Tuesday, October 04, 2005

Another wrench thrown in the system by result oriented Supreme Court ruling: NCA affirms summary judgment for Dawes County in political subdivision tort claim-premises liability case where County plead immunity under Nebraska Recreational Land Liability Act., despite ambiguity from this years Supreme Court Iodence v. City of Alliance decision that seems to question whether political subdivions will remain subject to the Rec Lands Immunity act. Bronsen v. Dawes County, 14 Neb. App. 82 Filed October 4, 2005. No. A-04-237. Carolyn Bronsen filed a claim in the district court for Dawes County, Nebraska, against Dawes County (the County) and Fur Trade Days, Inc. (FTD), seeking damages for injuries she sustained after tripping and falling in a depression or hole in the lawn of the Dawes County courthouse while attending the Fur Trade Days celebration in Chadron, Nebraska. The district court granted motions for summary judgment filed by the County and FTD, finding that both the County and FTD were immune from liability pursuant to the Nebraska Recreational Land Liability Act., Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004). For the reasons stated herein, we affirm.Bronsen (disputes) the premise that the courthouse lawn is the type of property that ought to be protected under the RLA, as well as the court's finding that her activities at the time of her accident amounted to "recreational purposes" under the act. Bronsen also argues that the County's conduct was willful or malicious. We address each of these arguments separately below. The Nebraska Supreme Court first considered whether the RLA applied to governmental entities in Watson v. City of Omaha, supra. In Watson, the court held that the term "owner," as used in the RLA, includes a political subdivision as well as a private person. In so holding, the Watson court "concede[d] for the sake of argument that the original purpose of the [RLA] was to encourage private landowners to offer their lands for use by the public." 209 Neb. at 840, 312 N.W.2d at 258. The court also considered the language of the Political Subdivisions Tort Claims Act, which subjects a political subdivision to liability 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." See Neb. Rev. Stat. § 81-8,215 (Reissue 2003)[State tort claims act]. The Watson court concluded that whatever the Legislature's intent at the time of the enactment of the RLA, the definition of "owner" in the act was sufficiently broad to cover a public entity. The court observed that the Legislature in enacting the Political Subdivisions Tort Claims Act was presumed to have knowledge of previous legislation, including the RLA. The court concluded that the intent of the Legislature, as reflected by the clear language of both the Political Subdivisions Tort Claims Act and the RLA, was to grant the same rights and privileges to both governmental and private landowners. The court, in considering the facts of Watson, which involved "[s]lippery slide activities," held that while such activities were not specifically included within the definition of "recreational purposes" found in the RLA, the definition was broad enough to include the "normal activities afforded by public parks." Watson v. City of Omaha, 209 Neb. 835, 841-42, 312 N.W.2d 256, 259 (1981). We are mindful of the reservations about the continued application of Watson expressed by the concurring opinion in the recent case Iodence v. City of Alliance, 270 Neb. 59, 700 N.W.2d 562 (2005), but as noted by the dissenting opinion in Iodence, the ruling in Watson is still the law. The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. Holm v. Holm, 267 Neb. 867, 678 N.W.2d 499 (2004). Summary judgment proper on finding no willful or malicious faultwe cannot say that the district court erred in finding no willful or malicious action on the part of the County. summary judgment properIn sum, the pleadings and evidence admitted at the hearing on the County's and FTD's motions for summary judgment 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 County and FTD were entitled to judgment as a matter of law. Viewing the evidence in a light most favorable to Bronsen and giving her the benefit of all reasonable inferences deducible from the evidence, we find no error in the district court's grant of the motions for summary judgment.

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