Dykes v. Scotts Bluff County Agricultural Society, Inc.

Stephan, J.,

concurring in part, and in part dissenting.

I agree with the majority that the phrase “or otherwise using land for purposes of the user” set forth in Neb. Rev. Stat. § 37-729(3) (Reissue 1998) is not unconstitutionally vague because the doctrine of ejusdem generis limits its scope to the same kind or class of activities which are specifically enumerated by the statute as examples of “recreational purposes.” However, I disagree with the majority decision that Dykes was not using the fairground for a recreational purpose as defined in that statute.

*384The majority reasons that the specific examples of recreational land use set forth in § 37-729(3) “are more physical than not,” are not “ ‘spectator sports,’ ” and “tend to involve activities in which the individual using the land is actively involved.” However, the plain language of the statute includes both physically active pursuits such as “hunting,” “swimming,” and “hiking,” as well as more passive endeavors such as “pleasure driving,” “picnicking,” “nature study,” and “visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites.” According to her petition, Dykes was “visiting the farm animal exhibits” at the Scotts Bluff County Fair at the time of her injury. The record reflects that the animals were exhibited on the fairgrounds in an open-air structure consisting of animal pens covered by a roof and that Dykes was walking through the exhibition area when she was injured. Dykes was therefore performing the same general type of physical activity as one who enters real property for the purpose of “nature study” or “visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites” located thereon.

Thus, the question for me comes down to whether a livestock exhibit at a county fair is of the same kind or class as the “historical, archaeological, scenic, or scientific sites” enumerated in the statute. The majority states that “scientific” is defined as “ ‘of or pertaining to science or the sciences,’ ” but does not address the more pertinent question of what constitutes “science.” The dictionary defines that term as “a branch of knowledge or study dealing with a body of facts or truths systematically arranged and showing the operation of general laws” and “systematic knowledge of the physical or material world.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 1279 (1994). The farm animals viewed by Dykes were produced and exhibited by persons engaged in agriculture, which is defined as “the science or art of cultivating land in the raising of crops; tillage; husbandry, farming.” (Emphasis supplied.) Id. at 29. “Husbandry” is “the science of raising crops or food animals.” (Emphasis supplied.) Id. at 694. The farm animals exhibited at the fair were products of the application of agricultural sciences such as genetics, nutrition, and veterinary medicine. I therefore regard the purpose for which Dykes was *385present on the fairgrounds as substantially similar to the activities specifically enumerated in § 37-729(3).

Strictly constming § 37-729(3) but applying the doctrine of ejusdem generis to its nonexclusive examples of recreational purposes, I conclude that Dykes was using the fairgrounds for a recreational purpose at the time of her injury and, therefore, that the immunity conferred by the Recreation Liability Act is applicable. Thus, while I concur with the holding of the majority that § 37-729(3) is not unconstitutionally vague, I respectfully dissent from its holding that Dykes was not using the fairgrounds for a recreational purpose. I would affirm the judgment of the district court.

Miller-Lerman, J., joins in this concurrence and dissent.