*1 (if рrocedurally by be determined demurrer avail- able), (if summary judgment on motion for avail- able), If trial on the merits. can- jurisdiction, they prove proven will not basic not have part they prove legal of what must to obtain They opportunity relief. proper must afforded that in a
setting. judgment is reversed district court proceedings. cause remanded for further
Reversed and remanded FURTHER PROCEEDINGS. Garreans, Jr., minor, John his next friend father, Garreans, Sr., et al., appellees, John City municipal appellant. Omaha, corporation,
This is an action under the Nebraska Sub- Political against City Omaha, Claims Act Tort the divisions injuries damages Nebraska, for the to recover sus- plaintiffs, Garreans, Jr., John tained Vince the explosion Hartline, an which in occurred at July plaintiffs Dodge 5, 1980, Park while on the N.P. Ray visiting grandparents, with their Ev- were park. petition elyn Stoops, included a at the sec- expenses medical cause of action in- ond parents plaintiffs as a of the result curred the explosion. time of the accident both At the years age. were action was brought by next friends of the their fathers plaintiffs. raised has no issue in this The defendant concerning joinder. court July Ray on
The evidence shows Dodge Evelyn Stoops Omaha, Park N.P. entered camper, camp intending Nebraska, with their Evelyn holiday. Stoops paid 3-day over the use office for the at the concessionaire’s $10.50 3-day period. camper pad 25 for the Electri- pad. they provided While cal service was at that setting up camp, Stoopses black, were noticed nearby. 55-gallon The black drum was in ad- drum pad, barrel which was a trash at dition to top 55-gallon drum which had been re- from 55-gallon barrels, Trash which consisted moved. tops which lids had been re- drums from or throughout park, moved, were distributed in- cluding camping area. These drums were painted and were labeled “TRASH” various colors side. on the
Printing lettering side black on the drum had an antifreeze indicated that it contained com- orange approximately pound. label, A red or square, top affixed to the of the drum. inches legend Liquid” label bore “Flammable representation printed a fire flames. below *3 top intact, lid black drum was The or except opening, ap- a drum was closed for small the proximately plug diameter, 1 inch in from which a There is been removed. no evidence had that the park, city placed black drum in the the and a search city city pur- had records showed that the of not plaintiffs black drum. The the chased contended negligent failing in was the to remove the рark. drum from the plaintiffs July
On the entered the to grandparents camper pad their at 25. visit with No. park policy no admission with In accordance boys given charged them. Both had been fire- was boys by cigarette used a their fathers. crackers light firecrackers, lighter and used to the the black explosion activities. The as a shelf for their drum they dropped lighted when firecracker occurred through black drum the 1-inch hole in the the into exploded, spraying liquid drum flammable lid. boys. severe received bums John on his the on injuries suffered to his Vince
lower еxtremities. arm, and was also burned. nose failed had to court found that the The trial camper pad supervise properly area around inspect, observe, 25; failed to remove the of the had public 55-gallon drum; failed had to warn the guilty drum; dangerous was willful of nature of negligence; were and that the not contribu- Judgment torily negligent. was in entered $243,190.57 Garreans, Jr., John and in for amount of $104,726.95 Vince Hartline. amount principal issues in case was One of the whether Liability applicable. Recreation Act city assigns prop- failure error the of the court to erly apply care the standard of found the Recre- Liability Act. ation (Reissue 1978) provides: § 37-1002 Rev. Stat. Neb. “Subject provisions 37-1005, of section to an duty keep prem- land care owes no to owner ises safe for purposes, entry by use or others for recreational any give warning dangerous or to con- activity premises use, structure, dition, or on such entering purposes.” persons such (Reissue 1978) provides: § 37-1005 Rev. Neb. Stat. “Nothing any 37-1001 37-1008 in sections limits (1) liability way any which otherwise exists for will- guard against failure malicious or warn ful or dangerous activity, condition, use, structure, or (2) injury suffered in case where the owner charges person persons the, land who enter or paid group, organiza- go land. Rental on corporation, government tion, the state or federal charge deemed a made the owner shall land.” *4 provides an thus that owner a The act of recre- facility ordinary negligence liable is not for ational charged right fee was for a the to unless enter the fa- although cility, be the owner liable for certain actions. willful paid by Evelyn court found that trial
The Stoops camper pad use constituted entry upon “charge” land and that the actions of city negligence.” “willful amounted to Findings made of fact the district court brought cases under Political Subdivisions Tort appeal be Claims will not disturbed on unless Act clearly wrong. Studley 38, v. School Dist. No. (1982); City
Neb.
to constitute
must be
right
paid
facility.
for the
to enter the
Where the
рlain,
language
direct,
unambigu
is
statute
interpretation
ous,
needed,
is
no
is
court
authority
change
language. County
without
to
such
Douglas
Regents,
v. Board
210 Neb.
(1982);
Roger,
Schneckloth,
N.W.2d
State
Heathman,
210 Neb.
This conclusion
other courts
similar issues.
In
faced
Assn. v.
Stone Mountain Mem.
with
Herrington,
225 Ga.
N.E.2d Court 1533.18(B) “R.C. defines stated: ‘recreational permission upon one who has as enter user’ payment ‘premises’ a fee without the or consider- is It conceded that the Mosses and ation. decedent pay parks; rather, not a fee ‘to enter’ the did O’Neal paid purchase gas, went for the consideration for the rental of the state canoe. Nor foоd and was this a attempted wherein situation circumvent charging liability by facilities, fees the use of all charging although fee, an entrance in essence not undisputed labelling it as such. It is that the Mosses brought O’Neal could have and decedent the same parks they purchased to the items rented park there, and still have made use of while Consideration should not be facilities. deemed 1533.18(B) given charge R.C: under unless it is a necessary to utilize overall benefits of a recrea- regarded so that it area tional trance an en- Appellants’ fee. or admittance contention is merit.” without camper pad
Moreover, the fee for use of No. 25 paid by Evelyn Stoops plaintiffs. and not plaintiffs nonpaying, therefore were recrea- tional users of the facilities and thus are en- injuries city’s titled to recover not caused States, willful actions. See v. United 297 F. Garfield (W.D. 1969). Supp. 891 Wis. pay charge Since the did not to enter park, the next issue which we consider *6 support finding whether the evidence will that the guilty of a “willful or malicious failure to guard against dangerous or warn condition, use, аctivity.” structure, or A review of the evidence in light applicable only of the law warrants the conclu- sion that the actions of the were not willful or finding malicious. The of the trial court on this is- supported by not sue is the evidence.
In order for an wanton, action to be willful or evidence must show that one acted with actual knowledge danger that a existed and that he inten- tionally prevent failed to act to the harm which was reasonably likely imparts result. term knowl- edge injury likely and consciousness that to result act, from the act done or omission to and a construc- consequences. tive intention as to the willful misconduct To constitute knowledge, there must be actual legal equivalent, peril or appre- its to be coupled hended, with a conscious failure to avert in- jury. negligence To constitute willful the act done or omitted must be intended or must involve such disregard security right imply reckless as to negligence bad faith. Wanton has been said to be doing failing or to do an act with reckless indif- consequences ference to the and with consciousness probably the act or omission would cause seri- injury. Negligence ous 57 Am. Jur. 2d §§ 101-105 Co., In 661, Ashton v. Blue River Power 117 Neb. (1928), compensation 42 case, 222 N.W. a workmen’s “[Wjilful negligence may the court stated: be de- [494] (2) (1) act; conduct as such a deliberate
fined as
safety.
a stat-
As
reckless indifference
evidenced
ordinary
utory
than want of
it involves more
term
spirit,
implies
and careless
It
a rash
care.
approxi-
amounting
wantonness,
necessarily
but
degree,
willingness
mating
to take a
it
in a
court.)
(Syllabus of the
chance.”
(Ala.
Brown, 384
2d
1048
v.
So.
In Roberts
‘‘
1980),
has been de-
court said:
‘Wantonness
doing of some act or the omis-
fined as the consсious
knowledge
existing
duty
which under
of some
sion
doing
that, from the
and while conscious
conditions
injury
duty,
will
or the omission
such
such act
party
likely
probably result, and before a
can be
guilty
it
of wanton conduct must
shown
to be
said
consequences
to the
reckless indifference
that with
he
intentionally
wrongful
consciously
did some
duty
produced
some known
which
or omitted
act
Harper,
Co. v.
Ala.
Lumber
result. Griffin
Thompson,
Taylor
505;
v.
Ala.
25 So.2d
[277
277;
Ala.
v. Sexton
So.2d
Johnson
So.2d
supra.’
Zell,
33, 36,
790],
279 Ala.
181 So.2d
Lewis
(1965).”
Ewing
Bowl,
20 Cal. 3d
In
Cloverleaf
*7
(1978),
Rptr. 13,
1155, 1161,
20
143 Cal.
P.2d
court
“
implies
‘[W]illful misconduct
the inten-
stated:
something
knowlеdge,
doing
either with
of
ex-
tional
injury
probable,
press
implied,
that serious
is a
possible,
distinguished
result,
from a
or the inten-
doing
a wanton and reckless dis-
of an act with
tional
regard
(Williams
consequences.’
Carr,
v.
of its
supra,
[440 P.2d
68
The record does show that did not trips through on observe barrel their routine employees park. they testified that had noticed they barrel, would have removed it. The failure to observe the barrel have been ordinary negligence city in that the in the exercise of care “should have known” of due the existence of a danger, but that does not amount to willful miscon- willfully failing An duct. actor cannot act to re- danger knowledge he move when has no of it. assigned finding has also as error the guilty
the trial court that were not contributory negligence. contributorily An actor is negligent duty imposed upon if he breaches the him protect injury; law to himself from if his actions cooperate negligence concur and with actionable defendant; and if his actions contribute to his in- juries proximate Stephen City as a cause. Lin- (1981). coln, 792, 209 Neb. N.W.2d 889 A child is rеquired degree per- to exercise that of care which a age naturally ordinarily of that would son use in under the same situation the same circumstances. (1884); Ames, Neb. N.W. Cam- Huff Thomas, 209 Neb. erlinck v. N.W.2d 260 Although we have concluded that no “willful or negligence part city, on malicious” existed the evidence in this case we believe shows contributorily negligent plaintiffs were sufficient recovery finding their as a matter of law. bar contrary clearly wrong. court to the was of the trial in the of Omaha The use firecrackers prohibited by ordinance, within the as well *8 by park regulation. plaintiffs The had been [496] danger- their that fireworks were parents
warned using and that should be careful when they ous that were aware they testified plaintiffs them. using the involved fireworks. de- danger of of increases when an actor is required care gree activity dealing dangerous exploding with a such as Hoveling, v. 184 firecrackers. See Neb. Martinez (1969). Despite 169 428 these warnings, N.W.2d were fire- plaintiffs lighting the evidence is in the drum and opening drop- crackers above firecrackers into drum. lighted ping is with conflicting testimony there re- Although noticed boys the “flammable” whether gard drum, visible, label plainly on the was marking they testified that undеrstood what and the In meant. the exercise the term “flammable” have boys should seen warning care proper upon they on the drum which were top label Moreover, they firecrackers. should have lighting firecrackers into the dropping lighted known that an unreasonable risk of explosion. drum created following In the cases the actions of children with held to to their use firecrackers regard Thornton Ionia contributory negligence: Free Association, (1924) N.W. Fair Mich. firecrackers, had who with (14-year-old, experience off firecrackers he found setting held at negligent City Albany, Mathews Cal. fairgrounds); (1939) (12-year-old P.2d 266 2d who App. had knowledge of fireworks held properties contribu- Shelanie v. National Fireworks torily negligent); As- 1972) sociation, App. 921 (Ky. (14-year-old 487 S.W.2d been he knew and had warned who admitted about contributorily negligent). of fireworks held dangers court reversed district judgment to dismiss directions the cause remanded with petition. remanded
Reversed
WITH DIRECTIONS. *9 dissenting. J., Shanahan, majority opinion misconstrues the Recreation through
Liability Act, §§ 37-1001 Rev. Stat. Neb. (Reissue 1978). 37-1008 Section 37-1001states: “The purpose encourage of sections 37-1001to 37-1008is to public make to the owners of land to available land purposes by for recreational limit and water areas ing liability persons entering their toward thereon persons injured and toward who be or other damaged by persons wise the acts or omissions of entering legislative history thereon.” Liability interpreta Recreation tive decisions Act and numerous having courts of states statutes compel to the similar Nebraska act the conclusion apply present that the act does not to the case. Thе Liability designed encourage Recreation Act to public privately access to and recreational use of undeveloped private held lands. To induce land permission public Legisla use, owner’s such promised exposure liability has reduced to ture injuries occurring opened
in recreational
areas
to
public.
Super.
See,
Ross,
Tallaksen v.
167 N.J.
(1979);
1,
A.2d
Harrison v. Middlesex Water
(1978);
Super.
Company,
368,
158 N.J.
public use, is, or recreational state-owned grants areas, in -leased return restricted liability private providing limited landowners public Consequently, ques- areas for recreation. negligence operating city park tion of is not purview Liability within Putting the Recreation Act. particular aside the situation involved in this patrons public parks case, should alert to the majority opinion regarding effect of the and its rule required operating municipal park, i.e., care sponsibility re- injury only by caused willful mali- protect public fаilure to cious charge admitted without city park. conceding applicability Without of the Nebraska *10 Liability present case, Recreation agree Act to the we dis- aspects majority opinion. other with of the camper pads city park. There were 46 within the Ray Stoops, grandfather plaintiffs, paid of the $10.50 park camper pad to his trailer on No. 25. The fee or charge Stoopses days’ occupancy entitled the to 3 of to camper pad, namely, July according the registration until
receipt by park No. 6268 issued care- pad exchange Also, taker for No. 25. fee, for the provided Stoops with electrical service for camper pad, city superintendent or, his parks as the Stoops
testified, plug was “allowed to into the particular pad electrical stanchion that’s at that for his trailer.” Electrical service was not available to everyone entering park provided only but was paying particular camper pads. those for As testi- by park employees, superintendent fied parks, foreman, park, district and caretaker for the Stoops possession” pad had “exclusive 25, for, superintendent parks testified, as the “That’s the park intent.” district whole foreman acknowl- person edged pad, per- when that “rented” a that was entitled to that, son exclusive use to the extent upon request paying occupant pad, of the park personnel any would remove unwanted or un- person intruding upon camper pad. authorized park personnel If those efforts of unsuccessful, were police would be summoned to remove the unwanted park intruder. As described caretaker: caretaker “I park call would the cruiser.” also regarding testified there was no restriction visitors Stoops’ camper pad, including by Stoops’ visits grandchildren, which was “consistent with the fee paid.” that he majority opinion acknowledges Stoops
paid right camper “a . . . upon specific pad.” Although majority feels that negligence the nature of bility under the Recreation Lia only presence Act turns on the or absence of a charge admission, for an admission fee is not the regarding type degree sole determinant or negligence required liability under the act. The March Committee Statement on L.B. 280 (Recreation Act), Liability Agriculture Committee, following: Recreation contains the “The provides no liability act inherent limitations on guard against willful or malicious failure to or warn dangerous condition, use, activity, structure, injury charge suffered in case when a charge made unless that he in the nature rent.” (Emphasis supplied.) Stoops’ occupancy use and camper pad rights of the enjoyed by included benefits and general public park, admitted to the public and even included exclusion of the from the camper pad, Stoops Stoops acquired if saw fit. such *11 rights payment charge benefits and not of the fee or required general public of the for admission to park. analysis, by any the reasonable In the final and construction, charge
definition or
paid by Stoops
rent,
is,
was
consideration compensation “paid
occupation
proper
use
(5th
ty.”
Dictionary
1979).
Black’s Law
1166
ed.
See,
Concepts,
Twp.,
Inc. v.
Modular
So. Brunswick
146
(1977);
Super. 138,
Corр.
369A.2d 32
N.J.
Rosewood
v.
Ins.,
57 Ill.
Transamerica
2d
500 (1931); Co., 574 White 276 177 N.E. Mass. Roof- ing App. Company Wheeler, 39 Ala. 106 So. 2d (1957); Kennedy v. Boston-Continental Nat. 658 (D. 1935); Young Supp. Bank, 11 F. Mass. (Mo. 1918). App. Telephone Co., 201 S.W. Home Liability “Charge,” in- within the Recreation Act/ only payment to a recrea- for admission cludes charge paid for the use or oc- area but also the tional cupancy recreational area. The of a site within the Liability clearly pre- intended to Act was Recreation injured by ordinary negli- rights persons serve charging gence rent as in the case of the landowners us. now before denying recovery by grounds of the
As one majority “Moreover, plaintiffs, states: pad paid by Evelyn camper for use [plaintiffs’ grandmother] Stoops and not Lurking majority opinion plaintiffs.” within privity liability dependent upon requirement of — relationship precedent contractual between the in person negligent jured and the tort-feasor. “At one showing privity necessary was considered time to occasion
liability negligence, but the courts away getting been from that have .doctrine entirely repudiated many it; havе and discarded liability doctrine the modern is based on fore under seeability gence privity.” Negli than rather 65 C.J.S. 4(11) Cardozo, at 502 Justice
§ almost ago, rejected requirement years the condition or product liability privity negligence, in a suit for of when Co., he stated in MacPherson v. Buick Motor (1916): 382, 390, 394, 111 N.E. 217 N.Y. 1053-54 put duty aside the notion that the have to safe “We consequences negli limb, guard when the life grows gence nothing foreseen, out of contract and [F]oresight consequences . . else. . duty.” expressed the creation of a As involves Rope Corp., Wire v. Union Ill. 2d Nelson (1964): every 769, 779 “It is axiomatic that N.E.2d duty ordinary person others a owes all to exercise
[501] guard against
injury
naturally
care to
which
flows
reasonably probable
as a
and foreseeable
conse
quence
duty
act,
of his
and that such
does not de
pend upon
privity
prox
contract,
interest
imity
relationship,
but extends to remote and un
persons.”
See, also,
known
Webel v. Yale Univer
(1939);
sity,
515,
McKinley
125
cf.,
Conn.
end that no act of his should them.” App. Grace, Ga. Huckabee S.E. (1934). Footprints, camper pads, trash bar- privity, reís; on the same. At sea Ne- the result jurisprudence an will itself on island find braska even Crusoe. without *13 park policy for removal of called
Established park city. placed not in the barrel part the trash no black barrels as collection had (On explosion July park. system after park, in the house an in front the caretaker’s and Department investigator for the Omaha Police arson “55-gallon bearing drum, trash-can” a similar found “extremely high precaution contents with an about City employees frequent trips point.”) made flash daily pad and removed trash in the area from inches differently sitting other, colored barrel city’s activity, from the black barrel. The inactivity, aptly city’s and the more barrel’s con- pad anyone presence No. 25 lead at would tinued nothing dangerous there that conclude set- by Evelyn Stoops, grandmother ting. As testified supposed “Anything park plaintiffs: in the .” one . . . Under the circumstances be safe would rely reasonably pro- believe and had dump discarded, not a a safe for a vided containing dangerous barrel combustible material. “ sufficiency determining ‘In evidence judgment, it must be considered in the sustain party. Every light most favorable to successful fact must be resolved in his favor and controverted every to the benefit of he is entitled inference that reasonably [Ci- be deduced from the evidence.’ can Moreover, omitted.] under the Political tations Act, 23-2406, Tort Claims section R.R.S. Subdivisions ‘findings of a District Court under the act appeal they on disturbed unless will are wrong.’ clearly [Citation omitted.]” Daniels An- dersen, 195 Neb. N.W.2d city’s negligence Negligence contributory —the questiоn negligence of the of fact —was plaintiffs. the trial court favor of the resolved clearly That conclusion and determination is not wrong. judgment
For these reasons the of the trial court should have been affirmed. join JJ., in this dissent. Grant,
White Schroeder, Dallas R. Schroeder and Freda F. doing business Schroeder’s Standard and The Grocery House, appellees, Liquor v. Nebraska appellants. , et
Control
Commission
al.
Donn K. Nelson & appellees. JJ., Boslaugh, White, Hastings, Shanahan, J., Retired. Brodkey, Per Curiam. (com- Liquor Control Nebraska Commission
mission) appeals County the order of the Dawson Court, which District reversed the commission’s denying application order Dallas R. Schroeder (Schroeders) F. and Freda Schroeder and directed of a license to issuance Schroeders accordance application. We with their reverse and remand with directions. July 9, 1982,
On the commission denied Schroe- application license, for a retail beer ders’ off-sale only, Cozad, located to be within Nebraska.
solitary finding of the commission for denial of the application governing and license was “the local