Nared v. School Dist. of Omaha in Douglas County

• Decision Date: 28 February 1974
• Docket Number: No. 39156,39156
• Citation: 215 N.W.2d 115,191 Neb. 376
• Court: Nebraska Supreme Court
• Parties: Willie NARED, Appellee, v. The SCHOOL DISTRICT OF OMAHA IN the COUNTY OF DOUGLAS, in the State of Nebraska, Appellant, and the City of Omaha, a municipal corporation, Appellee.

Page 115

215 N.W.2d 115

191 Neb. 376

Willie NARED, Appellee, v. The SCHOOL DISTRICT OF OMAHA IN the COUNTY OF DOUGLAS, in the State of Nebraska, Appellant, and the City of Omaha, a municipal corporation, Appellee.

No. 39156.

Supreme Court of Nebraska.

Feb. 28, 1974.

Syllabus by the Court

A police officer who is called to investigate a burglary on a premises and is injured as a consequence of a condition upon a portion of the premises not open to the public has the status of a licensee. The occupier of the premises owes to the licensee the duty to warn, if an opportunity is afforded, of hidden dangers known to the occupier but unknown to and not readily observable by the licensee. The means by which or the person from whom notice comes to the officer or the police department of the need for the officer's services is immaterial to a determination of his status.

Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, for appellant.

J. V. Benesch, Alfred A. Fiedler, Omaha, for Willie Nared.

George S. Selders, Jr., Omaha, for City of Omaha.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and FLORY, District Judge.

CLINTON, Justice.

Plaintiff, a policeman, was injured when he fell through a false ceiling at Kellom School in Omaha while investigating a report of a possible burglary in progress. He bases this action on certain claims of negligence on the part of the school district. The defendant school district denied negligence and alleged contributory negligence and assumption of risk. The case was filed under the Political Subdivisions Tort Claims Act and was therefore tried by the court alone. Plaintiff was awarded a judgment. The defendant school district appeals. We reverse and direct dismissal.

On the night of August 10, 1971, the plaintiff and another officer responded to a radio call from their headquarters, apparently initiated as a result of signal from an automatic alarm system at the school which was directly connected with police headquarters. Upon arrival at the school the officers captured one juvenile intruder and searched for others who had been observed. In the course of searching the building they discovered an open trap door or scuttle hole in the ceiling of a janitor's closet on the second floor of the school. The scuttle hole opened upon the air space between the roof of the building and the false ceiling of the second floor. Following a fruitless attempt to turn on lights in the attic space, the plaintiff, using closet shelves as a ladder, climbed into the attic and with the aid of a flashlight began his search. The scuttle hole opened upon a catwalk which extended through the attic a distance of 104 feet. The officer proceeded down the catwalk searching with his flashlight. The catwalk consisted of two parallel widths of plank laid upon wooden or steel stirrups which in turn were supported from the ceiling by steel straps. The floor of the catwalk was immediately above the false ceiling and adjacent to the catwalk on both sides at about floor level were various utility pipes. After the plaintiff had moved along the catwalk for 50 or 75 feet he stumbled from the catwalk and fell through the false ceiling to the floor 10 feet below. He testified: 'I just stumbled and fell. . . . Q Did you trip over some object as you fell? A I would say so, yes. . . . Q And you did feel yourself tripping? A Falling to the left of the catwalk there.' Plaintiff was unable to identify any object over which he tripped. However, photographs taken a few days after the accident disclose a loose 2 4 perhaps 5 or 6 feet in length with a single nail projecting from each end and resting upon some utility pipes. One end of the board extended part way over the catwalk. The other extended over and slightly down into the break in the false ceiling made by the plaintiff when he fell. There was no evidence to indicate how the 2 4 came to be there, or how long it had been there, or that any of the agents of the school district had notice of its presence.

The trial court found that the plaintiff had stumbled over the board and that the attic did not have any operable lighting system at the time. It adopted the plaintiff's theory that he was an invitee by reason of the alarm having been given by the automatic signal connected directly to the police building; that the position of the board in the dark attic constituted a dangerous condition; and that the school district should have anticipated possible use of the catwalk by investigating officers. The District Court further found that the defendant had a duty to make the attic area 'safe as to those dangerous conditions of which it knew or in the exercise of reasonable care should know, or to give the invitee warning adequate to enable him to avoid harm.'

Policemen and firemen who are privileged to enter premises in the course of their duties as public officers without reference to any express or implied invitation from the owner or occupier are in some jurisdictions held to be in the same class as a business invitee and in others to have the status of a licensee. 65 C.J.S. Negligence §§ 63(110), 63(111), pp. 861, 865. This court has heretofore classified firemen as licensees. Wax v. Co-Operative Refinery Ass'n, 154 Neb. 805, 49 N.W.2d 707; New Omaha...