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Kenneth Riggs and v. Gary

March 25, 2011

KENNETH RIGGS AND LEANN RIGGS, HUSBAND AND WIFE, APPELLANTS,
v.
GARY NICKEL, APPELLEE.



appeal from the District Court for Lancaster County: Jeffre cheuvroNt, Judge. affirmed.

The opinion of the court was delivered by: stephaN, J.

1. Summary Judgment.

summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error.

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence.

3. Trial: Witnesses: Evidence.

Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded. In applying this rule, the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony.

4. Negligence.

not every negligence action involving an injury suffered on some-one's land is properly considered a premises liability case.

5. .

Under a premises liability theory, a court is generally concerned with either a condition on the land or the use of the land by a possessor.

6. Negligence: Proof.

In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

7. Negligence.

the question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

8. .

an actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates ...


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