Bronsen v. Dawes County
| Decision Date | 29 September 2006 |
| Docket Number | No. S-04-237.,S-04-237. |
| Parties | Carolyn BRONSEN, appellant, v. DAWES COUNTY, Nebraska, a Nebraska political subdivision and Fur Trade Days, Inc., a Nebraska corporation, appellees. |
| Court | Nebraska Supreme Court |
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for appellant.
Michael J. Javoronok, of Michael J. Javoronok Law Firm, Scottsbluff, for appellee Dawes County.
Neleigh N. Korth and Tim W. Thompson, of Kelley, Scristmier & Byrne, P.C., North Platte, for appellee Fur Trade Days.
Appellant, Carolyn Bronsen, sustained personal injuries when she stepped into a hole or depression in the Dawes County, Nebraska, courthouse lawn. Bronsen was attending a historical celebration organized by Fur Trade Days, Inc. (FTD), a Nebraska not-for-profit organization. After complying with the notification requirements of Nebraska's Political Subdivisions Tort Claims Act (PSTCA), Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1997 & Cum. Supp.2002), Bronsen filed a negligence action against Dawes County and FTD.
In response to defendants' motions for summary judgment, the district court found that under Nebraska's Recreation Liability Act (RLA), Neb.Rev.Stat. §§ 37-729 to 37-736 (Reissue 2004), Bronsen was using the courthouse lawn for a recreational purpose and that both Dawes County and FTD were owners under the RLA. Having determined that the RLA applied, the district court concluded that Dawes County and FTD were not liable for Bronsen's injuries because their conduct did not rise to the level of willful or malicious failure to act, a required showing for landowner liability under the RLA. The Nebraska Court of Appeals affirmed. Bronsen v. Dawes County, 14 Neb.App. 82, 704 N.W.2d 273 (2005). We granted Bronsen's petition for further review.
The relevant facts taken from the Court of Appeals' opinion are set forth below:
Bronsen's injuries occurred during the Fur Trade Days celebration in Chadron[, Nebraska] in July 2002. The celebration is arranged by FTD [and] takes place in Chadron each year on the second weekend of July. . . . Events and activities are held on the Dawes County courthouse lawn. . . . 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 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 [PSTCA], 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. . . . 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 [and affidavit evidence from a number of witnesses].
. . . .
The district court entered an order on February 4, 2004, granting both motions for summary judgment. The court found that it was clear Bronsen "was using [the courthouse lawn] for picnicking, viewing historical events or recreations (pow wow) or otherwise using the land for purposes of the user" and that those uses would qualify as recreational purposes under § 37-729(3). The court found that the facts adduced showed that FTD qualified as an owner as defined by § 37-729(2), in that it was an occupant or person in control of the premises. The court found that the evidence showed that Bronsen was allowed to use the courthouse lawn without charge. The court stated that FTD was thus immune from liability unless there was a willful or malicious failure on its part. The court found that FTD had no knowledge of the hole and did not create the hole and that thus, there was no willful or malicious action on the part of FTD.
The district court concluded that the County's actions would also place it within the protection of the RLA. The court stated that in order to establish liability on the part of the County, Bronsen was likewise required to show that its actions would amount to a willful or malicious failure. . . . The court concluded that there was no willful or malicious action on the part of the County.
The district court found no genuine issue as to any material fact and concluded that the County and FTD were entitled to judgment as a matter of law. Accordingly, the court granted the motions for summary judgment.
Bronsen v. Dawes County, 14 Neb.App. 82, 84-89, 704 N.W.2d 273, 277-80 (2005).
Bronsen assigns, restated, that the Court of Appeals erred in concluding that Dawes County, which was sued under the PSTCA, was immune from suit by application of the RLA. Bronsen also assigns that the Court of Appeals erred in affirming the district court's conclusion that her conduct fell within the definition of "picnicking," a recreational use of property under the RLA. Bronsen does not assign as error the district court's determination that FTD was an owner under the RLA.
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Cole v. Isherwood, 271 Neb. 684, 716 N.W.2d 36 (2006).
Statutory interpretation presents a question of law. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006).
Bronsen argues, simply stated, that the RLA should not be applied to governmental entities. Bronsen specifically requests this court to reexamine its decision in Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981). In Watson, this court held that the limited immunity from liability afforded to owners of land under the RLA applies to governmental entities as well as private landowners. On three occasions since Watson, this court has explicitly reaffirmed its determination that the RLA's...
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