Connelly v. City of Omaha

• Decision Date: 20 July 2012
• Docket Number: S–10–880.,No. S–10–879,S–10–879
• Citation: 816 N.W.2d 742,284 Neb. 131
• Parties: Rachel CONNELLY, a minor, individually and by and through her next friends and natural parents, Timothy James Connelly and Kelly Jean Connelly, appellee and cross-appellant, and Chelsea Connelly, a minor, individually and by and through her next friends and natural parents, Timothy James Connelly and Kelly Jean Connelly, appellee, v. CITY OF OMAHA, appellant and cross-appellee. Kelly Jean Connelly and Timothy James Connelly, wife and husband and natural guardians of Rachel and Chelsea Connelly, appellees, v. City of Omaha, appellant.
• Court: Nebraska Supreme Court

284 Neb. 131

816 N.W.2d 742

Rachel CONNELLY, a minor, individually and by and through her next friends and natural parents, Timothy James Connelly and Kelly Jean Connelly, appellee and cross-appellant, and Chelsea Connelly, a minor, individually and by and through her next friends and natural parents, Timothy James Connelly and Kelly Jean Connelly, appellee,

v.CITY OF OMAHA, appellant and cross-appellee.

Kelly Jean Connelly and Timothy James Connelly, wife and husband and natural guardians of Rachel and Chelsea Connelly, appellees,

v.

City of Omaha, appellant.

No. S–10–879, S–10–880.

Supreme Court of Nebraska.

July 20, 2012.

Syllabus by the Court

[284 Neb. 131]1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the factual findings of the trial court will not be disturbed on appeal unless they are clearly wrong. When determining the sufficiency of the evidence to sustain the trial court's judgment, it must be considered in the light most favorable to the successful party; every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can be deduced from the evidence.

2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

3. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, an appellate court is obligated to reach a conclusion independent of the decision reached by the court below.

4. Damages. While the amount of damages presents a question of fact, the proper measure of damages presents a question of law.

5. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against an individual, i.e., duty, breach of duty, causation, and damages.

6. Negligence: Liability: Invitor–Invitee: Proximate Cause: Proof. An owner or occupier is liable for injury to a lawful visitor resulting from a condition on the owner or occupier's premises if the lawful visitor proves: (1) The owner or occupier either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the owner or occupier should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the owner or occupier should have expected that a lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would fail to protect himself or herself against the danger; (4) the owner or occupier failed to use reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to the lawful visitor.

7. Negligence: Liability. Generally, when the danger posed by a condition is open and obvious, the owner or occupier is not liable for harm caused by the condition.

8. Negligence: Proximate Cause. A plaintiff is contributorily negligent if (1) she or he fails to protect herself or himself from injury, (2) her or his conduct concurs and cooperates with the defendant's actionable negligence, and (3) her or his conduct contributes to her or his injuries as a proximate cause.

9. Trial: Negligence: Damages: Appeal and Error. Because the purpose of comparative negligence is to allow triers of fact to compare relative negligence and to apportion damages on that basis, the determination of apportionment is solely a matter for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by credible evidence and bears a reasonable relationship to the respective elements of negligence proved at trial.

10. Negligence: Damages. A person who suffers injury as a result of the negligence of another is entitled to recover for the reasonable value of medical care and expenses incurred for the treatment of the injuries.

11. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality.

12. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

13. Constitutional Law: Statutes: Proof. The unconstitutionality of a statute must be clearly established before it will be declared void.

14. Constitutional Law: Statutes: Legislature: Presumptions. The Nebraska Legislature is presumed to have acted within its constitutional power despite that, in practice, its laws may result in some inequality.

15. Constitutional Law: Due Process. The Due Process Clauses of both the federal and the state Constitutions forbid the government from infringing upon a fundamental liberty interest, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.

16. Due Process. Substantive due process relates to the content of the statute specifying when a right can be lost or impaired.

17. Constitutional Law: Due Process: Statutes. In cases involving due process challenges under the Nebraska Constitution, when a fundamental right or suspect classification is not involved in the legislation, a legislative act is a valid exercise of the police power if the act is rationally related to a legitimate state interest.

18. Statutes: Courts: Legislature: Intent. Courts will not independently review the factual basis on which the Legislature justified a statute, nor will a court independently review the wisdom of a statute. Instead, courts inquire whether the Legislature reasonably could conceive to be true the facts on which the challenged statute was based.

19. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

[284 Neb. 133]20. Actions: Torts: Minors: Damages. Under Nebraska law, injury to a minor results in two causes of action—one on behalf of the minor and the other on behalf of the minor's parent. The minor'sclaim is based on damages caused by the personal or bodily injury sustained by the minor, while the claim of a parent is based on the loss of services during minority and the necessary expenses of treatment for the injured child.

21. Actions: Torts: Minors. The cause or right of action of parents is distinct from the cause of action of their child.

22. Appeal and Error. Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.

23. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellant.

Thomas M. Locher, Omaha, Timothy M. Morrison, and Joseph J. Kehm, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellees.

HEAVICAN, C.J., CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and IRWIN and PIRTLE, Judges.

STEPHAN, J.

Rachel Connelly and Chelsea Connelly are the minor daughters of Kelly Jean Connelly and Timothy James Connelly. On December 29, 2000, Rachel and Chelsea were injured in Memorial Park in Omaha, Nebraska, when their saucer-type plastic sled collided with a tree. Two actions were commenced against the City of Omaha (City) in the district court for Douglas County under the Political Subdivisions Tort Claims Act (PSTCA).¹ One action was brought by the parents to recover medical expenses and loss of services based on their daughters' injuries. The second action was brought by the daughters, by and through their parents, for injuries incurred in the accident. The district court found that the accident and resulting injuries were proximately caused by the negligence of the City, and awarded damages in both actions. On appeal, the City argues that the district court erred in its assessment of both liability and damages. In her cross-appeal, Rachel, by and through her parents, contends that the damage cap set forth in § 13–926 as applied in this case violates her right to due process. We affirm the judgment of the district court in the daughters' action, and affirm as modified the judgment in the parents' action.

I. FACTS

Kelly, Timothy, Rachel, and Chelsea are residents of Omaha. The accident occurred in Memorial Park, which is public property owned by the City and may be used free of charge for recreational purposes. The City was solely responsible for planting, maintaining, and removing all trees in the park. The City knew that the park had been used by the public for sledding for many years, and it was aware of prior incidents in which persons sledding in the park had collided with trees.

1. Events Prior to Accident

In the late 1990's, the City began planning to restore and renovate Memorial Park. The primary purpose was to improve the park's infrastructure. The project involved planting 300 new trees.

The City held meetings to hear public comment on the project. At the first meeting held on March 7, 1997, attendees commented on “the essence, character, imageand purpose of Memorial Park,” which included “sledding opportunities.” At a second meeting on April 25, attendees commented that new plantings should be avoided in the area of the park used for sledding. Mary Slaven, a park planner and the project manager for the City's reforestation project, understood these comments to mean that trees should not be planted in the area of the park used for sledding. Slaven thus made that one of her goals in planning the renovation project. But Slaven did not know which specific area of the park was used for sledding. During one meeting, one...