Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation

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.

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

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

Year: 1984

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.

Georgia

…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.

Ohio

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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Nebraska Recreational Use Statute

§ 37-730. Limitation of liability; purpose of sections.

The purpose of sections 37-729 to 37-736 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

§ 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.

§ 37-732. Landowner; invitee; permittee; liability; limitation.

Subject to section 37-734, 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.

§ 37-733. Land leased to state; duty of landowner.

Unless otherwise agreed in writing, an owner of land leased to the state for recreational purposes owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon such land of any hazardous conditions, uses, structures, or activities thereon. An owner who leases land to the state for recreational purposes shall not by giving such lease (1) extend any assurance to any person using the land 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 a person who enters upon the leased land. The provisions of this section shall apply whether the person entering upon the leased land is an invitee, licensee, trespasser, or otherwise.

§ 37-734. Landowner; liability.

Nothing in sections 37-729 to 37-736 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land.

§ 37-735. Sections, how construed.

Nothing in sections 37-729 to 37-736 creates a duty of care or ground of liability for injury to person or property.

§ 37-736. Obligation of person entering upon and using land.

Nothing in sections 37-729 to 37-736 limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in his or her use of such land in his or her activities thereon.

 


Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al., Appellees, v. City of Omaha, a municipal corporation, Appellant

No. 82-814

SUPREME COURT OF NEBRASKA

216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942

February 17, 1984, Filed

COUNSEL: Herbert M. Fitle, City Attorney, James E. Fellows, and Timothy M. [***3] Kenny, for appellant.

Thomas F. Dowd and John P. Fahey of Dowd & Fahey, and J. Patrick Green, for appellees.

JUDGES: Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ. Shanahan, J., dissenting. White and Grant, JJ., join in this dissent.

OPINION BY: BOSLAUGH

OPINION

[*488] [**311] This is an action under the Nebraska Political Subdivisions Tort Claims Act against the City of Omaha, Nebraska, to recover damages for the injuries sustained by the plaintiffs, John Garreans, Jr., and Vince Hartline, in an explosion which occurred [**312] at N.P. Dodge Park on July 5, 1980, while the plaintiffs were visiting with their grandparents, Ray and Evelyn Stoops, at the park. The petition included a second cause of action for the medical expenses incurred by the parents of the plaintiffs as a result of the explosion. At the time of the accident both plaintiffs were 12 years of age. The action was brought by their fathers as the next friends of the plaintiffs. The defendant has raised no issue in this court concerning joinder.

The evidence shows that on July 3, 1980, Ray and Evelyn Stoops entered N.P. Dodge Park in Omaha, Nebraska, with their camper, intending [***4] to camp in the park over the 3-day holiday. Evelyn Stoops paid [*489] a $ 10.50 fee at the concessionaire’s office for the use of camper pad No. 25 for the 3-day period. Electrical service was provided at that pad. While they were setting up camp, the Stoopses noticed a black, 55-gallon drum nearby. The black drum was in addition to a trash barrel at the pad, which was a 55-gallon drum from which the top had been removed. Trash barrels, which consisted of 55-gallon drums from which the tops or lids had been removed, were distributed throughout the park, including the camping area. These drums were painted various colors and were labeled “TRASH” on the side.

Printing or lettering on the side of the black drum indicated that it had contained an antifreeze compound. A red or orange label, approximately 4 inches square, was affixed to the top of the drum. The label bore the legend “Flammable Liquid” printed below a representation of a fire or flames.

The lid or top of the black drum was intact, and the drum was closed except for a small opening, approximately 1 inch in diameter, from which a plug had been removed. There is no evidence that the city placed the black drum [***5] in the park, and a search of city records showed that the city had not purchased the black drum. The plaintiffs contended that the city was negligent in failing to remove the drum from the park.

On July 5, 1980, the plaintiffs entered the park to visit with their grandparents at camper pad No. 25. In accordance with park policy no admission fee was charged them. Both boys had been given firecrackers by their fathers. The boys used a cigarette lighter to light the firecrackers, and used the black drum as a shelf for their activities. The explosion occurred when they dropped a lighted firecracker into the black drum through the 1-inch hole in the lid. The drum exploded, spraying flammable liquid on the boys. John received severe burns on his [*490] lower extremities. Vince suffered injuries to his nose and arm, and was also burned.

The trial court found that the city 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. Judgment was entered [***6] in the amount of $ 243,190.57 for John Garreans, Jr., and in the amount of $ 104,726.95 for Vince Hartline.

One of the principal issues in the case was whether the Recreation Liability Act was applicable. The city assigns as error the failure of the court to properly apply the standard of care found in the Recreation Liability Act.

Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: [HN1] “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.”

Neb. Rev. Stat. § 37-1005 (Reissue 1978) provides: [HN2] “Nothing in sections 37-1001 to 37-1008 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the [**313] person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made [***7] by the owner of the land.”

The act thus provides that an owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility, although the owner may be liable for certain willful actions.

The trial court found that the fee paid by Evelyn [*491] Stoops for the use of the camper pad constituted a “charge” for entry upon land and that the actions of the city amounted to “willful negligence.”

Findings of fact made by the district court in cases brought under the Political Subdivisions Tort Claims Act will not be disturbed on appeal unless clearly wrong. Studley v. School Dist. No. 38, 210 Neb. 669, 316 N.W.2d 603 (1982); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

The city through its operation of N.P. Dodge Park provides camping, picnic, and sports facilities, and the park is a “recreational facility” within the meaning of the act. Neb. Rev. Stat. § 37-1008 (Reissue 1978) [HN3] provides in part: “(3) the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, [***8] nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.” See Watson v. City of Omaha, supra.

The term “charge” is defined in § 37-1008: “(4) the term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land.”

The clear meaning of this statute is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. [HN4] Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language. County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62 (1982); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).

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 [*492] pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment [***9] 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. We conclude that the fee paid by Evelyn Stoops was not a charge for entry upon the land but was a fee paid for the right to park a camper upon a specific pad.

This conclusion has been reached by other courts faced with similar issues. In Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969), 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. See, also, Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), 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.

In Moss v. Dept., 62 Ohio St. 2d 138, 142, 404 N.E.2d 742, 745 (1980), the Ohio Supreme Court stated: “R.C. 1533.18(B) defines a ‘recreational user’ as one who has permission to enter upon ‘premises’ without the payment of a fee or consideration. 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 [***10] the purchase of gas, food and for the rental of a canoe. Nor was this a situation wherein the state attempted to circumvent liability by charging fees for the use of all facilities, in essence charging an entrance fee, although not labelling it as such. It is undisputed that the Mosses and decedent [**314] O’Neal could have brought the same items to the parks that they purchased or rented while there, and still have made use of the park facilities. Consideration should not be deemed given under R.C. 1533.18(B) unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admittance fee. Appellants’ contention is without merit.”

[*493] Moreover, the fee for use of camper pad No. 25 was paid by Evelyn Stoops and not by the plaintiffs. The plaintiffs therefore were nonpaying, recreational users of the park facilities and thus are not entitled to recover for injuries not caused by the city’s willful actions. See Garfield v. United States, 297 F. Supp. 891 (W.D. Wis. 1969).

Since the plaintiffs did not pay a charge to enter the park, the next issue which we consider is whether the evidence will support [***11] a finding that the city was guilty of a “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” A review of the evidence in light of the applicable law warrants only the conclusion that the actions of the city were not willful or malicious. The finding of the trial court on this issue is not supported by the evidence.

[HN5] 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 [***12] to the consequences and with consciousness that the act or omission would probably cause serious injury. 57 Am. Jur. 2d Negligence §§ 101-105 (1971).

In Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928), a workmen’s compensation case, the court stated: [HN6] “[W]ilful negligence may be defined [*494] as (1) a deliberate act; or (2) such conduct as evidenced reckless indifference to safety. As a statutory term it involves more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in a degree, a willingness to take a chance.” (Syllabus of the court.)

In Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980), the court said: [HN7] “‘Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known [***13] duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.’ Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).”

In Ewing v. Cloverleaf Bowl, 20 Cal. 3d 389, 402, 572 P.2d 1155, 1161, 143 Cal. Rptr. 13, 20 (1978), the court stated: [HN8] “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ ( Williams v. Carr, supra, 68 Cal.2d 579 584 [440 P.2d 505, 509, 68 Cal. Rptr. 305, 309 (1968)].) ‘If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an [**315] extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of the mind of the actor and his actual concern for the rights of others, we call it willful misconduct. . . .'”

In Jones v. United States, 693 F.2d 1299 (9th Cir. [*495] 1982), the court addressed [***14] the issue of what constitutes willful or wanton misconduct under Washington’s recreational use statute. The court held that the defendant must act or fail to act with actual knowledge of the hazard in order to be held liable under the statute.

The record does show that park employees did not observe the barrel on their routine trips through the park. The employees testified that had they noticed the barrel, they would have removed it.

The failure to observe the barrel may have been ordinary negligence in that the city in the exercise of due care “should have known” of the existence of a danger, but that does not amount to willful misconduct. An actor cannot act willfully in failing to remove a danger when he has no knowledge of it.

The city has also assigned as error the finding of the trial court that the plaintiffs were not guilty of contributory negligence. [HN9] An actor is contributorily negligent if he breaches the duty imposed upon him by law to protect himself from injury; if his actions concur and cooperate with actionable negligence of the defendant; and if his actions contribute to his injuries as a proximate cause. Stephen v. City of Lincoln, 209 Neb. 792, 311 N.W.2d [***15] 889 (1981). A child is required to exercise that degree of care which a person of that age would naturally and ordinarily use in the same situation under the same circumstances. Huff v. Ames, 16 Neb. 139, 19 N.W. 623 (1884); Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260 (1981).

Although we have concluded that no “willful or malicious” negligence existed on the part of the city, we believe the evidence in this case shows that the plaintiffs were contributorily negligent sufficient to bar their recovery as a matter of law. The finding of the trial court to the contrary was clearly wrong.

The use of firecrackers in the city of Omaha and within the park was prohibited by ordinance, as well as by park regulation. The plaintiffs had been [*496] warned by their parents that fireworks were dangerous and that they should be careful when using them. The plaintiffs testified that they were aware of the danger involved in using fireworks. The degree of care required increases when an actor is dealing with a dangerous activity such as exploding firecrackers. See Martinez v. Hoveling, 184 Neb. 560, 169 N.W.2d 428 (1969). Despite these warnings, the evidence is that [***16] the plaintiffs were lighting firecrackers above the opening in the drum and dropping lighted firecrackers into the drum.

Although there is conflicting testimony with regard to whether the boys noticed the “flammable” marking on the drum, the label was plainly visible, and the plaintiffs testified that they understood what the term “flammable” meant. In the exercise of proper care the boys should have seen the warning label on the top of the drum upon which they were lighting firecrackers. Moreover, they should have known that dropping lighted firecrackers into the drum created an unreasonable risk of explosion.

In the following cases the actions of children with regard to their use of firecrackers was held to be contributory negligence: Thornton v. Ionia Free Fair Association, 229 Mich. 1, 200 N.W. 958 (1924) (14-year-old, who had experience with firecrackers, held negligent in setting off firecrackers he found at fairgrounds); Mathews v. City of Albany, 36 Cal. App. 2d 147, 97 P.2d 266 (1939) (12-year-old who had knowledge of properties of fireworks held contributorily negligent); Shelanie v. National Fireworks Association, 487 S.W.2d 921 (Ky. App. 1972) (14-year-old [***17] who admitted he knew and had been warned about dangers of fireworks held contributorily negligent).

[**316] The judgment of the district court is reversed and the cause remanded with directions to dismiss the petition.

Reversed and remanded with directions.

DISSENT BY: SHANAHAN

DISSENT

[*497] Shanahan, J., dissenting.

The majority opinion misconstrues the Recreation Liability Act, Neb. Rev. Stat. §§ 37-1001 through 37-1008 (Reissue 1978). Section 37-1001 states: “The purpose of sections 37-1001 to 37-1008 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.” The legislative history of the Recreation Liability Act and numerous interpretative decisions by courts of states having statutes similar to the Nebraska act compel the conclusion that the act does not apply to the present case. The Recreation Liability Act is designed to encourage public access to and recreational use of privately held undeveloped lands. To induce the private landowner’s permission [***18] for such public use, the Legislature has promised reduced exposure to liability for injuries occurring in recreational areas opened to the public. See, Tallaksen v. Ross, 167 N.J. Super. 1, 400 A.2d 485 (1979); Harrison v. Middlesex Water Company, 158 N.J. Super. 368, 386 A.2d 405 (1978); Michalovic v. Racing Assn, 79 A.D.2d 82, 436 N.Y.S.2d 468 (1981); Johnson v. Stryker Corp., 70 Ill. App. 3d 717, 388 N.E.2d 932 (1979); Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983). “The purpose of this [recreational use legislation] is to limit the liability of private landowners, thereby encouraging them to make their property available for public recreation. . . . Thus, there is an objective basis for the aim of recreational use acts: to promote increased public access to private lands by reducing the liability of landowners and occupiers.” Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 3-4 (1977). By the Recreation Liability Act the state avoids expensive acquisition of considerable land for [*498] public recreational use, that is, state-owned or -leased [***19] areas, and in return grants restricted or limited liability to private landowners providing areas for public recreation. Consequently, the question of negligence in operating a city park is not within the purview of the Recreation Liability Act. Putting aside the particular situation involved in this case, patrons of public parks should be alert to the effect of the majority opinion and its rule regarding care required in operating a municipal park, i.e., responsibility for injury caused only by willful or malicious failure to protect the public admitted without charge to any city park.

Without conceding applicability of the Nebraska Recreation Liability Act to the present case, we disagree with other aspects of the majority opinion.

There were 46 camper pads within the city park. Ray Stoops, grandfather of the plaintiffs, paid $ 10.50 to park his trailer on camper pad No. 25. The fee or charge entitled the Stoopses to 3 days’ occupancy of the camper pad, namely, until July 6, according to registration receipt No. 6268 issued by the park caretaker for pad No. 25. Also, in exchange for the fee, the city provided Stoops with electrical service for his camper pad, or, as the city [***20] superintendent of parks testified, Stoops was “allowed to plug into the electrical stanchion that’s at that particular pad for his trailer.” Electrical service was not available to everyone entering the park but was provided only to those paying for particular camper pads. As testified by city park employees, the superintendent of parks, district foreman, and caretaker for the park, Stoops had “exclusive possession” of pad No. 25, for, as the superintendent of parks testified, “That’s the whole intent.” The district park foreman acknowledged that when a person “rented” a pad, that person was entitled to exclusive use to the extent that, upon request by the paying occupant of the pad, park personnel would [**317] remove any unwanted or unauthorized person intruding upon the camper pad. [*499] If those efforts of park personnel were unsuccessful, police would be summoned to remove the unwanted intruder. As described by the park caretaker: “I would call the cruiser.” The park caretaker also testified there was no restriction regarding visitors to Stoops’ camper pad, including visits by Stoops’ grandchildren, which was “consistent with the fee that he paid.”

The majority opinion [***21] acknowledges that Stoops paid “a fee . . . for the right to park a camper upon a specific pad.” Although the majority feels that the nature of negligence under the Recreation Liability Act turns only on the presence or absence of a charge for admission, an admission fee is not the sole determinant regarding the type or degree of negligence required for liability under the act. The March 26, 1965, Committee Statement on L.B. 280 (Recreation Liability Act), of the Agriculture and Recreation Committee, contains the following: “The act provides no inherent limitations on liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or for injury suffered in any case when a charge is made unless that charge be in the nature of rent.” (Emphasis supplied.) Stoops’ use and occupancy of the camper pad included benefits and rights not enjoyed by the general public admitted to the park, and even included exclusion of the public from the camper pad, if Stoops saw fit. Stoops acquired such benefits and rights by payment of the fee or charge not required of the general public for admission to the park. In the final analysis, and by [***22] any reasonable definition or construction, the charge paid by Stoops was rent, that is, consideration or compensation “paid for use or occupation of property.” Black’s Law Dictionary 1166 (5th ed. 1979). See, Modular Concepts, Inc. v. So. Brunswick Twp., 146 N.J. Super. 138, 369 A.2d 32 (1977); Rosewood Corp. v. Transamerica Ins., 57 Ill. 2d 247, 311 N.E.2d 673 (1974); Whiting Paper Co. v. Holyoke Water Power [*500] Co., 276 Mass. 542, 177 N.E. 574 (1931); White Roofing Company v. Wheeler, 39 Ala. App. 662, 106 So. 2d 658 (1957); Kennedy v. Boston-Continental Nat. Bank, 11 F. Supp. 611 (D. Mass. 1935); Young v. Home Telephone Co., 201 S.W. 635 (Mo. App. 1918). “Charge,” within the Recreation Liability Act, includes not only payment for admission to a recreational area but also the charge paid for the use or occupancy of a site within the recreational area. The Recreation Liability Act was clearly intended to preserve rights of persons injured by ordinary negligence of the landowners charging rent as in the case now before us.

As one of the grounds for denying recovery by the plaintiffs, the majority states: “Moreover, the fee for use of camper pad No. [***23] 25 was paid by Evelyn Stoops [plaintiffs’ grandmother] and not by the plaintiffs.” Lurking within the majority opinion is the requirement of privity — liability dependent upon a precedent contractual relationship between the injured person and the negligent tort-feasor. “At one time a showing of privity was considered necessary to occasion liability for negligence, but the courts have been getting away from that doctrine and many have entirely repudiated and discarded it; and under the modern doctrine liability is based on foreseeability rather than privity.” 65 C.J.S. Negligence § 4(11) at 502 (1966). Justice Cardozo, almost 70 years ago, rejected the condition or requirement of privity in a product liability suit for negligence, when he stated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 390, 394, 111 N.E. 1050, 1053-54 (1916): “We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. . . . [F]oresight of the consequences involves the creation of a duty.” As expressed in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964): “It [***24] is axiomatic that every person owes to all others a duty to exercise ordinary [*501] care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, [**318] privity of interest or the proximity of relationship, but extends to remote and unknown persons.” See, also, Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939); cf., McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571, 165 A.2d 207 (1960); Robinson v. Colebrook Guaranty Bank, 109 N.H. 382, 254 A.2d 837 (1969). Today, most courts adhere to the rule that duty as an element of negligence is based not on privity but on foreseeability that harm may result if care is not exercised. See, Harvard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974); Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); cf. J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979). “The duty of vigilance to prevent injury has its source in the law applicable to human relations rather than in a narrow conception of privity.” 57 Am. Jur. 2d Negligence [***25] § 37 at 385 (1971). In the case before us it was foreseeable that family members, including the Stoopses’ grandchildren, would be visiting Ray and Evelyn Stoops at their trailer. This foreseeability resulted in the city’s duty to use reasonable care in protecting Stoops’ visitors, namely, guarding against injuries caused by hazards such as the barrel bomb on pad No. 25. It is some small solace that the explosion did not launch the trailer from the pad. “The rule of reasonable care under the circumstances could not limit the conduct of Robinson Crusoe as he was first situated. But as soon as he saw the tracks in the sand, the rule began to have vitality. He then had notice that there might be other persons on the island, and this knowledge of their presence made it his duty as a reasonable man to use reasonable care to the end that no act of his should injure them.” Huckabee v. Grace, 48 Ga. App. 621, 628, 173 S.E. 744, 749 (1934). Footprints, camper pads, and trash barrels; [*502] the result is the same. At sea on privity, Nebraska jurisprudence will find itself on an island without even Crusoe.

Established park policy called for removal of any barrel not placed in [***26] the park by the city. The city had no black barrels as a part of the trash collection system for the park. (On July 5, after the explosion and in front of the caretaker’s house in the park, an arson investigator for the Omaha Police Department found a similar “55-gallon drum, trash-can” bearing a precaution about contents with an “extremely high flash point.”) City employees made frequent trips in the area of pad No. 25 and daily removed trash from the other, differently colored barrel sitting inches from the black barrel. The city’s activity, or more aptly the city’s inactivity, and the barrel’s continued presence at pad No. 25 would lead anyone to conclude there was nothing dangerous in that setting. As testified by Evelyn Stoops, grandmother of the plaintiffs: “Anything in the park is supposed to be safe . . . .” Under the circumstances one would reasonably believe and rely that the city had provided a safe park and not a dump for a discarded, dangerous barrel containing combustible material. “‘In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved [***27] in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.’ [Citations omitted.] Moreover, under the Political Subdivisions Tort Claims Act, section 23-2406, R.R.S. 1943, the ‘findings of a District Court under the act will not be disturbed on appeal unless they are clearly wrong.’ [Citation omitted.]” Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Negligence — the city’s negligence and contributory negligence of the plaintiffs — was a question of fact resolved by the trial court in favor of the plaintiffs. [*503] That conclusion and determination is not clearly wrong.

For these reasons the judgment of the trial court should have been affirmed.

White and Grant, JJ., join in this dissent.


In Nebraska a release can defeat claims for gross negligence for health club injury

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.

This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.

A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.

The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.

The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.

When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.

The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.

The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:

(1) granting summary judgment in favor of Lakeside and Precor;

(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and

(3) holding that Palmer assumed the risk of using the treadmill.

Summary of the case

The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.

A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.

In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.

Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as

Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.

Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.

The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.

A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.

So Now What?

Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.

The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.

Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.

The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.

And why not!

Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.

How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.

If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.

 

Plaintiff: April Palmer

 

Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.

 

Plaintiff Claims: Negligence and Gross Negligence

 

Defendant Defenses: Release, Assumption of the Risk

 

Holding: for the defendants

 

What do you think? Leave a comment.

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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.

No. S-10-974.

SUPREME COURT OF NEBRASKA

281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

June 24, 2011, Filed

PRIOR HISTORY: [***1]

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

DISPOSITION: AFFIRMED.

HEADNOTES

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.

4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.

5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.

6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.

COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.

David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.

Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.

JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.

OPINION BY: HEAVICAN

OPINION

[**847] [*781] Heavican, C.J.

INTRODUCTION

The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.

FACTUAL BACKGROUND

Palmer’s Accident.

Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.

This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.

Palmer’s Familiarity With Treadmills.

During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.

Palmer’s Membership Agreement and Health History Questionnaire.

At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:

WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.

The health history questionnaire signed by Palmer stated in relevant part as follows:

1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .

2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .

Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.

ASSIGNMENTS OF ERROR

Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.

STANDARD OF REVIEW

[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1

1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2

2 Id.

ANALYSIS

Waiver and Release.

Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.

[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.

[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4

3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).

4 Id. at 686, 789 N.W.2d at 267.

A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.

Lakeside’s Gross Negligence or Willful and Wanton Conduct.

At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.

Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.

[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.

5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).

6 Id.

7 Id.

Precor’s Negligence.

We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.

In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.

In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.

In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.

In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that

based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.

Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.

Assumption of Risk.

Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.

CONCLUSION

The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.

AFFIRMED.

Wright and Miller-Lerman, JJ., not participating.

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Nebraska Sales Representative

NEBRASKA REVISED STATUTES ANNOTATED

CHAPTER 48. LABOR

ARTICLE 12. WAGES

(c) WAGE PAYMENT AND COLLECTION

Go to the Nebraska Code Archive Directory

R.R.S. Neb. § 48-1229 (2012)

§ 48-1229. Terms, defined.

For purposes of the Nebraska Wage Payment and Collection Act, unless the context otherwise requires:

(1) Employer means the state or any individual, partnership, limited liability company, association, joint-stock company, trust, corporation, political subdivision, or personal representative of the estate of a deceased individual, or the receiver, trustee, or successor thereof, within or without the state, employing any person within the state as an employee;

(2) Employee means any individual permitted to work by an employer pursuant to an employment relationship or who has contracted to sell the goods or services of an employer and to be compensated by commission. Services performed by an individual for an employer shall be deemed to be employment, unless it is shown that (a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact, (b) such service is either outside the usual course of business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and (c) such individual is customarily engaged in an independently established trade, occupation, profession, or business. This subdivision is not intended to be a codification of the common law and shall be considered complete as written;

(3) Fringe benefits includes sick and vacation leave plans, disability income protection plans, retirement, pension, or profit-sharing plans, health and accident benefit plans, and any other employee benefit plans or benefit programs regardless of whether the employee participates in such plans or programs; and

(4) Wages means compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis. Paid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation, unless the employer and the employee or the employer and the collective-bargaining representative have specifically agreed otherwise. Unless the employer and employee have specifically agreed otherwise through a contract effective at the commencement of employment or at least ninety days prior to separation, whichever is later, wages includes commissions on all orders delivered and all orders on file with the employer at the time of separation of employment less any orders returned or canceled at the time suit is filed.

§ 48-1230. Employer; regular paydays; altered; notice; deduct, withhold, or divert portion of wages; when; itemized statement; duty of employer to furnish; unpaid wages; when due.

(1) Except as otherwise provided in this section, each employer shall pay all wages due its employees on regular days designated by the employer or agreed upon by the employer and employee. Thirty days’ written notice shall be given to an employee before regular paydays are altered by an employer. An employer may deduct, withhold, or divert a portion of an employee’s wages only when the employer is required to or may do so by state or federal law or by order of a court of competent jurisdiction or the employer has written agreement with the employee to deduct, withhold, or divert.

(2) Within ten working days after a written request is made by an employee, an employer shall furnish such employee with an itemized statement listing the wages earned and the deductions made from the employee’s wages under subsection (1) of this section for each pay period that earnings and deductions were made. The statement may be in print or electronic format.

(3) Except as otherwise provided in section 48-1230.01:

(a) Whenever an employer, other than a political subdivision, separates an employee from the payroll, the unpaid wages shall become due on the next regular payday or within two weeks of the date of termination, whichever is sooner; and

(b) Whenever a political subdivision separates an employee from the payroll, the unpaid wages shall become due within two weeks of the next regularly scheduled meeting of the governing body of the political subdivision if such employee is separated from the payroll at least one week prior to such meeting, or if an employee of a political subdivision is separated from the payroll less than one week prior to the next regularly scheduled meeting of the governing body of the political subdivision, the unpaid wages shall be due within two weeks of the following regularly scheduled meeting of the governing body of the political subdivision.

§ 48-1231. Employee; claim for wages; suit; judgment; costs and attorney’s fees; failure to furnish itemized statement; penalty.

(1) An employee having a claim for wages which are not paid within thirty days of the regular payday designated or agreed upon may institute suit for such unpaid wages in the proper court. If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover (a) the full amount of the judgment and all costs of such suit and (b) if such employee has employed an attorney in the case, an amount for attorney’s fees assessed by the court, which fees shall not be less than twenty-five percent of the unpaid wages. If the cause is taken to an appellate court and the plaintiff recovers a judgment, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney’s fees in such appellate court, which fees shall not be less than twenty-five percent of the unpaid wages. If the employee fails to recover a judgment in excess of the amount that may have been tendered within thirty days of the regular payday by an employer, such employee shall not recover the attorney’s fees provided by this section. If the court finds that no reasonable dispute existed as to the fact that wages were owed or as to the amount of such wages, the court may order the employee to pay the employer’s attorney’s fees and costs of the action as assessed by the court.

(2) An employer who fails to furnish an itemized statement requested by an employee under subsection (2) of sec-tion 48-1230 shall be guilty of an infraction as defined in section 29-431 and shall be subject to a fine pursuant to sec-tion 29-436.

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