October 2012 - Parks & Recreation - 45

should have expected that lawful visitors such as the Connellys would fail to
protect themselves against the danger
posed by the crab apple trees. "

Contributory Negligence
Under the state comparative negligence
statute, the district court had found
Timothy Connelly was " contributorily
negligent " and found him 25 percent
at fault in causing the accident, compared to the City's fault assessed at 75
percent. As described by the state supreme court, a plaintiff is contributorily negligent if:
(1) she or he fails to protect herself or himself from injury, (2) her or
his conduct concurs and cooperates with the defendant's actionable negligence, and (3) her or his
conduct contributes to her or his
injuries as a proximate cause.

In this particular instance, the state
supreme court found sufficient evidence " to support the district court's
apportionment of fault and that the apportionment bears a reasonable relationship to the respective elements of
negligence proved at trial. "
The City, as the owner of a public
park historically used for sledding,
knew that the crab apple trees
posed a risk to those who used the
park for sledding, yet took no action to decrease or eliminate the
risk...The record reﬂects that the
district court carefully considered
the City's factual arguments regarding Timothy's comparative responsibility for the accident, but
determined that it was signiﬁcantly
less than that of the City.

Conclusion
After adjusting for the comparative
negligence of Timothy and Chelsea, the district court had awarded
$10,063,669.41 to Rachel. In addition,
the parents were awarded money:
$623,661.02 to Timothy and $831,775.17
to Kelly. These awards, however, were
subject to a statutory cap of $1 million
under state law.
The Nebraska state tort claims act
limited the amount recoverable to (1)
One million dollars for any person for
any number of claims arising out of
a single occurrence; and (2) Five million dollars for all claims arising out of
a single occurrence.
As a result, the state supreme court
affirmed the judgment of the district
court in the daughters' action awarding
damages to Chelsea in the amount of
$8,176.84 and to Rachel in the amount of
$1 million. In the parents' action, the state
supreme court adjusted the judgment in
favor of Kelly and Timothy Connelly to
$1,000,000 to reﬂect the statutory cap
on damages under state law.
NOTE: For a different perspective
on a similar situation, and a different
result, check out " Rough Sledding on
Park District Hill, " which appeared in
the June 1987 Law Review column in
Parks & Recreation. Here is a link to the
case report that appeared in the article: http://classweb.gmu.edu/jkozlows/
lawarts/06JUN87.pdf.
Also, you can get an idea of the sledding hill in Memorial Park in several YouTube public videos (search Memorial Park,
Omaha, sledding): www.youtube.com/
watch?v=m1aj1Z3eBNE and www.you
tube.com/watch?v=Vi32uMxtd98.

James C. Kozlowski, J.D., Ph.D. is an attorney and associate professor in the School of
Recreation, Health, and Tourism at George Mason University in Manassas, Virginia. Email:
jkozlows@gmu.edu. Webpage with link to Law Review articles archive (1982 to present):
http://mason.gmu.edu/~jkozlows.

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