United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Summary
Judgment, ECF No. 71, filed by Defendant Brenna Moray. For
the reasons stated below, the Motion will be granted.
April 18, 2014, Plaintiff Thomas Majda, Jr., injured his
ankle on concrete stairs while moving furniture into a rental
property owned by Defendant Brenna Moray, located in Omaha,
Nebraska. The stairs leading to Moray's rental property
were in poor condition. At the time of the injury, Moray
leased the property to Thomas Majda, III, Samuel Troia,
Charles O. Lutz-Priefert, and Patrick Buckley (collectively,
22, 2016, Plaintiff filed this negligence action against
Moray, invoking the Court's diversity jurisdiction. Moray
filed a Third-party Complaint against the Tenants, ECF No.
14, claiming they were liable to Moray for any damages
awarded to Plaintiff. The Court dismissed the Third-Party
Complaint pursuant to Neb. Rev. Stat. § 25- 21,
185.11 because the Tenants had signed
release-of-liability agreements wherein Plaintiff agreed to
release the Tenants from all liability for the injuries he
suffered on Moray's property. Memorandum and Order, ECF
No. 70. Accordingly, the only remaining claims in this case
are those asserted in Plaintiff's Complaint, ECF No. 1,
Complaint claims Moray negligently failed to repair or make
safe the concrete stairs on which Plaintiff fell and that
Moray negligently failed to warn others that the concrete
stairs presented a dangerous condition. Moray's Motion
argues she is entitled to judgment as a matter of law on
Plaintiff's negligence claims. Plaintiff did not respond
to the Motion.
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the
parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir.
2016) (quoting Vacca v. Viacom Broad. of Mo., Inc.,
875 F.2d 1337, 1339 (8th Cir. 1989)).
other words, in deciding “a motion for summary
judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a genuine dispute as to
those facts.” Wagner, 788 F.3d at 882 (quoting
Torgerson, 643 F.3d at 1042). Otherwise, where the
Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, ” there is no “genuine issue of material
fact” for trial and summary judgment is appropriate.
Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
initial matter, the Court concludes that Nebraska law applies
to Plaintiff's negligence claims. Plaintiff did not
respond to Moray's Motion for Summary Judgment and,
therefore, does not dispute Moray's contention that
Nebraska law applies. See Budler v. Gen. Motors
Corp., 400 F.3d 618, 620 (8th Cir. 2005) (applying
Nebraska law in a diversity action where there “was no
dispute that Nebraska law applies”).
order to recover in a negligence action [under Nebraska law],
a plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and
damages.” Benard v. McDowall, LLC, 904 N.W.2d
679, 685 (Neb. 2017) (quoting A.W. Lancaster Cty. Sch.
Dist. 0001, 784 N.W.2d 907, 913 (Neb. 2010)). Moray
contends Plaintiff's claim for negligent failure to
repair and make safe as well as his claim for negligent
failure to warn must be dismissed because she owed Plaintiff
no legal duty to take either course of action with respect to
the concrete staircase. “The question whether a legal
duty exists for actionable negligence is a question of law
dependent on the facts in a particular situation.”
Lessor's Negligent Failure to ...