Farrell v. City of Long Beach

[819]

MOORE, P. J.

The question here posed is whether the complaint can be so amended as to state a cause of action based upon the negligence of the municipality.

Plaintiff alleges that he is a youth twelve years of age; that the city maintains the Somerset Playground on Carson Street and another on Cherry Avenue for children’s recreational purposes; that while he was at Somerset for the purpose of participating in children’s recreational activities, the city’s agent, Harold Fairly, negligently directed plaintiff “to proceed from said Somerset Playground to said playground located at 45th Street and Cherry Avenue to participate in said children’s recreational activities and negligently instructed . . . plaintiff to ride upon the handle bars of the bicycle of another boy in proceeding to said playground and negligently . . . directed said plaintiff that he, Harold Fairly, would ride upon the bicycle of plaintiff to said playground, and carelessly . . . proceeded to said playground upon plaintiff’s bicycle; that plaintiff . . . proceeded to said playground upon the handle bars of the bicycle of said other boy and, while plaintiff was so riding, his body became caught in the wheel of said bicycle and he was thrown to the ground. As a proximate result of said negligence . . . plaintiff suffered personal injuries and was made sick, sore and lame and was generally damaged in the sum of $25,000.”

Appellant contends that the court was in error in holding (1) that the operation of the playground was a governmental activity and (2) in denying plaintiff the right to amend the complaint. Such contention is contrary to law.

The maintenance of children’s playgrounds and recreational centers for the general use of the children of the city are referable solely to the duty of maintaining public health which is one of the delegated functions of sovereignty. They do not in any sense partake of the nature of an ordinary business enterprise.

(Kellar

v.

City of Los Angeles,

179 Cal. 605, 608-609 [178 P. 505].) The fostering and safeguarding of public health is a governmental function, although providing mere amusement or entertainment is not.