# Lewis v. City of Tulsa > Supreme Court of Oklahoma · December 15, 1936 · 179 Okla. 176 URL: https://www.frixlaw.com/law-library/cases/3817487 ## Case - **Full name:** Lewis v. City of Tulsa. - **Court:** Supreme Court of Oklahoma - **Decided:** December 15, 1936 - **Citations:** 179 Okla. 176; 64 P.2d 675; 1936 OK 816; 1936 Okla. LEXIS 768 - **Precedential status:** Published - **Opinion:** Dissent by Piielps - **Judges:** Piielps, Busby, Osboiin, Kiley, Bayless, Welch, Coen, Gibson, Meneill, Phelps - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3817487 ## Opinion text PIIELPS, J. (dissenting). I am unable 1 o agree with my associates in this case. The opinion announces a rule of law to the effect that liability for negligence in the adoption of a plan may not be imposed unless all reasonable men would agree that it is dangerous. This may be correct. I express no opinion thereon. It is of course obvious that such negligence, as spoken of, is concerned with (he choice made by the city authorities in their legislative capacity. But it is at the same time admitted by the opinion, as indeed it must be, that the duty of correcting a dangerous condition in the sidewalk (whether the danger is in the plan or in wear and tear being immaterial) is in the ministerial officers of the city. Without at all showing how such a thing is possible, the majority opinion applies the rule of legislative negligence to ministerial or proprietary negligence. Of course it is true that the legislative body of a municipality is clothed with discretion, and that if in choosing between two or more plans it happens to hit upon one which is not wise, or is unsafe, liability should not arise unless the defect is so unsafe that it appears that no discretion at all was used in the selection. But once the selection is made, and the plan is put into execution, the duty of reasonable inspection and foresight for the safety of travelers is a duty of the ministerial officers or .agents of the city, not the legislative. If danger is there, the duty of rendering the defect safe is a duty of those in charge of the streets, and it makes no difference whether the danger arose from a defective plan or from some other reason, such as crumbling of material, etc.; the danger is present, from whatever source it arose. The city is held to reasonable care in the discharge of its proprietary duties, and, as stated in the majority opinion: “The city while acting in the construction, maintenance or repair of its streets is doing so in a proprietary as distinguished from a governmental function and because of this classification of its action, it stands in a position with respect to its responsibility for tort similar to if not identical with that occupied by an ordinary private individual.” The opinion states that the duty of correcting the condition is proprietary. There is no ru’e of law that all reasonable men must agree that there was negligence, whether it be a city in its proprietary functionings or an individual, before the question may go to the jury. This opinion carries the rule of legislative immunity over to the field of proprietary functioning, where it does not belong. The petition in this ease did not limit its allegations of negligence to a defective plan; it also alleged negligence in permitting the hazard to stay there after it was or should have been discovered. The opinion does point out that the ministerial officers, should they discover the defect, are not expected to exercise a judgment superior to that of the legislative officers. This is merely dodging the question. The ministerial officers or agents are under a duty to correct apparent dangers wherever they .find them, from whatever source they arise. One cannot legislate a dangerous condition into a safe one; it requires action. If the ministerial officers discover a pitfall, must they wait for an ordinance to be passed before they take steps to protect the public? Must ten or a hundred people injure themselves because an ordinance has not been passed? Must the street superintendent lose all sense of reason? If he believes that a condition is dangerous and fails to do that which reasonable men would do, may he wait until a meeting of the city council is held and an ordinance passed permitting him to do that which it is his duty to do? Assume that A street has in its sidewalk, at the middle thereof, a two-foot drop. There are no lights around it. It is pitch dark. It is a pitfall. The city council ordered it to be that way. An old lady, who had never walked along there before, such as in this ease, comes along and pitches off into it and is permanently injured and suffers the remainder of her life. The city is not liable. The Supreme Court, sitting as ,a jury, has decided that all reasonable men could not say it was dangerous. Over on B street we also have a two-foot drop. It, too, is unlighted and unwarned. It is just like the drop on A street. The only difference is that on this street the ground has receded or the material is faulty, so that at that place, through wear and tear or sudden break, a straight downward precipitation has existed for months. It was, of course, the duty of the street department to correct it. By the majority opinion this case may go to the jury, because the city stands in the same position as an ordinary individual. According to the majority opinion, a judgment for plaintiff would be affirmed, because reasonable men might differ over whether danger should have been foreseen on B street, while the same truth would bar recovery on A street. Nevertheless, the law of gravity applies as fully on one street as the other, and on either street the victim *182 is injured for life. When the street superintendent goes along on a tour of inspection he must correct the hazard in B street, for he may suspect that someone will get hurt there; but he needn’t worry about A street, it has been solemnly enacted by ordinance that it is safe. . It is pointed out in the majority opinion that the question in the instant case should not be confused with the- test in cases involving a failure to properly maintain streets and sidewalks. It does not hurt, however, to advert to that class of cases temporarily to show to what extreme lengths we are going to absolve municipalities from negligence. It cannot longer be doubted in this jurisdiction that a little hole in the streets or sidewalks is a question of law and a big hole is a question of fact. I have read and studied ail of the cases involving this question, and this case is the first to judicially announce that reasonable men might differ over whether it should have been anticipated that some person would unsuspectingly walk along this unlighted way in the nighttime, unacquainted with the pitfall ahead of him, and would thus innocently step off into space, into a drop of 14 inches, and thus receive permanent injuries. The fact of it is that we should leave it to the jury to say whether the city, by its proper agents, should have foreseen danger. That is all there is to it, whether the trap was caused by legislative error or ministerial negligence. (But most certainly, of all things, the test concerning legislative error should not have been carried over into ministerial or proprietary negligence. The majority opinion bridges this gap with nothing but silence. Another objection to the majority opinion is that it violates the spirit of our Constitution. For the recovery of money or personal property our citizens are entitled to a jury trial. This is denied them in all cases, by the majority opinion, where the negligence of the city is alleged to consist of the adoption of a dangerous plan. Under the rule announced, if reasonable men might differ, it is a question of law for the court, and the trial judge should enter judgment for the defendant; while if reasonable men would all agree that the plan was dangerous, it is the duty of the judge, under the rule applicable to all cases, to direct a verdict’ for plaintiff. It is not possible for the question of liability ’ ever to get'to the jury. This would not’ conflict with the Constitution if it were held that no liability exists in this class of eases at' all', but when’ it is admitted that there may be liability if the facts warrant it, and a rule is announced where-under it may never go to the jury under any circumstances, I cannot concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3817487. Public record. Not legal advice.