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Pittman v. Rivera

Supreme Court of Nebraska

May 20, 2016

JOSEPH PITTMAN, APPELLANT AND CROSS-APPELLEE,
v.
MATTHEW RIVERA AND TERESA ERPELDING, APPELLEES, AND 2ND STREET SLAMMER, INC., ET AL., APPELLEES AND CROSS-APPELLANTS

Page 13

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

         Siegfried H. Brauer, of Brauer Law Office, for appellant.

         Stephen G. Olson and Kristina J. Kamler, of Engles, Ketcham, Olson & Keith, P.C., for appellees 2nd Street Slammer, Inc., et al.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, CASSEL, and STACY, JJ.

          OPINION

Page 14

          [293 Neb. 570] Wright, J.

         NATURE OF CASE

         Joseph Pittman filed a negligence action against 2nd Street Slammer, Inc. (2nd Street), and its owners, Walter C. Bienkowski and Diana C. Bienkowski (collectively the appellees); Matthew Rivera; Nellie Snyder; and Teresa Erpelding for injuries he sustained when he was struck by a vehicle while standing in or near a parking lot owned and maintained by 2nd Street. The driver of the vehicle was Rivera, another patron who had been forcibly removed from 2nd Street earlier that evening by an employee of 2nd Street. The district court granted summary judgment in favor of the appellees, finding that Rivera's conduct in striking Pittman with his vehicle was not reasonably foreseeable and that therefore, 2nd Street did not breach its duty of reasonable care. Pittman appeals, and the appellees cross-appeal.

         BACKGROUND

         The Bienkowskis own 2nd Street, a drinking establishment in Hastings, Nebraska, that serves alcohol. In the early morning hours of December 2, 2007, while at 2nd Street, Rivera got into a physical altercation with his girlfriend, Snyder. An employee of 2nd Street, Craig Hubbard, intervened in the [293 Neb. 571] altercation and forcibly removed Rivera from the premises. As he was being escorted out, Rivera was aggressive and assaultive toward Hubbard, but ultimately got into a vehicle with friends and was driven away by a designated driver. Hubbard considered the incident " 'handled'" and did not contact police.

         About an hour later and just as the bar was closing, Rivera returned to 2nd Street looking for Snyder. Hubbard confronted Rivera at the door and told him he was not allowed to come inside. Rivera became aggressive, and Hubbard escorted him outside to the parking lot once again. Rivera got into his vehicle and sped out of the parking lot, away from 2nd Street. He abruptly performed a U-turn and traveled toward and then past 2nd Street. He abruptly performed another U-turn, revved his engine, and raced toward a crowd of patrons who were standing on or near the property line between 2nd Street's parking lot and an adjacent roadway. At this moment, Pittman and some of his friends had recently left 2nd Street and were standing outside talking.

         An employee of 2nd Street saw the vehicle approaching and yelled for Pittman to get out of the way. Pittman did not react in time and was struck by Rivera's vehicle. Rivera's assault with his vehicle happened

Page 15

quite rapidly. Approximately 60 seconds lapsed from the time Rivera entered his vehicle to the time Pittman was struck. Pittman sustained serious injuries as a result of the impact. Hubbard immediately called the 911 emergency dispatch service after Pittman was struck. Rivera was later convicted of and sentenced to prison for first degree assault and leaving the scene of an accident.

         Pittman filed this action in the district court for Adams County, Nebraska, alleging that 2nd Street breached its duty to protect him from Rivera's actions. The appellees moved for summary judgment, asserting that they did not owe Pittman a duty of care and that even if they did, there was no breach of any duty because Rivera's conduct in running down Pittman with his vehicle was not reasonably foreseeable. The district [293 Neb. 572] court found that 2nd Street owed Pittman a duty of reasonable care but held that the material and undisputed evidence confirmed that Rivera's conduct in striking Pittman with his vehicle was not a foreseeable risk. It therefore concluded as a matter of law that 2nd Street did not breach its duty to Pittman. It granted summary judgment in favor of the appellees. Pittman appeals, and the appellees cross-appeal. In previous proceedings, Snyder had been dismissed ...


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