McIntosh By and Through McIntosh v. Omaha Public Schools

• Court: Nebraska Supreme Court
• Writing for the Court: WHITE; PER CURIAM
• Citation: McIntosh By and Through McIntosh v. Omaha Public Schools, 544 N.W.2d 502, 249 Neb. 529 (Neb. 1996)
• Decision Date: 08 March 1996
• Docket Number: No. S-94-310,S-94-310
• Parties: , 107 Ed. Law Rep. 995 Michael J. McINTOSH, a Minor, By and Through Michael T. McINTOSH, Father of Said Minor Child, and Michael T. McIntosh, Appellants and Cross-Appellees, v. The OMAHA PUBLIC SCHOOLS, Appellee and Cross-Appellant.

Page 502

544 N.W.2d 502

249 Neb. 529, 107 Ed. Law Rep. 995

Michael J. McINTOSH, a Minor, By and Through Michael T. McINTOSH, Father of Said Minor Child, and Michael T. McIntosh, Appellants and Cross-Appellees, v. The OMAHA PUBLIC SCHOOLS, Appellee and Cross-Appellant.

No. S-94-310.

Supreme Court of Nebraska.

March 8, 1996.

Syllabus by the Court

1. Invitor-Invitee: Licensee: Trial. The determination as to whether a plaintiff is an invitee or licensee is a question of fact.

2. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the 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 reasonably be deduced from the evidence.

3. Invitor-Invitee: Words and Phrases. An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage.

4. Licensee: Words and Phrases. A licensee is a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor.

5. Invitor-Invitee: Licensee: Words and Phrases. If an invitation relates to the business of the one who gives it or for the mutual advantage of both parties of a business nature, the party receiving it is an invitee. If an invitation is for the convenience, pleasure, or benefit of the person enjoying the privilege, it is only a license, and the person receiving it is a licensee.

6. Trial: Presumptions. Triers of fact may apply to the subject before them that general knowledge which any person must be presumed to have.

7. Negligence: Liability: Invitor-Invitee: Proximate Cause. A possessor of land is subject to liability for injury caused to a business invitee by a condition of the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to a business invitee; (3) the defendant should have expected that a business invitee 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 defendant failed to use reasonable care to protect the plaintiff invitee against the danger; and (5) the condition was a proximate cause of damage to the plaintiff.

8. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

9. Trial: Expert Witnesses. The soundness of a trial court's ruling regarding an expert's qualifications depends upon the particular facts of the case.

10. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

Appeal from the District Court for Douglas County; Joseph S. Troia, Judge. Affirmed in part, and in part reversed and remanded with directions.

Gordon R. Hauptman and Terry M. Anderson, of Hauptman, O'Brien, Wolf & Lathrop, P.C., Omaha, for appellants.

Brian M. Welch, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

In this lawsuit, brought under Nebraska's Political Subdivisions Tort Claims Act against the Omaha Public Schools (OPS), Michael J. McIntosh, an OPS high school student, and Michael T. McIntosh (his father) claim that the trial court erred in holding that the younger McIntosh (McIntosh) was a licensee rather than an invitee when he was injured while participating in a 2-week spring football clinic conducted by an OPS high school on its football field.

In order to hold OPS liable for McIntosh's injury, the trial court required McIntosh, as a licensee, and his father to prove willful or wanton negligence on the part of OPS in its maintenance and use of the practice field upon which McIntosh's injury occurred.

We agree with McIntosh and his father that, under the facts of this case, McIntosh was an OPS invitee. Therefore, OPS was subject to a higher standard of care toward McIntosh than if he had been a licensee. As a result, we reverse the judgment of the district court for Douglas County in favor of OPS and remand the cause for further proceedings consistent with this opinion.

In a cross-appeal, OPS claims that the trial court erred in finding that the lawsuit was not barred by the Nebraska Recreation Liability Act, Neb.Rev.Stat. § 37-1001 et seq. (Reissue 1993). We reject OPS' cross-appeal claim and affirm the district court's holding that the Nebraska Recreation Liability Act does not apply in this case.

ASSIGNMENTS OF ERROR

The McIntoshes claim that the trial court erred in (1) finding that McIntosh was not an invitee, (2) finding that OPS was not negligent, (3) finding that OPS' negligence was not the proximate cause of McIntosh's injury, (4) finding that McIntosh assumed the risk of injury from the unsafe premises, and (5) abusing its discretion by improperly limiting the scope of the McIntoshes' expert witness.

OPS' cross-appeal claims that the trial court erred by not finding that the petition was barred by the Nebraska Recreation Liability Act.

STANDARD OF REVIEW

The determination as to whether a plaintiff is an invitee or licensee is a question of fact. See Palmtag v. Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994).

In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the judgment, it must be considered in the light most favorable to the successful party. See Kuchar v Krings, 248 Neb. 995, 540 N.W.2d 582 (1995). Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Id. See Harvey v. Metropolitan Utilities Dist., 246 Neb. 780, 523 N.W.2d 372 (1994).

FACTS

Michael J. McIntosh played freshman football for Omaha South High School in 1988. In his freshman year, fall football practice was conducted at Collin Field on the campus of Omaha South High School. Before McIntosh began playing freshman football, McIntosh's father signed a permission form in which he agreed not to hold the school responsible for any injury occurring to his son in the course of the athletic activity. McIntosh and his father also signed a "parental consent form" which warned them of potential injuries which could result from participation in any athletic activity.

In the spring of 1989, prior to his sophomore year, McIntosh attended a spring football clinic at Omaha South High School. According to McIntosh, the 2-week clinic served to familiarize future high school football players with the offensive and defensive schemes of the football team. OPS claimed that attendance at the clinic was voluntary. It was McIntosh's understanding that if a student wanted to play football, he should attend the spring clinic. Chris Kirby, a student who also attended the spring clinic, testified that in order to play football, a student "needed" to attend the spring clinic.

The spring clinic was conducted after school was dismissed for the day during the 2-week period. The participants did not pay a fee and did not use school equipment.

Jerry Bartee, then athletic director at Omaha South High School, testified that the spring clinic was a school-related function under the physical education program at Omaha South High School. Jack Oholendt, the head coach of the varsity football team, testified that the spring clinic was part of the high school football program. The school's varsity football coaches were in charge of the clinic.

Before the spring clinic, McIntosh considered Collin Field a dangerous field for contact football. In fact, as a freshman, McIntosh had complained to his football coach that Collin Field was a "hard field." McIntosh's father also felt that his son could be injured playing on Collin Field. At trial, McIntosh described Collin Field as "very hard-surfaced" and "uneven." He testified that "if you were standing back on the track and looking at the field, you would see grass, but if you went to the center of the field where it was mostly traveled, there was basically no grass."

Chris Hamblin, a student who also attended the spring clinic, described Collin Field as "rutted" with "clumps of hard-packed dirt."

Oholendt described Collin Field as a hard "clay, compacted area." In comparing Collin Field to other OPS fields, Oholendt testified that it was the worst field in the OPS district. He also testified that during his entire tenure at Omaha South High School, he did not believe that Collin Field was ever "maintained at a level I thought it should be."

Bartee, however, testified that Collin Field was usable for athletic competition in the spring of 1989. The record reflects that, at an earlier time, Bartee had described Collin Field as being in terrible condition.

Duane Haith, coordinator of physical education and athletics for OPS, testified that Collin Field was safe for physical education activities and athletic event activities. He, however, also testified that when comparing Collin Field to other fields...