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Stick v. City of Omaha

Supreme Court of Nebraska

January 2, 2015

JACQUELYN STICK, APPELLANT,
v.
CITY OF OMAHA, APPELLEE

Page 562

Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge.

Affirmed.

Mandy L. Strigenz, of Sibbernsen, Strigenz & Sibbernsen, P.C., for appellant.

Alan M. Thelen, Deputy Omaha City Attorney, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 563

[289 Neb. 753] Miller-Lerman, J.

NATURE OF CASE

Jacquelyn Stick appeals the order of the district court for Douglas County which granted summary judgment in favor of the City of Omaha (City) and dismissed her complaint brought under the Political Subdivisions Tort Claims Act (PSTCA). The court concluded, inter alia, that Stick's claim for injuries she sustained in a slip-and-fall accident was barred by the " snow or ice" exception in the PSTCA. We affirm.

STATEMENT OF FACTS

On the morning of January 19, 2010, Stick attended a fitness class that began at 5:30 a.m. at the Montclair Community Center (Center), which is owned and operated by the City. When she left the building at approximately 6:30 a.m., Stick [289 Neb. 754] slipped on ice that had formed on the sidewalk outside the Center. Stick fell onto her left knee and broke her patella, which required her to have surgery.

Stick filed this action against the City under the PSTCA, Neb. Rev. Stat. § 13-901 et seq.

Page 564

(Reissue 2007 & Cum. Supp. 2010), pursuant to which political subdivisions have generally waived their sovereign immunity except as specified in the PSTCA. She alleged that the City was responsible for maintenance of the sidewalk and that her fall and the damages resulting therefrom were caused by the negligence of the City's employees. She specifically alleged the City was negligent in (1) allowing ice to accumulate, creating an unsafe and dangerous condition; (2) failing to inspect the sidewalk to determine whether it was safe for pedestrian travel; (3) failing to remove the accumulation of ice; and (4) failing to apply sand, salt, melting chemicals, or other safety coating to the accumulation of ice. In its answer, the City alleged affirmative defenses, including the assertion that Stick's claim was barred under the PSTCA, specifically § 13-910(10), which provides in part that the PSTCA shall not apply to " [a]ny claim arising out of snow or ice conditions or other temporary conditions caused by nature on any highway as defined in section 60-624, bridge, public thoroughfare, or other public place due to weather conditions."

The City moved for summary judgment. At a hearing on the motion, the court received evidence including depositions and affidavits of Stick and of employees of the City, as well as certified weather records. Evidence indicated that there was no overnight precipitation in the early hours of January 19, 2010.

In her deposition, Stick stated that there had been no snow or rain but that there was fog when she drove to the Center. She parked in the Center's parking lot and walked on the sidewalk to the building. The sidewalk was wet with " winter condensation" but not slippery when she arrived and entered the building. When she left the building, there was a slight drizzle and heavier fog than when she had entered. She did not notice icy conditions until she fell. Stick stated that icy conditions had arisen during the time that she was in ...


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