Garreans by Garreans v. City of Omaha

• Decision Date: 17 February 1984
• Docket Number: No. 82-814,82-814
• Citation: 345 N.W.2d 309,216 Neb. 487
• Parties: John GARREANS, Jr., a minor, by his next friend and father, John GARREANS, Sr., et al., Appellees, v. CITY OF OMAHA, a municipal corporation, Appellant.
• Court: Nebraska Supreme Court

Page 309

345 N.W.2d 309

216 Neb. 487

John GARREANS, Jr., a minor, by his next friend and father, John GARREANS, Sr., et al., Appellees, v. CITY OF OMAHA, a municipal corporation, Appellant.

No. 82-814.

Supreme Court of Nebraska.

Feb. 17, 1984.

Syllabus by the Court

1. Recreation Liability Act: Negligence: Liability. Under the Nebraska Recreation Liability Act the owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility.

2. Recreation Liability Act: Fees. The clear meaning of Neb.Rev.Stat. § 37-1008 (Reissue 1978) is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility.

3. Statutes. Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language.

4. Recreation Liability Act: Negligence: Liability. Under the Nebraska Recreation Liability Act the owner of a recreational facility may be liable for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity even though no charge was made to enter or go upon the land.

5. Negligence. In order for an action to be willful or wanton, the evidence must show that the defendant acted with actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent the harm which was reasonably likely to result.

6. Negligence. To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury.

7. Negligence. An actor cannot act willfully in failing to remove a danger when he has no knowledge of it.

8. Negligence. An actor is contributorily negligent if he breaches the duty imposed upon him by law to protect himself from injury; if his actions concur and cooperate with actionable negligence of the defendant; and if his actions contribute to his injuries as a proximate cause.

9. Negligence: Minors. A child is required to exercise that degree of care which a person of that age would naturally and ordinarily use in the same situation under the same circumstances.

10. Negligence. The degree of care required increases when an actor is dealing with a dangerous activity such as exploding firecrackers.

Herbert M. Fitle, City Atty., James E. Fellows, and Timothy M. Kenny, Omaha, for appellant.

Thomas F. Dowd and John P. Fahey of Dowd & Fahey and J. Patrick Green, Omaha, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

This is an action under the Nebraska Political Subdivisions Tort Claims Act against the City of Omaha, Nebraska, to recover damages for the injuries sustained by the plaintiffs, John Garreans, Jr., and Vince Hartline, in an explosion which occurred at N.P. Dodge Park on July 5, 1980, while the plaintiffs were visiting with their grandparents, Ray and Evelyn Stoops, at the park. The petition included a second cause of action for the medical expenses incurred by the parents of the plaintiffs as a result of the explosion. At the time of the accident both plaintiffs were 12 years of age. The action was brought by their fathers as the next friends of the plaintiffs. The defendant has raised no issue in this court concerning joinder.

The evidence shows that on July 3, 1980, Ray and Evelyn Stoops entered N.P. Dodge Park in Omaha, Nebraska, with their camper, intending to camp in the park over the 3-day holiday. Evelyn Stoops paid a $10.50 fee at the concessionaire's office for the use of camper pad No. 25 for the 3-day period. Electrical service was provided at that pad. While they were setting up camp, the Stoopses noticed a black, 55-gallon drum nearby. The black drum was in addition to a trash barrel at the pad, which was a 55-gallon drum from which the top had been removed. Trash barrels, which consisted of 55-gallon drums from which the tops or lids had been removed, were distributed throughout the park, including the camping area. These drums were painted various colors and were labeled "TRASH" on the side.

Printing or lettering on the side of the black drum indicated that it had contained an antifreeze compound. A red or orange label, approximately 4 inches square, was affixed to the top of the drum. The label bore the legend "Flammable Liquid" printed below a representation of a fire or flames.

The lid or top of the black drum was intact, and the drum was closed except for a small opening, approximately 1 inch in diameter, from which a plug had been removed. There is no evidence that the city placed the black drum in the park, and a search of city records showed that the city had not purchased the black drum. The plaintiffs contended that the city was negligent in failing to remove the drum from the park.

On July 5, 1980, the plaintiffs entered the park to visit with their grandparents at camper pad No. 25. In accordance with park policy, no admission fee was charged them. Both boys had been given firecrackers by their fathers. The boys used a cigarette lighter to light the firecrackers, and used the black drum as a shelf for their activities. The explosion occurred when they dropped a lighted firecracker into the black drum through the 1-inch hole in the lid. The drum exploded, spraying flammable liquid on the boys. John received severe burns on his lower extremities. Vince suffered injuries to his nose and arm, and was also burned.

The trial court found that the city had failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent. Judgment was entered in the amount of $243,190.57 for John Garreans, Jr., and in the amount of $104,726.95 for Vince Hartline.

One of the principal issues in the case was whether the Recreation Liability Act was applicable. The city assigns as error the failure of the court to properly apply the standard of care found in the Recreation Liability Act.

Neb.Rev.Stat. § 37-1002 (Reissue 1978) provides: "Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes."

Neb.Rev.Stat. § 37-1005 (Reissue 1978) provides: "Nothing in sections 37-1001 to 37-1008 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made by the owner of the land."

The act thus provides that an owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility, although the owner may be liable for certain willful actions.

The trial court found that the fee paid by Evelyn Stoops for the use of the camper pad constituted a "charge" for entry upon land and that the actions of the city amounted to "willful negligence."

Findings of fact made by the district court in cases brought under the Political Subdivisions Tort Claims Act will not be disturbed on appeal unless clearly wrong. Studley v. School Dist. No. 38, 210 Neb. 669, 316 N.W.2d 603 (1982); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

The city through its operation of N.P. Dodge Park provides camping, picnic, and sports facilities, and the park is a "recreational facility" within the meaning of the act. Neb.Rev.Stat. § 37-1008 (Reissue 1978) provides in part: "(3) the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user." See Watson v. City of Omaha, supra.

The term "charge" is defined in § 37-1008: "(4) the term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land."

The clear meaning of this statute is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language. County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62 (1982); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).

The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee. Charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park's other facilities than that had by the general public. We conclude that the fee paid by Evelyn Stoops was not a charge for entry upon the land but was a fee paid for the right to park a camper upon a specific pad.

This conclusion has been reached by other courts faced with similar issues. In Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969), a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no...