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Henderson v. Heath Smallcomb & Night Life Concepts, Inc.

Court of Appeals of Nebraska

June 17, 2014


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[Copyrighted Material Omitted]

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Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge.

Vincent M. Powers, of Vincent M. Powers & Associates, for appellant.

Daniel M. Placzek and, on brief, Sonya K. Koperski, of Leininger, Smith, Johnson, Baack, Placzek & Allen, for appellee Heath Smallcomb.

Nicholas R. Norton and Jeffrey H. Jacobsen, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee Night Life Concepts, Inc.

INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.


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[22 Neb.App. 92] Inbody, Chief Judge.


This case involves an accident which occurred when Gary Henderson fell and sustained an injury as he left an establishment known as Cunningham's Journal, owned by Night Life Concepts, Inc., doing business as The Loft, Night Life Concepts, Inc., doing business as Cunningham's Journal (Night Life). Night Life leased the building from Heath Smallcomb. Henderson filed a negligence action against both Night Life and Smallcomb, and during a jury trial on the matter, the Buffalo County District Court granted Night Life's motion for directed verdict and the jury returned a verdict in favor of Smallcomb.


Henderson, who was 75 years old at the time of trial, testified that in 2006, he was retired and living in Kearney, Nebraska, maintaining a rental property that he rented out to college students. Henderson testified that he had had several medical procedures prior to the incident in question and had undergone several surgeries and medical appointments prior to the incident, including a right knee replacement in the late 1970's or early 1980's, a spleen removal, a right-shoulder rotator cuff repair and neck fusion, open heart surgery, a laminectomy, a low-back fusion, and an appointment at an arthritis treatment center.

Every Tuesday evening, he and a group of friends met at a local Kearney establishment for dinner and then would go downstairs to Cunningham's Journal to play pool and have a drink. Henderson testified that he had played pool at Cunningham's Journal for a year or two. Henderson indicated that on April 18, 2006, the group followed its normal routine. Henderson parked his car in the Kearney city lot on the west side of Cunningham's Journal, entering the building through [22 Neb.App. 93] the front door on 23d Street. Henderson testified that he entered the building by stepping up onto an elevated concrete landing or walking area and then taking additional wooden steps. Henderson had a drink and played pool at Cunningham's Journal until about 1 a.m. on April 19. As Henderson was leaving Cunningham's Journal, he descended the wooden stairs to the concrete landing and tripped on the last step " where you go down to the city sidewalk." Henderson testified that he tripped on a lip in the concrete landing and fell, hitting the concrete with his knees, elbow, wrists, and face. Henderson testified that he did not recall some of what happened after he fell. Henderson got a ride home and testified that he did not recall what happened until he awoke at around 7 a.m., at which point he first actually thought that he had fallen down his basement stairs.

Smallcomb testified that in 1995, he purchased the building where Cunningham's Journal is located, and that he ran Cunningham's Journal until 2003, when he sold that business to Night Life, but still retained ownership of the building. Smallcomb explained that Night Life now rents

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the space where Cunningham's Journal is and has maintained the business. Smallcomb explained that there is an elevated sidewalk or landing that is used to reach the wooden stairs which lead up to the building. Smallcomb testified that he knew that the concrete on the landing was not flush, that he did not repair the concrete, and that he did not ask Night Life to repair the concrete. Smallcomb estimated that the gap in the concrete was about 2 inches deep. Smallcomb testified that he did not know the deviation in the concrete was a problem or a hazard.

Smallcomb testified that he believed the sidewalk, raised concrete landing, and wooden steps belonged to the city of Kearney and that he had not received any notice from the city that repairs were necessary. Smallcomb testified that the property had changed little since he purchased the building in 1995. Smallcomb explained that he was familiar with the building before he owned it and that the raised concrete landing and wooden stairs had been there since the 1980's. Smallcomb did not know by whom, or for what reason, the [22 Neb.App. 94] concrete landing was constructed. Smallcomb testified that since the lease of the property in 2003 to Night Life, repairs were made to the front steps and " handicap ramp" and interior improvements had been made. Smallcomb testified that Night Life had exclusive control of the property at the time of Henderson's fall and that he visited the property only every few months. Smallcomb also indicated that the landing leading up to the stairs benefited the property in that customers were able to enter the building, but that sidewalks in front of any business were a benefit.

Mike Anderson, the owner of Night Life, testified that he bought the Cunningham's Journal business from Smallcomb in 2003. Anderson testified that customers step onto the landing or elevated sidewalk and then ascend the wooden steps into the building. Anderson testified that he did not make any repairs to the concrete from the time that he leased the building until the date of Henderson's fall and did not ask Smallcomb to make any repairs at any time. Anderson further testified that he had never received any notice from the city of Kearney that sidewalk repairs were necessary. Anderson testified that exterior repairs had been made to the building, such as repairs to the wooden stairs and changes to the front facade and to the " handicap ramp."

Anderson testified that on the night of the fall, he was closing the establishment when someone indicated that a man had fallen. Anderson explained that Henderson was alert and standing on the sidewalk when Anderson went outside, but did have some blood on his face. Anderson testified that Henderson explained to him that he had missed a step and fallen.

At the conclusion of Anderson's testimony, counsel for Henderson made an offer of proof regarding Anderson's deposition testimony that since Henderson's fall, Anderson had hired someone to add ...

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