Opinion
No. A-12-155
02-19-2013
MICHAEL TAYLOR, APPELLANT, v. CITY OF OMAHA, NEBRASKA, A MUNICIPAL CORPORATION, APPELLEE.
Lawrence G. Whelan for appellant. Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge. Affirmed.
Lawrence G. Whelan for appellant.
Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Michael Taylor appeals an order of the district court for Douglas County, Nebraska, finding in favor of the City of Omaha (City), Nebraska, a municipal corporation, in this negligence action brought by Taylor as a result of injuries he suffered when stepping on a manhole cover in a city park. On appeal, Taylor challenges the district court's finding that the City did not create a dangerous condition in the park through its placement of the manhole cover and the court's finding regarding the standard of care owed by the City. We find no error, and we affirm.
II. BACKGROUND
The events giving rise to this action occurred on or about April 13, 2006, at Trendwood Park, a park owned and maintained by the City. On that date, Taylor was participating in practice for a recreational softball team at the park. He suffered a knee injury when, while chasing a fly ball, his softball cleat came into contact with a manhole cover.
The evidence adduced at trial indicates that Trendwood Park contains two areas where softball may be played and/or practiced: There is a formal, manicured field that is surrounded by a fence, and there is an informal, practice field that includes a backstop. The practice field is actually a multipurpose area that is used for, among other things, softball, football, and soccer. On the date in question, there was a soccer goal located in what would have been right field.
The evidence indicates that the formal field includes a clearly designated field of play, including an outfield fence, and that the distance from homeplate to the outfield fence is approximately 300 feet. The practice field, however, did not include any clearly designated field of play. A creek with a treeline ran along the back of the outfield area of the practice field, and the evidence indicates that the creek was approximately 280 to 285 feet from the backstop.
Trendwood Park was developed in approximately 1969, and in 1975, the City installed a sewerline that ran parallel along the creek behind the practice field. That sewerline included a series of manhole covers that run along the creekline, including the one on which Taylor stepped on the date in question. A public works employee for the City testified that the manhole cover in question is located approximately 270 feet from the backstop and approximately 14 feet from the edge of the creekbank.
According to Taylor, his team had called the City and had reserved the formal field for practice on the date in question. However, upon arrival, the team found that another team was using the formal field, and Taylor's team elected to practice on the practice field. Taylor testified that he took a position in left center field to catch fly balls, that he noted the ground was flat, and that he looked at the ground for sprinklers as he ran to the outfield.
Taylor testified that after a half-dozen balls had been hit to the outfield, one was hit toward center field, and that he ran after it to catch it. He testified that as he was running, his focus was on the ball in the air, not on the ground, and that while he knew the creek was in the area, he believed it was "quite a ways back." As he ran, his foot made contact with the manhole cover, the cleats on his softball shoes caught on the manhole cover, and his leg stopped moving while the rest of his body continued to move forward. He was unable to put any weight on his leg and had to be carried to a car. He was driven to an emergency room and began going into shock on the way.
Taylor was diagnosed with having "an ACL tear" in his knee. He underwent two surgeries and missed 61 days of work. He testified that he anticipates needing another surgery and that he has suffered ongoing problems with pain and mobility.
On April 8, 2008, Taylor filed a complaint in the district court. He alleged that he had fulfilled all requirements under the Political Subdivisions Tort Claims Act (PSTCA); that the City had been negligent regarding placement of the manhole cover in Trendwood Park; that the City had been negligent in failing to properly inspect, maintain, or warn about the manhole cover; and that the City's negligence was a proximate cause of his injuries. In its answer, the City generally denied having been negligent and alleged that Taylor had been contributorily negligent.
On January 26, 2012, the district court entered an order and judgment. The court found that the mere presence of a manhole cover in a public park does not create an unreasonable risk of danger and that the City had no duty to warn its invitees of the presence of the manhole cover. The court held that the City did not create an unreasonable condition, that the City had no duty to warn, and that Taylor's complaint should be dismissed. This appeal followed.
III. ASSIGNMENTS OF ERROR
Taylor assigns two errors to support his appeal that the district court erred in not finding the City was negligent. First, Taylor asserts that the court erred in finding that the City did not create a dangerous condition. Second, he asserts that the court erred regarding the standard of care owed by the City.
IV. ANALYSIS
On appeal, Taylor challenges the district court's finding that the City is not liable as a result of negligence. We find no merit to Taylor's assertions on appeal.
In actions brought pursuant to the PSTCA, the factual findings of the trial court will not be disturbed on appeal unless they are clearly wrong. Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). When determining the sufficiency of the evidence to support the trial court's judgment, it must be construed 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 be deduced from the evidence. Id.
The Nebraska Supreme Court recently addressed negligence actions brought against the City under the PSTCA in Connelly v. City of Omaha, supra. The court recognized that, subject to certain exceptions, in all suits brought under the PSTCA, the City is liable in the same manner and to the same extent as a private individual. Connelly v. City of Omaha, supra. See Neb. Rev. Stat. § 13-908 (Reissue 2012). Thus, a negligence action brought under the PSTCA has the same elements as a negligence action brought against an individual: duty, breach of duty, causation, and damages. Connelly v. City of Omaha, supra.
In the context of premises liability cases--such as both Connelly v. City of Omaha and the present case--an owner or occupier is liable for injury to a lawful visitor resulting from a condition on the owner's or occupier's premises if the lawful visitor proves:
"(1) the owner or occupier either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the owner or occupier should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the owner or occupier should have expected that a lawful visitor 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 owner or occupier failed to use reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to the lawful visitor."284 Neb. at 140-41, 816 N.W.2d at 753, quoting Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
1. ELEMENTS NOT AT ISSUE
In the present case, the evidence clearly established that the City constructed Trendwood Park and then, several years later, installed a sewerline along the edge of the park that included the installation of the specific manhole cover at issue in this case. The City thus created and/or knew of the manhole cover being located in the park, and the first element is not at issue.
The evidence also indicates that there were no warnings, fences, or guards of any kind around the manhole cover to warn visitors of its presence. There is no evidence that the City took any precautions to warn or protect visitors from the condition of the manhole cover. Thus, the fourth element is also not at issue.
Finally, the district court's judgment in this case was that the City had not breached any duty of care. Thus, the court did not reach the issues raised by the City's assertion that Taylor was contributorily negligent, the issue of proximate cause, or the issue of damages. As such, the fifth element is not at issue on this appeal.
2. ELEMENTS AT ISSUE
As was the case in the Supreme Court's decision in Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012), the primary focus of this appeal is on the second and third elements. We find that the district court did not err in concluding that those elements were not proven in the present case.
(a) Second Element
First, we cannot find clearly erroneous the district court's conclusion that there was not sufficient evidence adduced to demonstrate that the City knew or should have known that the manhole cover involved an unreasonable risk of harm. The evidence adduced in the present case is markedly different from that adduced in Connelly v. City of Omaha, supra, where the court found that the plaintiff had proven an unreasonable risk of danger.
In Connelly v. City of Omaha, supra, the court emphasized a variety of evidence that demonstrated that the defendant knew or should have known that trees planted along a popular sledding hill in a public park posed an unreasonable risk of danger to visitors. The court emphasized that at the time of planting, the defendant had prior knowledge that the area of the park was frequently used for sledding and that the defendant knew there had been prior accidents involving sledders and trees in the park. Id. There was evidence that public sentiment had been expressed at public meetings about not locating trees in the area because of a fear of injury or danger to people using the area for sledding, and there was evidence that the defendant's own forester had specifically recommended removal of the trees shortly after planting because of the risk posed to visitors using the area for sledding. Id. Finally, there was evidence that there had been an accident involving the trees only 12 days prior to the accident at issue. Id.
In Connelly v. City of Omaha, supra, there was substantial evidence adduced demonstrating that a variety of sources had expressed concern to the defendant that the location of the trees would present an unreasonable risk of danger to visitors using the area for sledding and that the area would, in fact, be used for sledding. That evidence included concern and notice expressed prior to the installation of the trees, as well as after the installation of the trees. It included evidence from third parties and the defendant's own planners. That evidence also included evidence providing specific notice to the defendant of injuries occurring. Despite that notice and warning, and despite notice of prior accidents and injuries, the defendant did not forgo installing the trees and did not remove the trees. The court found that all of that evidence amounted to sufficient evidence that the defendant should have known that the trees provided an unreasonable risk of danger to visitors using the area for sledding.
The present case is markedly different. There is evidence that the City knew or anticipated that the practice field would be used for softball and that it would be used by players of all ages, including adult males. There was also evidence of the industry standards for design of a field used for softball, including that the City should have known that the field of play for adult male softball fields could be in excess of 250 feet (although there was also evidence that some industry standards set the field of play at only approximately 200 feet for softball). Arguably, the City should have known that the location of the manhole cover could have been in or near the field of play for visitors using the field for softball.
Nonetheless, there was no evidence adduced to demonstrate that the City knew or should have known that the manhole cover presented an unreasonable risk of danger. Unlike the evidence adduced in Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012), there was no evidence of anyone providing input to the City prior to installation of the sewerline or the manhole covers indicating a potential unreasonable hazard or danger. There was no evidence of anyone raising such an issue after installation, from either outside sources or sources within the City. Moreover, in the more than 30 years between installation of the manhole cover and Taylor's accident, there was no evidence of a single person suffering any kind of injury as a result of the manhole cover's location.
The evidence adduced in the instant case is substantially different than the evidence adduced in Connelly v. City of Omaha, supra, and we cannot find the district court's conclusion that the second element was not satisfied to be clearly erroneous. Taylor's assertions to the contrary are without merit.
(b) Third Element
Because we have concluded that the district court was not clearly erroneous in finding that the City did not know that the location of the manhole cover would present an unreasonable risk of danger to visitors to the park, we need not further discuss the third element of the premises liability test. See In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398 (2011) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and controversy before it). Because the district court was not clearly erroneous in finding that Taylor failed to sufficiently demonstrate the second element, the court's ultimate conclusion that the City was not liable is also not erroneous.
V. CONCLUSION
We cannot find the district court's conclusions to be clearly erroneous. We affirm.
AFFIRMED.