State v. Brown ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/13/2023 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
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BROWN V. STATE
Cite as 315 Neb. 336Aaron G. Brown, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed October 13, 2023. No. S-22-952.
1. Tort Claims Act: Appeal and Error. Whether a plaintiff’s negligence
claims are precluded by an exemption from the State Tort Claims 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 dis-
trict court.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
3. Constitutional Law: Actions: Legislature. Under Neb. Const. art. V,
§ 22, 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.
4. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Waiver: Legislature. Through enactment of the State Tort Claims Act
and the Political Subdivisions Tort Claims Act, the Legislature has
allowed a limited waiver of sovereign immunity with respect to some,
but not all, types of tort claims.
5. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Waiver: Jurisdiction: Dismissal and Nonsuit. Both the State Tort
Claims Act and the Political Subdivisions Tort Claims Act expressly
exempt certain claims from the limited waiver of sovereign immunity.
And because the statutory exemptions identify those tort claims for
which the sovereign retains immunity from suit, when an exemption
applies, the proper remedy is to dismiss the claim for lack of subject
matter jurisdiction.
6. 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.
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BROWN V. STATE
Cite as 315 Neb. 3367. Immunity: Waiver. To strictly construe against a waiver of sover-
eign immunity, courts broadly read exemptions from a waiver of sover-
eign immunity.
8. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
only where stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other reason-
able construction.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, Carlton W. Wiggam,
and Maegan L. Woita for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Aaron G. Brown was sitting at a picnic table in a state-
owned recreation area when a riding lawnmower operated
by a state employee slipped on wet grass, slid down a slope,
and collided with the picnic table, injuring Brown. Brown
filed a lawsuit against the State alleging that his injuries were
proximately caused by the negligence of the state employee.
The district court granted summary judgment to the State,
concluding that the State was immune from Brown’s law-
suit under two exemptions to the State’s waiver of sovereign
immunity in the State Tort Claims Act (STCA): Neb. Rev.
Stat. § 81-8,219(11) (Cum. Supp. 2022), which provides that
the State is immune from certain claims arising out of condi-
tions caused by weather, and § 81-8,219(14), which provides
that the State is immune from certain claims relating to recre-
ational activities on state property. In this appeal, we find that
the State is immune under the weather conditions exemption
and therefore affirm.
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BROWN V. STATE
Cite as 315 Neb. 336I. BACKGROUND
1. The Collision
On an afternoon in August 2017, Brown visited a state recre-
ation area. After fishing for some time, Brown decided to take
a break. He moved to sit at a picnic table, which was next to a
pond and at the bottom of a slope.
While Brown was seated at the picnic table, Joseph Blazek,
a longtime park superintendent, started mowing grass in the
area with a riding lawnmower. It had rained the previous day,
and the grass was wet. Blazek eventually drove the mower
along the top of the slope above where Brown was seated. The
mower slipped on the wet grass, slid down the slope, and col-
lided with the picnic table. As a result of the collision, Brown
was thrown from the picnic table and suffered injuries.
2. Brown’s Complaint; State’s
Motion to Dismiss
After the State Claims Board denied Brown’s tort claim,
he filed a lawsuit against the State. His complaint alleged
negligence on the part of Blazek. Brown alleged, among other
things, that Blazek had acted negligently by “failing to give
an audible signal” and in “failing to exercise ordinary care
under the circumstance[s].” Brown claimed that as a result
of the collision, he had suffered injuries to his back and ner-
vous system, he had incurred medical expenses, and he had
lost income.
The State moved to dismiss Brown’s complaint on the
ground that the suit was barred by sovereign immunity. The
district court granted the motion. It found that the suit fell
within the STCA’s recreational activity exemption.
Brown appealed the dismissal of his complaint, and, on
appeal, we reversed the judgment and remanded the cause for
further proceedings. See Brown v. State, 305 Neb. 111, 939
N.W.2d 354 (2020). We found that the allegations of Brown’s
complaint did not allow a finding at that stage of the case
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Cite as 315 Neb. 336that the claim was barred by the recreational activity exemp-
tion as a matter of law. Id.
3. Summary Judgment
After the case returned to the district court and the parties
engaged in discovery, the State moved for summary judgment
on several bases. The State sought summary judgment on the
ground that it was immune from Brown’s suit under the recre-
ational activity exemption and the weather conditions exemp-
tion. Alternatively, the State claimed that it was entitled to
summary judgment because Brown could not adduce evidence
that would allow a reasonable fact finder to conclude either
that the State breached a duty of care or that Brown was not
contributorily negligent.
At the summary judgment hearing, the parties offered
depositions of both Brown and Blazek. Brown testified that
the collision occurred shortly after he first heard the mower.
According to Brown, the mower slid down the slope and then
the back end of the mower struck the picnic table, which threw
him forward. Brown acknowledged that the grass in the area
“was really slick” and added that the collision was “no fault of
[Blazek’s] because the grass was green and wet.”
Blazek’s account of the incident was generally similar to
Brown’s. Blazek testified that the collision occurred approxi-
mately 5 minutes after he began mowing in the area where
Brown was sitting. According to Blazek, he slowed down the
mower when he reached the crest of the slope because the
grass was wet. He then saw Brown sitting in the area below
and immediately turned the mower away from the area where
Brown was sitting. As he was turning, the mower started
slowly sliding down the slope and eventually bumped the
picnic table. Blazek testified that the mower began to slide
because it was on a wet and steep slope and that there was
nothing he could do once the mower began to slide down
the slope.
At the summary judgment hearing, the State also offered
evidence showing that the areas surrounding the recreation
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BROWN V. STATE
Cite as 315 Neb. 336area received approximately an inch of precipitation the pre-
vious day. The district court also received a 2017 “Safety
Reminder” memorandum directed to park superintendents.
That document advised those operating lawnmowers to “[u]se
caution when mowing on or near slopes or embankments, do
not exceed recommended limits, slow down your piece of
equipment, and avoid these areas when the grass is wet or the
ground is muddy.”
The district court entered summary judgment in favor of the
State. It concluded that on the summary judgment record, both
the recreational activity and weather conditions exemptions in
the STCA applied, and that therefore, the State was immune
from suit. Brown timely appealed.
II. ASSIGNMENTS OF ERROR
Brown assigns that the district court erred by concluding
that the State was immune from suit under (1) the weather con-
ditions exemption and (2) the recreational activity exemption.
III. STANDARD OF REVIEW
[1] Whether a plaintiff’s negligence claims are precluded by
an exemption from the STCA 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. See Mercer v.
North Central Serv., 308 Neb. 224, 953 N.W.2d 551 (2021).
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Schuemann v. Timperley,
314 Neb. 298, 989 N.W.2d 921 (2023).
IV. ANALYSIS
In this appeal, Brown contends that the district court erred
by granting summary judgment to the State on sovereign
immunity grounds. Before addressing Brown’s specific argu-
ments, we briefly review some basic principles regarding sov-
ereign immunity.
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BROWN V. STATE
Cite as 315 Neb. 3361. Sovereign Immunity Overview
[3] Under the common-law doctrine of sovereign immunity,
a sovereign could not be sued in its own courts without its
consent. See, e.g., Alden v. Maine, 527 U.S. 706, 119 S. Ct.
2240, 144 L. Ed. 2d 636 (1999). In Nebraska, the sovereign
immunity of the State and its political subdivisions is preserved
in Neb. Const. art. V, § 22, which 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.” We
have long held that this constitutional provision is not self-
executing and that no suit may be maintained against the State
or its political subdivisions unless the Legislature, by law, has
so provided. See, e.g., Clark v. Sargent Irr. Dist., 311 Neb. 123,
971 N.W.2d 298 (2022).
[4,5] Through enactment of the STCA and the Political
Subdivisions Tort Claims Act (PSTCA), the Legislature has
allowed a limited waiver of sovereign immunity with respect
to some, but not all, types of tort claims. Clark, supra. Both
the STCA and PSTCA expressly exempt certain claims from
the limited waiver of sovereign immunity. Clark, supra. And
because the statutory exemptions identify those tort claims
for which the sovereign retains immunity from suit, we have
held that when an exemption under the STCA or the PSTCA
applies, the proper remedy is to dismiss the claim for lack of
subject matter jurisdiction. Clark, supra.The weather conditions exemption and recreational activ-
ity exemption relied upon by the district court in this case
are among the exemptions set forth in the STCA. We analyze
whether the district court was correct to enter summary judg-
ment based on the weather conditions exemption in the sec-
tions below.
2. Weather Conditions Exemption
The weather conditions exemption in the STCA applies to
“[a]ny claim arising out of snow or ice conditions or other
temporary conditions caused by nature on any highway as
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BROWN V. STATE
Cite as 315 Neb. 336defined in section 60-624, bridge, public thoroughfare, or
other state-owned public place due to weather conditions.”
§ 81-8,219(11). This exemption, however, is accompanied by a
carve-out, as § 81-8,219(11) goes on to provide that “[n]othing
in this subdivision shall be construed to limit the state’s liabil-
ity for any claim arising out of the operation of a motor vehicle
by an employee of the state while acting within the course and
scope of his or her employment by the state.”
Brown offers two arguments as to why the district court
erred by finding that the State was immune from suit under
the weather conditions exemption. He first argues that his
claim arises out of a state employee’s operation of a motor
vehicle in the course and scope of employment and there-
fore falls within § 81-8,219(11)’s carve-out for such claims.
Alternatively, he argues that his claim does not fall within
the weather conditions exemption because Blazek’s negli-
gence caused the collision. We address each of these argu-
ments below.
(a) Motor Vehicle Carve-Out
Brown argues that his claim clearly arises out of a state
employee’s operation of a motor vehicle in the course and
scope of employment and that we therefore need not address
the rest of the weather conditions exemption. The State’s
response to Brown’s argument is simple: It contends that a
riding lawnmower is not a “motor vehicle” for purposes of
§ 81-8,219(11). The STCA does not define “motor vehicle,”
and it does not appear that a Nebraska appellate court has inter-
preted that term as it is used in the STCA or in the correspond-
ing exemption in the PSTCA. See Neb. Rev. Stat. § 13-910(10)
(Reissue 2022).
[6-8] When terms in a statute are not specifically defined
by the statute, our principles of statutory interpretation gen-
erally require us to give such terms their plain and ordinary
meaning. See Robert M. on behalf of Bella O. v. Danielle O.,
303 Neb. 268, 928 N.W.2d 407 (2019). When interpreting
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BROWN V. STATE
Cite as 315 Neb. 336statutes concerning the State’s sovereign immunity, however,
special rules of statutory interpretation come into play. Statutes
that purport to waive the State’s protection of sovereign immu-
nity are strictly construed in favor of the sovereign and against
the waiver. Rouse v. State, 301 Neb. 1037, 921 N.W.2d 355(2019). To strictly construe against a waiver of sovereign
immunity, we broadly read exemptions from a waiver of sov-
ereign immunity. See id. A waiver of sovereign immunity is
found only where stated by the most express language of a
statute or by such overwhelming implication from the text as
will allow no other reasonable construction. Id.The provision regarding claims arising out of the opera-
tion of motor vehicles in § 81-8,219(11) is, strictly speaking,
neither a waiver of sovereign immunity nor an exemption
from the waiver of sovereign immunity. Instead, the provi-
sion carves out an exception to an exemption from the State’s
waiver of sovereign immunity. By limiting an exemption,
however, the provision expands the types of claims to which
the State has consented to suit and thus functions in the same
manner as a waiver of sovereign immunity. Because we con-
strue statutes against the waiver of sovereign immunity, we
must construe that provision and the term “motor vehicle”
narrowly in this context. More specifically, our rules of
interpretation dictate that we may not find that a riding lawn-
mower is a “motor vehicle” for purposes of § 81-8,219(11)
if the statute can reasonably be construed otherwise. See
Rouse, supra.
Notwithstanding these rules of interpretation, Brown argues
that the riding lawnmower Blazek operated qualifies as a motor
vehicle. In support, he points to Black’s Law Dictionary’s
definition of “vehicle” as “[a]ny conveyance used in transport-
ing passengers or things by land, water, or air.” Black’s Law
Dictionary 1868 (11th ed. 2019). Because the riding lawn-
mower would qualify as a vehicle under this definition and
because it was powered by a motor, Brown argues, it follows
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Cite as 315 Neb. 336that the riding lawnmower must be a motor vehicle for pur-
poses of § 81-8,219(11).
Although Brown may well be correct that the term “motor
vehicle” can be used broadly to refer to a riding lawnmower,
we cannot agree that he has identified the only reasonable
way that term is used. As the State observes, another diction-
ary defines “motor vehicle” more narrowly as “a vehicle on
wheels, having its own motor and not running on rails or
tracks, for use on streets or highways.” Webster’s New World
College Dictionary 955 (5th ed. 2018). In a case in which
a defendant accused of stealing a riding lawnmower was
charged with motor vehicle theft, the Georgia Supreme Court
found that this narrower definition was the plain and ordinary
meaning of the term and concluded that a riding lawnmower
was therefore not a motor vehicle. See Harris v. State, 286
Ga. 245, 686 S.E.2d 777 (2009). As that court reasoned, a
riding lawnmower may be capable of driving on a street or
highway for short stretches, but because it is not designed for
such use, it does not qualify as a motor vehicle. See id. In
a similar case, a Missouri appellate court reached the same
conclusion. See Fainter v. State, 174 S.W.3d 718 (Mo. App.
2005) (concluding riding lawnmower was not motor vehicle
because primary function of motor vehicle is to transport
persons and things and primary function of lawnmower is to
cut grass).
Because the statutorily undefined term “motor vehicle” in
the STCA can reasonably be construed to include only those
vehicles that are designed to be used on roads, we hold that
a riding lawnmower is not a motor vehicle for purposes of
the STCA. We caution that our holding in this case is lim-
ited to interpreting the term “motor vehicle” for purposes of
§ 81-8,219(11). The term “motor vehicle” is used in other
statutes, but often with an accompanying statutory definition.
See, e.g., Neb. Rev. Stat. § 60-638 (Reissue 2021). Further,
other statutes in which that term is used may not be subject
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Cite as 315 Neb. 336to the same rules of interpretation that govern statutes concern-
ing sovereign immunity.
Because Brown’s claim does not arise out of the operation
of a motor vehicle by a state employee, we proceed to consider
his alternative argument that his claim was not covered by the
weather conditions exemption.
(b) Brown’s Alternative Argument
Brown argues that even if the riding lawnmower was not
a motor vehicle under the STCA, his claim is still not cov-
ered by the weather conditions exemption. More specifically,
Brown argues that his claim does not fall within the weather
conditions exemption because Blazek’s negligence caused
his injuries.
Brown’s argument that his claim is not covered by the weather
conditions exemption because Blazek’s negligence caused his
injuries fails to take account of the text of the weather condi-
tions exemption. Under the text of § 81-8,219(11), the weather
conditions exemption applies and the State is immune from
suit if a plaintiff’s claim (1) arises out of snow, ice, or other
temporary conditions caused by nature and due to weather
conditions, (2) on a highway, bridge, public thoroughfare,
or other state-owned public place, so long as (3) the claim
does not arise out of the operation of a motor vehicle by an
employee of the state while acting within the course and scope
of his or her employment.
Here, Brown does not dispute that the wet grass in the
recreation area on the day of the collision was a temporary
condition caused by nature and due to weather. Neither does
he dispute that the recreation area was a state-owned public
place. See Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d
561 (2015) (affirming district court’s determination that side-
walk on grounds of public building and maintained by city for
public use was public place for purposes of weather condi-
tions exemption of PSTCA). And, for reasons discussed above,
the claim does not arise out of a state employee’s operation
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Cite as 315 Neb. 336of a motor vehicle in the course and scope of employment.
Accordingly, application of the weather conditions exemption
in this case turns not on whether Blazek’s negligence was a
cause of Brown’s injuries, but on whether Brown’s claim arises
out of the wet grass in the recreation area.
To decide whether Brown’s claim arose out of a condition
covered by the weather conditions exemption, consideration
must be given to the meaning of the phrase “arising out of” in
§ 81-8,219(11). On this issue, precedent from this court and
the Nebraska Court of Appeals provides some guidance. When
we have encountered the phrase “arising out of” in insurance
contracts, we have described it as “broad and comprehensive;
ordinarily understood to mean originating from, growing out
of, or flowing from; and requiring only a ‘but for’ causal con-
nection between the occurrence and the conduct or activity
specified in the policy.” Federated Serv. Ins. Co. v. Alliance
Constr., 282 Neb. 638, 649-50, 805 N.W.2d 468, 478 (2011).
The Court of Appeals relied on this court’s interpretation of
the phrase “arising out of” in insurance contracts in determin-
ing the meaning of that phrase for purposes of the weather
conditions exemption to the PSTCA. See Hammond v. Nemaha
Cty., 7 Neb. App. 124, 581 N.W.2d 82 (1998). The Court of
Appeals concluded that where there is a causal relationship
between a temporary condition caused by nature and due to
weather and the plaintiff’s claim, the claim arises out of that
condition. See id. See, also, Dion v. City of Omaha, 311 Neb.
522, 540, 973 N.W.2d 666, 681 (2022) (explaining that in
determining whether claim “aris[es] out of” intentional tort
for purposes of § 13-910(7), consideration is given to whether
claim “stems from, arises out of, is inextricably linked to, is
essential to, and would not exist without one of the underlying
intentional torts”).
We find the Court of Appeals’ interpretation of the phrase
“arising out of” in Hammond, supra, is consistent with the
statutory language of the weather conditions exemption and
our rules for construing exemptions to the State’s waiver of
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Cite as 315 Neb. 336sovereign immunity. Accordingly, application of the weather
conditions exemption in this case depends upon whether there
is a causal relationship between Brown’s claim and the wet
grass conditions.
Undisputed evidence received at the summary judgment
hearing established such a causal relationship. Brown’s claim
stems from the lawnmower’s slide down the slope and the
resulting collision with the picnic table. And, as we described
above, Blazek testified that the lawnmower slid down the slope
because of the wet conditions and that once the mower started
sliding, there was nothing he could do to stop it. Not only
did Brown not provide any evidence to contradict Blazek’s
testimony that the lawnmower slid down the slope because of
the wet grass, he corroborated it, testifying that the collision
occurred because of the wet conditions and through no fault of
Blazek’s. Because the evidence established a causal relation-
ship between the wet grass in the recreation area and Brown’s
injuries, Brown’s claim arises out of a temporary condition
caused by nature and due to weather.
We are not dissuaded from our conclusion that Brown’s
claim is covered by the weather conditions exemption even
after considering two cases of this court upon which Brown
relies: Woollen v. State, 256 Neb. 865, 593 N.W.2d 729(1999), abrogated on other grounds, A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010),
and McDonald v. DeCamp Legal Servs., 260 Neb. 729, 619
N.W.2d 583 (2000).
In Woollen, a driver was injured when his car hydroplaned
on rainwater that had pooled on a highway because of ruts
on the road’s surface. The driver sued the State, alleging it
was negligent in maintaining the road, and obtained a recov-
ery. On appeal, we affirmed the trial court’s finding that the
weather conditions exemption did not apply. Evidence at trial
established that the ruts had existed for many years and that
the State was aware of the ruts and the risks they posed prior
to the accident. In affirming the trial court’s decision that the
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Cite as 315 Neb. 336State was not immune under the weather conditions exemp-
tion, we emphasized that the trial court had found that “the
ruts on the road were a condition created over time which
caused [the] accident, and [the] accident was not due to a
temporary condition caused by nature due to the weather.”
Woollen, 256 Neb. at 877, 593 N.W.2d at 739. See, also, id.
at 878, 593 N.W.2d at 739 (observing that highway became
rutted “through use and the passage of time”). Those find-
ings drove our conclusion that the condition at issue in
Woollen was neither temporary nor caused by nature and due
to weather.
McDonald was a legal malpractice action in which the
plaintiff alleged that his attorney had failed to timely file
a lawsuit against a political subdivision after the plaintiff
slipped and fell on snow and ice in a parking lot. The
defendant-attorney responded that the plaintiff could not show
that any negligence on the part of the attorney resulted in
damages, because the plaintiff’s claim, even if timely filed,
would have been barred by the weather conditions exemption
of the PSTCA. The Court of Appeals held that the political
subdivision would not have been immune under the weather
conditions exemption of the PSTCA, and we affirmed. Our
decision in McDonald affirmed the decision of the Court of
Appeals with little analysis. The Court of Appeals did not say
much more, but concluded that the political subdivision was
not immune, because the plaintiff alleged injury based on the
“manner in which [the political subdivision] cleared and piled
the snow and ice from [its] parking lot, not because of the
actual snow or ice.” McDonald v. DeCamp Legal Servs., No.
A-98-954, 2000 WL 249769 at *3 (Neb. App. Mar. 7, 2000)
(not designated for permanent publication).
Although neither our reasoning nor that of the Court of
Appeals in McDonald is perfectly clear given the limited
analysis, the language in the Court of Appeals’ opinion quoted
above indicates the result may have turned on a determina-
tion that the conditions in the parking lot were caused not
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Cite as 315 Neb. 336by nature, but by negligent clearing and piling of snow and
ice by human agents of the political subdivision. Cf. Porter
v. Grant Cty. Bd. of Educ., 219 W.Va. 282, 633 S.E.2d 38(2006) (discussing similar governmental immunity statute and
distinguishing cases where snow or ice naturally accumulates
on walkway and cases where government agents affirmatively
place snow or ice on walkway).
To the extent immunity was found not to apply in Woollen
and McDonald because the conditions at issue in those cases
were found not to be temporary conditions caused by nature
and due to weather, those cases are of no assistance to Brown.
There is no dispute in this case that the wet grass in the
recreation area was a temporary condition caused by nature
and due to weather. In any event, in neither Woollen nor
McDonald did we analyze the meaning of “arising out of” in
the context of the weather conditions exemption. Having ana-
lyzed the meaning of that phrase and the summary judgment
record here, we see no principled basis upon which we could
find that Brown’s claim does not arise out of a temporary con-
dition caused by nature and due to weather on a state-owned
public place.
At oral argument, Brown made a slightly different argument
in which he emphasized two specific theories of negligence:
Brown asserted that Blazek should not have operated the lawn-
mower at all because of the wet conditions or, alternatively,
should have advised Brown that given the wet conditions,
he was at risk while sitting at the picnic table and should
move. We are not convinced that these theories of negligence
help Brown in avoiding application of the weather conditions
exemption. Both proffered theories of negligence depend on
the wet grass, and even if the alleged negligent acts chrono-
logically preceded the slide on the wet grass, the undisputed
evidence establishes that the wet grass played a causal role in
the collision.
We find that the district court did not err in granting sum-
mary judgment to the State based on the weather conditions
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trict court was also correct to find that the State was immune
based on the recreational activity exemption.
V. CONCLUSION
We find that the district court did not err in granting sum-
mary judgment to the State based on the STCA’s weather con-
ditions exemption. We therefore affirm.
Affirmed.