Watson v. City of Omaha

• Decision Date: 06 November 1981
• Docket Number: No. 43488,43488
• Citation: 312 N.W.2d 256,209 Neb. 835
• Parties: LaShonda WATSON, by her father and next friend, George W. Watson, and George W. Watson, individually, Appellees, v. CITY OF OMAHA, a municipal corporation, Appellant.
• Court: Nebraska Supreme Court

Page 256

312 N.W.2d 256

209 Neb. 835

LaShonda WATSON, by her father and next friend, George W. Watson, and George W. Watson, individually, Appellees, v. CITY OF OMAHA, a municipal corporation, Appellant.

No. 43488.

Supreme Court of Nebraska.

Nov. 6, 1981.

Syllabus by the Court

1. Tort Claims Act: Appeal and Error. Findings of fact made by the District Court in a case brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1977), will not be disturbed on appeal unless clearly wrong.

2. Recreation Liability Act: Words and Phrases. The term "owner," as used in the Recreation Liability Act, Neb.Rev.Stat. §§ 37-1001 et seq. (Reissue 1978), includes a political subdivision as well as a private person.

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

John H. Bernstein of Higgins & Okun, Omaha, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

On Friday, June 30, 1978, LaShonda Watson, age 21/2 years, fell from a slippery slide located in Lake James Park and suffered a fractured leg. This action was brought by her father and next friend under the Nebraska Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1977), to recover damages from the defendant, City of Omaha, which owned and operated the public park. The District Court entered judgment in favor of the plaintiff in the total amount of $6,086.85. Although the City of Omaha assigns several errors in this appeal, including the sufficiency of the evidence to support the judgment, contributory negligence of the plaintiff and her parents, and the absence of negligence on the part of the defendant, the principal issue, and the one upon which a decision in this case turns, is the applicability of the Recreation Liability Act, Neb.Rev.Stat. §§ 37-1001 et seq. (Reissue 1978), to a municipality. We reverse and dismiss the action.

Sometime during the afternoon of the date of the accident, the plaintiff, together with her 10-year-old brother Kevin, two cousins, a sister, and a friend of Kevin's, all being 12 years of age or younger, went to the park to play. The children were playing on the slide in spite of the fact that they had noticed that the greater portion of the left handrail had been cut off and was missing. Both Kevin and LaShonda were on the second step from the platform when one of the cousins started doing a flip at the top of the slide. As a result of this activity, Kevin told LaShonda to get out of the way so that she would not get kicked. LaShonda started down, holding on to the upper part of the left handrail that was still in place, but when she got to the point where the rail was missing she fell to the ground, fracturing her leg.

Witnesses provided conflicting accounts as to how long the handrail had been missing. Plaintiff's witnesses stated the rail had been missing for approximately 2 weeks prior to the accident, while the maintenance people of the City of Omaha testified that it was in place as late as the morning of the accident. There was also evidence that the rail had been cut with a pipe cutter and that the ends of the rail where cut were not rusty. The City of Omaha was notified of the accident late that same afternoon by LaShonda's father. Mr. Watson testified further to observing that repairs had been made to the slide by the following Monday.

The Recreation Liability Act, particularly at §§ 37-1001, 37-1002, and 37-1005, provides in part that the purpose of the act is to "encourage owners of land to make available to the public land ... for recreational purposes by limiting their liability ..." and, consequently, "an owner of land owes no duty of care to keep the premises safe for ... use by others for recreational purposes, or to give any warning of a dangerous condition ..." except that liability is not limited "for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity ...." The Political Subdivisions Tort Claims Act provides generally at §§ 23-2402(4) and 23-2407 that a political subdivision shall be liable for the negligent acts or omissions of its employees "in the same manner, and to the same extent as a private individual under like circumstances ...."

At the conclusion of all the evidence the district judge found that the damages to the plaintiff, as previously related, were a proximate result of the negligence of the City of Omaha without any contributory negligence on the part of the plaintiff or her parents, that the negligence of the City did not rise to the level of a willful or malicious failure to guard or warn against a dangerous condition, but that the Recreation Liability Act, §§ 37-1001 et seq., did not apply to the defendant.

All the findings of fact made by the District Court are amply supported by the record, and therefore we cannot say that they are clearly wrong. Accordingly, they will not be disturbed on appeal. Miles v. School Dist. No. 138, 204 Neb. 105, 281 N.W.2d 396 (1979). Therefore, if the legal conclusion of the trial court that the Recreation Liability Act does not apply to the City of Omaha is proper, the judgment should be affirmed. Otherwise, it must be reversed and the case dismissed.

In support of the ruling of the District Court, the plaintiff insists that it is necessary to turn to the legislative history of the Recreation Liability Act in order to determine the intent of the Legislature. In support of this position, plaintiff cites the case of PPG Industries Canada Ltd. v. Kreuscher, 204 Neb. 220, 227, 281 N.W.2d 762, 767 (1979), where we said: "Where the language used in a statute is ambiguous, recourse should be had to the legislative purposes." However, plaintiff overlooks the admonition contained in State ex rel. Halloran v. Hawes, 203 Neb. 405, 279 N.W.2d 96 (1979), that a statute is open to construction only where the language used requires interpretation or may reasonably be considered to be ambiguous. Equally applicable is the following language from Ragland v. Norris P. P. Dist., 208 Neb. 492, 497, 304 N.W.2d 55, 58 (1981): " ' "A statute is not to be read as if open to construction as a matter of course. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning. In the absence of anything to indicate the contrary, words must be given their ordinary meaning. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute." ' "

The conclusion reached by the District Court is not without authority. In Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16 (1973), that court, in construing a statute similar to ours, concluded: "Thus, the legislative intent of the statute is obvious and we hold that sec. 29.68, Stats., is not applicable to a municipality so as to limit its liability for persons injured while present on its property. The statute must be strictly construed so as to limit its effect to private landowners." Id. at 559, 213 N.W.2d at 19. In support of its position, the Wisconsin court quoted from the legislative act establishing this particular statute: " 'An Act to create 29.68 of the statutes, relating to the limitations on liability of landowners who open private lands for recreational purposes.' (Emphasis supplied.)" No such statutory purpose appears in 1965 Neb.Laws, Ch. 193, p. 589, which created §§ 37-1001 et seq. See, also, Loney v. McPhillips, 268 Or. 378, 521 P.2d 340 (1974), wherein, by dicta, the Oregon Supreme Court suggested that the legislative purpose in enacting a similar act was to "encourage private owners to make their land available to the public for recreational purposes," and Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla.App.1980), in which the court, without discussion or explanation, simply stated that its recreation liability act did not apply to a county.

However, to the contrary, and applying such acts to government ownership, are Magro v. City of Vineland, 148 N.J.Super. 34, 371 A.2d 815 (1977); Stone Mountain Mem. Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Rushing v. State, Through La. Health, etc., 381 So.2d 1250 (La.App.1980); Smith v. United States, 383 F.Supp. 1076 (D.Wyo.1974); McClain v. United States, 445 F.Supp. 770 (D.Or.1978); Gard v. United States, 594 F.2d 1230 (9th Cir. 1979), construing Nevada's "sightseer statute"; Hahn v. United States, 493 F.Supp. 57 (M.D.Pa.1980); and Moore v. City of Torrance, 101 Cal.App.3d 66, 166 Cal.Rptr. 192 (1979). It should be noted that Nelsen v. City of Gridley, 113 Cal.App.3d 87, 169 Cal.Rptr. 757 (1980), from the Court of Appeals of a different district, contains language critical of Moore and suggests that the application of the recreation liability act was limited to private owners. However, the statutes in California relating to governmental tort immunity vary in degree and complexity from our Political Subdivisions Tort Claims Act so that no clear-cut analogy can be made.

We may concede for the sake of argument that the original purpose of the "recreational liability acts" was to encourage private landowners to offer their lands for use by the public. See Suggested State Legislation, Vol. XXIV, Council of State Governments (1965), wherein it is stated at 150: "The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner." We are also mindful of the reasoning of the Court of Common Pleas of Centre County, Pennsylvania, in an unreported opinion referred to in Hahn v. United States, supra....