Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreationPosted: March 30, 2015
The grandparents were charged to camp at a city park, the plaintiffs, grandchildren, were not charged to be in the park so the Nebraska Recreational use act provides immunity.
State: Nebraska, Supreme Court of Nebraska
Plaintiff: John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al.
Defendant: City of Omaha, a municipal corporation
Plaintiff Claims: failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence
Defendant Defenses: Recreational Use Statute
Holding: for the defendant
This is an older case. However, it has been followed and clarifies some of the issues concerning recreational use law. The grandparents of one of the plaintiff’s went camping in the city park. They paid a fee which the Supreme Court defined as a fee to “park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities…” Anyone else visiting the park, including the plaintiff entered the park for no charge.
The plaintiffs were the grandson, of the grandparents who paid the fee. The plaintiff grandchildren had not paid any fee nor had his parents to enter and play in the park. While the children were there they had been given firecrackers to use by his father. A 55-gallon drum that was obviously not a trash barrel was sitting next to a trash barrel.
The drum was closed except for a plug which was removed on the top of the drum. The drum had a flammable sign on its side. The plaintiffs were using the drum to set the firecrackers on and light them. One child dropped a lit firecracker into the drum which exploded causing injuries to the plaintiff.
The trial court found for the plaintiff and found the city, which owned the park had:
…failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent.
The defendant city appealed.
Analysis: making sense of the law based on these facts.
The Nebraska Recreational Use statute has been re-written so the sections quoted in this case may not be accurate today. The court quoted:
Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: “Subject to the provisions of section 37-1005, an owner of land 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.”
The new Nebraska Recreational Use statute states:
§ 37-731. Landowner; duty of care.
Subject to section 37-734, an owner of land 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.
The court then focused on the term charge. The plaintiff argued the grandparents had paid a charge. Therefore, the recreational use statute did not apply.
However, the court found the money paid by the grandparents was not to enter on the land, but to access specific services.
The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee. Charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public.
The court looked at other decisions, which had decided the fee issue based on the same analysis.
…a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot. [Washington], wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.
It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for the purchase of gas, food and for the rental of a canoe.
Additionally, the plaintiff’s and their parents did not pay to enter on the land. The fee was paid by a grandparent, not the plaintiff. The grandparents entered the park at a different time and now with their children or grandchildren.
The next issue was whether the actions of the city in managing the park and not finding or removing the barrel were willful or wanton. Under Nebraska law willful and wanton is defined as:
In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences. To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury. To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.
The court found the city had acted correctly because the barrel had not been found by the city in its normal operation. If the city had found the barrel, the city stated the barrel would have been removed. The court then stated the not only was the city not willful and wanton, but the plaintiffs were contributorily negligent by their actions.
Contributory negligence has been replaced by joint and several liability. At the time, being found contributorily negligence would have been a complete bar to recovery by the plaintiffs. This analysis was based on the law which prohibited the use of fireworks by the city and by park regulation.
The court reversed the trial court decision finding for the city.
So Now What?
This is an old decision which still stands today and has been followed in numerous courts, which define their statutes this way. If you are a landowner whose land is open for recreation, this may provide a narrow window where you can open the land for free and yet recover some of your costs for extra services you may provide for people who wish to pay for those services.
What do you think? Leave a comment.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
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