from the District Court for Adams County: TERRI S. HARDER,
H. Brauer, of Brauer Law Office, for appellant.
G. Olson and Kristina J. Kamler, of Engles, Ketcham, Olson &
Keith, P.C., for appellees 2nd Street Slammer, Inc., et al.
C.J., WRIGHT, CONNOLLY, CASSEL, and STACY, JJ.
Neb. 570] Wright, J.
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
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.
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.
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
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.
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 ...