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April 18, 1967

Shirley A. THOMAS as the Administratrix of the Estate of Donald E. Thomas, Plaintiff,
POTOMAC ELECTRIC POWER COMPANY and District of Columbia, Defendants. John F. WYNN, Jr., Plaintiff, v. POTOMAC ELECTRIC POWER COMPANY and District of Columbia, Defendants

The opinion of the court was delivered by: HOLTZOFF

 An action for damages for wrongful death was brought in behalf of the Thomas estate and another in behalf of Wynn for personal injuries, against Potomac Electric Power Company, a public utility that supplies electric current in the city of Washington, and against the District of Columbia. These actions are so-called "third-party actions" predicated on negligence. *fn2" The two cases were consolidated for trial. At the close of the trial, the Court directed a verdict in favor of defendant Potomac Electric Power Company, as the evidence showed that the power company supplied electricity only as far as the customer's meter, while the customer installed and maintained his own equipment from that point. The cases as against the District of Columbia were submitted to the jury. The jury returned a verdict in favor of the administratrix of the Thomas Estate for $156,225, allocating $95,225 to his widow Shirley A. Thomas, $25,000 to his son Donald E. Thomas, Jr., and $36,000 to his son Martin Thomas; *fn3" and a verdict in favor of plaintiff Wynn for the sum of $28,000. The cases are now before the Court on motions of the District of Columbia for judgments non obstante veredicto.

 The salient facts are not in dispute. At the time of the tragic accident, which occurred on August 1, 1960, there was maintained in Washington, a public recreation establishment known as the Banneker Recreation Center. It was located on land belonging to the United States. It consisted of a playing field, as well as a swimming pool and building, both of which had been constructed by the National Capital Parks Division of the National Park Service of the Department of the Interior. The Recreation Board of the District of Columbia, an agency of the local Government, conducted a large number of activities at the Center, *fn4" such as athletic games on the playing field, and classes of various types open to the public on the upper floor of the building adjacent to the swimming pool. The lower floor was used as a bathhouse for the patrons of the pool.

 The operation of the swimming pool was divided between the Recreation Board of the District of Columbia, and the National Capital Parks. The latter delegated its part of the activity to a concessionaire, a non-profit private corporation entitled Government Services, Inc. During the morning hours the pool was operated by the District of Columbia. Free swimming instruction was given to all who desired it. In the afternoon it was conducted purely as a swimming pool by Government Services, Inc. The lifeguards, who also acted as swimming instructors during the mornings, were hired by the Recreation Board and were paid by it for their morning work. They received compensation for their afternoon service from Government Services, Inc. Thus, each lifeguard received two pay checks on each pay day. The maintenance employees, such as the janitor and others, were hired by Government Services, Inc. The electrical equipment and wiring at the Center, including underwater lights at the pool, had been installed by National Capital Parks and were maintained by that agency or its concessionaire.

 The cause of the accident was established by uncontradicted evidence given by three electrical engineers. The electric current came from the underwater lighting system at the pool. The original construction of the equipment and wiring were shown to have been improper and deficient, and to have failed to comply with accepted standards. They had been installed under contract with the National Capital Parks by a small electrical concern that is now defunct. The wire leading to the circuit breaker was too small to conduct a current that was sufficiently strong to operate the circuit breaker. *fn5" The rubber hose surrounding the electrical wiring had rotted in part by a gradual process of deterioration, which was estimated to have taken 2 to 5 years; seepage took place and one of the fixtures became partially filled with water; the insulation having partially worn off, a short circuit occurred; two wires, including the ground wire, were burned; the circuit breaker could not be operated and the electric current was siphoned off into the water. The result was that human beings who were in the path of the current, received an electric shock.

 It is clear that the individuals who actively participated in the original installation and the electrician who under contract with National Capital Parks occasionally inspected the wiring, were guilty of culpable negligence in a high degree. *fn6" They exhibited either ignorance, incompetence, or indifference. It is strange, too, in the light of the known dangers of underwater electric systems, that neither the District of Columbia nor the National Capital Parks exercised any supervision or arranged for frequent inspections by an experienced and trained electrical engineer. The original installation had been left to a small contractor and subsequent occasional maintenance to an electrician. Had these actions been brought against a private individual or corporation, an instruction to the jury on the right to impose punitive damages would probably have been appropriate.

 There are a number of legal objections, however, raised by the Corporation Counsel in behalf of the District of Columbia, which he contends preclude liability from being imposed on the District. These objections will now be considered.

 First, the fundamental point interposed by the District of Columbia, is that the operation of a swimming pool by a municipality constitutes the performance of a governmental rather than a proprietary function and that, therefore, a municipality is not liable for negligence in conducting such activities. It must be accepted as a fact that the outmoded doctrine differentiating between a governmental and a proprietary activity of a municipality and conferring immunity from suit in connection with a function of the former category still persists in the District of Columbia, and can be abrogated only by legislation. The principle is not favored, however, and is not extended beyond its original scope. It should not be expanded so as to apply to activities that have not as yet been held to be governmental.

 This Court had occasion to discuss this subject in Calomeris v. District of Columbia, 125 F. Supp. 266, in which, on the basis of a prior decision of the Court of Appeals, it was held that the maintenance and operation of a municipal hospital is a governmental function. Accordingly, in that case the motion of the defendant District of Columbia to dismiss the complaint was granted. This Court made the following comments (p. 267):

"Government immunity from suit is an obsolescent and dying doctrine. The United States waived its immunity to suit in tort by the Federal Tort Claims Act, 28 U.S.C.A. ยง 1346(b). Although the District of Columbia is Federal area and its government has been created by the Congress, nevertheless, for some reason the District of Columbia, either intentionally or inadvertently, was not included in that statute. Consequently, such immunity as the District of Columbia previously possessed still persists." *fn7"

 The Court of Appeals affirmed this decision, 96 U.S.App.D.C. 364, 226 F.2d 266, but in doing so it approved the criticism of this Court concerning the basic theory. The opinion of the Court of Appeals contains the following remarks (pp. 365, 366, 226 F.2d p. 267):

"District Judge Holtzoff disposed of the matter with a careful opinion, concluding that the court 'much to its regret' had no alternative but to grant the motion.
* * *
"We agree with Judge Holtzoff that the defense of governmental function to a complaint for negligence, mistreatment or malpractice is 'an obsolescent and dying doctrine', but we also agree with him that since it is a phase of government immunity Congress alone can replace it. We join in his suggestion that the attention of the Congress might well be directed to it. ...

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