Gallagher Ex Rel. Gallagher v. Omaha Public Power District

405 N.W.2d 571, 225 Neb. 354, 1987 Neb. LEXIS 890
CourtNebraska Supreme Court
DecidedMay 8, 1987
Docket85-774
StatusPublished
Cited by16 cases

This text of 405 N.W.2d 571 (Gallagher Ex Rel. Gallagher v. Omaha Public Power District) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher Ex Rel. Gallagher v. Omaha Public Power District, 405 N.W.2d 571, 225 Neb. 354, 1987 Neb. LEXIS 890 (Neb. 1987).

Opinions

Per Curiam.

This is an action brought under the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 23-2401 et seq. (Reissue 1983), in which the appellee, John Gallagher (Gallagher), a 6-year-old boy, by and through his father and next friend, Merle Gallagher, seeks to recover damages from the appellant, Omaha Public Power District (the District), for personal injuries sustained by Gallagher in a sledding accident occurring on property owned by the District.

Gallagher’s petition alleged two purported causes of action. The first sought to recover damages for injuries sustained on January 5, 1983, by Gallagher to his buttock when the sled he was riding struck a piece of metal protruding above the ground on the District’s property. The second sought damages for past and future medical bills and loss of earnings.

Trial of the matter was had to the court, and thereafter the district court entered judgment for Gallagher and against the District in the amount of $22,862.70.

The District has assigned a number of errors. They can be separated into two basic groups. The first concerns issues as to whether the district court erred in ruling that the Nebraska Recreation Liability Act did not apply to the specific area where the accident occurred. The second group deals with the negligence questions which gave rise to the judgment.

A brief recitation of the facts is necessary. The property in question, belonging to the District, is a future substation site [356]*356located near 16th and Spring Streets in Omaha, Nebraska. It consists of several lots. Most of the property is more or less flat and level. The southwest corner of the property, however, is a steep ravine. On January 5, 1983, Gallagher went across to the District’s property for the purpose of sliding down the steep ravine on his plastic sled. While sitting on the sled, sliding down the hill, he was severely cut on his buttock by a piece of metal which cut through the plastic sled. It was stipulated by the parties that the piece of metal that injured Gallagher was found on the District’s property. The piece of metal was estimated to weigh 45 to 50 pounds and was embedded in the snow on the ravine. There was no evidence to indicate who had placed the metal object on the ravine or how long it had been there.

The district court found that while the flat area of the property in question was clearly within the protection of the Recreation Liability Act, Neb. Rev. Stat. §§ 37-1001 et seq. (Reissue 1984), the ravine area where the accident occurred was not, because “[t]here is no evidence that that portion of the property was made available to the public for any recreational purpose.” We are unable to agree with the district court’s finding in that regard.

The evidence discloses that sometime prior to the date on which the accident occurred, the Deer Park Neighborhood Association (Association) sought permission from the District to use the lots for recreational purposes. Following a meeting of the District’s board, permission was granted to the Association. Specifically, a letter was sent by the District to the Association on February 25, 1982, extending to the Association the use of all of the lots. Without restriction as to use or area, the letter from the District to the Association read in part:

The Omaha Public Power District is happy to authorize the use of its unoccupied substation site at 16th and Spring Streets to the Deer Park Neighborhood Association. It is our understanding that your Association will be coordinating the use of this land for youth sports activities, primarily baseball and softball.

(Emphasis supplied.)

No restrictions were placed on the use of the lots, nor was any portion of the land excluded from use. The entire “unoccupied [357]*357substation site at 16th and Spring Streets” was made available for recreational use by the public. While it is true that the District anticipated that the principal use would be for baseball and softball, it is clear that the District did not forbid other uses. Moreover, it is clear that, while the District may have contemplated that the level area would be the principal area used, it is likewise clear that no restrictions were imposed upon the use of the property, and, in fact, the Association was free to use the property in its entirety under its own supervision and direction. This was obviously the intent of the District and the understanding of the Association when the District further indicated in its letter of February 25, 1982, that “pursuant to Nebraska law, OPPD has no liability for accidents that may occur on the property as a result of its use for recreational purposes.” While we recognize that one may not avoid liability where the law otherwise imposes such liability, we do believe that a reading of the entire letter of February 25, 1982, which permitted the Association to use the substation site, makes it clear that there were no limitations, either as to area or as to activity. The entirety of the lots was covered for any recreational activity which might be conducted on the site.

As the evidence discloses, there were no fences or other types of barriers erected on or around the ravine to limit activity in that area. In our view, the evidence requires a finding that the entire area was made available, directly or indirectly, to the Association, and therefore to Gallagher. The district court, in concluding that only a portion of the area was made available, was in error.

Section 37-1003 provides:

Subject to the provisions of section 37-1005, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby (1) extend any assurance that the premises are safe for any purpose, (2) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.

[358]*358While, during trial, questions were raised by Gallagher regarding the meaning of this act and its application to the District, we believe that we have already resolved all of those questions in favor of the District and against Gallagher. It is clear that the act is not limited to private persons and that governmental subdivisions are “owners” within the meaning of § 37-1003. See, Bailey v. City of North Platte, 218 Neb. 810, 359 N.W.2d 766 (1984); Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

Furthermore, there is no longer any question in this jurisdiction that the provisions of the Nebraska Recreation Liability Act apply to urban as well as to rural areas. See, Bailey v. City of North Platte, supra; Garreans v. City of Omaha, supra; Watson v. City of Omaha, supra.

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Gallagher Ex Rel. Gallagher v. Omaha Public Power District
405 N.W.2d 571 (Nebraska Supreme Court, 1987)

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Bluebook (online)
405 N.W.2d 571, 225 Neb. 354, 1987 Neb. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-ex-rel-gallagher-v-omaha-public-power-district-neb-1987.