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Majda v. Moray

United States District Court, D. Nebraska

March 6, 2018

THOMAS MAJDA, JR., Plaintiff,
v.
BRENNA M. MORAY, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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[1], Samuel Troia, Charles O. Lutz-Priefert, and Patrick Buckley (collectively, the Tenants).

         On July 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[2] 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, against Moray.

         The 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.

         STANDARD OF REVIEW

         “Summary 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).

         In 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)).

         In 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. 2015)).

         DISCUSSION

         As an 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”).[3]

         “In 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.” Id.

         I. Lessor's Negligent Failure to ...


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