                Not for Publication in West’s Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 02-2171

                              LUIS M. ARIAS,

                         Plaintiff, Appellant,

                                      v.

                 COMMISSIONER OF SOCIAL SECURITY,

                         Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]

                                   Before

                        Boudin, Chief Judge,
                  Campbell, Senior Circuit Judge,
                     and Lipez, Circuit Judge.

     Rafael Colon Flores on brief for appellant.
     H.S. Garcia, United States Attorney, Camille Velez-Rive,
Assistant United States Attorney, and Karen B. Burzycki, Assistant
Regional Counsel, on brief for appellee.

                              July 24, 2003
     Per Curiam. Claimant Luis M. Arias appeals from the judgment

of the district court affirming the partial denial of Social

Security disability benefits.    The Commissioner of Social Security

determined that claimant was disabled, and thus was entitled to

such benefits, as of November 1, 1997, but not before.     Claimant

contends that he became disabled as of March 31, 1995 -- the date

of onset he originally had alleged in his application.

     Claimant, who suffers from prostate cancer and a mental

impairment, worked at Damas Hospital in Puerto Rico until March 31,

1995, when he was fired.      The Commissioner rejected this as an

onset date because claimant had worked subsequent to this time at

Auto Mart de Ponce, and this work had amounted to substantial

gainful employment.     Claimant stopped this second job in March

1996.     However, the Commissioner determined that from April 1996

through the end of October 1997, claimant had retained the residual

functional capacity to perform his past work.      It was not until

claimant's cancer had metastasized in approximately November 1997

that the Commissioner found that claimant had become disabled.

        On appeal, claimant argues that his job at Auto Mart was an

unsuccessful work attempt and thus did not amount to substantial

gainful activity.    See Social Security Ruling 84-25, Determination

of Substantial Gainful Activity if Substantial Work Activity is

Discontinued or Reduced -- Unsuccessful Work Attempt, 1984 WL

49799.    However, claimant never presented this argument below.   It

                                 -2-
is settled that arguments which could have been presented to the

district court, but were not, generally are waived on appeal.

Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 56 n.7

(1st Cir. 1995).

     Even assuming, without deciding, that claimant's job at Auto

Mart was an unsuccessful work attempt, the onset date of November

1, 1997 initially established by the administrative law judge (ALJ)

is supported by substantial evidence.   See Nguyen v. Chater, 172

F.3d 31, 35 (1st Cir. 1999) (per curiam) ("[t]he ALJ's findings of

fact are conclusive when supported by substantial evidence").   In

this regard, there are two time periods in issue:   (1) April 1996

through the end of October 1997 -- the period during which the ALJ

concluded that claimant could perform his past work; and (2) April

1995 through March 1996 -- the period the ALJ did not adjudicate

because he had found that claimant had been engaged in substantial

gainful activity during this time.    As for the adjudicated time

period, the ALJ concluded that claimant (1) retained the residual

functional capacity (RFC) for light work, (2) could walk or sit for

up to six hours each in an eight-hour work day, and (3) did not

have any limitations on his ability to engage in mental work-

related activities.

     In relation to his physical impairment, claimant argues only

that because he never had recovered from his cancer, he became

disabled on March 31, 1995. However, claimant does not address the

                               -3-
real issue -- the impact of his cancer on his capacity to perform

the exertional requirements of work.           A review of the record

nonetheless indicates that claimant experienced little in the way

of physical limitations as the result of his prostate cancer during

the relevant time.

     After claimant's surgery (November 1993), claimant reported

that he essentially was doing well.       And, although claimant's PSA

levels were increasing in July and November 1996, there were no

reports by claimant of any physical complaints. Indeed, claimant's

treating physician completed a Genito-Urinary Medical Report, dated

November 11, 1996, in which he indicates that claimant's only

limitations were that he was precluded from heavy lifting and

strenuous   exercise.     In   addition   to   the   foregoing,   an   RFC

assessment, completed by a non-examining physician in 1996 and

affirmed by a second non-examining physician in April 1997, found

that claimant was capable of performing medium work.          Thus, the

ALJ's decision that, from April 1996 through the end of October

1997, claimant retained the exertional RFC to perform his past work

-- which was light -- is supported by substantial evidence.

     As for claimant's mental impairment, the ALJ concluded that

this condition was not severe during the period from April 1996

through the end of October 1997.     Claimant argues that the ALJ was

required to give controlling weight to the opinion of Dr. Ruben

Rivera   Carrion   that   claimant   essentially     was   incapable    of

                                  -4-
performing any work due to his mental impairment.                  We disagree and

find    that    substantial     evidence       supports    the     ALJ's   decision

regarding the non-severity of this impairment.

       First, Dr. Rivera did not have a long treatment relationship

with claimant, having seen claimant on only three occasions.

Second, Dr. Rivera's conclusions about the severity of claimant's

mental impairment are not consistent with the other substantial

evidence in the record.           See Keating v. Secretary of Health and

Human Services 848 F.2d 271, 275-76 (1st Cir. 1988) (per curiam)

(the conclusions of a treating physician regarding disability may

be   rejected    by    the    Commissioner      where     contradictory    medical

evidence appears in the record).                  In particular, both of the

consultative psychiatrists who had examined claimant opined that

claimant was coherent, relevant, logical, and oriented; they also

found that claimant's memory was intact. And, although Dr. Luis A.

Toro found that claimant's capacity for concentration had slightly

diminished,      Dr.   Carmen     M.     Cotto-Perez       found    that   it    was

satisfactory.      See Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir.

1982)   ("a    treating      physician's       diagnosis    is   not   necessarily

entitled to more weight than that of a [physician] who examines the

claimant only once").

       Further, two of the non-examining physicians who completed

Psychiatric      Review      Technique    forms    specifically        opined   that

claimant's mental impairment was not severe.                And, both Drs. Cotto

                                         -5-
and Toro never indicated that claimant was incapable of working due

to his emotional problems.      Although the report of Dr. Rivera

conflicts with the above, the resolution of conflicts in the

evidence and the ultimate determination of disability are for the

ALJ, not the courts.     See Rodriguez v. Secretary of Health and

Human Services, 647 F.2d 218, 222 (1st Cir. 1981).

     Given the above, we see no reason for a remand for a decision

regarding the un-adjudicated period of April 1995 through March

1996.    In particular, there simply is no indication that either of

claimant's impairments were worse during this earlier time.      It

therefore is clear that, based on the evidence in the record and

the findings the ALJ already had made, only one result could obtain

for this earlier time -- that claimant retained the RFC for light

work and that he did not have any limitations on his ability to

engage in mental work-related activities.     As a result, claimant

did not become disabled until November 1, 1997 the onset date

established by the Commissioner.

        Affirmed.

                                 -6-


459 F.2d 49
Eleanor M. HEMSTREET, Member, Concerned Citizens of Justice,Inc., Appellant,v.Edward C. SCHADE et al., Appellees.
No. 71-2667.
United States Court of Appeals,Ninth Circuit.
April 14, 1972.Rehearing Denied May 15, 1972.

Eleanor M. Hemstreet, in pro. per.
William D. Keller, U. S. Atty., Matthew A. Schumacher, Frederick M. Brosio, Jr., Asst. U. S. Attys., Los Angeles, Cal., Christopher M. Reuss, San Francisco, Cal., for appellees.
Before KOELSCH, DUNIWAY and GOODWIN, Circuit Judges.
PER CURIAM:

1
Eleanor M. Hemstreet appeals from an order dismissing her complaint, under Fed.R.Civ.P. 8.

2
A dismissal of a complaint, without dismissal of the action, is not a "final order" under 28 U.S.C. Sec. 1291.  Dockery v. Dockery, 437 F.2d 898 (9th Cir. 1971).  No "special circumstances" here indicate that the complaint could not be saved by amendment.  The order appealed from is not an appealable order.  Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968).

3
The appeal is accordingly dismissed for lack of appellate jurisdiction.  Plaintiff may move in the district court for leave to file an amended complaint.  Thereafter, further proceedings should be governed by the procedure outlined in Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970).

4
Dismissed.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2020 09:08 AM CDT

                                                         - 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 rea-
                    sonable 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 ques-
                    tion 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 prop-
                    erty leased, owned, or controlled by the State; (2) the claim must result
                                   - 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 relat-
   ing 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 recre-
   ational 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 particu-
   lar 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 negli-
gence under the State Tort Claims Act (STCA),1 alleging he
was injured at a state recreational area when a riding lawn-
mower 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).
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            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 recre-
ational area in Elm Creek, Nebraska, to go fishing. The prop-
erty is owned and operated by the State of Nebraska as a state
recreational area that provides opportunities for fishing, boat-
ing, 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 “vio-
lently” 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 dis-
     pute 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 gener-
     ally 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).
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            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 activi-
      ties 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 find-
ing his tort claim was barred by the recreational activity excep-
tion 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 inde-
pendent 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.
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             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 dis-
miss 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 oper-
ates 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 local-
      ized 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).
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             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 rec-
reational 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 sover-
eign 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 ele-
ments 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 par-
ticular 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, walk-
      ing, running, horseback riding, use of trails, nature study,
      waterskiing, winter sports, use of playground equipment,
      biking, roller blading, skateboarding, golfing, athletic con-
      tests; 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 recre-
ational 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.
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              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 “fish-
ing” 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 recre-
ational 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 recre-
ational 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 neg-
ligently.” 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 mat-
ter 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.
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             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 activi-
ties” 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 statu-
tory definition requires that one must be engaged in a recre-
ational 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.
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                      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 dif-
ficult to conceive of any tort claim that would not both relate
to that activity and result from a risk inherent in that activ-
ity. 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 state-
maintained 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 activ-
ity, 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 con-
clude that while there will surely be cases where the applicabil-
ity 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.
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         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 develop-
ment 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 activi-
ties, 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 recre-
ational 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.


                          UNPUBLISHED ORDER
                     Not to be cited per Circuit Rule 53

              United States Court of Appeals
                         For the Seventh Circuit
                         Chicago, Illinois 60604
                         Submitted May 18, 2005
                         Decided May 19, 2005

                                 Before

               Hon. JOEL M. FLAUM, Chief Judge

               Hon. FRANK H. EASTERBROOK, Circuit Judge

               Hon. ILANA DIAMOND ROVNER, Circuit Judge

UNITED STATES OF AMERICA,                       Appeal from the United
      Plaintiff-Appellee,                       States District Court
                                                for the Northern
No. 04-1425         v.                          District of Illinois,
                                                Eastern Division.
THOMAS JOHNSON,
      Defendant-Appellant.                      No. 99 CR 785-1
                                                David H. Coar, Judge.

                                 Order

     The United States has confessed error in this appeal, in
light of United States v. Booker, 125 S. Ct. 738 (2005).
Moreover, the United States concedes that (a) the issue was
preserved in the district court, and (b) the error is not
harmless. Accordingly, the sentence is vacated, and the case is
remanded for resentencing consistent with the remedial procedure
laid out in Booker.


923 F.2d 848Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Stanley M. EVANS, Petitioner-Appellant,v.Edward W. MURRAY, Attorney General of the Commonwealth ofVirginia, Respondents-Appellees.
No. 90-6189.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 7, 1991.Decided Jan. 25, 1991.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.  David G. Lowe, United States Magistrate Judge.  (CA-90-480-3)
Stanley M. Evans, appellant pro se.
Robert Quentin Harris, Assistant Attorney General, Richmond, Va., for appellees.
E.D.Va.
DISMISSED.
Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.
PER CURIAM:

1
Stanley M. Evans seeks to appeal the magistrate judge's* order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254.  Our review of the record and the magistrate judge's opinion discloses that this appeal is without merit.  Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the magistrate judge.  Evans v. Murray, CA-90-480-3 (E.D.Va. Nov. 9, 1990).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

2
DISMISSED.

*
 Both parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. Sec. 636(c)


143 Ga. App. 668 (1977)
239 S.E.2d 686
REDWING CARRIERS, INC.
v.
KNIGHT.
54435.
Court of Appeals of Georgia.
Argued September 7, 1977.
Decided September 20, 1977.
Rehearing Denied October 28, 1977.
Lee & Clark, Fred S. Clark, Steve Scheer, for appellant.
Duffy & Shearouse, Robert C. Shearouse, Robert J. Duffy, for appellee.
WEBB, Judge.
At the core of this personal injury litigation is the physical property of hot liquid asphalt, or "resin," to congeal when cooled to a temperature of 190 ° F. The asphalt was transported in a tanker truck of defendant Redwing Carriers from Jacksonville, Florida to the Johns-Manville plant in Savannah, and plaintiff Kenneth Knight, an employee at the plant, was sprayed with hot asphalt when one of Redwing's hoses burst during the unloading operation. While virtually every aspect of this occurrence was in dispute at trial, the witnesses agreed that the asphalt would not flow through the hoses from Redwing's tanker into the plant's storage tanks, the apparent cause of which was the congealing of the asphalt either in the pump or hoses on Redwing's rig or in the connecting hoses of the plant.
In order to melt the asphalt and unclog the line Knight had been using a torch to heat either the pump and hoses on the tanker, according to his testimony, or the attached hoses of the plant, according to the testimony of Brooks, Redwing's driver. Brooks would try the pump located on the tanker and, when the asphalt would not flow, the pump would be turned off and Knight would squat under the tanker to heat the pump or hoses.
On at least one occasion during this procedure Knight had moved to a safe distance away when Brooks *669 tried the pump. Brooks testified that on the final attempt he told Knight "Well, we'll try it again," entered the cab and engaged the pump, then climbed down and walked back 12 or 15 feet along the tanker to the control valve, which he opened after again telling Knight "We'll try it again." While Brooks testified that Knight had looked at him and must have heard him, Knight testified he heard nothing until he saw and heard the pump turning, whereupon he attempted to get away as fast as he could. The line burst, however, and both Knight and Brooks were showered with the hot asphalt, resulting in the present suit by Knight against Redwing.
The evidence was in conflict as to the proper and customary procedure to be followed in unloading the asphalt and as to whether it was being observed, and the usual questions were presented as to negligence, proximate cause, contributory negligence, etc. The jury resolved these conflicts by awarding Knight $450,000, and this appeal followed. We affirm.
1. Redwing argues that its motion for directed verdict should have been granted because of the following testimony of Brooks' immediate supervisor: "Sir, the company rules at Redwing Carriers say nobody will heat  put heat or cause heat to be put on a piece of Redwing equipment. I am the Terminal Manager and had I known it, the change would have been made right then."
We are cited no evidence showing that this prohibition was communicated to either Brooks or Knight; and since Brooks was performing acts within the class of service for which he was employed (driving and unloading the truck), we cannot hold as a matter of law that in allowing Redwing equipment to be heated he was outside the scope of his employment (Hagin v. Powers, 140 Ga. App. 300 (231 SE2d 780 (1976)), or that Knight in doing so was a mere "volunteer." Huddle House, Inc. v. Burke, 133 Ga. App. 643 (1) (211 SE2d 903) (1974). In any event the evidence was in hopeless conflict as to whether it was, in fact, Redwing's equipment which was being heated, and this whole argument must therefore fall along with its major premise.
2. Redwing contends that the court erred in allowing juror Hill to remain with the jury after he disclosed that *670 he would be prejudiced in favor of plaintiff's case because of a prior, similar injury. No harm befell Redwing, however, since the juror was the second alternate, was instructed by the court, out of the presence of the other jurors, not to discuss the prior accident with them, and was excused prior to deliberation.
3. Knight testified that upon being showered with the asphalt he was blinded but was so familiar with the premises that he was able immediately to grope his way toward the first aid station at the plant, a distance he estimated as "about like from here to that water fountain out that door [of the courtroom]." He testified: "Q. When did you first see Brooks? A. In the lab, after the accident, sir, in the lab. Q. Was he  you saw him there or did you see him coming in? A. I saw him in the lab, sir. Q. He was in the lab? A. Yes, sir, because they were telling him to stop pulling the  trying to pull the asphalt off, because it was pulling, you know, his skin and all off. Q. Telling who? I missed you. You said telling you or telling him? A. No, he wasn't telling me, sir; he was just talking, you know. Q. Somebody was telling somebody else about pulling the asphalt off, you said. A. Brooks was telling this while he was in the lab, to who was taking care of him, sir. Q. Brooks was telling the people in the lab  I'm asking you about pulling asphalt off. A. He was pulling it off and they was telling Brooks to stop pulling it. Q. Okay. Was he talking when you first saw that? A. Brooks? Yes, sir. He was telling me, `Mr. Knight, I don't know why I opened the valve; I'm sorry I opened it; I don't know why I opened the valve,' and I didn't ask him any questions because I was burning and they were trying to get ice packs on me and everything else."
Redwing objected to this evidence of Brooks' statement "on the grounds of hearsay" and argued that it did not fall within the res gestae exception to the hearsay rule because "it was beyond the point where this would be an excited utterance." The trial court ruled that the statement was made spontaneously by Brooks as part of the excitement of the event, and this court cannot rule otherwise under the circumstances. Code § 38-305; Green, Georgia Law of Evidence § 289 et seq.
While Redwing contends that Brooks had no *671 authority to make an admission binding upon Redwing, this point was neither made nor ruled upon in the trial court and will not be considered here. "A reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below." Employers Commercial Union Ins. Co. v. Wrenn, 132 Ga. App. 287 (1) (208 SE2d 124) (1974).
4. Redwing's terminal manager began to relate a statement made to him by a Johns-Manville employee two days after the occurrence, whereupon plaintiff objected that it was hearsay. Redwing responded with "He is deceased, and made a declaration against the interest, pecuniary interest, of Johns-Manville corporation at the time it was made and it was a knowing declaration." The trial court ruled the statement out, and Redwing complains in Enumeration 9 that "The court erred in not allowing the defendant to introduce into evidence the statement of the deceased plant manager of Johns-Manville which was a declaration against the pecuniary interest of Johns-Manville."
This enumeration is without merit. Since Johns-Manville was not a party to the trial the statement could not come within the exception to the hearsay rule allowing admissions of a party-opponent (Green, supra, §§ 279, 233), and since there was no showing that the statement was against the interest of the deceased declarant it could not come in as a declaration against his interest. Green, supra, § 270 et seq.
5. Redwing contends that the court erred in allowing its driver Brooks to put on a demonstration in the courtroom at plaintiff's request over the objection that the conditions were completely different from those at the time of the injuries. Without the benefit of diagrams, models, photographs etc. used at trial we can make no independent determination as to the similarity of conditions, and the allowance of the demonstration was within the discretion of the trial court, its weight and credit being properly left to the jury to determine in conjunction with the other evidence as to the conditions.
"Generally, the discretion of the judge will be upheld where he refuses to permit the demonstration or does permit it." Agnor, Georgia Evidence § 15-4. No abuse of *672 discretion has been made to appear.
6. Redwing complains in Enumerations 5 through 7 of the sustaining of plaintiff's objections to the testimony of defendant's expert witness which was based upon hearsay. The court ruled "that this witness should base his expert opinion on his personal observations or on a hypothetical question which is based on other evidence already in evidence or evidence that you're going to put in" and not upon "what someone else told him."
Since this testimony was not as to value (City of Atlanta v. McLucas, 125 Ga. App. 349 (2) (187 SE2d 560) (1972); State Hwy. Dept. v. Howard, 124 Ga. App. 76 (2) (183 SE2d 26) (1971); Gulf Refining Co. v. Smith, 164 Ga. 811 (2) (139 SE 716) (1927)), mental condition or some other recognized exception to the rule that an opinion may not be based upon hearsay, the trial court was correct. Agnor, supra § 9-7; Green, supra § 111. While it has been held that an expert may give his opinion without stating the foundation therefor and without a hypothetical question based upon other evidence, this rule applies where the expert's opinion is based upon "facts which he knows and has observed" (Corbin v. State, 81 Ga. App. 353, 354 (58 SE2d 485) (1950)); and where it appears that the opinion is not so based but rather upon hearsay, the opinion is inadmissible. Perkins v. Perkins, 227 Ga. 177 (3) (179 SE2d 518) (1971); Paulk v. Thomas, 115 Ga. App. 436 (3a) (154 SE2d 872) (1967).
"The traditional view, still followed in most jurisdictions, has been that an expert may state an opinion based upon his firsthand knowledge or based upon facts in the record at the time he states his opinion, or based partly on firsthand knowledge and partly on the facts of record. If the opinion is to be based on the facts of record, they may be in the expert's possession by virtue of his having been present at the taking of the testimony asserting those facts, or they may be furnished to him prior to his statement of his opinion by including them in a hypothetical question that asks him to assume their truth and state a requested opinion based upon them." McCormick on Evidence 2d Ed. 31, Expert Testimony, § 14.
Redwing relies upon two recent decisions of this *673 court, Ga. Power Co. v. Edwards, 136 Ga. App. 135 (2) (220 SE2d 460) (1975) and Herrin v. State, 138 Ga. App. 729 (7) (227 SE2d 498) (1976), as authority for his contention that an expert's opinion may be based in part on hearsay, and that it goes to the weight and credibility of the testimony, not to its admissibility. As authority for such assertion, however, both of these cases cite City of Atlanta v. McLucas, supra, involving testimony as to value, and to the extent that they are contrary they will not be followed here.
7. Enumerations 13, 15 and 17, complaining that the court should have declared a mistrial because of allegedly improper remarks by counsel, show insufficient cause for reversal. See Kendrick v. Kendrick, 218 Ga. 460 (4) (128 SE2d 496) (1962); A. W. Easter Const. Co. v. White, 137 Ga. App. 465 (3) (224 SE2d 112) (1976).
8. Because the name of Knight's wife had not been supplied in answer to Redwing's interrogatories, it objected to her testifying and moved for a continuance in order to take her deposition. In colloquy which ensued it did not appear that her testimony would go to critical matters, and in these circumstances the court offered counsel time to interview the witness and after that to make any further objections or motions deemed necessary. But counsel declined the offer and stood on the original objection in an "all or nothing" posture, a fatal mistake since the interview offered by the court was not plainly useless and inadequate. The proper procedure would have been to accept the offer of interview and then to seek any additional relief thought necessary. That, we think, is the teaching of Nathan v. Duncan, 113 Ga. App. 630, 641 (149 SE2d 383) (1966) and Jones v. Atkins, 120 Ga. App. 487, 491 (171 SE2d 367) (1969), and the same general principle has been applied with respect to the list of witnesses in criminal cases (Huff v. State, 141 Ga. App. 66 (1) (232 SE2d 403) (1977) and cits.), as well as to time to prepare a criminal defense (Gibson v. State, 143 Ga. App. 467 (1977)), even where the prosecution surprises the defense with a material variance at trial. Caldwell v. State, 139 Ga. App. 279, 287 (228 SE2d 219) (1976).
This enumeration is without merit.
9. (a) In Enumerations 2 through 4 counsel attempt *674 to create a brouhaha in this court with ex-record narrations as to a midnight telephone call from a conscience-stricken co-worker of plaintiff who, breaking his code of silence, sought to redeem his anonymous soul by supplying the name of a witness, Clay, purportedly known to plaintiff's counsel, but not furnished by him in answers to defendant's interrogatories, whose testimony would fairly bristle with recriminations of such enormity as to strip plaintiff of his masquerade as the broken craftsmaster and reveal him for the malingering schlemiel that he was.
We demur. These wondrous revelations, while posited here and in the motion for new trial as the spearhead of the post-judgment assault on these proceedings, were made to defense counsel after both sides had closed, which was the night before the day when final arguments and charge to the jury were to be made; and it is the relief sought and record made that Thursday morning which govern the disposition of these enumerations, not independent post-trial motions seeking to overturn the entire case. Joyner v. State, 208 Ga. 435, 438 (2) (67 SE2d 221) (1951); Caldwell v. State, 139 Ga. App. 279, supra, division 8; Maloy v. Dixon, 127 Ga. App. 151, 163 (193 SE2d 19) (1972).
The route which defense counsel took was a motion to reopen the evidence in order to let in the testimony of Clay, and we will decide that issue without regard to matter extraneous to the trial record. As both the Supreme Court and this court have held since the earliest times, "[t]he burden is always on the appellant in asserting error to show it affirmatively by the record" (McKenzey v. State, 127 Ga. App. 304 (1) (193 SE2d 226) (1972) and cits.), not by evidentiary assertions in motions for new trial (Johnson v. Cleveland, 131 Ga. App. 560, 561 (1) (206 SE2d 704) (1974)), nor in enumerations and briefs in the appellate court. Maloy v. Dixon, 127 Ga. App. 151, 153 (1), supra. The corollary rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting, and "mending your hold." Sanders v. State, 134 Ga. App. 825, 826 (1) (216 SE2d 371) (1975) and cits.; Sumners v. State, *675 137 Ga. App. 493, 494 (224 SE2d 126) (1976) and cits.; Reese v. State, 139 Ga. App. 630, 631 (3) (229 SE2d 111) (1976) and cits.; Harrison v. Lawhorne, 130 Ga. App. 314, 318 (5) (203 SE2d 292) (1973). Consequently the determination of the motion as made and ruled upon below will be dispositive of these enumerations.
(b) It has been held over and over that "[t]he reopening of a case after both sides have announced closed, is a matter for the discretion of the court, and his decision will not be reversed unless decided injustice has been done thereby." Maddox v. State, 68 Ga. 294 (1881).
The testimony of Clay, the co-worker of plaintiff, proffered to the court in pursuance of the motion to reopen (Ward v. State, 112 Ga. 75 (1) (37 SE 129) (1900); Freyermuth v. South Bound R. Co., 107 Ga. 31 (2) (32 SE 668) (1899)), was that before the injuries the witness had seen plaintiff with cotton in his ears and had heard him complain of headaches the morning after he and the witness had had a few drinks after work. To say that this testimony was anticlimactic in view of the alarums and excursions with which it was announced seems unnecessary. It was impeaching at best, and ordinarily we would find no reversible error in failing to reopen to let it in. "Refusal to reopen the case after the close of the evidence to admit merely impeaching testimony is proper and not an abuse of discretion." 88 CJS 221, Trial, § 106. The same is true of cumulative evidence. English v. English, 69 Ga. 636, 637 (4) (1882).
(c) But Redwing seems to contend that failure to list the proffered witness in answer to interrogatories would take the case out of the above rule and would require that the evidence be reopened when the witness came to light. Assuming for the purpose of argument that that contention is correct, we nevertheless agree with the trial court's ruling that there was no duty on plaintiff's part to supply the name of Clay or Whetstone, another co-worker. In close questioning of Clay by the court it appeared only that the lawyer had asked him over the telephone whether he "had ever heated a pump," to which Clay responded in the negative. Clay had then handed the phone to Whetstone, who hung up on the lawyer.
The interrogatory did not seek the name of every *676 person to whom counsel had spoken, but rather the names of persons "known to or reasonably believed by you ... who have or report to have knowledge or information of any fact pertaining to this controversy." Clay neither had nor reported to have such knowledge, he being one of the undoubted four billion other people on earth who had never heated a pump. Consequently we find no error in the trial court's holding that the name of this person was not required to be discovered.
"Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court's exercise of its discretion in absence of abuse. This policy is applicable to a trial judge's exercise of the broad discretion granted to him under the discovery provisions of the Civil Practice Act." Houston &c. Ins. Co. v. Stein Steel &c. Co., 134 Ga. App. 624, 626 (2) (215 SE2d 511) (1975) and cits.
10. Redwing contends that the court erred in sending in a pocket calculator at the request of the jury without allowing counsel the opportunity to determine the accuracy of it. There are no references to the transcript in support of this enumeration, and apparently this objection was not made below. We find no reversible error. "The burden is on the party alleging error to show it affirmatively by the record." Shepherd v. Shepherd, 225 Ga. 455, 457 (169 SE2d 314) (1969).
11. Similarly, no cause for reversal is shown with respect to the denial of defendant's requests to charge. These twenty enumerations of error, attempted to be argued in a general way in two pages in the brief, give no references to the record where the requests may be found, what they are, or the evidence which it is contended supports them. "Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit." Youmans v. Moore, 11 Ga. App. 66 (4) (74 SE *677 710) (1912).
12. We cannot say that the award of the jury was "so excessive as to justify the inference of gross mistake or undue bias." Code § 105-2015. "Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear `exorbitant,' `flagrantly outrageous,' and `extravagant.' `It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.' It must carry its death warrant upon its face." Realty Bond &c. Co. v. Harley, 19 Ga. App. 186, 187 (91 SE 254) (1917); Jones v. Spindel, 128 Ga. App. 88, 92 (196 SE2d 22) (1973).
In view of the injuries suffered and damages proved we cannot declare that the verdict is excessive, particularly in view of the pain and suffering involved. While counsel contend that the jury simply multiplied plaintiff's tax return by his life expectancy without reducing it to present cash value, they fail, again, to demonstrate error by the record.
13. Knight has moved for an assessment against Redwing of 10% of the judgment rendered on the grounds that the appeal was made for purposes of delay only. This motion, considering the record and gravity of the case and the enumerated complaints, seems rather inappropriate and it is denied.
Judgment affirmed. Deen, P. J., and Birdsong, J., concur.

ON MOTION FOR REHEARING.
We have carefully reviewed and considered appellant's motion for rehearing, as we do on every *678 motion. Two cases cited by counsel, Eschen v. Roney, 127 Ga. App. 719 (194 SE2d 589) (1972) and Ramsey v. Thomas, 133 Ga. App. 869 (212 SE2d 444) (1975), although meriting the commendations received, have no relevancy to this motion. Perhaps more applicable are Chambers v. State, 134 Ga. App. 53, 56 (213 SE2d 158) (1975) and Williams v. State, 126 Ga. App. 350 (190 SE2d 785 (1972) footnote 1.
Counsel for Redwing stated in their brief that "Thursday morning at the courthouse, Clay told [Redwing's] counsel of Whetstone's name." Counsel now contends that Whetstone's existence was not known until after the trial, and that for this reason his affidavit was properly filed in conjunction with the motion for new trial on a "newly discovered" basis. It is thus urged that we should consider it in connection with Division 9 of the opinion, while at the same time ignoring the counter-affidavits filed on plaintiff's behalf.
It is clear from the record that Whetstone, also called Woodhouse and Woodstone, was known to Redwing's counsel when he was attempting to put Clay on the stand that Thursday morning, and that all parties became apprised of his existence from Clay's proffered testimony. Thus Whetstone's affidavit never became a part of the record and cannot be considered by this court. Johnson v. Cleveland, 131 Ga. App. 560, 561 (1) (206 SE2d 704) (1974).
We deny the motion for rehearing and adhere to the judgment.
Motion for rehearing denied.


567 So.2d 250 (1990)
AG-CHEM EQUIPMENT COMPANY, INC., and Big A Equipment Company, Inc.
v.
LIMESTONE FARMERS COOPERATIVE, INC.
88-1096.
Supreme Court of Alabama.
June 8, 1990.
Rehearing Denied August 31, 1990.
*251 Winston V. Legge, Jr. of Patton, Latham, Legge & Cole, Athens, for appellants.
Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, Athens, for appellee.
KENNEDY, Justice.
This is an appeal of a judgment entered on a jury verdict in favor of the plaintiff. We reverse and remand.
Limestone Farmers Cooperative, Inc. ("Limestone"), bought a fertilizer applicator machine from Ag-Chem Equipment, Inc., and its subsidiary, Big A Equipment Company (hereinafter together referred to as "Ag-Chem"). Ag-Chem manufactured the machine. The engine in the applicator was manufactured by Cummins Engine Company, Inc. ("Cummins"), and was installed by Ag-Chem. The purchase price of the applicator was $100,160, which was paid by a down payment of $6,165, a subsequent check for $55,485, and a trade-in allowance of $38,510 on a 1977 Big A model fertilizer applicator. Ag-Chem expressly warranted the machine to be free from defects in material and workmanship for 180 days from the first date used or for 2,400 miles or 300 hours of operation, whichever came first. Cummins warranted that the engine would be free from defects in workmanship or material for two years or for 2,000 hours of operation from the date of delivery, whichever came first.
After approximately 450 hours and 4,054 miles of use, an Ag-Chem representative inspected the applicator. At this point, the engine was in good working order. Within three months of the inspection, and after approximately 650 hours of operation, the engine had "blown." Limestone's assistant manager had the machine transported to a Cummins dealership in Decatur. The Cummins representatives determined that a rubber elbow had been incorrectly installed and that it had allowed dirt to enter the engine and that the dirt had caused the engine to blow. It is undisputed that Ag-Chem incorrectly installed the rubber elbow when the applicator was new. Ag-Chem offered to pay for Cummins to rebuild the engine, but Limestone refused, insisting that it was entitled to a new engine. Ag-Chem then sent Limestone a check for $3,615.30, the amount it estimated it would cost to rebuild the engine. Limestone never cashed the check, but ordered a new engine from Cummins at a purchase price of $13,886.
Limestone sued Cummins, alleging a breach of the express warranty Cummins had given on the engine. Limestone also sued Ag-Chem and Big A alleging a breach of express warranty, breach of warranty of fitness for a particular purpose, and negligent inspection of the applicator.
At the conclusion of the plaintiff's case-in-chief, the trial court directed a verdict in favor of Cummins on the express warranty count, thereby releasing Cummins from the case. The court also directed verdicts in favor of Ag-Chem and Big A on each count except the breach of express warranty count. After deliberation on the breach of warranty count, the jury returned a verdict against Ag-Chem and Big A for $26,218.64. The trial court denied the defendants' motion for a new trial, and this appeal followed.
The evidence at trial showed that Ag-Chem improperly installed the rubber elbow that caused the engine to malfunction. Ag-Chem does not dispute that it improperly installed the rubber elbow, and coverage under the warranty, therefore, is not an issue. Where coverage under the warranty is not at issue, we must determine what damages are recoverable for breaching the warranty. However, to determine the amount of damages, we must first determine if the warranty failed of its essential purpose.
*252 In order to show that the warranty failed of its essential purpose, Limestone must either show that the dealer refused to repair or replace the engine in accordance with the warranty or that the dealer did not repair the engine within a reasonable time. Liberty Truck Sales, Inc. v. Kimbrel, 548 So.2d 1379 (Ala.1989). Limestone argues that the first requirement of Kimbrel was met, because Ag-Chem refused to replace the engine with a new engine, which Limestone argues was required by its warranty.
However, the warranty from Ag-Chem, in pertinent part, states the following:
"Our obligation under this warranty is limited to repairing or replacing free of charge to the original purchaser-user any part that in our judgment shows evidence of defect or improper workmanship, provided the part is returned to Ag-Chem within thirty (30) days of the failure. (Emphasis added.)
"....
"Ag-Chem shall not be liable for any recovery greater in amount than the cost of repair of defects in workmanship." (Emphasis added.)
The warranty clearly states that Ag-Chem may repair or replace any part that shows evidence of improper workmanship. The warranty further states that Ag-Chem will not be liable for any amount in excess of the cost of repairing the defects.
Code of Alabama 1975, § 7-2-719(1)(a), states the following with regard to limitation of remedies:
"(a) The agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts." (Emphasis added.)
Thus, barring a failure of the warranty's essential purpose, Ag-Chem was under no duty, under the warranty, to replace the engine with a new engine. If, however, Ag-Chem had refused to repair the engine in accordance with the warranty or had refused to repair within a reasonable time, its warranty would have failed of its essential purpose, and Limestone would have been entitled to a new engine. Volkswagen of America, Inc. v. Harrell, 431 So.2d 156, 164 (Ala.1983).
In the present case, it is undisputed that Limestone never tendered the engine to Ag-Chem so that the engine could be repaired. Limestone presented testimony that it did not tender the engine because, it said, on previous occasions, it had experienced problems with another rebuilt Cummins engine and did not want this engine rebuilt. In addition, Limestone presented testimony that the value of the fertilizer applicator would be reduced if it had a rebuilt engine.
This testimony notwithstanding, the fact remains that Limestone never gave Ag-Chem the opportunity to rebuild the engine in accordance with the warranty. On more than one occasion, Ag-Chem offered to rebuild the engine. Ag-Chem then sent Limestone a check for $3,615.30 to cover the cost of the repair work, but Limestone refused to take the engine to Cummins for repair. Under the terms of the warranty between Ag-Chem and Limestone, Ag-Chem fulfilled its obligation to repair the engine, and it may be held liable only for the cost of fully repairing the engine.
Accordingly, we hold that the express warranty did not fail of its essential purpose and that Ag-Chem's liability may not exceed the cost of repairing the engine. The judgment is hereby reversed and the cause remanded for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.


181 F.3d 955 (8th Cir. 1999)
UNITED STATES OF AMERICA, APPELLEE,v.JORGE ARELLANO RAMIREZ, APPELLANT.
No. 98-3276
U.S. Court of Appeals, Eighth Circuit
Submitted: March 9, 1999Filed June 22, 1999

Appeal from the United States District Court for the Southern District of Iowa.
Before Richard S. Arnold and Hansen, Circuit Judges, and Strom,1 District Judge.
Hansen, Circuit Judge.

1
Jorge Arellano Ramirez pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 57 months' imprisonment. Ramirez appeals from the district court's2 refusal to grant him a two-level reduction for a minor role in the offense under United States Sentencing Guideline § 3B1.2 (1997). We affirm.

I.

2
On November 19, 1997, surveillance officers witnessed a drug transaction wherein Ramirez received a white bag from Javier Mayorga and Jose Glass. Shortly thereafter, the officers recovered fifteen ounces of methamphetamine from Ramirez's car during a consensual search following a traffic stop. Ramirez was charged with conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine. The indictment alleged a conspiracy from approximately November 1 through November 20, 1997. The government agreed to dismiss the possession charge and not to charge Ramirez with any other conduct arising from the investigation in exchange for Ramirez's plea on the conspiracy count. The government stipulated that Ramirez would not be held accountable for methamphetamine discovered in Mayorga's apartment and that the net weight of pure methamphetamine attributable to Ramirez was less than 100 grams.

3
Based on the amount of methamphetamine recovered from Ramirez's car, the district court found that Ramirez's base offense level was 30. See USSG § 2D1.1. The district court granted Ramirez a two-level safety valve reduction, see USSG § 5C1.2, and a three-level acceptance of responsibility reduction, see USSG § 3E1.1, resulting in an adjusted base offense level of 25. The district court refused to give Ramirez a two-level reduction for minor role in the offense, see USSG § 3B1.2(b), because Ramirez was not less culpable than other participants related to the drugs recovered from Ramirez's car. Based on Ramirez's criminal history category of I, Ramirez was subject to a sentence between 57 and 71 months in prison. The district court sentenced Ramirez to 57 months in prison, the bottom of the guideline range. Ramirez now appeals the denial of the two-level reduction for minor role in the offense, arguing that he should not have been sentenced to a longer term of imprisonment than Mayorga, who received a 35-month sentence.

II.

4
We apply a mixed standard of review to Ramirez's appeal. We review de novo the district court's legal Conclusions stemming from its interpretation and construction of the sentencing guidelines, see United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir. 1998), and review the factual question of whether a defendant played a minor role in an offense for clear error. See id.; United States v. Lucht, 18 F.3d 541, 555 (8th Cir.), cert. denied, 513 U.S. 949 (1994).

5
Section 3B1.2(b) provides for a two-level reduction to a defendant's base offense level if his role in the offense is minor. A minor participant is defined as "any participant who is less culpable than most other participants, but whose role could not be described as minimal." USSG § 3B1.2, comment. (n. 3). The mitigating role reduction is not applicable, however, "[i]f a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct... because such defendant is not substantially less culpable than a defendant whose only conduct involved the less serious offense." Id. comment. (n. 4). "The propriety of a [§ 3B1.2] downward adjustment is determined by comparing the acts of each participant in relation to the relevant conduct for which the participant is held accountable and by measuring each participant's individual acts and relative culpability against the elements of the offense." United States v. Belitz, 141 F.3d 815, 818 (8th Cir. 1998) (internal citation omitted).

6
The district court noted that Ramirez was held responsible only for the amount of drugs involved in the single episode of his arrest and not those related to the greater reach of the conspiracy. (See Sentencing Tr. at 6.) The government agreed not to hold Ramirez responsible for the drugs found at Mayorga's apartment later the same day or any other activity uncovered during the investigation. Though Ramirez was charged with conspiracy, he was not sentenced based on the whole conspiracy, and the district court correctly looked only to the conduct for which he was held accountable to determine whether he played a minor role.

7
"To take the larger conspiracy into account only for purposes of making a downward adjustment in the base level would produce the absurd result that a defendant involved both as a minor participant in a larger distribution scheme for which [he] was not convicted, and as a major participant in a smaller scheme for which [he] was convicted, would receive a shorter sentence than a defendant involved solely in the smaller scheme."

8
Lucht, 18 F.3d at 556 (quoting United States v. Olibrices, 979 F.2d 1557, 1560 (D. C. Cir. 1992)). See also id. at 555 (no minor role reduction where defendants "were allowed to plead guilty to the amount of [drugs] with which they were directly involved and were not held accountable for the total amount of drugs involved in the conspiracy"); Belitz, 141 F.3d at 819 (affirming denial of minor role adjustment where defendant was held accountable only for amount of drugs foreseeable to him rather than full amount involved in conspiracy); United States v. Cobblah, 118 F.3d 549, 552 (7th Cir.) (same where defendant was charged only with drugs he picked up rather than drugs involved in larger, ongoing conspiracy), cert. denied, 118 S. Ct. 638 (1997).

9
Relying on United States v. Isaza-Zapata, 148 F.3d 236 (3d Cir. 1998), Ramirez argues that note 4 of § 3B1.2 is not applicable because he was convicted of conspiracy, the most serious of the charges he faced. He contends that note 4 applies only when a defendant is convicted of an offense that is less serious than the defendant's actual criminal conduct. He also argues that he would not receive a double benefit from application of the minor role adjustment because he received no benefit from pleading guilty to the conspiracy charge.

10
Ramirez misconstrues the scope of note 4. Note 4 applies not only when a defendant is convicted of a less serious offense, but also when the defendant faces a lower base offense level. See Belitz, 141 F.3d at 819 (" Although he was not convicted of a less serious offense," the minor role reduction is not applicable because the defendant's base offense level was based only on the amount of drugs that was foreseeable to him). The plea agreement belies Ramirez's argument that the two-level reduction would not provide him a double benefit. The government agreed not to charge Ramirez with any other offense arising from the investigation of the conspiracy and stipulated that the amount of drugs recovered from Ramirez's car was the total amount that could be attributable to Ramirez. Though the record is unclear as to the total quantity of drugs involved in the entire conspiracy, Ramirez's reply brief indicates that the entire conspiracy involved "a considerably greater amount of drugs" than the amount recovered from his car. (See Reply Br. at 6.) Thus, in exchange for Ramirez's plea to the conspiracy charge, he was guaranteed not to be charged with a greater amount of drugs, which in turn could have increased his base offense level. Accordingly, the district court correctly applied note 4 to Ramirez's case.

11
Finally, in reviewing the district court's factual determination that Ramirez was not a minor player, we note that Ramirez's counsel conceded that Ramirez's role as a buyer in the single transaction for which Ramirez was held responsible was not any less culpable than Mayorga's role as the seller. (See Sentencing Tr. at 7.) On appeal, Ramirez argues that he had limited understanding and knowledge of the scope of Mayorga's drug operations. However, Ramirez was well aware of the drugs that he bought from Mayorga. Hence, we agree that Ramirez was not less culpable than Mayorga with regard to the amount of drugs for which Ramirez was held accountable.

III.

12
For the foregoing reasons, we affirm the judgment of the district court.

Notes:

1
 The Honorable Lyle E. Strom, United States District Judge, District of Nebraska, sitting by designation.

2
 The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.