Public liability ruling shuts skateboard parks

LINCOLN, Neb.—Overturning more than 20 years of case law, the Nebraska Supreme Court has ruled that a state statute that shields owners of recreational land from public liability does not cover governmental entities.

The 1965 law extends only to private landowners who either open their property to the public or lease it to a governmental entity that then invites the public to use the land, the court ruled.

The 7-0 ruling overturns a precedent established in numerous state Supreme Court cases that date back to 1981.

In response to the ruling, several Nebraska cities have temporarily closed their skateboard facilities until they purchase liability insurance that would cover injury claims filed by skateboarders.

The state high court handed down its decision on Sept. 29 in a slip-and-fall case that plaintiff Carolyn Bronsen filed against Dawes County. At a summer festival held in July 2002 on the Dawes County Courthouse lawn in Chadron, Neb., Ms. Bronsen stepped into a depression in the lawn and broke her ankle. Her treatment included several surgeries to repair the ankle.

After the county refused to cover Ms. Bronsen's medical costs and other damages, she sued the county and the event organizer for negligence. But a state district court and an appellate court ruled that Nebraska's Recreation Liability Act shielded the county from liability, because Ms. Bronsen's injury did not result from any willful or malicious failure by the county to protect the public.

But the state Supreme Court agreed to review its 1981 decision that extended the RLA's liability shield to public entities--a precedent that the high court followed in numerous subsequent cases.

Noting that its earlier decisions interpreting the RLA generated numerous dissenting opinions, the court analyzed the legislative intent of the statute and determined that state lawmakers could not have intended to apply the statute to governmental entities.

For example, the high court noted that when the RLA was enacted in 1965, state law provided governmental entities immunity from liability under a sovereign immunity doctrine. Therefore, the court reasoned, the Legislature would have had no reason to cover governmental entities in the statute.

Governmental entities' liability protections were not weakened until several years after the RLA was enacted, the court noted.

In addition, the law, which was designed to encourage more landowners to open their property for free public use, is not necessary for governmental entities, the court reasoned. Governmental entities "are in the business" of making the land they own accessible to the public, the court ruled.

Allowing the precedent to stand also would promote an inconsistent liability system that could be extremely unfair to the public, the court ruled.

For example, the court envisioned a scenario in which a piece of the state Capitol's facade breaks loose and injures two children who are on a school field trip and a witness who is scheduled to testify at a legislative hearing. As the RLA was previously interpreted, the state would be liable only to the legislative witness, the court said. The state would not be liable to the families of the schoolchildren because they were injured during a recreational activity, the court stated.

The court concluded by overruling its rulings in nine prior cases that either explicitly or implicitly extended the RLA's immunity protection to governmental entities.

The plaintiffs in those cases, however, are "stuck" with the court's original decisions, said attorney Timothy M. Kenny, a partner at Abrahams Kaslow & Cassman L.L.P. of Omaha, Neb. Mr. Kenny represented the successful defendant in the 1981 case in which the Nebraska Supreme Court first extended the RLA's liability shield to governmental entities.

Among Nebraska cities that quickly closed their skateboard facilities in response to the ruling is North Platte. Its skateboard facility is located within a city park, said Mayor G. Keith Richardson. The facility will remain closed until the city can arrange skateboard liability coverage through its municipal self-insurance pool, the Lincoln, Neb.-based League Association of Risk Management.

The city's parks can remain open because LARM provides North Platte with general liability coverage--most crucial for its defense cost protection--for claims stemming from injuries that the public suffers during other activities at the parks, explained Mayor Richardson and Johnnie Miller, director of LARM.

LARM also had covered skateboard injuries for its members, but only as long as the RLA extended to governmental entities, Mr. Miller noted. That endorsement was crafted years ago because LARM's reinsurer at the time would not cover skateboard claims, he said. Because of the RLA, LARM had not asked its current reinsurer to cover members for skateboard claims, but now plans to do so, said Mr. Miller, noting that the reinsurer typically has covered that risk for municipalities in other states.

Carolyn Bronsen vs. Dawes County et. al, Nebraska Supreme Court, Sept. 29; No. S-04-237.