Nebraska Supreme Court to Hear Sledding Lawsuit Appeal

The Nebraska Supreme Court will consider whether a family whose two young girls were seriously injured in a sledding accident should lose the nearly $2.5 million they were awarded – or get even more money to cover the medical costs for one of the girls who was paralyzed in the accident.

Rachel Connelly was 5 and her sister, Chelsea, was 10 in December 2000 when they went down Memorial Park hill. Experts told the court that the hill’s slope routed the girls into a stand of crabapple trees planted by city workers two years earlier.

Chelsea suffered a punctured lung and broken rib. Rachel was left paralyzed from the chest down.

Tim Connelly and his wife, Kelly, sued the city, saying it should pay for the girls’ medical expenses and pain and suffering because it did not heed warnings about the dangers of having newly planted trees near the popular sled run.

In 2006, the city was found responsible because it didn’t properly place the trees or remove them when warned of the danger they presented.

Douglas County District Judge Patricia Lamberty declared in that ruling that the city was 75 percent liable and the girls’ father, who had taken the girls sledding when the accident happened, was 25 percent responsible because he failed to look out for his daughters’ safety.

Last year, Lamberty ordered the city to pay Rachel $1 million, the most she can collect in damages under state law. Awards to Rachel and her family totaled nearly $2.5 million.

The city maintains in its appeal that the city should not be held liable for accidents during recreational activities. Deputy City Attorney Thomas Mumgaard argues, among other points, that Tim Connelly and his eldest daughter, Chelsea, bore greater responsibility for the accident than was deemed by the lower court.

“The trial court incorrectly apportioned negligence,” Mumgaard wrote. “It is inexcusable negligence to put young children on an uncontrollable sled and send them down a hill near trees.”

Mumgaard also faulted Chelsea in the accident, saying she was an experienced sledder and “despite her previous training, Chelsea didn’t fall off the sled, drag her feet or otherwise try to keep the sled from hitting the tree.”

An Omaha attorney for the Connelly family, Thomas Locher, countered that the city had plenty of evidence that the newly planted trees posed a danger to sledders, including concerns expressed by nearby residents and a warning by a city forester that the trees could endanger sledders. Locher also noted that a city park planner was made aware of damage to the bottom of one newly planted tree, likely by a sledder who had hit it, and presented a witness at trial whose daughter suffered a broken jaw after hitting one of the newly planted trees 12 days before the Connelly girls were hurt.

“The trial court held that the city was maliciously and willfully negligent … because it was aware of the dangers posed by the crabapple trees … but did not take any corrective action,” Locher wrote.

The Connellys have also cross-appealed, saying the trial court was wrong not to declare Nebraska’s cap on medical damages unconstitutional as it applies to Rachel Connelly. Over her lifetime, her medical bills are expected to reach $4.2 million.

“This statute is unconstitutional insofar as it deprives Rachel Connelly of her substantive due process right to recover proven economic damages,” Locher wrote. “Compensating negligently injured individuals for economic damages – which, unlike non-economic damages, can be fully compensated by the payment of money – is the fundamental motivating purpose of our tort system.”

Mumgaard defended the limitation on Connellys’ monetary award in his reply to the cross-appeal.

“The city accepts that the damages recoverable by Rachel Connelly are great,” he wrote. “However, whether fair or not, the public policy chose by the Legislature on Nebraska limits the amount she can recover against the city. Her complaint is not with the law, but with the Legislature that chose the law.”

The Nebraska Supreme Court is set to hear arguments in the case on Sept. 7.