Teters v. Scottsbluff Public Schools, A-96-063
| Decision Date | 15 July 1997 |
| Docket Number | No. A-96-063,A-96-063 |
| Citation | 567 N.W.2d 314,5 Neb.App. 867 |
| Parties | , 120 Ed. Law Rep. 575 Kim TETERS, Appellee, Cross-Appellant, and Cross-Appellee, v. SCOTTSBLUFF PUBLIC SCHOOLS, a political subdivision and nonprofit corporation of the State of Nebraska, Appellee, Cross-Appellant, and Cross-Appellee, and Kiwanis Club of Scottsbluff, Nebraska, a nonprofit corporation doing business as Camp Kiwanis, Appellant and Cross-Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. 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 unless 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.
2. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.
3. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
4. Summary Judgment: Final Orders: Appeal and Error. A denial of a motion for summary judgment is not a final order and is therefore not appealable.
5. Directed Verdict: Evidence: Appeal and Error. When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law.
6. Recreation Liability Act: Fees. The clear meaning of the Nebraska Recreation Liability Act, Neb.Rev.Stat. § 37-1005 (Reissue 1993), is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility.
7. Statutes. A statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous.
8. Statutes: Legislature: Intent. Interpretation of a statute requires a court to determine and give effect to the intent of the Legislature and the purpose intended to be advanced by adoption of the statute, as can be ascertained from the entire language of the statute, given the plain, ordinary, and popular sense of the statute's language.
9. Leases: Contracts: Time: Words and Phrases. A lease is a species of contract for the possession and profits of land and tenements, either for life or for a certain period of time, or during the pleasure of the parties; and the essential elements of a contract must be present.
10. Leases: Real Estate: Time: Words and Phrases. A lease of real estate is a hiring or renting of it for a certain time for a named consideration.
11. Licenses and Permits: Real Estate: Words and Phrases. A license in respect of realty is an authority to do an act on the land of another without possessing any estate in the land and is to be distinguished from a grant or demise creating some interest in the property.
12. Recreation Liability Act: Real Estate. A landowner need allow only some members of the public, including the plaintiff, to use the owner's land without charge to facilitate the purpose of the Nebraska Recreation Liability Act.
13. Political Subdivisions Tort Claims Act: Schools and School Districts: Negligence: Liability. A public school is a tax-supported political subdivision in the business of providing academic and physical fitness and, as such, is liable for negligence under the Political Subdivisions Tort Claims Act.
14. Negligence. For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty.
15. 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.
16. Invitor-Invitee. Landowners owe invitees the duty of reasonable care to keep the premises safe for the use of the invitee.
17. Invitor-Invitee: Words and Phrases. A business visitor is considered an invitee, and thereby receives a higher degree of care, reasonable care, ostensibly because he or she conveys some benefit upon the landowner.
18. 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.
19. Negligence: Licensee. An owner or occupant of premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn the licensee of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who is required to exercise ordinary care.
20. Invitor-Invitee: Licensee: Words and Phrases. The distinction between invitees and licensees rests on the purpose for which the invitation was extended. If it is an invitation for personal pleasure, convenience, or benefit of the person enjoying the privilege, the person receiving it is a licensee, but if the invitation relates to the business of the one who gives it or for the mutual advantage of a business nature for both parties, the party receiving the invitation is an invitee.
21. 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.
22. Leases. A temporary lessee does not have a duty to inspect for latent defects.
Julie A. Moran and, on brief, Brian D. Nolan, of Hansen, Engles & Locher, P.C., Omaha, for Appellant.
Paul W. Snyder, of The Van Steenburg Firm, P.C., Scottsbluff, for Appellee Teters.
John R. Hoffert, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for Appellee Scottsbluff Public Schools.
Kim Teters brought this negligence action against Scottsbluff Public Schools (SPS) and Kiwanis Club of Scottsbluff (Kiwanis) for injuries she sustained while serving as a parent volunteer at an SPS sponsored educational and recreational program at Camp Kiwanis in Scottsbluff, Nebraska. A jury found generally for Teters in her action against Kiwanis and awarded her $66,000 for her damages. The district judge, trying the case against SPS under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991), also found in favor of Teters and held SPS and Kiwanis jointly and severally liable. Both SPS and Kiwanis now appeal. SPS did not join Kiwanis as an appellant, but under Neb. Ct. R. of Prac. 1C (rev.1996), SPS is considered a cross-appellant. We conclude that under the Nebraska Recreation Liability Act, Neb.Rev.Stat. § 37-1001 et seq. (Reissue 1993), Kiwanis is not liable to Teters, and, therefore, we reverse the judgment of the district court. Concerning Teters' action against SPS, we conclude that SPS had no duty to inspect for latent defects, and, therefore, we also reverse the district court's judgment on this matter.
On May 9, 1991, SPS sponsored an overnight "outdoor education experience" at Camp Kiwanis, which is operated by Kiwanis, for sixth grade students attending Bluffs Middle School. During the 2-day experience, the students participated in various recreational activities, including canoeing, archery, and hiking. Teters' daughter attended that event, and in answer to the school's request for parental supervision, Teters also attended. When Teters was injured, she was personally using part of the camp's obstacle course known as the slide-for-life, which is an apparatus that allows the participant to slide down a cable on a pulley. Specifically, Teters was unable to hold onto the pulley upon which she was riding, and as she fell from the pulley, the stitching on the slide's safety harness, which was designed to prevent falls, broke, causing her to fall approximately 15 to 20 feet to the ground. Teters was seriously injured by that fall.
In 1949, the city of Scottsbluff leased the land upon which Camp Kiwanis is situated to Kiwanis for 99 years. Over the years, the camp has been managed by the Camp Fire Boys and Girls and Kiwanis. Kiwanis reacquired management of the camp in January or February 1991.
One of the two managers of Camp Kiwanis testified that in April 1991, all groups were required to have reservations in order to use the camp and that no groups were allowed to enter the camp for free. The manager did however, testify that the Kiwanis' camp board permits the American Heart Association to use the camp without charge. James Livingston, who held the office of secretary of the camp board for Kiwanis, testified that the...
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