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Benard v. McDowall, LLC

Supreme Court of Nebraska

December 15, 2017

Danielle Benard, appellant,
v.
McDoWALL, LLC, APPELLEE.

         1. Summary Judgment: Appeal and Error.

         An 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 of law.

         2. ___: ___. 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 evidence.

         3. Negligence: Proof.

         In 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.

         4. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

         5. 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.

         6. ___: ___.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.

         7. 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.

         [298 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).

         9. _:. 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.

         10. 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.

         11. 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.

         12. Negligence: Liability: Contracts. Liability in negligence based on contract is dependent on the terms of the agreement.

         13. 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.

         Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Eric R. Chandler, of Law Office of Eric R. Chandler, PC, L.L.O., for appellant.

          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.

          Miller-Lerman, J.

         NATURE 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.

         STATEMENT OF FACTS

         Benard seeks damages for injuries she suffered after falling on the steps leading to the front entryway of the Property, which she leased from ...


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