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Tedd Bish Farm, Inc. v. Southwest Fencing Services, LLC

Supreme Court of Nebraska

August 7, 2015

TEDD BISH FARM, INC., A NEBRASKA CORPORATION, APPELLANT,
v.
SOUTHWEST FENCING SERVICES, LLC, A NEBRASKA LIMITED LIABILITY COMPANY, APPELLEE

Page 266

Appeal from the District Court for Hamilton County, RACHEL A. DAUGHERTY, Judge, on appeal thereto from the County Court for Hamilton County, LINDA S. CASTER SENFFNFFNFF, Judge.

SYLLABUS

1. 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 the party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.

3. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered show that there is no genuine issue as to any material facts 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.

4. Summary Judgment. When reasonable minds can differ as to whether an inference can be drawn, summary judgment should not be granted.

5. Damages. The issue of whether an injured party actually exercised reasonable efforts in mitigating the damage is a question of fact.

6. Summary Judgment: Damages. A trial court must decide the issue of mitigation of damages as a matter of law on summary judgment where the facts are undisputed or are such that reasonable minds can draw but one conclusion therefrom.

7. Damages. Under the doctrine of avoidable consequences, which is another name for the failure to mitigate damages, a wronged party will be denied recovery for such losses as could reasonably have been avoided, although such party will be allowed to recover any loss, injury, or expense incurred in reasonable efforts to minimize the injury.

8. Damages. A plaintiff's failure to take reasonable steps to mitigate damages bars recovery, not in toto, but only for the damages which might have been avoided by reasonable efforts.

9. Damages. The avoidable consequences doctrine creates responsibility only for those hypothetical ameliorative actions that could have been accomplished through ordinary and reasonable care.

10. Damages. An injured party may be excused from the duty to mitigate if the injured party lacks the financial ability to do so.

11. Damages. The duty to mitigate is often excused in cases where the defendant inhibits the plaintiff from taking actions to avoid additional damages.

12. Damages: Intent. The repeated assurances of a defendant after an injury has begun that he or she will remedy the condition is sufficient justification for a plaintiff's failure to take steps to minimize loss, so long, at least, as ...


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