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Kimminau v. City of Hastings

Supreme Court of Nebraska

June 19, 2015

KAELYNN KIMMINAU AND WAYNE KIMMINAU, WIFE AND HUSBAND, APPELLANTS,
v.
CITY OF HASTINGS, A NEBRASKA POLITICAL SUBDIVISION, ET AL., APPELLEES

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Appeal from the District Court for Adams County: TERRI S. HARDER, Judge.

Douglas G. Pauley and Scott D. Pauley, of Conway, Pauley & Johnson, P.C., and Jefferson Downing, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellants.

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees R Lazy K Trucking, Inc., and Wayne Todd.

Gail S. Perry and Robert B. Seybert, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee City of Hastings.

Vincent Valentino and Brandy Johnson for appellee County of Adams.

Stephen G. Olson, Robert S. Keith, and Kristina J. Kamler, of Engles, Ketcham, Olson & Keith, P.C., for appellee Hastings Rural Fire District.

HEAVICAN, C.J., WRIGHT, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. CONNOLLY, J., not participating.

OPINION

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[291 Neb. 135] Stephan, J.

Kaelynn Kimminau and her husband, Wayne Kimminau, brought this action seeking damages for personal injuries [291 Neb. 136] Kaelynn suffered as the result of a motor vehicle accident in rural Adams County, Nebraska, in November 2009. They alleged that Kaelynn lost control of her vehicle due to corn mash which had spilled from a truck onto the highway the previous day. The action was brought against Wayne Todd, the driver of the truck, and R Lazy K Trucking, Inc. (R Lazy K), Todd's employer. Also named as defendants, pursuant to the Political Subdivisions Tort Claims Act (PSTCA),[1] were the City of Hastings, Hastings Rural Fire District (Hastings Rural), and the County of Adams. The district court for Adams

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County entered summary judgment in favor of all named defendants.

The Kimminaus perfected this timely appeal, and we granted a petition to bypass. We reverse the judgment of the district court in favor of the political subdivisions and affirm the judgment in favor of Todd and R Lazy K.

BACKGROUND

Undisputed Facts

The following facts are uncontroverted: The City of Hastings, Adams County, and Hastings Rural are political subdivisions as defined by Nebraska law. Pursuant to an emergency service agreement, the Hastings Fire Department (Hastings Fire) and Hastings Rural keep fire equipment in facilities owned by Hastings Fire. Hastings Fire will also respond to emergency calls with Hastings Rural within the latter's response district, which generally includes those areas of Adams County not within the Hastings city limits. Hastings Rural is comprised of an all-volunteer force.

On November 15, 2009, Nebraska State Trooper Monte Dart was completing a traffic stop on South Showboat Boulevard in rural Adams County when he observed wet corn mash spilling onto the roadway from a truck owned by R Lazy K and operated by Todd. The corn mash, which has the consistency [291 Neb. 137] of tapioca pudding and is sometimes referred to as " wet cake" or " wet ...


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