- 111 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

Aaron G. Brown, appellant, v. 

State of Nebraska, appellee.

___ N.W.2d ___

Filed February 28, 2020. No. S-19-073.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Tort Claims Act: Appeal and Error. Whether the allegations made 

by a plaintiff constitute a cause of action under the State Tort Claims 

Act or whether the allegations set forth claims which are precluded by 

the exemptions set forth in the 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 district court.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by the court 

below.

4. ____: ____. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to 

ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

5. 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.

6. Immunity: Waiver. In order to strictly construe against a waiver of 

sovereign immunity, courts broadly read exemptions from a waiver of 

sovereign immunity.

7. Tort Claims Act. For the recreational activity exception in Neb. Rev. 

Stat. § 81-8,219(14)(a)(i) (Supp. 2019) to apply, the following elements 

must be met: (1) The claim must relate to a recreational activity on property leased, owned, or controlled by the State; (2) the claim must result 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/20/2020 12:08 AM CDT
- 112 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

from an inherent risk of that recreational activity; and (3) no fee must 

have been charged for the plaintiff to participate in, or be a spectator at, 

the recreational activity.

8. ____. Because the recreational activity exception in Neb. Rev. Stat. 

§ 81-8,219(14)(a)(i) (Supp. 2019) applies only to tort claims relating to recreational activities on state property and resulting from the 

inherent risk of the recreational activity, it is necessary as a threshold 

matter to identify the recreational activity, if any, in which the plaintiff 

was engaged as either a participant or spectator. Only after the recreational activity is identified can a principled determination be made 

as to whether the plaintiff’s tort claim relates to that particular activity 

and whether the claim resulted from an inherent risk of that particular activity.

9. Statutes. When interpreting a statute, a court must attempt to give effect 

to all parts of a statute, and if it can be avoided, no word, clause, or 

sentence will be rejected as superfluous or meaningless.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Reversed and remanded for further proceedings.

James R. Welsh and Christopher Welsh, of Welsh & Welsh, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Charles E. 

Chamberlin for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Stacy, J.

Aaron G. Brown sued the State of Nebraska for negligence under the State Tort Claims Act (STCA),1

 alleging he 

was injured at a state recreational area when a riding lawnmower struck the picnic table where he was sitting. The State 

moved to dismiss the action, claiming sovereign immunity 

under the “recreational activity” exception to the STCA.2 That 

1 See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014, Cum. Supp. 

2018 & Supp. 2019).

2 § 81-8,219(14).
- 113 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

exception provides in relevant part that the STCA “shall not 

apply” to any claim “relating to recreational activities on 

property leased, owned, or controlled by the state for which 

no fee is charged . . . resulting from the inherent risk of the 

recreational activity.”3

The district court found the recreational activity exception 

applied, and it dismissed Brown’s action with prejudice. He 

appealed, and we granted the State’s petition to bypass. We 

now reverse, and remand for further proceedings.

I. BACKGROUND

1. Brown’s Complaint

This matter was disposed of on a motion to dismiss. In such 

a situation, the factual record consists only of the allegations in 

the complaint, which are accepted as true, and all reasonable 

inferences are made in favor of the nonmoving party.4 Brown’s 

complaint alleged the following facts:

On or about August 14, 2017, Brown visited a state recreational area in Elm Creek, Nebraska, to go fishing. The property is owned and operated by the State of Nebraska as a state 

recreational area that provides opportunities for fishing, boating, kayaking, picnicking, and primitive camping.

After fishing for a while, Brown took a break and sat on 

the bench of a picnic table a few feet from the lake. He was 

facing the lake with his back near the top of the picnic table 

when an employee, agent, or representative of the State “violently” struck the picnic table with a gas-powered lawnmower. 

The force of the impact caused the tabletop to strike Brown in 

the middle of his back and propel him forward, nearly into the 

lake. The impact injured his back, resulting in past and future 

pain and suffering, medical expenses, lost income, and loss of 

earning capacity.

3 § 81-8,219(14)(a)(i).

4 See, Rouse v. State, 301 Neb. 1037, 921 N.W.2d 355 (2019); Amend v. 

Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
- 114 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

On July 11, 2018, Brown filed this tort action against the 

State. Attached to Brown’s complaint was a copy of the tort 

claim that he filed with the State Claims Board on December 

5, 2017,5 and a copy of the letter dated June 7, 2018, denying 

his claim.

2. District Court Proceedings

The State moved to dismiss Brown’s complaint for lack 

of subject matter jurisdiction pursuant to Neb. Ct. R. Pldg. 

§ 6-1112(b)(1) and for failure to state a claim pursuant to 

§ 6-1112(b)(6). After a hearing, the court dismissed the action 

for lack of subject matter jurisdiction. The court found the 

State had not waived its sovereign immunity, because Brown’s 

claim fell within the STCA’s recreational activity exception.6

The district court reasoned:

The key issue is whether being struck by a lawn mower 

while sitting at a picnic table is an inherent risk of 

[Brown’s] recreational activity. There seems to be no dispute that [Brown] was engaged in a recreational activity 

[and he] has not alleged being charged a fee.

. . . .

The Court finds that a user of a recreational area 

could reasonably expect mowing and other maintenance 

activities being performed. Recreational areas are generally not overgrown wilderness areas. Most are obviously 

mowed and otherwise maintained. Maintenance, like any 

other human activity, brings a risk that it may [be] done 

negligently.

Construing the exception strictly in favor of the 

State’s sovereign immunity, the Court finds that the risk 

posed by mowing and other maintenance activities is 

characteristic of, intrinsic to, or an integral part of the 

recreational activity, even if that activity is sitting at a 

5 See § 81-8,227.

6 § 81-8,219(14).
- 115 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

picnic table. As the State has not waived its sovereign 

immunity for a claim relating to recreational activities pursuant to Section 81-8,219[(14)(a)(i)], the State 

remains immune and the Court does not have subject 

matter jurisdiction.

Because the district court dismissed the complaint on the 

basis of sovereign immunity, it did not consider the State’s 

alternative theory for dismissal. After Brown’s motion to 

alter or amend was denied, he filed this timely appeal. We 

granted the State’s petition to bypass the Nebraska Court of 

Appeals.

II. ASSIGNMENT OF ERROR

Brown assigns, restated, that the district court erred in finding his tort claim was barred by the recreational activity exception to the STCA.

III. STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.7

[2] Whether the allegations made by a plaintiff constitute a 

cause of action under the STCA or whether the allegations set 

forth claims which are precluded by the exemptions set forth 

in the 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 district court.8

[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below.9

7 Rouse, supra note 4; Amend, supra note 4.

8 Amend, supra note 4.

9 Rouse, supra note 4; Amend, supra note 4.
- 116 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

IV. ANALYSIS

Because the district court resolved the State’s motion to dismiss on sovereign immunity grounds, we begin by setting out 

the general principles of sovereign immunity under the STCA. 

Neb. Const. art. V, § 22, 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.” Through the STCA, 

the Legislature has waived the State’s sovereign immunity with 

respect to certain, but not all, types of tort actions.10 Section 

81-8,215 of the STCA is the State’s general waiver of tort 

immunity under the STCA, and we have explained that when 

that section is read in pari materia with § 81-8,209, it operates as a limited waiver of the State’s tort immunity, subject to 

specified exceptions that are set out in § 81-8,219.11

1. Recreational Activity Exception

This appeal concerns the statutory exception to the waiver 

of sovereign immunity which we refer to as the “recreational 

activity exception.” At the time Brown was allegedly struck by 

the lawnmower, this exception was codified at § 81-8,219(13). 

Subsequent amendments to the STCA have not affected the 

language of the exception, and we therefore cite to its current 

version, codified at § 81-8,219(14). Pursuant to this exception, 

the STCA does not apply to

[a]ny claim relating to recreational activities on property 

leased, owned, or controlled by the state for which no 

fee is charged (i) resulting from the inherent risk of the 

recreational activity, (ii) arising out of a spot or localized defect of the premises . . . , or (iii) arising out of the 

design of a skatepark or bicycle motorcross park . . . .12

Only the “inherent risk” portion of the recreational activity 

exception, found in § 81-8,219(14)(a)(i), is at issue in this case.

10 Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).

11 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).

12 § 81-8,219(14).
- 117 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

For purposes of this exception, the Legislature has defined 

“[i]nherent risk of recreational activities” to mean “those risks 

that are characteristic of, intrinsic to, or an integral part of the 

activity.”13 Further, for purposes of § 81-8,219(14)(a), “fee” is 

defined as follows:

[A] fee to participate in or be a spectator at a recreational 

activity. A fee shall include payment by the claimant to 

any person or organization other than the state only to 

the extent the state retains control over the premises or 

the activity. A fee shall not include payment of a fee or 

charge for parking or vehicle entry.14

We pause here to note that the Political Subdivisions Tort 

Claims Act (PSTCA)15 contains a similar exception for recreational activities.16 Both the STCA and the PSTCA were 

amended in 200717 in response to our 2006 decision in Bronsen 

v. Dawes County.18 In that case, we overruled a quarter century 

of precedent and held for the first time that the Recreation 

Liability Act19—which encourages landowners to open their 

property to the public for “recreational purposes” by limiting 

their tort liability20—applies only to private landowners and not 

to governmental entities. The Legislature responded to Bronsen

by amending the STCA and the PSTCA to add the exceptions 

for tort claims related to “recreational activities.”21

This appeal is our first opportunity to address the proper 

interpretation and application of the recreational activity 

13 § 81-8,219(14)(b)(ii).

14 § 81-8,219(14)(b)(iv).

15 See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012, Cum. Supp. 2018 

& Supp 2019).

16 § 13-910(13)(a).

17 2007 Neb. Laws, L.B. 564.

18 Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).

19 Neb. Rev. Stat. §§ 37-729 to 37-736 (Reissue 2004).

20 See § 37-730.

21 §§ 81-8,219(14) and 13-910(13)(a).
- 118 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

exception. Our analysis is governed by settled principles of 

statutory construction.

[4-6] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.22 Additionally, it is well settled that 

statutes that purport to waive the State’s protection of sovereign immunity are strictly construed in favor of the sovereign 

and against the waiver.23 In order to strictly construe against 

a waiver of sovereign immunity, we broadly read exemptions 

from a waiver of sovereign immunity.24

2. Applying Exception

[7] For the exception in § 81-8,219(14)(a)(i) to apply, the 

following elements must be met: (1) The claim must relate to 

a recreational activity on property leased, owned, or controlled 

by the State; (2) the claim must result from an inherent risk 

of that recreational activity; and (3) no fee must have been 

charged for the plaintiff to participate in, or be a spectator at, 

the recreational activity.

In this appeal, the parties agree that Brown’s injury occurred 

on property owned and controlled by the State, and they also 

appear to agree the only fee Brown was charged was a vehicle 

entry fee. We thus confine our analysis to the disputed elements of the recreational activity exception: whether Brown’s 

claim relates to a recreational activity and whether his claim 

resulted from an inherent risk of that activity.

(a) Threshold Question

[8] Because the recreational activity exception in 

§ 81-8,219(14)(a)(i) applies only to tort claims “relating to 

recreational activities” on state property and “resulting from 

the inherent risk of the recreational activity,” it is necessary 

22 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).

23 Amend, supra note 4.

24 Id.
- 119 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

as a threshold matter to identify the recreational activity, if 

any, in which the plaintiff was engaged as either a participant 

or spectator. Only after the recreational activity is identified 

can a principled determination be made as to whether the 

plaintiff’s tort claim relates to that particular activity and 

whether the claim resulted from an inherent risk of that particular activity.

For purposes of the recreational activity exception, the 

Legislature has defined “[r]ecreational activities” as follows:

Recreational activities include, but are not limited to, 

whether as a participant or spectator: Hunting, fishing, 

swimming, boating, camping, picnicking, hiking, walking, running, horseback riding, use of trails, nature study, 

waterskiing, winter sports, use of playground equipment, 

biking, roller blading, skateboarding, golfing, athletic contests; visiting, viewing, or enjoying entertainment events, 

festivals, or historical, archaeological, scenic, or scientific 

sites; and similar leisure activities.25

(b) Identifying Brown’s 

Recreational Activity

The parties generally agree that Brown was engaged in some 

sort of recreational activity at the time he was injured, but they 

disagree on what that activity was. Until the answer to this 

threshold question is known, the remaining questions as to the 

applicability of § 81-8,219(14)(a)(i) cannot be determined.

Brown’s complaint did not allege he was engaged in any 

particular activity—recreational or otherwise—while seated 

at the picnic table. But in response to the State’s motion to 

dismiss, Brown urged the district court to conclude his recreational activity was either “fishing” or “participating in leisure 

activities.” On appeal, Brown suggests he was “picnicking” 

when the mower struck the picnic table.26

25 § 81-8,219(14)(b)(i).

26 Brief for appellant at 5.
- 120 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

The State argues Brown was not “picnicking,” because there 

is no allegation he was eating a meal outdoors.27 Instead, the 

State suggests Brown’s recreational activity was either “fishing” or “viewing scenic sites.”28 Ultimately, however, the State 

asks us to find that Brown’s “overarching recreational activity 

[was] utilizing maintained space.”29 In that regard, the State 

contends that the “crux of the issue” for purposes of the recreational activity exception is really that Brown “chose to utilize 

a maintained area” of state property and that, consequently, 

“the rest of his activities on that area carried with [them] the 

inherent risks of using a maintained area.”30

The district court found there was “no dispute that [Brown] 

was engaged in a recreational activity,” but it did not expressly 

identify the activity. Based on its reasoning, however, we 

understand the court to have agreed with the State that Brown’s 

recreational activity was using a maintained area of state 

property. The court described Brown as a “user of a recreational area” who could “reasonably expect mowing and other 

maintenance activities being performed” in the area. It then 

found that “[r]ecreational areas are generally not overgrown 

wilderness areas. Most are obviously mowed and otherwise 

maintained,” and it also found that “[m]aintenance, like any 

other human activity, brings a risk that it may [be] done negligently.” Finally, the court concluded that “the risk posed by 

mowing and other maintenance activities” was characteristic 

of, intrinsic to, or an integral part of Brown’s recreational 

activity and that the exception in § 81-8,219(14)(a)(i) applied 

to bar Brown’s claim.

On de novo review, we find the district court erred as a matter of law in two respects. First, because the matter was before 

the court on a motion to dismiss, it should have confined its 

27 Brief for appellee at 16.

28 Id.

29 Id. at 13.

30 Id. at 19.
- 121 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

analysis to the allegations of the complaint and the reasonable 

inferences therefrom construed in the light most favorable to 

Brown.31 When the court found that Brown was in an area that 

was “obviously mowed and otherwise maintained” and that 

“[r]ecreational areas are generally not overgrown wilderness 

areas,” it went well beyond the face of the complaint, which 

described neither Brown’s activity while seated at the picnic 

table nor the characteristics of the area.

More important, we find the trial court erred in concluding 

Brown’s recreational activity was utilizing a maintained area of 

state property. The statutory definition of “recreational activities” in § 81-8,219(14) is broad and contains a nonexclusive 

list of what the Legislature describes as “leisure activities.” 

Some of the listed activities are decidedly physical in nature 

(such as hiking, biking, and athletic contests), while others are 

more cerebral (such as viewing or enjoying historical or scenic 

sites). But regardless of the level of activity required, the statutory definition requires that one must be engaged in a recreational or leisure activity as either a participant or a spectator. 

The focus of the statutory definition is on the activity itself 

rather than the characteristics of the area where the activity 

occurs. Indeed, because being on state-controlled property is 

already required for the recreational activity exception to apply, 

a “recreational activity” as defined in § 81-8,219(14)(b)(i) 

must mean something more than simply being on property 

maintained by the State.

[9] When interpreting a statute, a court must attempt to 

give effect to all parts of a statute, and if it can be avoided, 

no word, clause, or sentence will be rejected as superfluous 

or meaningless.32 Thus, although we are required to broadly 

construe exceptions to the waiver of sovereign immunity under 

the STCA,33 we decline to read the definition of “recreational 

31 See, Rouse, supra note 4; Amend, supra note 4.

32 State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).

33 See Rouse, supra note 4.
- 122 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

activity” so broadly that it includes simply being on property 

maintained by the State.

Allowing the State to define a “recreational activity” that 

broadly would judicially expand the recreational activity 

exception to include most, if not all, tort claims occurring 

on state property. Indeed, when the recreational activity is 

defined as “using a maintained area of state property,” it is difficult to conceive of any tort claim that would not both relate 

to that activity and result from a risk inherent in that activity. We thus reject the State’s position and hold instead that 

a “recreational activity” under § 81-8,219(14) must involve 

some leisure activity other than merely being present on statemaintained land.

The trial court erred in concluding that Brown’s recreational 

activity was using a maintained area of state property. And 

because the trial court misidentified Brown’s recreational activity, its analysis of whether his claim resulted from an inherent 

risk of that activity was likewise erroneous, as was its ultimate 

conclusion that the recreational activity exception applied as a 

matter of law to bar Brown’s claim.

But this does not end our analysis, because whether Brown’s 

complaint alleged claims that are barred by the recreational 

activity exception under the STCA presents a question of law, 

which we must determine independent of the conclusions 

reached by the district court.34 After de novo review, we conclude that while there will surely be cases where the applicability of the recreational activity exception can be determined as 

a matter of law from the face of the complaint, this is not such 

a case.

As stated, Brown’s complaint does not allege he was 

engaged in any particular recreational activity at the time he 

was injured, and we have determined that simply being present 

on state-maintained property is not a “recreational activity” as 

that term is defined in § 81-8,219(14)(b)(i). We agree with the 

34 See Amend, supra note 4.
- 123 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

BROWN v. STATE

Cite as 305 Neb. 111

State the facts as alleged do not support concluding as a matter 

of law that Brown was “picnicking.” And while the development of additional facts may reveal that Brown was engaged in 

one or more specific recreational activities while sitting at the 

picnic table, the face of his complaint simply does not permit 

such a conclusion as a matter of law.

At this stage in the proceeding, the allegations of Brown’s 

complaint and the reasonable inferences therefrom do not allow 

a court to find as a matter of law that his tort claim is barred 

by the recreational activity exception of § 81-8,219(14)(a)(i). 

Unless and until the specific recreational activity, or activities, in which Brown was engaged as either a participant or 

a spectator can be identified, there is no principled way to 

apply the remaining statutory elements to determine whether 

his tort claim is related to that recreational activity and 

whether his claim resulted from an inherent risk of that recreational activity.

V. CONCLUSION

For the foregoing reasons, it was error for the district court 

to dismiss Brown’s complaint with prejudice on the ground it 

was barred by the recreational activity exception. We reverse 

the judgment and remand the matter for further proceedings.

Reversed and remanded for 

further proceedings.

Heavican, C.J., participating on briefs.