Johnson v. Municipal University of Omaha, 37061

Citation169 N.W.2d 286,184 Neb. 512
Decision Date20 June 1969
Docket NumberNo. 37061,37061
PartiesJack JOHNSON, By and Through G. L. Johnson, His Father and Next Friend, Appellant, v. The MUNICIPAL UNIVERSITY OF OMAHA, Appellee.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. A municipal university organized under section 14--1303, R.R.S.1943, is subject to suit.

2. Cities, counties, and all other governmental subdivisions, and local public entities of this state, including municipal universities, are not immune from tort liability arising out of a physical condition affirmatively and voluntarily created by the public body on its premises, where the existence of the condition is not reasonably visible or apparent, and where the condition constitutes an unreasonable risk of harm to persons authorized to use and reasonably using the premises for the purposes intended.

Matthews, Kelley, Cannon & Carpenter, Omaha, for appellant.

Boland, Mullin, Walsh & Cooney, Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and WALTER H. SMITH, District Judge.

McCOWN, Justice.

The plaintiff, Jack Johnson, participated in a track meet held on the premises of the defendant, University of Omaha, on May 12, 1967. While pole vaulting, Johnson fell upon a wooden box which had been placed by the defendant beneath the pole vault standards. This action was for damages resulting from the injuries sustained.

The petition alleged negligence on the part of the defendant in placing hard sharply projecting wooden boxes at a place which would unreasonably endanger such persons as the plaintiff; in failing to protect vaulters from the hazard; and in failing to warn plaintiff of the presence of the boxes. The district court sustained the general demurrer of the defendant university. The action was dismissed and plaintiff has appealed. The only issues briefed and argued on appeal are whether or not the defendant is subject to suit, and whether or not the defendant is immune from tort liability.

At the time of the accident here the defendant was a corporation established under the authority of an act of the Legislature. S. 14--1303, R.R.S.1943. The defendant possesses all powers and privileges necessary for the discharge of the functions of a municipal university including incidental powers. S. 14--1319, R.R.S.1943. Although the act does not expressly state that the defendant may sue and be sued, we think it was the intention of the Legislature to vest in the defendant those powers which are normally vested in corporations of this nature. The defendant's contention that it is not subject to suit is without merit.

The issue of governmental immunity from tort liability remains. The traditional common law rule of sovereign or governmental immunity has been subject to both legislative and judicial modification and reshaping. See The Doctrine of Governmental Immunity in Nebraska, Creighton L.Rev., V. 1, No. 1, p. 79. The reasons supporting a broad brush application of the traditional common law doctrine in its old form are no longer defensible. This court has adopted a course of reexamination and gradual transition, rather than sweeping and complete abrogation. The court's processes and procedures are more effectively directed to the pattern of solution embodied in the process of inclusion and exclusion, case by case, and step by step. The legislative processes and procedures can be more effectively applied to a comprehensive solution. See Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805.

The issue of immunity and the issue of liability are two complete and distinct issues. The removal of governmental immunity in a specified area of tort...

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29 cases
  • Ohio Valley Contractors v. Board of Ed. of Wetzel County
    • United States
    • Supreme Court of West Virginia
    • March 5, 1982
    ...621, 264 Minn. 279, 118 N.W.2d 795 (1962); Prewitt v. Parkway School District, 557 S.W.2d 232 (Mo.1977); Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286 (1969); Walsh v. Clark County School District, 82 Nev. 414, 419 P.2d 774 (1966); Merrill v. City of Manchester, 114......
  • White v. State
    • United States
    • United States State Supreme Court of Wyoming
    • December 19, 1989
    ...use and operation of motor vehicles. Brown is followed by the university track meet accident of Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286, 288 (1969): The issue of immunity and the issue of liability are two complete and distinct issues. The removal of governmen......
  • Smith v. State
    • United States
    • United States State Supreme Court of Idaho
    • August 5, 1970
    ...(17 Wis.2d 26, 115 N.W.2d 618) supra.' 183 Neb. 430 at 434, 160 N.W.2d 805 at 808 (1968). See also Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286 (1969). We also recognize the broad coexistent authority of the legislature to act in this field and, therefore, by this ......
  • Jivelekas v. City of Worland
    • United States
    • United States State Supreme Court of Wyoming
    • February 2, 1976
    ...279, 118 N.W.2d 795 (1962) (school districts, municipal corporations, and other political subdivisions); Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N.W.2d 286 (1969) (cities, counties, other governmental subdivisions and local public entities-for conditions on premises); Br......
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