Brown v. State

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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

Aaron G. Brown, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___

Filed February 28, 2020. No. S-19-073.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Tort Claims Act: Appeal and Error. Whether the allegations made
by a plaintiff constitute a cause of action under the State Tort Claims
Act or whether the allegations set forth claims which are precluded by
the exemptions set forth in the act is a question of law, for which an
appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
4. ____: ____. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
5. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
protection of sovereign immunity are strictly construed in favor of the
sovereign and against the waiver.
6. Immunity: Waiver. In order to strictly construe against a waiver of
sovereign immunity, courts broadly read exemptions from a waiver of
sovereign immunity.
7. Tort Claims Act. For the recreational activity exception in Neb. Rev.
Stat. § 81-8,219(14)(a)(i) (Supp. 2019) to apply, the following elements
must be met: (1) The claim must relate to a recreational activity on prop-
erty leased, owned, or controlled by the State; (2) the claim must result
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

from an inherent risk of that recreational activity; and (3) no fee must
have been charged for the plaintiff to participate in, or be a spectator at,
the recreational activity.
8. ____. Because the recreational activity exception in Neb. Rev. Stat.
§ 81-8,219(14)(a)(i) (Supp. 2019) applies only to tort claims relat-
ing to recreational activities on state property and resulting from the
inherent risk of the recreational activity, it is necessary as a threshold
matter to identify the recreational activity, if any, in which the plaintiff
was engaged as either a participant or spectator. Only after the recre-
ational activity is identified can a principled determination be made
as to whether the plaintiff’s tort claim relates to that particular activity
and whether the claim resulted from an inherent risk of that particu-
lar activity.
9. Statutes. When interpreting a statute, a court must attempt to give effect
to all parts of a statute, and if it can be avoided, no word, clause, or
sentence will be rejected as superfluous or meaningless.

Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Reversed and remanded for further proceedings.
James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Charles E.
Chamberlin for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
Aaron G. Brown sued the State of Nebraska for negli-
gence under the State Tort Claims Act (STCA),1 alleging he
was injured at a state recreational area when a riding lawn-
mower struck the picnic table where he was sitting. The State
moved to dismiss the action, claiming sovereign immunity
under the “recreational activity” exception to the STCA.2 That

1
See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014, Cum. Supp.
2018 & Supp. 2019).
2
§ 81-8,219(14).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

exception provides in relevant part that the STCA “shall not
apply” to any claim “relating to recreational activities on
property leased, owned, or controlled by the state for which
no fee is charged . . . resulting from the inherent risk of the
recreational activity.”3
The district court found the recreational activity exception
applied, and it dismissed Brown’s action with prejudice. He
appealed, and we granted the State’s petition to bypass. We
now reverse, and remand for further proceedings.
I. BACKGROUND
1. Brown’s Complaint
This matter was disposed of on a motion to dismiss. In such
a situation, the factual record consists only of the allegations in
the complaint, which are accepted as true, and all reasonable
inferences are made in favor of the nonmoving party.4 Brown’s
complaint alleged the following facts:
On or about August 14, 2017, Brown visited a state recre-
ational area in Elm Creek, Nebraska, to go fishing. The prop-
erty is owned and operated by the State of Nebraska as a state
recreational area that provides opportunities for fishing, boat-
ing, kayaking, picnicking, and primitive camping.
After fishing for a while, Brown took a break and sat on
the bench of a picnic table a few feet from the lake. He was
facing the lake with his back near the top of the picnic table
when an employee, agent, or representative of the State “vio-
lently” struck the picnic table with a gas-powered lawnmower.
The force of the impact caused the tabletop to strike Brown in
the middle of his back and propel him forward, nearly into the
lake. The impact injured his back, resulting in past and future
pain and suffering, medical expenses, lost income, and loss of
earning capacity.

3
§ 81-8,219(14)(a)(i).
4
See, Rouse v. State, 301 Neb. 1037, 921 N.W.2d 355 (2019); Amend v.
Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

On July 11, 2018, Brown filed this tort action against the
State. Attached to Brown’s complaint was a copy of the tort
claim that he filed with the State Claims Board on December
5, 2017,5 and a copy of the letter dated June 7, 2018, denying
his claim.
2. District Court Proceedings
The State moved to dismiss Brown’s complaint for lack
of subject matter jurisdiction pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(1) and for failure to state a claim pursuant to
§ 6-1112(b)(6). After a hearing, the court dismissed the action
for lack of subject matter jurisdiction. The court found the
State had not waived its sovereign immunity, because Brown’s
claim fell within the STCA’s recreational activity exception.6
The district court reasoned:
The key issue is whether being struck by a lawn mower
while sitting at a picnic table is an inherent risk of
[Brown’s] recreational activity. There seems to be no dis-
pute that [Brown] was engaged in a recreational activity
[and he] has not alleged being charged a fee.
....
The Court finds that a user of a recreational area
could reasonably expect mowing and other maintenance
activities being performed. Recreational areas are gener-
ally not overgrown wilderness areas. Most are obviously
mowed and otherwise maintained. Maintenance, like any
other human activity, brings a risk that it may [be] done
negligently.
Construing the exception strictly in favor of the
State’s sovereign immunity, the Court finds that the risk
posed by mowing and other maintenance activities is
characteristic of, intrinsic to, or an integral part of the
recreational activity, even if that activity is sitting at a

5
See § 81-8,227.
6
§ 81-8,219(14).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

picnic table. As the State has not waived its sovereign
immunity for a claim relating to recreational activi-
ties pursuant to Section 81-8,219[(14)(a)(i)], the State
remains immune and the Court does not have subject
matter jurisdiction.
Because the district court dismissed the complaint on the
basis of sovereign immunity, it did not consider the State’s
alternative theory for dismissal. After Brown’s motion to
alter or amend was denied, he filed this timely appeal. We
granted the State’s petition to bypass the Nebraska Court of
Appeals.

II. ASSIGNMENT OF ERROR
Brown assigns, restated, that the district court erred in find-
ing his tort claim was barred by the recreational activity excep-
tion to the STCA.

III. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.7
[2] Whether the allegations made by a plaintiff constitute a
cause of action under the STCA or whether the allegations set
forth claims which are precluded by the exemptions set forth
in the act is a question of law, for which an appellate court has
a duty to reach its conclusions independent of the conclusions
reached by the district court.8
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.9

7
Rouse, supra note 4; Amend, supra note 4.
8
Amend, supra note 4.
9
Rouse, supra note 4; Amend, supra note 4.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

IV. ANALYSIS
Because the district court resolved the State’s motion to dis-
miss on sovereign immunity grounds, we begin by setting out
the general principles of sovereign immunity under the STCA.
Neb. Const. art. V, § 22, provides: “The state may sue and be
sued, and the Legislature shall provide by law in what manner
and in what courts suits shall be brought.” Through the STCA,
the Legislature has waived the State’s sovereign immunity with
respect to certain, but not all, types of tort actions.10 Section
81-8,215 of the STCA is the State’s general waiver of tort
immunity under the STCA, and we have explained that when
that section is read in pari materia with § 81-8,209, it oper-
ates as a limited waiver of the State’s tort immunity, subject to
specified exceptions that are set out in § 81-8,219.11

1. Recreational Activity Exception
This appeal concerns the statutory exception to the waiver
of sovereign immunity which we refer to as the “recreational
activity exception.” At the time Brown was allegedly struck by
the lawnmower, this exception was codified at § 81-8,219(13).
Subsequent amendments to the STCA have not affected the
language of the exception, and we therefore cite to its current
version, codified at § 81-8,219(14). Pursuant to this exception,
the STCA does not apply to
[a]ny claim relating to recreational activities on property
leased, owned, or controlled by the state for which no
fee is charged (i) resulting from the inherent risk of the
recreational activity, (ii) arising out of a spot or local-
ized defect of the premises . . . , or (iii) arising out of the
design of a skatepark or bicycle motorcross park . . . .12
Only the “inherent risk” portion of the recreational activity
exception, found in § 81-8,219(14)(a)(i), is at issue in this case.

10
Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
11
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
12
§ 81-8,219(14).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

For purposes of this exception, the Legislature has defined
“[i]nherent risk of recreational activities” to mean “those risks
that are characteristic of, intrinsic to, or an integral part of the
activity.”13 Further, for purposes of § 81-8,219(14)(a), “fee” is
defined as follows:
[A] fee to participate in or be a spectator at a recreational
activity. A fee shall include payment by the claimant to
any person or organization other than the state only to
the extent the state retains control over the premises or
the activity. A fee shall not include payment of a fee or
charge for parking or vehicle entry.14
We pause here to note that the Political Subdivisions Tort
Claims Act (PSTCA)15 contains a similar exception for rec-
reational activities.16 Both the STCA and the PSTCA were
amended in 200717 in response to our 2006 decision in Bronsen
v. Dawes County.18 In that case, we overruled a quarter century
of precedent and held for the first time that the Recreation
Liability Act19—which encourages landowners to open their
property to the public for “recreational purposes” by limiting
their tort liability20—applies only to private landowners and not
to governmental entities. The Legislature responded to Bronsen
by amending the STCA and the PSTCA to add the exceptions
for tort claims related to “recreational activities.”21
This appeal is our first opportunity to address the proper
interpretation and application of the recreational activity

13
§ 81-8,219(14)(b)(ii).
14
§ 81-8,219(14)(b)(iv).
15
See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012, Cum. Supp. 2018
& Supp 2019).
16
§ 13-910(13)(a).
17
2007 Neb. Laws, L.B. 564.
18
Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
19
Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004).
20
See § 37-730.
21
§§ 81-8,219(14) and 13-910(13)(a).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

exception. Our analysis is governed by settled principles of
statutory construction.
[4-6] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.22 Additionally, it is well settled that
statutes that purport to waive the State’s protection of sover-
eign immunity are strictly construed in favor of the sovereign
and against the waiver.23 In order to strictly construe against
a waiver of sovereign immunity, we broadly read exemptions
from a waiver of sovereign immunity.24
2. Applying Exception
[7] For the exception in § 81-8,219(14)(a)(i) to apply, the
following elements must be met: (1) The claim must relate to
a recreational activity on property leased, owned, or controlled
by the State; (2) the claim must result from an inherent risk
of that recreational activity; and (3) no fee must have been
charged for the plaintiff to participate in, or be a spectator at,
the recreational activity.
In this appeal, the parties agree that Brown’s injury occurred
on property owned and controlled by the State, and they also
appear to agree the only fee Brown was charged was a vehicle
entry fee. We thus confine our analysis to the disputed ele-
ments of the recreational activity exception: whether Brown’s
claim relates to a recreational activity and whether his claim
resulted from an inherent risk of that activity.
(a) Threshold Question
[8] Because the recreational activity exception in
§ 81-8,219(14)(a)(i) applies only to tort claims “relating to
recreational activities” on state property and “resulting from
the inherent risk of the recreational activity,” it is necessary

22
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
23
Amend, supra note 4.
24
Id.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

as a threshold matter to identify the recreational activity, if
any, in which the plaintiff was engaged as either a participant
or spectator. Only after the recreational activity is identified
can a principled determination be made as to whether the
plaintiff’s tort claim relates to that particular activity and
whether the claim resulted from an inherent risk of that par-
ticular activity.
For purposes of the recreational activity exception, the
Legislature has defined “[r]ecreational activities” as follows:
Recreational activities include, but are not limited to,
whether as a participant or spectator: Hunting, fishing,
swimming, boating, camping, picnicking, hiking, walk-
ing, running, horseback riding, use of trails, nature study,
waterskiing, winter sports, use of playground equipment,
biking, roller blading, skateboarding, golfing, athletic con-
tests; visiting, viewing, or enjoying entertainment events,
festivals, or historical, archaeological, scenic, or scientific
sites; and similar leisure activities.25

(b) Identifying Brown’s
Recreational Activity
The parties generally agree that Brown was engaged in some
sort of recreational activity at the time he was injured, but they
disagree on what that activity was. Until the answer to this
threshold question is known, the remaining questions as to the
applicability of § 81-8,219(14)(a)(i) cannot be determined.
Brown’s complaint did not allege he was engaged in any
particular activity—recreational or otherwise—while seated
at the picnic table. But in response to the State’s motion to
dismiss, Brown urged the district court to conclude his recre-
ational activity was either “fishing” or “participating in leisure
activities.” On appeal, Brown suggests he was “picnicking”
when the mower struck the picnic table.26

25
§ 81-8,219(14)(b)(i).
26
Brief for appellant at 5.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

The State argues Brown was not “picnicking,” because there
is no allegation he was eating a meal outdoors.27 Instead, the
State suggests Brown’s recreational activity was either “fish-
ing” or “viewing scenic sites.”28 Ultimately, however, the State
asks us to find that Brown’s “overarching recreational activity
[was] utilizing maintained space.”29 In that regard, the State
contends that the “crux of the issue” for purposes of the recre-
ational activity exception is really that Brown “chose to utilize
a maintained area” of state property and that, consequently,
“the rest of his activities on that area carried with [them] the
inherent risks of using a maintained area.”30
The district court found there was “no dispute that [Brown]
was engaged in a recreational activity,” but it did not expressly
identify the activity. Based on its reasoning, however, we
understand the court to have agreed with the State that Brown’s
recreational activity was using a maintained area of state
property. The court described Brown as a “user of a recre-
ational area” who could “reasonably expect mowing and other
maintenance activities being performed” in the area. It then
found that “[r]ecreational areas are generally not overgrown
wilderness areas. Most are obviously mowed and otherwise
maintained,” and it also found that “[m]aintenance, like any
other human activity, brings a risk that it may [be] done neg-
ligently.” Finally, the court concluded that “the risk posed by
mowing and other maintenance activities” was characteristic
of, intrinsic to, or an integral part of Brown’s recreational
activity and that the exception in § 81-8,219(14)(a)(i) applied
to bar Brown’s claim.
On de novo review, we find the district court erred as a mat-
ter of law in two respects. First, because the matter was before
the court on a motion to dismiss, it should have confined its

27
Brief for appellee at 16.
28
Id.
29
Id. at 13.
30
Id. at 19.
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305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

analysis to the allegations of the complaint and the reasonable
inferences therefrom construed in the light most favorable to
Brown.31 When the court found that Brown was in an area that
was “obviously mowed and otherwise maintained” and that
“[r]ecreational areas are generally not overgrown wilderness
areas,” it went well beyond the face of the complaint, which
described neither Brown’s activity while seated at the picnic
table nor the characteristics of the area.
More important, we find the trial court erred in concluding
Brown’s recreational activity was utilizing a maintained area of
state property. The statutory definition of “recreational activi-
ties” in § 81-8,219(14) is broad and contains a nonexclusive
list of what the Legislature describes as “leisure activities.”
Some of the listed activities are decidedly physical in nature
(such as hiking, biking, and athletic contests), while others are
more cerebral (such as viewing or enjoying historical or scenic
sites). But regardless of the level of activity required, the statu-
tory definition requires that one must be engaged in a recre-
ational or leisure activity as either a participant or a spectator.
The focus of the statutory definition is on the activity itself
rather than the characteristics of the area where the activity
occurs. Indeed, because being on state-controlled property is
already required for the recreational activity exception to apply,
a “recreational activity” as defined in § 81-8,219(14)(b)(i)
must mean something more than simply being on property
maintained by the State.
[9] When interpreting a statute, a court must attempt to
give effect to all parts of a statute, and if it can be avoided,
no word, clause, or sentence will be rejected as superfluous
or meaningless.32 Thus, although we are required to broadly
construe exceptions to the waiver of sovereign immunity under
the STCA,33 we decline to read the definition of “recreational

31
See, Rouse, supra note 4; Amend, supra note 4.
32
State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).
33
See Rouse, supra note 4.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
BROWN v. STATE
Cite as 305 Neb. 111

activity” so broadly that it includes simply being on property
maintained by the State.
Allowing the State to define a “recreational activity” that
broadly would judicially expand the recreational activity
exception to include most, if not all, tort claims occurring
on state property. Indeed, when the recreational activity is
defined as “using a maintained area of state property,” it is dif-
ficult to conceive of any tort claim that would not both relate
to that activity and result from a risk inherent in that activ-
ity. We thus reject the State’s position and hold instead that
a “recreational activity” under § 81-8,219(14) must involve
some leisure activity other than merely being present on state-
maintained land.
The trial court erred in concluding that Brown’s recreational
activity was using a maintained area of state property. And
because the trial court misidentified Brown’s recreational activ-
ity, its analysis of whether his claim resulted from an inherent
risk of that activity was likewise erroneous, as was its ultimate
conclusion that the recreational activity exception applied as a
matter of law to bar Brown’s claim.
But this does not end our analysis, because whether Brown’s
complaint alleged claims that are barred by the recreational
activity exception under the STCA presents a question of law,
which we must determine independent of the conclusions
reached by the district court.34 After de novo review, we con-
clude that while there will surely be cases where the applicabil-
ity of the recreational activity exception can be determined as
a matter of law from the face of the complaint, this is not such
a case.
As stated, Brown’s complaint does not allege he was
engaged in any particular recreational activity at the time he
was injured, and we have determined that simply being present
on state-maintained property is not a “recreational activity” as
that term is defined in § 81-8,219(14)(b)(i). We agree with the

34
See Amend, supra note 4.
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BROWN v. STATE
Cite as 305 Neb. 111

State the facts as alleged do not support concluding as a matter
of law that Brown was “picnicking.” And while the develop-
ment of additional facts may reveal that Brown was engaged in
one or more specific recreational activities while sitting at the
picnic table, the face of his complaint simply does not permit
such a conclusion as a matter of law.
At this stage in the proceeding, the allegations of Brown’s
complaint and the reasonable inferences therefrom do not allow
a court to find as a matter of law that his tort claim is barred
by the recreational activity exception of § 81-8,219(14)(a)(i).
Unless and until the specific recreational activity, or activi-
ties, in which Brown was engaged as either a participant or
a spectator can be identified, there is no principled way to
apply the remaining statutory elements to determine whether
his tort claim is related to that recreational activity and
whether his claim resulted from an inherent risk of that recre-
ational activity.
V. CONCLUSION
For the foregoing reasons, it was error for the district court
to dismiss Brown’s complaint with prejudice on the ground it
was barred by the recreational activity exception. We reverse
the judgment and remand the matter for further proceedings.
Reversed and remanded for
further proceedings.
Heavican, C.J., participating on briefs.