Governmental Liability for Recreational Uses of Public Land: Bronsen v. Dawes County, 273 Neb. 320, 722 N.w.2d 17 (2006)

• Publication year: 2021

87 Nebraska L. Rev. 569. Governmental Liability for Recreational Uses of Public Land: Bronsen v. Dawes County, 273 Neb. 320, 722 N.W.2d 17 (2006)

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Governmental Liability for Recreational Uses of Public Land: Bronsen v. Dawes County, 273 Neb. 320, 722 N.W.2d 17 (2006)

Sean D. White

Note*

TABLE OF CONTENTS

I. Introduction ........................................... 569 R
II. The Recreational Liability Act and its Interpretation
Prior to Bronsen ....................................... 571 R
III. Bronsen and Legislative Bill 564 ....................... 574 R
A. The Case............................................. 574 R
B. Legislative Reaction to Bronsen...................... 578 R
IV. Analysis ............................................... 581 R
A. The Court's Reasoning in Bronsen .................... 581 R
B. Compromise by the Legislature........................ 594 R
V. Conclusion.............................................. 596 R

I. INTRODUCTION

Although snow had not yet fallen in early December of 2006, Lincoln children's wintertime activities had become momentarily chilled.(fn1) The city decided that many of the municipally owned sledding areas were too high of a liability risk to open for public use.(fn2) Lincoln was also re-evaluating whether to keep open other recreational lands it owned, such as skate parks.(fn3) Lincoln was not alone in this re-evalua-

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tion of publicly owned recreational land. Nebraska City shut down a skate-park.(fn4) Omaha was in the process of cutting back its recreational facilities and re-allocating its recreational land budget to preventative measures and potential suits.(fn5) In fact, political subdivisions across Nebraska were shutting down and limiting recreational facilities.(fn6)

Fifty years ago, the State and its political subdivisions would not have had to worry about potential liability resulting from injuries on government land because the doctrine of sovereign immunity would only allow governmental entities to be sued upon their consent.(fn7) However, in 1969 the Nebraska Legislature passed the Political Subdivisions Tort Claims Act ("PSTCA")(fn8) and the State Tort Claims Act ("TCA")(fn9), thereby eliminating sovereign immunity except in a few specified categories. Injuries occurring on recreational lands were not included in the specific exceptions to the Legislature's waiver of sovereign immunity; therefore, the State and its subdivisions were no longer granted any protection from suits arising out of such injuries.

Four years before this partial waiver of sovereign immunity, the Unicameral passed the Recreational Liability Act ("RLA"), giving immunity to landowners who allowed recreational use of their property free of charge.(fn10) In a subsequent decision, the Nebraska Supreme Court ruled that the State and its subdivisions qualified as landowners under the RLA.(fn11) Relying upon the protection of the RLA, the State of Nebraska, its municipalities, counties, and other political subdivisions allowed the public to use its property for recreational pur-

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poses, and even expended monies for the construction of certain recreational structures.(fn12)

In 2006, Bronsen v. Dawes County(fn13) stripped away the protection which the government had enjoyed under the RLA by overruling twenty-five years of judicial precedent. This complete reversal of liability is what caused sledding hills, skate parks, and other recreational facilities across the State to begin shutting down. Fearing increased liability and insurance premiums, many political subdivisions closed down various publicly owned recreation sites.(fn14) Subsequently, a firestorm of debate ensued which inevitably led to new legislation re-granting the government partial immunity.

Part II of this Note focuses on the development of the judicial interpretation of the government's role in the RLA, beginning with Watson v. City of Omaha.(fn15) Next, Part III traces the factual and procedural background of Bronsen, overviews the case itself, and expounds the legislative reaction. Part IV analyzes the reasoning used by the Nebraska Supreme Court in its pivotal decision in Bronsen. Additionally, this Note analyzes the legislative reaction to Bronsen, discussing the competing interests to the legislation. Finally, Part V concludes that the reasoning in Bronsen is justifiable, but subject to several important counterarguments. However, any attempt to overturn Bronsen will likely fail due to new legislative intent. Moreover, the state of the law today is probably a good compromise for all interested parties.

II. THE RECREATIONAL LIABILITY ACT AND ITS INTERPRETATION PRIOR TO BRONSEN

Virtually all(fn16) states in the United States have enacted some type of statute granting immunity for landowners who allow the public to

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use their land for recreational purposes.(fn17) Many of these states, Nebraska included, have based their statutes off of a Model Act promulgated by the Council of State Governments in 1965.(fn18) Although each state has adopted a slightly modified version, the Model Act is virtually unchanged in many instances. The general intent of the Act, reiterated in Nebraska's RLA, is to encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.(fn19)

Under the RLA, an owner who does not charge the recreational users would only be required to restrain from "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity . . . ."(fn20) This willful or malicious standard is even higher than gross negligence.(fn21) Furthermore, Nebraska uses a definition of "owner" which is commonly adopted by other states. The statutory

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language states that "[o]wner includes tenant, lessee, occupant, or person in control of the premises."(fn22) However, both the RLA and the Model Act fail to specify whether the State and its political subdivisions qualify as owners.

The Nebraska Supreme Court first addressed whether the RLA included the State and its subdivisions as "owners" in Watson v. City of Omaha.(fn23) In Watson, a child fell from a slide in an Omaha city park.(fn24) The Court concluded that the city was an owner under the RLA and should therefore be held to the willful or malicious standard.(fn25) The Court reasoned(fn26) that the city had derivative immunity through a clause in the PSTCA which states:

Except as otherwise provided in the Political Subdivisions Tort Claims Act, in all suits brought under the act the political subdivision shall be liable in the same manner and to the same extent as a private individual under like circumstances . . . .(fn27)

Because the PSTCA does not address what liability a city would have toward recreational users of its land, the court concluded that "the [city] is entitled to assert the defenses that a private property owner has in like circumstances."(fn28) Therefore, because the Legislature was presumed to have knowledge of the 1965 RLA when they adopted the 1969 PSTCA, the Court concluded that the Legislature intended to include the State and its subdivisions in the RLA via section 13-908 of the PSTCA.(fn29) Thus, "the definition of owner . . . is sufficiently broad to cover a public entity."(fn30)

The Watson rule was explicitly upheld by the Nebraska Supreme Court on three occasions. In Bailey v. City of North Platte, a man was injured when he stepped in a hole while playing softball at a North Platte city field.(fn31) In a brief opinion, the Court declined, without reasoning, to overrule Watson.(fn32) In 1987, the Court upheld the Watson rule in two separate cases. In one case a boy was injured sledding on

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land owned by the Omaha Public Power District,(fn33) and in another case a woman was injured on a slide in an Omaha city park.(fn34)

However, the Watson rule became suspect after the 2005 decision Iodence v. City of Alliance.(fn35) In Iodence, a woman was injured while driving to her son's football game when her car hit a tree stump at a softball complex owned by the city of Alliance.(fn36) The Court ruled that "spectating" at a youth football game did not qualify as a recreational purpose under the RLA and thus the city was liable.(fn37) More importantly, in a concurring opinion, Chief Justice Hendry questioned the application of the RLA to public lands under the Watson rule, and expounded several points of reasoning to support this position.(fn38) However, Chief Justice Hendry's discussion in Iodence was dictum and did not overrule Watson.(fn39) Therefore, by 2006, twenty-five years of precedent granting the State and its subdivisions the status of "owner", and thus immunity under the RLA, had been brought into question.

III. BRONSEN AND LEGISLATIVE BILL 564 A. The Case

In July 2002, Carolyn Bronsen decided to attend Fur Trade Days in Chadron, Nebraska with her family.(fn40) Part of the festivities occurred on the lawn of the Dawes County courthouse, and picnic tables had been set out for people to relax while eating food served at the celebration.(fn41) Bronsen, who had not previously visited the courthouse lawn, walked with her family to a table to eat lunch.(fn42) At some point Bronsen was able to feel that the lawn was uneven, and she was aware that her father had previously stepped in a hole in the lawn.(fn43) After eating, Bronsen picked up her trash and began walking to a trash can in order to throw it away, but stepped in either a hole or some type of uneven ground and broke her ankle.(fn44)

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Bronsen filed a lawsuit against Dawes County and Fur Trade Days, Inc. ("FTD"), alleging various theories of negligence.(fn45) The district...