LINCOLN — Could sledding down snow-covered hills become a pastime of the past in Nebraska parks?
A lawyer for the City of Omaha says a ban on sledding and other high-risk recreation in parks might be the best way to reduce liability in light of an opinion handed down Friday by the Nebraska Supreme Court.
In the unanimous ruling, the court upheld a prior verdict that found Omaha responsible for a 2000 sledding accident at Memorial Park in which a 5-year-old girl and her sister slammed into a newly planted crabapple tree. The accident left the 5-year-old paralyzed from the chest down.
The opinion has already prompted discussions in city legal departments across the state.
Given the $2 million award for the family that brought the lawsuit, Deputy City Attorney Thomas Mumgaard said the case will likely force elected officials in Omaha and other cities to rethink what kinds of recreation they allow on public property.
“One option that must be considered is prohibiting sledding or other activity that can give rise to injuries in parks,” he said Friday.
The lawyer who represented Rachel Connelly and her family called the city attorney's argument a red herring, originally raised when the city lost the lawsuit in 2006. The city has not prohibited sledding at Memorial Park in the dozen years since the accident happened, said attorney Thomas Locher of Omaha.
“To suggest that this particular incident would have some far-reaching implications on recreational activities is not, in any way, supported by the facts of this case,” Locher said.
The high court found Omaha negligent because four crabapple trees remained standing in the path of a popular sledding hill despite a warning from the city forester to remove them. The city was at fault because it knew of the risk and failed to address it, Locher said.
There was also evidence in the record that another sledder had been injured after hitting the same tree shortly before the accident that hurt the Connelly girls.
The city promptly removed the tree after the Connelly accident and posted a sign at the park that warned visitors to “sled at your own risk.” Such warning signs won't eliminate the city's liability, based on Friday's ruling, Mumgaard said.
While it's too early to gauge a possible larger impact of the opinion, there's no question it quickly popped up on computer screens in many city attorney's offices, said Gary Krumland, assistant director and legal counsel for the League of Nebraska Municipalities.
Jocelyn Golden, an assistant city attorney in Lincoln, said a sledding shutdown seems unlikely as a result of the Connelly decision. But after she read the opinion Friday morning, she sent an email to parks staff members reminding them to promptly address any possible injury risks that come to their attention.
“It certainly makes us sit up and notice,” she said.
Based on an early reading of the opinion, the Nebraska Game and Parks Commission sees no need for special restrictions on sledding, hunting, mountain biking or other activities on state park or wildlife lands that involve inherent risk, said Fred Coffman, legal counsel for the agency.
A state law called the Recreational Liability Act still provides protection from lawsuits when users are hurt on public lands, Coffman said, as long as park managers fix any known potential danger.
The ruling could have been even more costly for Omaha, but the high court rejected a request to increase monetary damages for Rachel Connelly above the $1 million cap set by state law. The justices found the cap, which applies to lawsuits against governmental subdivisions, to be constitutional.
Douglas County District Judge Patricia Lamberty, who made the original determination in the case in 2006, found Rachel Connelly was entitled to $10 million for the ongoing cost of her injuries. Rachel, now 17, must use a wheelchair.
Although the city was mostly at fault, the original judgment assigned 25 percent of the liability to the girls' father for allowing them to sled down the hill despite seeing the trees.
The Connelly family was pleased the high court upheld the city's liability for the sledding accident, Locher said.
“However, it's very unfortunate that the damages of more than $10 million had to be reduced to less than 10 percent,” he said.
The high court said Rachel Connelly should receive $1 million and her older sister, Chelsea, should receive $8,176 for a broken rib and punctured lung she suffered in the accident.
As for the parents, Timothy and Kelly Connelly, the Supreme Court reduced their combined judgment from $1.45 million to $1 million to comply with the cap.
Locher and Mumgaard said they have not made a decision on whether to ask the Supreme Court to review its opinion.
Locher called Rachel a “highly motivated, remarkable young woman” who will start her senior year at Duchesne Academy in the fall. He said she is an excellent student who plans to pursue a college education. Her sister is working on her degree in nursing.
The Connelly family hopes lessons are learned from a case that has been in the courts for years, Locher said.
“We would hope in the future the city ... will put our children foremost in their thinking and operations.”
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