the negligent operation of the same. Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692; Parr v. City of Birmingham, 264 Ala. 224, 85 So.2d 888; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192.
And the rule that a municipal corporation is liable for injuries suffered due to defects in sidewalks, streets and public ways, where it has not exercised reasonable care, is so well established as not to require the citation of authority.
But the matter of liability vel non of a municipal corporation to one who is injured as a result of a defective walkway in a public park has never been resolved in Alabama. We see no necessity to do so now, for it appears beyond peradventure that the plaintiff cannot comply with the six months limitation of presenting claims to a municipality as required by Tit. 37, § 476, Code 1940.
The order sustaining the demurrer is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.