Iodence v. City of Alliance

Hendry, C.J.,

concurring.

I concur with the result reached by the majority. I write separately, however, to express my reservations with the continued application of Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981), to provide governmental entities with immunity from liability for ordinary negligence on public land used for recreational purposes. In my view, this court incorrectly construed the Recreation Liability Act (RLA), Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004), in Watson to include governmental entities within its ambit of protection.

The RLA provides owners of land with limited immunity from negligence liability when they make their property available to others for recreational purposes. See §§ 37-730 to 37-734. Section 37-729(2) defines “owner” as a “tenant, lessee, occupant, or person in control of the premises.”

The Legislature has not explicitly stated whether an owner of land includes governmental entities as well as private parties, but this court has addressed that issue. On four occasions, we have expressly held that the RLA applies to government and private landowners alike. Thies v. City of Omaha, 225 Neb. 817, 408 N.W.2d 306 (1987); Gallagher v. Omaha Public Power Dist., 225 Neb. 354, 405 N.W.2d 571 (1987); Bailey v. City of North Platte, 218 Neb. 810, 359 N.W.2d 766 (1984); Watson, supra. In several other cases, we have tacitly accepted that governmental entities could be owners under this line of cases while deciding whether they were entitled to immunity on some other ground. See, Veskerna v. City of West Point, 254 Neb. 540, 578 N.W.2d 25 (1998) (concluding city street could not be temporarily converted to recreational area for purposes of limiting city’s liability *65under RLA for plaintiff’s injury sustained at automobile show); McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996) (concluding school district was not immune under RLA from liability for football player’s injury because football clinic was not open to public without charge), abrogated on other grounds, Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51; Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984) (concluding city was protected under RLA when plaintiffs did not pay charge to enter park and city was not guilty of willful or wanton negligence). See, also, Teters v. Scottsbluff Public Schools, 5 Neb. App. 867, 884, 567 N.W.2d 314, 327 (1997) (holding that school district was “owner” of land under RLA as “an occupant or a person in control of’ recreational camp for weekend but was not immune from liability because it did not hold land open to public), affirmed in part and in part reversed on other grounds 256 Neb. 645, 592 N.W.2d 155 (1999) (reversing on separate issue but affirming Nebraska Court of Appeals’ holding as to school district without discussion). Compare Dykes v. Scotts Bluff Cty. Ag. Socy., 260 Neb. 375, 617 N.W.2d 817 (2000) (concluding that viewing of livestock exhibits at county fair was not recreational purpose but not being asked nor reaching issue whether agricultural society is governmental entity).

This court first considered whether the RLA applied to governmental entities in Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981). In Watson, the plaintiffs sued the city of Omaha for its negligent operation of a city park. The city defended on the ground that it was immune under the RLA. The district court, in determining that the city was liable for negligence, further concluded that the immunity provided by the RLA did not apply to political subdivisions. We reversed.

Although conceding “for the sake of argument” that “the original purpose of the [RLA] was to encourage private landowners to offer their lands for use by the public” (emphasis supplied), Watson, 209 Neb. at 840, 312 N.W.2d at 258, citing 24 Council of State Governments, Suggested State Legislation 150 (1965), we nonetheless concluded: “Whatever the Legislature’s intent was at the time of the enactment of the [RLA], we believe that the definition of owner ... is sufficiently broad to cover a public entity.” 209 Neb. at 841, 312 N.W.2d at 259.

*66In so doing, we acknowledged that some courts had determined such an interpretation amounted to a grant of “ ‘redundant immunity’ ” where a governmental entity already enjoyed sovereign immunity. Id. at 840, 312 N.W.2d at 259. We distinguished these cases, however, on the ground that the Legislature had waived sovereign immunity for political subdivisions with the passage of the Political Subdivisions Tort Claims Act (Tort Claims Act). See Neb. Rev. Stat. §§ 13-901 to 13-926 (Reissue 1997 & Cum. Supp. 2004). We then concluded that the Legislature, in enacting the Tort Claims Act subsequently to the RLA, was presumed to have knowledge of the RLA. Because it had not placed any limitation on the definition of “owner,” we concluded that the Legislature had intended in both acts “to grant the same rights and privileges to governmental and private landowners alike.” 209 Neb. at 841, 312 N.W.2d at 259.

The majority’s rationale was challenged in Watson and on three other occasions, but the rule has not been questioned since 1987. See, Thies v. City of Omaha, 225 Neb. 817, 408 N.W.2d 306 (1987) (White, J., dissenting); Bailey v. City of North Platte, 218 Neb. 810, 359 N.W.2d 766 (1984) (Grant, J., dissenting; White and Shanahan, JJ., join); Garreans v. City Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984) (Shanahan, J., dissenting; White and Grant, JJ., join); Watson, supra (White, J., dissenting; McCown, J., joins). In Watson, the dissent noted:

The [RLA] was passed in 1965, at which time political subdivisions were immune from liability. It is clear from the legislative history that the act was passed to encourage private landowners to make their land and water areas available for recreational purposes such as fishing and hunting. There was no need to pass such an act to limit the liability of political subdivisions since they were already immune.

209 Neb. at 842, 312 N.W.2d at 259-60.

The dissent further criticized the majority’s conclusion that despite the general waiver of immunity in the Legislature’s enactment of the Tort Claims Act in 1969, the Legislature was presumed to have knowledge that governmental entities nonetheless had immunity as “owners of land” under the RLA. The dissent argued that this was an implausible construction because the Legislature had no reason to believe a grant of *67immunity to public entities would have been necessary when it enacted the RLA. I agree with the dissent’s rationale.

In construing a statute, a court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose. Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005). In my view, the majority in Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981), failed to properly construe the RLA for a number of reasons.

First, since its enactment in 1965, the statutorily stated purpose of the RLA has been 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.” § 37-730 (Reissue 2004). See, also, Neb. Rev. Stat. §§ 37-1001 to 37-1008 (Cum. Supp. 1965) (recodified at Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 1998)); Garreans, 216 Neb. at 497-98, 345 N.W.2d at 316 (Shanahan, J., dissenting; White and Grant, JJ., join) (noting that through RLA, “the state avoids expensive acquisition of considerable land for public recreational use, that is, state-owned or -leased areas, and in return grants restricted or limited liability to private landowners providing areas for public recreation”). However, “[a] governmental body ... needs no such motivation” because its principal purpose in owning public recreational land is to make the land available for public use. City of Pensacola v. Stamm, 448 So. 2d 39, 41 (Fla. App. 1984). As a result, the legislative purpose of the RLA is meaningless when applied to governmental entities.

Second, the RLA provisions cannot be read consistently to mean that “owner of land” includes governmental entities. Section 37-733 provides that a landowner does not owe a duty of care to keep the land safe or warn others of hazards when the landowner “leases land to the state for recreational purposes.” See, also, § 37-1004 (Reissue 1978) (identical language employed at time Watson was decided). This provision is nonsensical when it is read to mean that a governmental entity can avoid *68liability for ordinary negligence by leasing land to itself. See Teters v. Scottsbluff Public Schools, 256 Neb. 645, 652, 592 N.W.2d 155, 160 (1999) (construing § 37-733 to mean that “[i]f the landowner charges for the use of the land, then the landowner is not protected by the [RLA] unless the land is leased to the state or a subdivision thereof” (emphasis supplied)). See, also, Soto v. State, 269 Neb. at 343-44, 693 N.W.2d at 497 (“[statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme and so that effect is given to every provision”); Rauscher v. City of Lincoln, 269 Neb. 267, 279, 691 N.W.2d 844, 854 (2005) (“it is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language”). I agree with the Connecticut Supreme Court that “[b]y carving out different rules for lands leased to the state . . . the statutes suggest that the legislature did not intend public and private ‘owners’ to be treated identically under the statute.” Conway v. Town of Wilton, 238 Conn. 653, 665, 680 A.2d 242, 249 (1996).

Third, I concur with the Watson dissent that the Legislature had no reason to believe that when the RLA was enacted in 1965, the RLA should have any application to governmental entities which were already immune from liability. See, e.g., Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002) (stating that under Neb. Const, art. V, § 22, state may sue and be sued, but provision is not self-executing, and that legislative action is necessary to waive state’s sovereign immunity). In Watson, the majority recognized that interpreting “owner” to include governmental entities arguably resulted in a legislative grant of superfluous immunity. The majority, however, relied on the passage of the Tort Claims Act to implicitly conclude that because immunity had since been waived, immunity under the RLA was not redundant. That reliance was unfounded, however, because as noted by the Watson dissent, the State did not waive its sovereign immunity under the Tort Claims Act until 1969, 4 years after the RLA was enacted. The State’s waiver of sovereign immunity in 1969 fails to negate the argument that a legislative grant of statutory immunity for governmental entities under the RLA in 1965 would have been redundant.

*69Fourth, interpreting the RLA to include governmental entities as owners allows those entities “to treat two classes of persons injured on public lands differently: it forbids recovery for personal injuries incurred during recreational activities, but permits recovery for personal injuries incurred during non-recreational activities.” Hovland v. City of Grand Forks, 563 N.W.2d 384, 388 (N.D. 1997) (comparing outcome under this interpretation for plaintiff who was injured while skating on bike path to outcome for hypothetical plaintiff who was injured while riding bike to work on same path). See, also, Veskerna v. City of West Point, 254 Neb. 540, 578 N.W.2d 25 (1998) (reasoning that allowing public street to be used for recreational purpose would permit parties injured while crossing street to maintain action against city if they were going to restaurant, but not if they were attending automobile show on street). The North Dakota Supreme Court noted that while this disparate outcome was rational in the context of encouraging private owners to permit public access, “[i]n the context of public access to public lands, the disparate treatment is much harder to understand.” Hovland, 563 N.W.2d at 388.

Fifth, I disagree with the majority’s conclusion in Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981), that the Legislature was presumed to have knowledge a governmental entity could have immunity as an owner under the RLA when enacting the Tort Claims Act. Logically, the Legislature should not have been presumed to have knowledge of our 1981 judicial interpretation of “owner” in Watson, supra, when the Tort Claims Act was enacted in 1969. Further, § 13-908 of the Tort Claims Act sets forth a general waiver of immunity subject to certain limited exceptions stated in § 13-910. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002). None of those exceptions are related to a governmental entity’s negligent operation of publicly owned recreational facilities. Thus, interpreting the Tort Claims Act as incorporating immunity under the RLA is essentially a revocation of the State’s waiver of immunity in these circumstances. See Watson, 209 Neb. at 843, 312 N.W.2d at 260 (White, J., dissenting; McGown, L, joins) (“[w]e have today gutted the [Tort Claims Act]”).

*70Finally, the legislative history of the RLA, as noted by the dissent in Watson, fails to support the construction of the act articulated by the Watson majority. In enacting the RLA, the Legislature adopted a model act presented by the Council of State Governments in its annual publication, Suggested State Legislation. Teters v. Scottsbluff Public Schools, 256 Neb. 645, 592 N.W.2d 155 (1999); 24 Council of State Governments, Suggested State Legislation 150 (1965). This legislative bill was titled “Model Liability Relief Law,” and specified that it was “AN ACT to adopt the Model Liability Relief Law . . . .” 1965 Neb. Laws, L.B. 280, ch. 193, p. 589. Like many other state legislatures, the Nebraska Legislature adopted the model law with only minor changes, which are not relevant to this issue. See, Teters, supra (noting that RLA closely followed model act but determining that Legislature’s slight modifications rendered section dealing with rental-paid exception to RLA’s immunity unconstitutionally vague); Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 17 n.18, 507 A.2d 1, 8 n.18 (1986) (resolving unrelated issue but listing 16 states, including Nebraska, that had adopted model act “virtually verbatim”).

Although “owner” is defined to include a “tenant, lessee, occupant, or person in control of the premises,” it does not clarify whether governmental entities were intended to be included when considered in the context of the RLA’s origin and purpose. See §§ 37-729 (Reissue 2004) and 37-1008 (Cum. Supp. 1965). Compare 24 Council of State Governments, supra, at 151 (“[ojwner means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises”). See, also, Redinger v. Clapper’s Tree Service Inc., 419 Pa. Super. 487, 493, 615 A.2d 743, 746 (1992) (deciding separate issue but noting that “[i]n spite of its conciseness and apparent simplicity, the [model act] has managed to weave a tortured tapestry of decisional law in a multitude of jurisdictions in which it as been enacted”). Courts in other jurisdictions, reviewing legislation which included this definition of owner, have nonetheless determined that the act was intended to apply only to private landowners. See, Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242 (1996) (overruling prior decision holding that “owner” included municipalities and concluding that definition of “owner,” which was identical to *71model act, was ambiguous when court considered legislative history and public policy underlying statute); Monteville v. Terrebonne Parish Con. Gov’t, 567 So. 2d 1097 (La. 1990) (noting that state legislature had adopted model act almost without change, including definition of owner; concluding that act applied only to private owners); Stamper v. Kanawha County Bd. of Educ., 191 W. Va. 297, 298 n.4, 445 S.E.2d 238, 239 n.4 (1994) (concluding that state legislation fashioned after model act was intended to benefit private landowners despite legislature’s slight modification to specify that owner “shall include, but not be limited to, tenant, lessee, occupant or person in control of the premises” (emphasis supplied)). See, also, Hovland v. City of Grand Forks, 563 N.W.2d 384 (N.D. 1997).

Section 1 of the model act and § 37-730 of the RLA both provide that their purpose is to encourage “owners of land” to make land and water areas available to the public for recreational purposes by limiting their liability. Although neither the model act nor the Nebraska legislation based on the model act explicitly specified that “owners of land” referred only to private owners, the introductory commentary to the model act leaves no question as to that intent:

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. Where the owners of private land suitable for recreational use make it available on a business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not *72reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
The suggested act which follows is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner. In the case of lands leased to states or their political subdivisions for recreational purposes, the legislation expressly provides that the owner will have no remaining liability to recreationists, except as such liability may be incorporated in an agreement, or unless the owner is compensated for the use of the land in addition to consideration for the lease.

(Emphasis supplied.) 24 Council of State Governments, Suggested State Legislation 150 (1965). Compare, e.g., In re Estate of Sutherlin, 261 Neb. 297, 622 N.W.2d 657 (2001) (relying on commentary to Uniform Probate Code to elucidate section Nebraska Legislature had adopted).

I recognize that this court, in four decisions, has expressly held that a governmental entity was immune from liability for ordinary negligence under the RLA. The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. Holm v. Holm, 267 Neb. 867, 678 N.W.2d 499 (2004). But while the doctrine of stare decisis forms the bedrock of our common-law jurisprudence, it does not require us to blindly perpetuate a prior interpretation of the law if we conclude that it was clearly incorrect. Id. As Seneca the Elder noted nearly 2,000 years ago, we can often go astray on a well-trodden and much-frequented road. Given that appellants have not asked this court to reconsider its jurisprudence, I feel constrained to do nothing more than to express my reservations that the road we continue to travel is manifestly wrong.

Gerrard and McCormack, JJ., join in this concurrence.