Bronsen v. Dawes County

• Decision Date: 04 October 2005
• Docket Number: No. A-04-237.,A-04-237.
• Citation: 14 Neb. App. 82,704 NW 2d 273
• Parties: CAROLYN BRONSEN, APPELLANT, v. DAWES COUNTY, NEBRASKA, A NEBRASKA POLITICAL SUBDIVISION, AND FUR TRADE DAYS, INC., A NEBRASKA CORPORATION, APPELLEES.
• Court: Nebraska Court of Appeals

14 Neb. App. 82

704 NW 2d 273

CAROLYN BRONSEN, APPELLANT, v. DAWES COUNTY, NEBRASKA, A NEBRASKA POLITICAL SUBDIVISION, AND FUR TRADE DAYS, INC., A NEBRASKA CORPORATION, APPELLEES.

No. A-04-237.

Nebraska Court of Appeals.

Filed October 4, 2005.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for appellant.

Michael J. Javoronok, of Michael J. Javoronok Law Firm, for appellee Dawes County.

Neleigh N. Korth and Tim W. Thompson, of Kelley, Scritsmier & Byrne, P.C., for appellee Fur Trade Days, Inc.

INBODY, Chief Judge, and CARLSON and MOORE, Judges.

MOORE, Judge.

INTRODUCTION

Carolyn Bronsen filed a claim in the district court for Dawes County, Nebraska, against Dawes County (the County) and Fur Trade Days, Inc. (FTD), seeking damages for injuries she sustained after tripping and falling in a depression or hole in the lawn of the Dawes County courthouse while attending the Fur Trade Days celebration in Chadron, Nebraska. The district court granted motions for summary judgment filed by the County and FTD, finding that both the County and FTD were immune from liability pursuant to the Nebraska Recreational Liability Act (RLA), Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004). For the reasons stated herein, we affirm.

BACKGROUND

Bronsen's injuries occurred during the Fur Trade Days celebration in Chadron in July 2002. The celebration is arranged by FTD, a not-for-profit corporation organized under the laws of the State of Nebraska. The celebration takes place in Chadron each year on the second weekend of July. Fur Trade Days is a historical celebration of traders, "buckskinners," and Native Americans. The weekend is filled with a variety of different activities, including those at the "buckskinners' camp," where the public can view tepees, oldtime shelters, and furs being sold by traders. Events and activities are held on the Dawes County courthouse lawn, including a "buffalo burger" barbecue, a historical fur trade flag ceremony involving a dramatic presentation of the flags of the various entities involved in this country's fur trade, a flea market, and performances by bluegrass bands, Native American dancers, and other entertainers. Fur Trade Days also includes a parade, softball games throughout the weekend, and many other activities.

The summary judgment record shows that at the time of Fur Trade Days in 2002, Bronsen, a resident of Utah, was visiting her parents in Chadron. Bronsen had not attended Fur Trade Days or visited the courthouse lawn prior to the July 2002 celebration. On July 13, Bronsen and her family watched the parade, walked through the flea market, and purchased buffalo burgers and beverages for lunch. Bronsen and her family sat at a picnic table on the courthouse lawn to eat their lunch, after which they planned to view the "[Native American] powwow." After lunch, Bronsen and her father went across the street to get bowls of homemade ice cream for the family to eat. Bronsen and her family visited while they ate the ice cream. As she walked across the courthouse lawn prior to her accident, Bronsen was able to feel that the lawn was uneven. Bronsen was also aware that her father had stepped in a hole in the courthouse lawn before the family first arrived at the picnic table. When Bronsen and her family were done eating, Bronsen picked up some paper plates and bowls that had blown off the picnic table, intending to throw them away in a nearby trash can. On her way to the trash can, Bronsen stepped into a hole or uneven area and fell, breaking her ankle. Since the accident, Bronsen has had several surgeries to repair the break. At the time of her deposition in November 2003, Bronsen still had pain in her ankle. Bronsen also continued to receive medical treatment in connection with the accident.

We note that although filed after the date when new rules of pleading took effect in Nebraska, Bronsen's pleadings use captions and terms from the old rules of pleading. Bronsen captioned her complaint and subsequent amended complaint with the terms "petition" and "amended petition" and used the term "cause of action" rather than the term "claim." Throughout this opinion, we will refer to Bronsen's operative "petition" (her amended petition) as the "complaint" and will refer to what Bronsen has titled her "cause of action" as her "claim."

Bronsen filed her operative complaint on May 12, 2003, setting forth a negligence claim against both the County and FTD. Specifically, Bronsen alleged that on July 13, 2002, she suffered personal injuries when she fell after stepping in a hole in the courthouse lawn while attending Fur Trade Days. Bronsen alleged that her fall was proximately caused by the negligence of the County in that it failed to (1) inspect the courthouse lawn for dangerous conditions, (2) maintain the lawn in a manner suitable for pedestrian traffic, (3) repair holes as they appeared in the lawn, (4) warn pedestrians of the existence of the hole, or (5) restrict traffic in the area of the hole so as to prevent pedestrians from falling there. Bronsen alleged that her fall was also proximately caused by the negligence of FTD as the occupier of the courthouse lawn on July 13. Bronsen alleged that FTD was negligent in the same respects as was the County. Bronsen further alleged that her injuries required treatment from health care providers, that she incurred medical expenses exceeding $1,000, and that she would continue to incur future medical expenses. Bronsen also sought recovery for disability, pain and suffering, and lost income, both past and future. Finally, Bronsen alleged that she had filed a tort claim on October 21 with the Dawes County clerk pursuant to Nebraska's Political Subdivisions Tort Claims Act, that more than 6 months had passed without response, and that she had withdrawn her claim on April 23, 2003. Bronsen sought judgment for her special damages in an amount to be proved at trial and for such general damages as were allowable by law.

In its answer, the County denied that any defect existed in the lawn at the county courthouse other than the inherent uneven condition of the lawn itself due to the natural settling and rising of the soil. The County admitted that Bronsen fell on the lawn of the courthouse but alleged that Bronsen's fall was proximately caused by her own negligence. The County also contended that Bronsen's injuries "may not have been as she has alleged" and that Bronsen may have failed to mitigate her damages. The County alleged that it may be immune from liability because the premises were being used for recreational purposes as defined by § 37-729. The County also asserted that it did not have sufficient funds to "allocate as [Bronsen] has suggested." FTD filed an answer and subsequently an amended answer, making similar allegations and denials to those made by the County.

The County and FTD filed motions for summary judgment, which were heard by the district court on December 22, 2003. In addition to the evidence set forth above, the record at the summary judgment hearing included deposition testimony from Carol Connell, a part-time custodian and groundskeeper for the County. Connell's duties at the courthouse include minor interior maintenance, painting, daily cleaning, snow removal in the winter, and lawn maintenance in the summer. Connell mows, waters, and trims shrubs. Connell sows grass seed in areas where trees have been removed and fills holes in the courthouse lawn in the spring and summer. Connell testified that she had filled the hole where Bronsen fell with dirt sometime prior to the 2002 Fur Trade Days celebration but that the dirt used to fill the hole had apparently settled. Connell testified that she probably did not put enough dirt in the hole and testified that the dirt "washes with the hoses." Connell testified that she thought her maintenance of the lawn and procedure for repairing uneven spots were reasonable. Connell had never heard of any other individual complaining of holes or dents in the courthouse lawn.

George Klein, one of the cochairs for the 2002 Fur Trade Days celebration, also testified by deposition. Klein was asked how FTD ensured that the land it used for Fur Trade Days activities was safe. Klein responded that FTD relied on the County's maintenance of the courthouse grounds. Klein did not direct a specific inquiry to the County about its maintenance activities prior to the 2002 celebration, and he testified that no one from FTD inspected the courthouse lawn. Klein testified that in terms of making sure the courthouse lawn was safe for Fur Trade Days activities, FTD expected the County to perform its "normal maintenance" and expected that the County would take measures to fill any holes "big enough to put a foot in" if the County were aware of such holes.

The record also includes an affidavit in which Klein provided information about FTD and his knowledge of the 2002 celebration. In his affidavit, Klein stated that he was unaware of FTD's ever paying a fee to the County for the use of the courthouse lawn and that at no time was FTD requested to perform any work or repairs on the lawn. Klein stated that at no point before or during the 2002 celebration (prior to Bronsen's accident) did he see or otherwise become aware of the hole that allegedly caused Bronsen's fall. Based on Klein's experience with and observations of the courthouse lawn, he did not believe it to be a dangerous place for hosting a public event. Klein stated that FTD does not charge the celebration attendees any sort of admission fee to enter the courthouse lawn. According to Klein, the only money paid by attendees is to purchase food or goods sold by various vendors for the event, and attendees are in no way required to purchase any of these items. Klein stated that attendees could simply sit at any of the various picnic tables on the lawn and enjoy the free entertainment and could even bring their own food and...