Summary
holding that football spectating is not "recreational purpose" within RLA's protection
Summary of this case from Bronsen v. Dawes CountyOpinion
No. S-03-528.
Filed July 1, 2005.
1. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Words and Phrases. Under the ejusdem generis rule, specific words or terms modify and restrict the interpretation of general words or terms where both are used in sequence.
Appeal from the District Court for Box Butte County: BRIAN SILVERMAN, Judge. Reversed and remanded for further proceedings.
James L. Zimmerman, of Sorensen, Zimmerman Mickey, P.C., for appellants.
Steven W. Olsen, of Simmons Olsen Law Firm, P.C., for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
NATURE OF CASE
Carol Louise Iodence (Iodence) was injured when the vehicle she was driving struck a tree stump on property owned by the City of Alliance, Nebraska. The issue presented in this case is whether the city is immune from liability under the Recreation Liability Act (RLA), Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004). We hold that it was not immune because Iodence did not enter or use the city's land for "recreational purposes," as that term is defined by § 37-729(3).
BACKGROUND
On October 14, 1999, Iodence traveled to the Alliance softball complex to watch her son play a YMCA junior football league game. The softball complex is located on land owned by the city and is furnished to the public for sporting and recreational use. Adjacent to the softball fields is an open field. When she arrived at the softball complex, Iodence drove behind several other vehicles along a well-worn, severely rutted dirt path in the open field to park her car. While attempting to avoid the deepest ruts, Iodence struck a tree stump that was hidden in tall grass. Iodence was injured by the sudden stop of her vehicle.
Iodence and her husband, Brian Iodence, filed a negligence action against the city under the Political Subdivisions Tort Claims Act (Tort Claims Act). The city filed a motion for summary judgment, asserting that it was immune from liability under the RLA. At the summary judgment hearing, the city offered affidavits from two individuals who worked for the Alliance parks department and whose duties included mowing and maintenance for the open field where Iodence was injured. Both generally averred that they did not remember ever seeing the tree stump that caused the accident. They further stated that they did not remember ever receiving complaints of tree stumps in that area that might cause a hazard. The Iodences offered the affidavits of two Alliance residents who generally averred that during the 1990's, the city had planted trees in the open field and had later cut them down, leaving the stumps in place. Both Alliance residents also averred that when they attended events at the softball complex, they had to be careful navigating the open field in order to avoid hitting the tree stumps.
The district court found that "the activity involved, i.e., youth football comes within the [RLA]" and that Iodence "was on the protected premises when the accident occurred and was a recreational user." The court also found no evidence to support imposing liability on the city for willful or malicious conduct under § 37-734(1). Based on those findings, the court found that the city was immune from liability under the RLA and granted the city's motion for summary judgment. The Iodences appealed, and we moved the case to our docket on our own motion.
ASSIGNMENTS OF ERROR
The Iodences' four assignments of error can be more succinctly restated as two: (1) The district court erred in finding that Iodence entered or used the city's land for recreational purposes and (2) the district court erred in finding that the city did not willfully or maliciously fail to guard or warn against a dangerous condition on its land.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
ANALYSIS
Pursuant to the RLA, an owner of land generally owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. § 37-731. But see § 37-734 (exceptions).
The Iodences argue that the city is not immune for two reasons. First, they contend that the RLA does not apply because Iodence did not enter or use the city's land for "recreational purposes" under § 37-729(3). Second, they argue that the city is liable because of its willful and malicious failure to guard or warn against a dangerous condition on its land. See § 37-734.
At issue in the Iodences' first argument is whether Iodence entered or used the city's land for recreational purposes when she entered the softball complex to watch her son play a youth football game. Recreational purposes is defined in § 37-729(3), which states:
Recreational purposes includes, but is not limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, waterskiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user[.]
We have interpreted § 37-729(3) to be broad enough to include "the normal activities afforded by public parks." Watson v. City of Omaha, 209 Neb. 835, 842, 312 N.W.2d 256, 259 (1981). Activities that fall within the definition of recreational purposes include using a playground slide, see id.; sledding, Gallagher v. Omaha Public Power Dist., 225 Neb. 354, 405 N.W.2d 571 (1987); and playing softball, Bailey v. City of North Platte, 218 Neb. 810, 359 N.W.2d 766 (1984).
Our prior "broad" interpretations of § 37-729(3) do not extend to all activities. Thus, in Dykes v. Scotts Bluff Cty. Ag. Socy., 260 Neb. 375, 617 N.W.2d 817 (2000), we held that the viewing of livestock exhibits at a county fair was not a recreational purpose.
[T]he viewing of livestock at a county fair is not substantially similar to the enumerated activities in § 37-729(3). Generally speaking, the activities listed in § 37-729(3) are more physical than not, generally require the outdoors, and are not "spectator sports." . . . The listed recreational purposes tend to involve activities in which the individual using the land is actively involved.
(Citations omitted.) 260 Neb. at 382-83, 617 N.W.2d at 823.
The city urges us to interpret recreational purpose to include spectating at a youth football game. In support, it cites to several cases from other jurisdictions, namely Rankey v. Arlington Bd. of Edn., 78 Ohio App. 3d 112, 603 N.E.2d 1151 (1992). In that case, a spectator at a track meet was struck by a shotput. The court considered whether the spectator was engaged in a "recreational pursuit," which the court gave "the most liberal of interpretations." Id. at 116, 603 N.E.2d at 1154. It concluded that rather than focusing on the specific activity pursued by the plaintiff at the time of the accident, the relevant inquiry should focus on the nature and scope of activities for which the premises are held open to the public. Thus, the Rankey court concluded that the spectator, although she was merely an observer and not an active participant, was engaged in a recreational pursuit. Other Ohio cases are in agreement. See, LiCause v. Canton, 42 Ohio St. 3d 109, 537 N.E.2d 1298 (1989) (walking through park to reach or leave softball field and watching softball game); Fetherolf v. State, 7 Ohio App. 3d 110, 454 N.E.2d 564 (1982) (watching others swim).
We decline to follow the Ohio line of cases. Consistent with the doctrine of ejusdem generis, we have construed § 37-729(3) such that the specific terms listed in the statute restrict the general term of "recreational purposes." Dykes v. Scotts Bluff Cty. Ag. Socy., supra. Ohio's liberal interpretation of its recreational use statute and its de-emphasis of the specific activity pursued by the plaintiff are incompatible with our existing precedent. Dykes compels us to hold that spectating at a youth football game is not a recreational purpose under the RLA. Iodence's spectating is not substantially similar to the enumerated activities in § 37-729(3), as it is not a physical activity and requires no "active involvement" on the part of Iodence.
Because Iodence did not enter or use the city's land for a recreational purpose, the city is not immune from liability under the RLA. The district court erred in granting summary judgment in favor of the city on that basis. Having so concluded, we need not consider the Iodences' other assignment of error.
CONCLUSION
The district court erred in granting summary judgment in favor of the city under the RLA. The judgment of the court is reversed, and the cause is remanded for further proceedings under the Tort Claims Act.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.