Summary Judgment: Appeal and Error.
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence 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
___: ___. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a
breach of such duty, causation, and damages.
Negligence. The question whether a legal duty exists
for actionable negligence is a question of law dependent on
the facts in a particular situation.
Summary Judgment: Proof. The party moving for
summary judgment has the burden to show that no genuine issue
of material fact exists and must produce sufficient evidence
to demonstrate that the moving party is entitled to judgment
as a matter of law.
___: ___.A prima facie case for summary judgment is
shown by producing enough evidence to demonstrate that the
movant is entitled to a judgment in its favor if the evidence
were uncontroverted at trial.
Summary Judgment: Evidence: Proof. After the movant
for summary judgment makes a prima facie case by producing
enough evidence to demonstrate that the movant is entitled to
judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a
material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.
Neb. 399] 8. Landlord and Tenant:
Liability. In Nebraska, the obligation of a landlord
to warn of a dangerous condition on leased premises is based
on the Restatement (Second) of Torts § 358 (1965).
_:. As a general rule, in the absence of statute, covenant,
fraud, or concealment, a landlord who gives a tenant full
control and possession of the leased property will not be
liable for personal injuries sustained by the tenant or other
persons lawfully upon the leased property.
Landlord and Tenant: Contracts. In the absence of an
express agreement to the contrary, a lessor does not warrant
the fitness or safety of the premises and the lessee takes
them as he or she finds them.
Landlord and Tenant: Liability: Contracts. A lessor
of land is subject to liability for physical harm caused to
his lessee and others upon the land with the consent of the
lessee or his sublessee by a condition of disrepair existing
before or arising after the lessee has taken possession if
(1) the lessor, as such, has contracted by a covenant in the
lease or otherwise to keep the land in repair, (2) the
disrepair creates an unreasonable risk to persons upon the
land which the performance of the lessor's agreement
would have prevented; and (3) the lessor fails to exercise
reasonable care to perform his contract.
Negligence: Liability: Contracts. Liability in
negligence based on contract is dependent on the terms of the
Landlord and Tenant: Words and Phrases. The word
"repair" means to restore to a sound or good state
after decay, injury, dilapidation, or partial destruction.
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
R. Chandler, of Law Office of Eric R. Chandler, PC, L.L.O.,
Michael T. Gibbons, Aimee C. Bataillon, and Raymond E.
Walden, of Woodke & Gibbons, PC, L.L.O., for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
OF CASE Danielle Benard sustained injuries when she fell on
the entry step of the single-family home (Property) she
rented. She [298 Neb. 400] brought a negligence action
against her landlord, McDowall, LLC. The district court for
Douglas County granted summary judgment in favor of McDowall,
and Benard appeals. Although the district court did not err
in the portion of the ruling in the summary judgment order
with regard to Benard's theory that McDowall was
obligated to warn her of a dangerous condition on the
Property, due to genuine issues of material fact, the
district court erred with respect to Benard's allegation
that McDowall failed to repair and maintain the Property as
required by the November 1, 2011, lease (Lease). We affirm in
part, and in part reverse and remand for further proceedings.
seeks damages for injuries she suffered after falling on the
steps leading to the front entryway of the Property, which
she leased from ...