Connelly v. City of Omaha

CONNELLY v. CITY OF OMAHA 	131
Cite as 284 Neb. 131
R achel connelly, a minoR, individually and by and thRough
heR next fRiends and natuRal paRents, timothy James
connelly and K elly Jean connelly, appellee and
cRoss -appellant, and chelsea connelly, a minoR,
individually and by and thRough heR next fRiends
and natuRal paRents, timothy James connelly
and K elly Jean connelly, appellee, v. C ity of
omaha , appellant and Cross -appellee .
K elly Jean connelly and timothy James connelly,
wife and husband and natuRal guaRdians of
R achel and chelsea connelly, appellees,
v. city of omaha, appellant.
816 N.W.2d 742
Filed July 20, 2012. 	Nos. S-10-879, S-10-880.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
pursuant to the Political Subdivisions Tort Claims Act, the factual findings of the
trial court will not be disturbed on appeal unless they are clearly wrong. When
determining the sufficiency of the evidence to sustain the trial court’s judgment,
it must be considered in the light most favorable to the successful party; every
controverted fact must be resolved in favor of such party, and it is entitled to the
benefit of every inference that can be deduced from the evidence.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, an appellate court is obligated to reach a
conclusion independent of the decision reached by the court below.
4. Damages. While the amount of damages presents a question of fact, the proper
measure of damages presents a question of law.
5. Political Subdivisions Tort Claims Act: Negligence. A negligence action
brought under the Political Subdivisions Tort Claims Act has the same elements
as a negligence action against an individual, i.e., duty, breach of duty, causation,
and damages.
6. Negligence: Liability: Invitor-Invitee: Proximate Cause: Proof. An owner
or occupier is liable for injury to a lawful visitor resulting from a condition on
the owner or occupier’s premises if the lawful visitor proves: (1) The owner or
occupier either created the condition, knew of the condition, or by the exercise
of reasonable care would have discovered the condition; (2) the owner or occu-
pier should have realized the condition involved an unreasonable risk of harm to
the lawful visitor; (3) the owner or occupier should have expected that a lawful
visitor such as the plaintiff either (a) would not discover or realize the danger
or (b) would fail to protect himself or herself against the danger; (4) the owner
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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132 	284 NEBRASKA REPORTS
or occupier failed to use reasonable care to protect the lawful visitor against
the danger; and (5) the condition was a proximate cause of damage to the law-
ful visitor.
7. Negligence: Liability. Generally, when the danger posed by a condition is
open and obvious, the owner or occupier is not liable for harm caused by the
condition.
8. Negligence: Proximate Cause. 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.
9. Trial: Negligence: Damages: Appeal and Error. Because the purpose of com-
parative negligence is to allow triers of fact to compare relative negligence and
to apportion damages on that basis, the determination of apportionment is solely
a matter for the fact finder, and its action in this respect will not be disturbed on
appeal if it is supported by credible evidence and bears a reasonable relationship
to the respective elements of negligence proved at trial.
10. Negligence: Damages. A person who suffers injury as a result of the negligence
of another is entitled to recover for the reasonable value of medical care and
expenses incurred for the treatment of the injuries.
11. 	Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of its constitutionality.
12. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
13. ____: ____: ____. The unconstitutionality of a statute must be clearly established
before it will be declared void.
14. Constitutional Law: Statutes: Legislature: Presumptions. The Nebraska
Legislature is presumed to have acted within its constitutional power despite that,
in practice, its laws may result in some inequality.
15. Constitutional Law: Due Process. The Due Process Clauses of both the federal
and the state Constitutions forbid the government from infringing upon a funda-
mental liberty interest, no matter what process is provided, unless the infringe-
ment is narrowly tailored to serve a compelling state interest.
16. Due Process. Substantive due process relates to the content of the statute specify-
ing when a right can be lost or impaired.
17. Constitutional Law: Due Process: Statutes. In cases involving due process
challenges under the Nebraska Constitution, when a fundamental right or
suspect classification is not involved in the legislation, a legislative act is a
valid exercise of the police power if the act is rationally related to a legitimate
state interest.
18. Statutes: Courts: Legislature: Intent. Courts will not independently review
the factual basis on which the Legislature justified a statute, nor will a court
independently review the wisdom of a statute. Instead, courts inquire whether
the Legislature reasonably could conceive to be true the facts on which the chal-
lenged statute was based.
19. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.

CONNELLY v. CITY OF OMAHA 	133
Cite as 284 Neb. 131
20. Actions: Torts: Minors: Damages. Under Nebraska law, injury to a minor
results in two causes of action—one on behalf of the minor and the other on
behalf of the minor’s parent. The minor’s claim is based on damages caused by
the personal or bodily injury sustained by the minor, while the claim of a parent
is based on the loss of services during minority and the necessary expenses of
treatment for the injured child.
21. Actions: Torts: Minors. The cause or right of action of parents is distinct from
the cause of action of their child.
22. Appeal and Error. Although an appellate court ordinarily considers only those
errors assigned and discussed in the briefs, the appellate court may, at its option,
notice plain error.
23. ____. Plain error is error plainly evident from the record and of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
Appeals from the District Court for Douglas County: patRicia
a. lambeRty, Judge. Judgment in No. S-10-879 affirmed.
Judgment in No. S-10-880 affirmed as modified.
Thomas O. Mumgaard, Deputy Omaha City Attorney, for
appellant.
Thomas M. Locher, Timothy M. Morrison, and Joseph J.
Kehm, of Locher, Pavelka, Dostal, Braddy & Hammes, L.L.C.,
for appellees.
heavican, 	c.J., 	connolly, 	stephan, 	mccoRmacK, 	and
milleR-leRman, JJ., and iRwin and piRtle, Judges.
stephan, J.
Rachel Connelly and Chelsea Connelly are the minor daugh-
ters of Kelly Jean Connelly and Timothy James Connelly.
On December 29, 2000, Rachel and Chelsea were injured in
Memorial Park in Omaha, Nebraska, when their saucer-type
plastic sled collided with a tree. Two actions were commenced
against the City of Omaha (City) in the district court for
Douglas County under the Political Subdivisions Tort Claims
Act (PSTCA).1 One action was brought by the parents to
recover medical expenses and loss of services based on their
daughters’ injuries. The second action was brought by the
daughters, by and through their parents, for injuries incurred
1 Neb. Rev. Stat. §§ 13-901 to 13-927 (Reissue 2007 & Cum. Supp. 2010).

134 	284 NEBRASKA REPORTS
in the accident. The district court found that the accident and
resulting injuries were proximately caused by the negligence
of the City, and awarded damages in both actions. On appeal,
the City argues that the district court erred in its assessment
of both liability and damages. In her cross-appeal, Rachel,
by and through her parents, contends that the damage cap set
forth in § 13-926 as applied in this case violates her right to
due process. We affirm the judgment of the district court in the
daughters’ action, and affirm as modified the judgment in the
parents’ action.
I. FACTS
Kelly, Timothy, Rachel, and Chelsea are residents of Omaha.
The accident occurred in Memorial Park, which is public prop-
erty owned by the City and may be used free of charge for rec-
reational purposes. The City was solely responsible for plant-
ing, maintaining, and removing all trees in the park. The City
knew that the park had been used by the public for sledding
for many years, and it was aware of prior incidents in which
persons sledding in the park had collided with trees.
1. events pRioR to accident
In the late 1990’s, the City began planning to restore and
renovate Memorial Park. The primary purpose was to improve
the park’s infrastructure. The project involved planting 300
new trees.
The City held meetings to hear public comment on the
project. At the first meeting held on March 7, 1997, attendees
commented on “the essence, character, image and purpose of
Memorial Park,” which included “sledding opportunities.” At
a second meeting on April 25, attendees commented that new
plantings should be avoided in the area of the park used for
sledding. Mary Slaven, a park planner and the project manager
for the City’s reforestation project, understood these comments
to mean that trees should not be planted in the area of the
park used for sledding. Slaven thus made that one of her goals
in planning the renovation project. But Slaven did not know
which specific area of the park was used for sledding. During
one meeting, one person showed Slaven the general area used

CONNELLY v. CITY OF OMAHA 	135
Cite as 284 Neb. 131
for sledding and city forester Philip Pierce offered to show
her the area more specifically “when the time came.” Slaven
understood this to mean that when the time came for plantings
to be made, she would contact Pierce in order to avoid planting
trees in the sledding area. Pierce was familiar with the sledding
area at the park.
Despite this offered assistance, Slaven moved forward on
the project without soliciting information from Pierce and
without observing sledding activity in the park. Trees were
planted in 1998, including a set of small crab apple trees,
which were placed on the southeast slope of the park next to
a sidewalk.
After this initial renovation project was completed, fed-
eral funds became available to plant 500 additional trees in
Memorial Park. In conjunction with the new reforestation
project, Slaven asked Pierce to identify the sledding area on
an aerial photograph. In April 1999, Pierce went to the park
to view the crab apple trees and recommended that they be
moved, partly because he believed the trees presented a hazard
to people sledding in the park. Pierce’s comments surprised
Slaven, because she assumed people would not sled over a
sidewalk. Without further inquiring about Pierce’s comments,
Slaven decided to leave the crab apple trees on the southeast
slope. She reasoned the trees had made it through one sledding
season without incident.
Several sledding injuries occurred after the renovation proj-
ect was completed. One accident occurred on December 17,
2000. A father had sent his two children, who were 3 and 8
years old at the time, down the slope on a saucer sled. The sled
got turned around, and they hit one of the crab apple trees on
the right side of the slope that Pierce had told Slaven to move.
One child sustained injuries as a result of the collision.
2. daughteRs’ accident
On December 29, 2000, Timothy decided to take his daugh-
ters sledding at Memorial Park. Rachel and Chelsea were 5
and 10 years old, respectively, at the time. This was the first
time Timothy had been to Memorial Park. He chose the park
because his daughters were getting older and looking for a

136 	284 NEBRASKA REPORTS
longer sledding hill, and he knew Memorial Park was used by
the public for sledding.
Upon arriving at the park, Timothy walked to the southeast
slope. He assessed the slope’s dangers and noticed trees to the
left, to the right, and at the bottom. He chose a starting point
near what appeared to be the center of the slope.
Chelsea then placed a saucer sled on the slope. The sled had
no steering mechanism, and Timothy knew it could go in an
unintended direction. Rachel sat on the saucer behind Chelsea,
and Chelsea pushed off. The sled began veering right, and the
sled collided with one of the crab apple trees on the right side
of the slope.
Rachel and Chelsea were taken by ambulance to a nearby
hospital. Chelsea sustained injuries to her ribs and chest, from
which injuries she recovered. Rachel sustained a fracture dislo-
cation of her spine, which resulted in permanent paralysis from
the shoulders down.
II. PROCEDURAL HISTORY
1. paRents’ action
Kelly and Timothy filed tort claims with the City on
December 27, 2001, pursuant to the PSTCA. When the City
did not render a final disposition of the claims within 6
months, Kelly and Timothy withdrew their claims and filed a
lawsuit against the City.
They alleged that the City’s willful negligence proximately
caused the injuries sustained by their daughters, and they
sought damages for past and future medical expenses, loss
of services, and emotional distress. They also challenged the
constitutionality of the $1 million cap on damages imposed by
§ 13-926.
The district court entered an order on March 29, 2006, fol-
lowing a bench trial on the issue of liability. The court found
that because the Recreational Liability Act2 applied and was
constitutional, the City would be liable only if it was willfully
negligent. The court found the City liable under that standard,
2 Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2008).

CONNELLY v. CITY OF OMAHA 	137
Cite as 284 Neb. 131
because “prior to December 29, 2000, the City was aware
that the crab apple trees posed a danger to persons sledding
in Memorial Park,” and the City failed to take action. The
court reasoned the City knew that sledding occurred in the
park, that Pierce had instructed Slaven to move the crab apple
trees, and that a sledding accident occurred with one of the
crab apple trees 12 days before the Connelly accident. The
court determined that Timothy bore 25 percent of the fault for
his daughters’ injuries and that his fault would be considered
in the court’s subsequent assessment of damages. Finally, the
court dismissed the parents’ claims for negligent infliction
of emotional distress, finding the claims failed as a matter
of law.
2. daughteRs’ action
Shortly after this order was entered, Rachel and Chelsea,
by and through their parents, filed a separate action which
sought general damages arising from the same accident. They
had previously filed tort claims with the City, which failed to
finally dispose of the claims within 6 months. The operative
complaint alleged that the City was both negligent and will-
fully negligent and that § 13-926 was unconstitutional. The
district court consolidated this action with the parents’ previ-
ously filed action.
3. inteRlocutoRy oRdeR of
febRuaRy 7, 2008
In an order ruling on motions for partial summary judgment,
the district court concluded that four separate damage caps
applied in these actions—one for each of the four individual
claimants. Focusing on the language of § 13-926(1), which
limits damages to “[o]ne million dollars for any person for any
number of claims arising out of a single occurrence,” the court
concluded that each minor and each parent was asserting a
separate cause of action.
In the same order, the district court determined that any
negligence on the part of Timothy could not be imputed to
reduce Kelly’s recovery because of the lack of evidence that
the two were engaged in a joint enterprise at the time of

138 	284 NEBRASKA REPORTS
their daughters’ injuries. The court further determined that our
decision in Bronsen v. Dawes County,3 which held that the
Recreational Liability Act did not shield political subdivisions
from liability for ordinary negligence, required reconsidera-
tion of Timothy’s comparative fault. The court then concluded
that Timothy remained 25 percent at fault for his daughters’
injuries, but that such fault could not be imputed to the daugh-
ters to reduce their recovery. The court also determined that
Nebraska law did not recognize the parents’ claims for loss of
consortium for their daughters’ nonfatal injuries.
On the City’s motion, the district court certified its orders
finding the City liable and apportioning fault among the parties
as final for purposes of appeal. We dismissed the City’s appeal,
finding there was no final order because the issue of damages
remained unresolved.4
4. final oRdeR of
august 11, 2010
On remand, a trial was held on the remaining issues and
the district court entered a final order on August 11, 2010.
The court reiterated that the City was liable “for its actions
in planting and maintaining the tree in Memorial Park.” The
court found that Chelsea was 25 percent at fault for failing to
take steps to avoid the accident and determined her fault would
reduce both her recovery and her parents’ recovery with respect
to losses stemming from her injury. The court determined that
due to her young age and inability to see where the sled was
going, Rachel had no fault in the accident.
After adjusting for the comparative negligence of Timothy
and Chelsea, the court awarded $10,063,669.41 to Rachel,
$8,176.84 to Chelsea, $623,661.02 to Timothy, and $831,775.17
to Kelly. The parents’ damages award included in-home nurs-
ing services provided by Kelly to Rachel based upon the
replacement cost for such services of $20 per hour. Finally,
the district court determined that our decision in Staley v. City
3 Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
4 See Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).

CONNELLY v. CITY OF OMAHA 	139
Cite as 284 Neb. 131
of Omaha,5 which upheld the constitutionality of the PSTCA
damage cap, required it to reduce Rachel’s damage award to
$1 million.
The City perfected these timely appeals, and we granted the
appellees’ petitions to bypass. The cases were originally argued
on September 7, 2011. Due to a change in court personnel and
the presence of a constitutional issue, we ordered reargument
before a new panel and supplemental briefing.
III. ASSIGNMENTS OF ERROR
In the parents’ action, the City assigns, restated and renum-
bered, that the district court erred in (1) finding the City
liable for negligence, (2) apportioning the comparative fault
of Timothy, (3) interpreting § 13-926 to entitle each plaintiff
to a separate damage cap of $1 million, and (4) assessing the
amount of damages recoverable by the parents for their care
of Rachel.
In the action brought on behalf of the daughters, the City
assigns, restated and renumbered, that the district court erred in
(1) finding the City liable for negligence and (2) apportioning
the comparative fault of Timothy.
In Rachel’s cross-appeal, she asserts, by and through her
parents, that the district court erred in holding § 13-926(1)
was constitutional.
IV. STANDARD OF REVIEW
[1] In actions brought pursuant to the PSTCA, the factual
findings of the trial court will not be disturbed on appeal unless
they are clearly wrong. When determining the sufficiency of
the evidence to sustain the trial court’s judgment, it must be
considered in the light most favorable to the successful party;
every controverted fact must be resolved in favor of such party,
and it is entitled to the benefit of every inference that can be
deduced from the evidence.6
5 Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).
6 Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012);
Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).

140 	284 NEBRASKA REPORTS
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.7
[3] Whether a statute is constitutional is a question of law;
accordingly, we are obligated to reach a conclusion indepen-
dent of the decision reached by the court below.8
[4] While the amount of damages presents a question of fact,
the proper measure of damages presents a question of law.9
V. ANALYSIS
1. deteRmination of liability
[5] The City contends that the district court erred in finding it
liable. Subject to certain exceptions, “in all suits brought under
the [PSTCA] the political subdivision shall be liable in the
same manner and to the same extent as a private individual.”10
Thus, a negligence action brought under the PSTCA has the
same elements as a negligence action against an individual,
i.e., duty, breach of duty, causation, and damages.11
[6] This is a premises liability case, as the City owns
Memorial Park, the tree struck by the sled was a condition
on the premises, and Timothy, Rachel, and Chelsea were law-
ful visitors to the park when the accident occurred.12 We have
recognized that an owner or occupier is liable for injury to a
lawful visitor resulting from a condition on the owner or occu-
pier’s premises if the lawful visitor proves:
(1) the owner or occupier either created the condition,
knew of the condition, or by the exercise of reasonable
care would have discovered the condition; (2) the owner
7 American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807
N.W.2d 492 (2011); State v. State Code Agencies Teachers Assn., 280 Neb.
459, 788 N.W.2d 238 (2010).
8 See, Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808
N.W.2d 598 (2012); Kiplinger v. Nebraska Dept. of Nat. Resources, 282
Neb. 237, 803 N.W.2d 28 (2011).
9 Tolliver v. Visiting Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009).
10 § 13-908.
11 See, Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697
(2001); Drake v. Drake, 260 Neb. 530, 618 N.W.2d 650 (2000).
12 See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).

CONNELLY v. CITY OF OMAHA 	141
Cite as 284 Neb. 131
or occupier should have realized the condition involved
an unreasonable risk of harm to the lawful visitor; (3)
the owner or occupier should have expected that a lawful
visitor such as the plaintiff either (a) would not discover
or realize the danger or (b) would fail to protect himself
or herself against the danger; (4) the owner or occupier
failed to use reasonable care to protect the lawful visitor
against the danger; and (5) the condition was a proximate
cause of damage to the lawful visitor.13
The City contends that the evidence at trial did not support the
second and third elements.
(a) City’s Realization of Risk
Evidence showed that at the time of the accident, the City
knew the area of the park where the accident occurred was used
by the public for sledding and knew there had been prior sled-
ding accidents involving trees. Before planting the tree which
Rachel and Chelsea’s sled struck, the City was aware of public
sentiment that new plantings should be avoided in the area of
the park used for sledding. Indeed, the City had made that a
goal of the project. After the crab apple trees were planted
on the southeast slope, Pierce, the city forester, recommended
that they be removed. One of the reasons for his recommenda-
tion was that the trees presented a hazard to sledders. And 12
days before the Connelly accident, a sled with two children
on it struck one of the crab apple trees. Viewing this evidence
in a light most favorable to the Connellys, as our standard of
review requires, the district court did not err in finding that the
City should have realized the crab apple trees posed an unrea-
sonable risk of harm to sledders.
(b) Lawful Visitors’ Realization of Risk
The City argues the evidence failed to show that it should
have expected that lawful visitors such as the Connellys would
either not discover or realize the danger posed by the crab
apple trees or would fail to protect themselves against the
13 Id. at 807, 678 N.W.2d at 89, citing Herrera v. Fleming Cos., 265 Neb.
118, 655 N.W.2d 378 (2003).

142 	284 NEBRASKA REPORTS
danger. Succinctly stated, the City’s position is that the “open
and obvious tree did not present an unreasonable risk of harm
to sledders who should [have] discover[ed] it, realize[d] the
danger, and [gone] elsewhere.”14
[7] Generally, when the danger posed by a condition is
open and obvious, the owner or occupier is not liable for harm
caused by the condition.15 But the Restatement (Second) of
Torts § 343A,16 which we have adopted, states that despite this
general rule, the landowner may be liable if the landowner
“should anticipate the harm despite such knowledge or obvi-
ousness.” Thus, a determination that a danger is “open and
obvious” does not end the analysis; a court must also determine
whether the landowner should have anticipated that persons
using the premises would fail to protect themselves, despite
the open and obvious risk.17 Reason to anticipate harm from an
open and obvious danger
may arise, for example, where the possessor has reason
to expect that the invitee’s attention may be distracted, so
that he will not discover what is obvious, or will forget
what he has discovered, or fail to protect himself against
it. Such reason may also arise where the possessor has
reason to expect that the invitee will proceed to encounter
the known or obvious danger because to a reasonable man
in his position the advantages of doing so would outweigh
the apparent risk.18
Also 	pertinent 	to 	our 	analysis 	is 	another 	portion 	of 	the
Restatement commentary, which provides:
There is . . . a special reason for the possessor to antici-
pate harm where the possessor is . . . the government, or
14 Reply brief for appellant in case No. S-10-879 at 5 (emphasis omitted).
15 Aguallo, supra note 12; Tichenor v. Lohaus, 212 Neb. 218, 322 N.W.2d
629 (1982).
16 Restatement (Second) of Torts § 343A(1) at 218 (1965). See, Aguallo,
supra note 12; Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438
N.W.2d 485 (1989).
17 Aguallo, supra note 12; Burns, supra note 16. See, also, Restatement,
supra note 16, comment f.
18 Restatement, supra note 16, comment f. at 220.

CONNELLY v. CITY OF OMAHA 	143
Cite as 284 Neb. 131
a government agency, which maintains land upon which
the public are invited and entitled to enter as a matter of
public right. Such defendants may reasonably expect the
public, in the course of the entry and use to which they
are entitled, to proceed to encounter some known or obvi-
ous dangers which are not unduly extreme, rather than to
forego [sic] the right.
Even 	such 	defendants, 	however, 	may 	reasonably
assume that members of the public will not be harmed
by known or obvious dangers which are not extreme, and
which any reasonable person exercising ordinary atten-
tion, perception, and intelligence could be expected to
avoid. This is true particularly where a reasonable alter-
native way is open to the visitor, known or obvious to
him, and safe.19
The district court concluded that “regardless of whether
the crab apple tree was an open and obvious danger, the City
should have anticipated a plaintiff, such as the Connelly’s [sic]
‘would fail to protect himself or herself against the danger.’”
The court reasoned that the City was a “government agency
maintaining land upon which the Connelly’s [sic] were entitled
to enter as a matter of public right” and that it should have
anticipated that persons sledding in the park “would fail to
protect themselves, because they may be distracted by the other
people and activities involved with the sledding.”
The City argues that the court should not have included the
“distraction” argument in its rationale, because there was no
evidence that Rachel and Chelsea were actually distracted at the
time of the accident. This argument has merit. We agree with
the reasoning of an Illinois appellate court that “in order for the
distraction exception to apply, it must have been foreseeable
that [the] plaintiff would become distracted and there must be
evidence that [the] plaintiff actually became distracted.”20
But we agree with the district court’s alternative reasoning
that as a governmental entity operating a park that was open
19 Id., comment g. at 221-22.
20 Belluomini v. Stratford Green Condominium, 346 Ill. App. 3d 687, 695,
805 N.E.2d 701, 708, 282 Ill. Dec. 82, 89 (2004) (emphasis in original).

144 	284 NEBRASKA REPORTS
to the public and commonly used for sledding, the City should
have expected the public to encounter some dangers which
were not unduly extreme, rather than forgo the right to use
the park for sledding. The danger posed by the tree was based
on its position along one side of the sledding slope. The tree
did not present an unduly extreme danger, as evidenced by the
fact that Slaven did not appreciate the danger when she deter-
mined the location for the tree, or even after Pierce suggested
that it be removed because of its proximity to the sledding
area. Viewing the evidence in a light most favorable to the
Connellys, as our standard of review requires, we conclude
that the district court did not err in finding that the City should
have expected that lawful visitors such as the Connellys would
fail to protect themselves against the danger posed by the crab
apple trees.
2. compaRative fault appoRtionment
The City makes two arguments with respect to the district
court’s determination of Timothy’s comparative fault. First,
although it makes no specific assignment of error on this
point, the City contends that the daughters’ claims “must be
reduced by Timothy’s negligence.”21 The district court, relying
upon long-established precedent of this court,22 determined as
a matter of law that Timothy’s fault could not be imputed to
either Rachel or Chelsea so as to reduce each of their recov-
eries. This determination was correct, and to the extent that
the City’s argument to the contrary was preserved, it is with-
out merit.
The City also argues that in the parents’ separate action, the
district court erred in determining that Timothy bore 25 percent
of the fault for the accident, when compared to the negligence
of the City. It argues that Timothy’s negligence “exceeds the
blameworthiness of the City’s conduct”23 and should therefore
bar recovery on the parents’ claims.
21 Brief for appellant in case No. S-10-879 at 33.
22 See, Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007); Wilson v.
Thayer County Agricultural Society, 115 Neb. 579, 213 N.W. 966 (1927).
23 Brief for appellant in case No. S-10-880 at 31.

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Under Nebraska’s comparative fault statutes,
[a]ny contributory negligence chargeable to the claim-
ant shall diminish proportionately the amount awarded
as damages for an injury attributable to the claimant’s
contributory negligence but shall not bar recovery, except
that if the contributory negligence of the claimant is
equal to or greater than the total negligence of all persons
against whom recovery is sought, the claimant shall be
totally barred from recovery.24
[8,9] This court has recognized that “a plaintiff is con-
tributorily negligent if (1) she or he fails to protect herself or
himself from injury, (2) her or his conduct concurs and coop-
erates with the defendant’s actionable negligence, and (3) her
or his conduct contributes to her or his injuries as a proximate
cause.”25 Because the purpose of comparative negligence
is to allow triers of fact to compare relative negligence
and to apportion damages on that basis, the determination
of apportionment is solely a matter for the fact finder, and
its action in this respect will not be disturbed on appeal
if it is supported by credible evidence and bears a reason-
able relationship to the respective elements of negligence
proved at trial.26
We conclude that there is credible evidence, as summarized
above, 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 sled-
ding, 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.
Under our deferential standard of review, we cannot conclude
24 Neb. Rev. Stat. § 25-21,185.09 (Reissue 2008).
25 Baldwin v. City of Omaha, 259 Neb. 1, 12, 607 N.W.2d 841, 850 (2000).
26 Id. at 18, 607 N.W.2d at 853.

146 	284 NEBRASKA REPORTS
the district court erred in its apportionment of compara-
tive fault.
3. measuRe of damages foR
in -home nuRsing caRe
[10] A person who suffers injury as a result of the negli-
gence of another “is entitled to recover for the reasonable value
of medical care and expenses incurred for the treatment of the
injuries.”27 The City concedes that this element of damage may
include services provided in the home of the injured party. But
it takes issue with the manner in which the district court valued
the nursing services which Kelly provides to Rachel.
The district court found the proper measure of damages was
the replacement cost of the services, which it assessed at $20
per hour based upon expert testimony regarding the average
charges of Omaha businesses which provide in-home health
care. The City contends this measure of damages results in a
windfall, because it gives the parents “the same profit, over-
head, and other elements of pricing that a business would
include in its charges.”28 The City argues that the services
should have been valued in the range of $7.50 and $12.50 per
hour, representing the compensation that a home health aide
employed by an agency would receive for providing in-home
services. In rejecting this argument, the district court rea-
soned that its concern was “not that the Parents may receive a
windfall but that the City not avoid liability for its negligence
merely because a mother and father chose to care for their
child themselves.”
The evidence supports a reasonable inference that if Kelly
were unable or unwilling to provide the in-home nursing serv-
ices which Rachel requires, she and Timothy would have been
required to contract with a commercial provider of such serv-
ices at a cost to them of $20 per hour. Their expert testified
that this was “the only option,” due to certain requirements
applicable to in-home health care providers. We conclude that
27 Steinauer v. Sarpy County, 217 Neb. 830, 843, 353 N.W.2d 715, 724
(1984), citing Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981).
28 Brief for appellant in case No. S-10-880 at 45.

CONNELLY v. CITY OF OMAHA 	147
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the district court did not err in finding that the reasonable value
of the services provided to Rachel by her parents was $20
per hour.
4. damage cap
All parties assign error with respect to the district court’s
disposition of issues pertaining to § 13-926, which limits the
amount recoverable under the PSTCA to “(1) One million dol-
lars 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.” Rachel contends the dis-
trict court erred in rejecting her claim that the cap unconsti-
tutionally deprives her of a substantive due process right to
compensation for proven economic damages. The City argues
the district court erred in rejecting its argument that all claims
resulting from Rachel’s injury were subject to a single cap of
$1 million.
(a) Constitutionality: Substantive
Due Process
[11-14] We consider Rachel’s constitutional challenge within
the framework of well-established legal principles. A statute
is presumed to be constitutional, and all reasonable doubts
are resolved in favor of its constitutionality.29 The burden of
establishing the unconstitutionality of a statute is on the one
attacking its validity.30 The unconstitutionality of a statute must
be clearly established before it will be declared void.31 The
Nebraska Legislature is presumed to have acted within its con-
stitutional power despite that, in practice, its laws may result in
some inequality.32
[15-17] The Due Process Clauses of both the federal and
the state Constitutions forbid the government from infringing
upon a fundamental liberty interest, no matter what process is
29 Sarpy Cty. Farm Bureau, supra note 8; Kiplinger, supra note 8.
30 Id.
31 Id.
32 See Staley, supra note 5.

148 	284 NEBRASKA REPORTS
provided, unless the infringement is narrowly tailored to serve
a compelling state interest.33 “Substantive due process relates
to the content of the statute specifying when a right can be lost
or impaired.”34 “When a fundamental right or suspect classifi-
cation is not involved in the legislation, the legislative act is a
valid exercise of the police power if the act is rationally related
to a legitimate state interest.”35
We upheld the constitutionality of the damage cap established
by § 13-926 in Staley.36 In rejecting a substantive due process
challenge, we reasoned that the cap did not involve a funda-
mental right or a suspect classification and “the Legislature had
a rational basis for limiting the amount of damages recoverable
in claims under the [PSTCA].”37 We noted that the damage cap
was enacted “because of legislative concern regarding the cost
and availability of liability insurance for political subdivisions,
and the perceived need of the state to protect the fiscal stability
of its political subdivisions.”38
Rachel attempts to distinguish Staley, arguing that the dam-
age cap as applied in that case deprived the plaintiff of only
4 percent of his proven economic damages, whereas Rachel
is deprived of more than 75 percent of her proven economic
damages by application of § 13-926(1). Rachel argues that this
case affects her fundamental rights because “[c]ompensating
negligently injured individuals for economic damages—which,
unlike noneconomic damages, can be fully compensated by
the payment of money—is the fundamental motivating pur-
pose of our tort system.”39 But this argument overlooks the
context in which these claims are asserted. An injured party
33 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
34 Staley, supra note 5, 271 Neb. at 555, 713 N.W.2d at 469, citing In re
Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001).
35 Id., citing State v. Champoux, 252 Neb. 769, 566 N.W.2d 763 (1997).
36 Staley, supra note 5.
37 Id. at 555, 713 N.W.2d at 470.
38 Id. at 554, 713 N.W.2d at 469.
39 Brief for appellees in case No. S-10-879 at 48.

CONNELLY v. CITY OF OMAHA 	149
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has no fundamental right to a tort recovery against a politi-
cal subdivision. In the absence of legislation, all such claims
are barred by sovereign immunity. The PSTCA eliminates, in
part, the traditional immunity of political subdivisions for the
negligent acts of their employees.40 But we have characterized
this as a “limited waiver,” because certain types of tort claims
are exempt from its operation.41 Because the right of an injured
party to recover in tort against a political subdivision exists
solely as a matter of legislative grace, it cannot be considered
a fundamental right.
[18] And we are not persuaded by Rachel’s argument
that the Legislature lacked a rational basis for including
Omaha with all other political subdivisions to which § 13-926
applies. They contend that the Legislature’s concerns regard-
ing insurability and fiscal stability of political subdivisions
which led to the enactment of the damage cap do not apply
to Omaha, due to its size and ability to self-insure. But that
is a determination best left to a legislative body, not a court.
As we said in Staley, courts will not independently review
“the factual basis on which a legislature justified a statute,
nor will a court independently review the wisdom of a stat-
ute. Instead, courts inquire whether the legislature reasonably
could conceive to be true the facts on which the challenged
statute was based.”42 The PSTCA creates a single class of tort-
feasors, consisting of all political subdivisions.43 The scope of
§ 13-926 is consistent with that scheme. We will not second-
guess the decision of the Legislature to treat the City in the
same manner as all other political subdivisions with respect to
capping damages recoverable under the PSTCA. We conclude,
as we did in Staley, that the Legislature had a rational basis
for enacting § 13-926. Rachel’s substantive due process chal-
lenge is without merit.
40 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
41 Britton v. City of Crawford, 282 Neb. 374, 380, 803 N.W.2d 508, 514
(2011), citing Stonacek, supra note 6.
42 Staley, supra note 5, 271 Neb. at 554, 713 N.W.2d at 469.
43 Id.; Campbell v. City of Lincoln, 195 Neb. 703, 240 N.W.2d 339 (1976).

150 	284 NEBRASKA REPORTS
(b) Statutory Interpretation:
Number of Caps
[19] The City contends that the district court erred in deter-
mining that Rachel’s injuries triggered three separate damage
caps—one for Rachel and one for each of her parents. It argues
that the parents’ claims are “derivative” and “must logically
be subsumed” in the $1 million cap applicable to Rachel’s
tort claim.44 This argument requires us to interpret § 13-926.
Statutory language is to be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.45
[20,21] Under Nebraska law, injury to a minor results in
two causes of action—one on behalf of the minor and the
other on behalf of the minor’s parent.46 The minor’s claim
is based on damages caused by the personal or bodily injury
sustained by the minor, while the claim of a parent is based
on the loss of services during minority and the necessary
expenses of treatment for the injured child.47 The cause or
right of action of parents is distinct from the cause of action
of their child.48 Thus, from Rachel’s significant injuries, two
separate causes of action arose—one in favor of Rachel and
the other in favor of her parents for loss or damage sustained
on account of Rachel’s injury. The issue presented here is
whether all of these claims are subject to a single damage cap
of $1 million.
(i) Parents Entitled to Cap Separate
From That of Rachel
In support of the City’s argument that the parents’ claims
are subsumed within Rachel’s claim and therefore are subject
to a single damage cap, the City relies on City of Austin v.
44 Brief for appellant in case No. S-10-880 at 41.
45 American Amusements Co., supra note 7; Skaggs v. Nebraska State Patrol,
282 Neb. 154, 804 N.W.2d 611 (2011).
46 Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984).
47 Id.
48 Id.

CONNELLY v. CITY OF OMAHA 	151
Cite as 284 Neb. 131
Cooksey.49 In that wrongful death case, several heirs asserted
claims against a city under the Texas Tort Claims Act, which
limited liability “‘to $100,000 per person and $300,000 for any
single occurrence for bodily injury or death.’”50 The issue pre-
sented was whether the statutory phrase “per person” referred
to the injured person, or a person asserting a claim as a result
of an injury to someone else. In concluding that it meant the
former, the court noted that under insurance law, phrases such
as “per person” or “each person” refer to the person injured,
and further noted that “[t]his is especially true in cases in
which the words of limitation refer to ‘bodily injury’ as they do
in the Texas Tort Claims Act.”51
We do not find the reasoning of Cooksey persuasive in this
case, because of differences in the language used in the Texas
and Nebraska statutes. As we have noted, § 13-926 limits dam-
ages under the PSTCA to “[o]ne million dollars for any person
for any number of claims arising out of a single occurrence.”
The term “person” necessarily refers to a person asserting a
tort claim, as the PSTCA provides “the exclusive means” by
which a person may maintain a “tort claim . . . against a politi-
cal subdivision.”52 The PSTCA defines a “[t]ort claim” as
any claim against a political subdivision for money only
. . . on account of personal injury or death, caused by the
negligent or wrongful act or omission of any employee of
the political subdivision, while acting within the scope of
his or her office or employment, under circumstances in
which the political subdivision, if a private person, would
be liable to the claimant for such damage, loss, injury,
or death.53
Based on this definition, a party may recover up to the statutory
limit of $1 million if the party is “any person” asserting “any
49 City of Austin v. Cooksey, 570 S.W.2d 386 (Tex. 1978).
50 Id. at 387, quoting Tex. Rev. Civ. Stat. Ann. art. 6252-19, § 3 (West 1970).
51 Id. at 388.
52 Geddes v. York County, 273 Neb. 271, 275, 729 N.W.2d 661, 665 (2007).
See, Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Keller v.
Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003); § 13-902.
53 § 13-903(4).

152 	284 NEBRASKA REPORTS
claim . . . on account of personal injury.” The U.S. Supreme
Court has recognized that “[t]he words ‘any claim against the
United States . . . on account of personal injury’ . . . are broad
words in common usage” and “are not words of art.”54 This
court has also determined that a claim for contribution against
a joint tort-feasor constituted a “[t]ort claim” within the mean-
ing of Neb. Rev. Stat. § 81-8,210(4) (Cum. Supp. 2010), which
is the State Tort Claims Act equivalent to § 13-903(4).55 Thus,
one need not suffer bodily injury to assert a tort claim under
§ 13-903(4).
Other courts have interpreted damage cap statutes similar
to § 13-926 as providing a cap for the claims of an injured
minor and a separate cap for his or her parents’ claims. In
Independent School Dist. I-29 v. Crawford,56 parents of a child
injured in a school bus accident asserted in a single action both
the child’s personal injury claim and their claim for medical
expenses. An Oklahoma statute provided that the liability of
a political subdivision “‘shall not exceed . . . Fifty Thousand
Dollars (50,000.00) to any claimant for all other claims aris-
ing out of a single accident or occurrence.’”57 The court
noted that under Oklahoma law, a “parent’s right of action for
consequential damages based on loss of services and on the
expenses incurred as a result of the child’s injury is distinct
from the child’s right of action for his or her own injuries.”58
Accordingly, the court concluded that the parents and the child
were separate “claimants” within the meaning of the damage
cap provision and could recover a maximum of $100,000 from
the school district.59
54 United States v. Yellow Cab Co., 340 U.S. 543, 548, 71 S. Ct. 399, 95 L.
Ed. 523 (1951) (emphasis in original).
55 See Northland Ins. Co. v. State, 242 Neb. 10, 492 N.W.2d 866 (1992).
56 Independent School Dist. I-29 v. Crawford, 688 P.2d 1291 (Okla. 1984)
(superseded by statute as stated in Carlson v. City of Broken Arrow, 844
P.2d 152 (Okla. 1992)).
57 Id. at 1293, quoting Okla. Stat. tit. 51, § 154 (Supp. 1979) (emphasis
omitted).
58 Id. at 1293-94.
59 Id. at 1294.

CONNELLY v. CITY OF OMAHA 	153
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Other courts have similarly held that persons having separate
and distinct claims arising from a single occurrence are entitled
to separate statutory damage caps. In Faber v. Roelofs,60 a
Minnesota statute limited a municipality’s liability to “‘$25,000
when the claim is one for death by wrongful act or omission
and $50,000 to any claimant in any other case.’”61 The court
held that under this statute, an injured minor and his father
were separate claimants, each entitled to recover up to $50,000,
because the father’s action was separate and distinct from that
of the minor. In Schwartz v. Milwaukee,62 the court held that
under a statute which limited “‘[t]he amount recoverable by
any person for any damages’” to $25,000, a husband’s claim
for loss of consortium was separate and distinct from his wife’s
personal injury claim, and that each was therefore entitled to
recover up to $25,000. And in State, Bd. of Regents v. Yant,63
the court held that because the claim of an injured minor child
was separate and distinct from his mother’s claim for medical
expenses incurred as a result of his injury, each was entitled
to recover up to $50,000 under a statute which limited the
state’s liability to $50,000 on “‘a claim or a judgment by any
one person.’”
The City would have us read § 13-926(1) to limit its liabil-
ity to $1 million for all claims arising from a single bodily
injury. The Legislature could have written the statute that
way, but it did not. Instead, it imposed the $1 million cap on
“any person for any number of claims arising out of a single
occurrence.”64 Rachel and her parents are separate persons
under § 13-926(1), as the parents’ claims are separate and dis-
tinct from Rachel’s claim. Therefore, Rachel’s claim and her
parents’ claims are subject to separate damage caps.
60 Faber v. Roelofs, 298 Minn. 16, 212 N.W.2d 856 (1973).
61 Id. at 24, 212 N.W.2d at 861, quoting Minn. Stat. Ann. § 466.04(1)(a)
(West 1963).
62 Schwartz v. Milwaukee, 54 Wis. 2d 286, 288, 195 N.W.2d 480, 482 (1972).
63 State, Bd. of Regents v. Yant, 360 So. 2d 99, 100 (Fla. App. 1978).
64 § 13-926(1) (emphasis supplied).

154 	284 NEBRASKA REPORTS
(ii) Claims of Parents Subject to
Single $1 Million Cap
[22,23] We must next determine whether Kelly and Timothy
are each entitled to recover up to $1 million for their claims
against the City under § 13-926(1), or whether their combined
claims are subject to a single $1 million cap. In response to
our order for supplemental briefing on this issue, the Connellys
briefed the substantive issue but also argued that it was not
preserved for appeal. In the City’s opening brief, it argued that
the district court erred in determining that “the damages limit
in the [PSTCA] allows the maximum recovery not just for
Rachel, who suffered personal injury, but also for each of her
parents who only incurred damages derivatively through their
daughter.”65 We acknowledge that this argument does not focus
squarely on the question of whether the claims of each parent
are subject to a separate damage cap in the event that they are
not subsumed within the cap applicable to Rachel’s claim. But
the City’s assignment of error and argument did raise the issue
of whether all claims related to Rachel’s injury are subject to a
single cap, as the City contends, or multiple caps, as the district
court held. In order to provide a meaningful resolution of this
question of law, we conclude that it is necessary to determine
whether the parents’ claims are subject to one or two caps. For
that reason, we requested supplemental briefing on this issue. To
the extent that it was not preserved in the City’s opening brief,
we reach the issue under the doctrine of plain error. Although an
appellate court ordinarily considers only those errors assigned
and discussed in the briefs, the appellate court may, at its option,
notice plain error.66 Plain error is error plainly evident from the
record and of such a nature that to leave it uncorrected would
result in damage to the integrity, reputation, or fairness of the
judicial process.67
65 Brief for appellant in case No. S-10-880 at 40 (emphasis supplied).
66 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011); In re Interest
of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007).
67 Id.

CONNELLY v. CITY OF OMAHA 	155
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In determining that the parents’ claims were not subject
to the same damage cap as Rachel’s personal injury claim,
we focused on the separate and distinct nature of a minor’s
personal injury claim and her parents’ claims for damages
resulting from the injury. Applying the same reasoning here,
we must determine whether the claims asserted by Kelly and
Timothy are separate and distinct from each other. It is clear
from the record that they are not.
The district court held as a matter of law that Kelly and
Timothy had no cause of action for loss of consortium, and
that holding was not challenged on appeal. But the court
awarded damages for loss of Rachel’s services during minor-
ity, which is permissible under Nebraska law.68 These damages,
which differ from loss of consortium damages,
arose in a day when children during minority were gener-
ally regarded as an economic asset to parents. Children
went to work on farms and in factories at age 10 and even
earlier . . . A child’s earnings and services could be gener-
ally established and the financial or pecuniary loss which
could be proved became the measure of damages for the
wrongful death of a child.69
The district court noted that in seeking these damages, the par-
ents claimed that due to Rachel’s injury, she would not have a
job, thereby “eliminating her ability to contribute some of her
earned money to the household” and would be unable to assist
with household chores. The parents collectively requested
$450,000. The district court found the evidence did not sup-
port damages in this amount, but based upon evidence of
Chelsea’s earnings at a part-time job during high school, it
awarded $15,984.
The district court employed similar reasoning with respect
to the parents’ claim for past and future medical expenses
and modifications to their home and vehicles to accommodate
Rachel’s loss of mobility.
68 See Macku, supra note 46.
69 Selders v. Armentrout, 190 Neb. 275, 278, 207 N.W.2d 686, 688 (1973).
See, also, Dorsey v. Yost, 151 Neb. 66, 36 N.W.2d 574 (1949).

156 	284 NEBRASKA REPORTS
[E]ach parent has a separate interest in the recovery of
medical expenses and neither recovery will be impacted by
the other spouses [sic] contributory negligence. However,
this is subject to ensuring that there will be no double
recovery. Therefore, if Timothy and Kelly . . . establish
they have jointly provided medical expenses, each will
be entitled to half the amount, with Timothy’s recovery
being reduced by his contributory negligence.
Following the trial on damages, the district court found
that the parents’ proven damages totaled $1,663,550.32, which
included past and future medical expenses, accommodation
costs, and the loss of Rachel’s services. The court divided this
amount by two, reduced Timothy’s “share” by the 25-percent
factor 	attributable 	to 	his 	comparative 	fault, 	and 	awarded
$623,661.02 to Timothy and $831,775.17 to Kelly. In ruling
that each parent’s claim would be subject to a separate damage
cap, the district court reasoned that each parent had a separate
cause of action for medical expenses, which could be asserted
by each parent individually or by them jointly.
But it is clear that the parents’ claims were not distinct from
one another, in the same sense that the parents’ claims were
distinct from those of Rachel. The parents asserted their claims
jointly, the claims were established by the same proof, and the
claims became “separate” only when the district court divided
the proven damages by two and then reduced Timothy’s award
due to his comparative fault.
In deciding to treat the parents’ claims as separate from each
other and thus subject to separate caps, the district court relied
in part on Dunkel v. Motorists Mut. Ins. Co.,70 in which an
Ohio appellate court held that an injured child and each of her
parents could recover up to $100,000 each under an insurance
policy with limits of $100,000 for each person up to a limit
of $300,000 per accident. The trial court treated each parent’s
claim for loss of services as separate, not joint, and reasoned,
“‘To suggest that [a mother] does not suffer a loss unique
70 Dunkel v. Motorists Mut. Ins. Co., 41 Ohio App. 3d 130, 534 N.E.2d 950
(1987).

CONNELLY v. CITY OF OMAHA 	157
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from that of her husband . . . for the society, love, comfort,
and companionship of her daughter is to deny what any par-
ent knows in relation to their own special relationships with
their children as individuals.’”71 The appellate court adopted
this reasoning.
But the claims asserted by Kelly and Timothy here do not
depend upon any “special relationship” that each may have
with Rachel. As noted, their loss of consortium claims which
may have been based on such relationships were rejected as a
matter of law. Their loss of services claim is based upon the
services that Rachel would have provided to the household, not
to each parent individually, and the medical expenses claim is
likewise joint in nature. Accordingly, we do not find Dunkel
persuasive on the issue before us.
In Elkhart Community Schools v. Yoder,72 an Indiana appel-
late court took what we believe is the correct approach to
determining whether two parents’ claims for damages result-
ing from a child’s personal injury were entitled to separate
caps. Indiana’s Tort Claims Act limited a governmental entity’s
liability to $300,000 “‘for injury to or death of one [1] person
in any one [1] occurrence.’”73 A jury returned a verdict of
$450,000 in favor of the parents of a child who was seriously
injured in a school bus accident. Pursuant to the statutory cap,
the trial court reduced the award to $300,000. On appeal, the
parents contended that a separate cap should have applied to
each of their claims. The appellate court rejected this argument.
Although recognizing that under Indiana law, the parents of a
negligently injured minor child had a separate cause of action
than that of the minor, the court opined:
[I]n analyzing the effect of the Tort Claims Act limita-
tion of liability, it is necessary to determine whether there
are separate causes of action for each plaintiff seeking to
recover separately up to the statutory limit. The limitation
cannot be invoked for the benefit of each plaintiff found
71 Id. at 132, 534 N.E.2d at 952.
72 Elkhart Community Schools v. Yoder, 696 N.E.2d 409 (Ind. App. 1998).
73 Id. at 416, quoting Ind. Code § 34-4-16.5-4 (1986).

158 	284 NEBRASKA REPORTS
to be a “person” under the Act without regard for whether
his or her claim is separate from others in the action.74
The court noted that under Indiana law, a parent’s action for
damages resulting from injury to a child could be brought by
the parents jointly, or by either parent individually, if the other
parent was joined as a codefendant. The court determined
that because the parents were awarded an undivided joint
verdict, the parents “suffered a single injury, regardless of
whether each parent is a separate ‘person.’”75 Thus, the court
concluded that a single $300,000 cap applied to the parents’
joint claims.
The same principle was applied in a slightly different context
by the Wisconsin Supreme Court in Wilmot v. Racine County.76
There, the applicable statute limited a governmental subdivi-
sion’s tort liability to $50,000 for “‘any person for any dam-
ages, injuries or death in any action.’”77 The issue presented
was whether the injured plaintiff and a subrogated health fund
that had paid some of his medical bills were subject to one
or two $50,000 caps. The court concluded that only one cap
applied because the plaintiff’s cause of action was not separate
and distinct from that of his subrogee. The court relied in part
on its prior decision in Schwartz78 for the proposition that in
order for multiple caps to apply, “not only must each claimant
be ‘a person’ but . . . each claimant must also have a separate
cause of action, be it independent or derivative.”79 As noted,
we relied on Schwartz in concluding that the parents’ claims
were subject to a damage cap separate from the cap applicable
to Rachel’s claim.
Clearly, Kelly and Timothy are both “persons” having
“claims” resulting from Rachel’s injury, but their claims for
74 Id.
75 Id.
76 Wilmot v. Racine County, 136 Wis. 2d 57, 400 N.W.2d 917 (1987).
77 Id. at 62, 400 N.W.2d at 919, quoting Wis. Stat. Ann. § 893.80(3) (West
1983).
78 Schwartz, supra note 62.
79 Wilmot, supra note 76, 136 Wis. 2d at 62-63, 400 N.W.2d at 919.

CONNELLY v. CITY OF OMAHA 	159
Cite as 284 Neb. 131
medical expenses and loss of services are not separate and
distinct. Rather, these claims are joint in nature. The parents’
joint claims were based on the same proof, and the parents
could not each separately recover the full amount of damages
for medical expenses and loss of services. As the district court
correctly found, and the parties do not dispute, “all expenses
associated with the accident are paid out of the coffers of the
marital unit.” The parents’ claims did not become separate
and distinct merely because the district court divided the total
damages by two. Based upon our independent interpretation of
§ 13-926(1), we conclude that the parents’ claims are subject to
a single damage cap of $1 million.
There remains the issue of how to apportion Timothy’s
comparative fault against the single damage cap applicable
to the joint parental claim, given that Kelly was not found to
be at fault. We agree that a statutory limitation on damages
such as that of § 13-926(1) “applies to cap the total recovery
after the reduction of the plaintiff’s damages for his or her
comparative negligence, rather than applying to the total dam-
ages established before the reduction for comparative negli-
gence, since the latter approach would multiply the effect of
the damage limitation.”80 Here, the district court determined
that the parents sustained damages in the total amount of
$1,663,550.32. It reduced one half of that amount by 25 per-
cent due to Timothy’s comparative fault, thus arriving at an
award for Timothy of $623,661.02 and an award for Kelly of
$831,775.17. The total of these awards is $1,455,436.19. We
conclude that this award must be reduced to $1 million pursu-
ant to § 13-926(1), with this judgment payable jointly to Kelly
and Timothy. We modify the judgments in the parents’ action
accordingly, and affirm as modified.
VI. CONCLUSION
For the reasons discussed, we affirm the judgment in the
daughters’ action awarding damages to Chelsea in the amount
80 57 Am. Jur. 2d Municipal, etc., Tort Liability § 602 at 611 (2012). See,
also, University of Texas at El Paso v. Nava, 701 S.W.2d 71 (Tex. App.
1985).

160 	284 NEBRASKA REPORTS
of $8,176.84 and to Rachel in the amount of $1 million. In the
parents’ action, we modify the judgment in favor of Kelly and
Timothy by combining the amounts and reducing the total to
$1 million payable to them jointly; and we affirm as modified.
Judgment in no. s-10-879 affiRmed.
Judgment in no. s-10-880 affiRmed as modified.
wRight, J., not participating.
mccully, inc., doing business as mccully R anch company,
a nebRasKa coRpoRation, appellant, v. baccaRo R anch,
a nebRasKa limited liability company, appellee.
816 N.W.2d 728
Filed July 20, 2012. 	No. S-11-952.
1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.
2. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate
the credibility of the witnesses or reweigh testimony but will review the evidence
for clear error.
3. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
4. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
5. Brokers: Contracts. In determining whether a commission is due a broker, the
court must look to the terms and conditions of the listing agreement.
6. Contracts. When the terms of a contract are clear, a court may not resort to rules
of construction, and the terms are to be accorded their plain and ordinary mean-
ing as the ordinary or reasonable person would understand them.
7. ____. If a contract is unambiguous, the court will enforce the contract in accord-
ance with the plain meaning of the words of the contract.
8. ____. Enforcement of a contract depends upon the terms of the contract and the
facts that are applicable to the contract.
9. Brokers: Real Estate: Contracts: Sales. Ordinarily, a real estate broker who,
for a commission, undertakes to sell land on certain terms and within a specified
period is not entitled to compensation for his or her services unless he or she
produces a purchaser within the time limit who is ready, willing, and able to buy
upon the terms prescribed.