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
___. In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against
whom the judgment was granted and gives such party the
benefit of all reasonable inferences deducible from the
Summary Judgment: Proof. A party moving for
summary judgment makes a prima facie case for summary
judgment by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence were
uncontroverted at trial.
___. Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of a
material issue of fact that prevents judgment as a matter of
Summary Judgment. On a motion for summary
judgment, the question is not how the factual issue is to be
decided but whether any real issue of material fact exists.
Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show 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.
Summary Judgment: Appeal and Error. In
reviewing a summary judgment, an appellate court views the
evidence in the light most [27 Neb.App. 288] favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
Negligence: Proof. To prevail in any
negligence action, a plaintiff must show a legal duty owed by
the defendant to the plaintiff, a breach of such duty,
causation, and resulting damages. To warrant summary judgment
in its favor in a negligence action, a party must submit
evidence showing the absence of at least one of these
Negligence. Whether a duty exists is a
policy decision, and a lack of foreseeable risk in a specific
case may be a basis for a no-breach determination, but such a
ruling is not a no-duty determination.
___. In order to determine whether appropriate care was
exercised, the fact finder must assess the foreseeable risk
at the time of the defendant's alleged negligence.
Negligence: Judgments. The extent of
foreseeable risk depends on the specific facts of the case
and cannot be usefully assessed for a category of cases;
small changes in the facts may make a dramatic change in how
much risk is foreseeable. Courts should leave such
determinations to the trier of fact unless no reasonable
person could differ on the matter. And if the court takes the
question of negligence away from the trier of fact because
reasonable minds could not differ about whether an actor
exercised reasonable care (for example, because the injury
was not reasonably foreseeable), then the court's
decision merely reflects the one-sidedness of the facts
bearing on negligence and should not be misrepresented or
misunderstood as involving exemption from the ordinary duty
of reasonable care.
Negligence: Judgments: Summary Judgment.
Although foreseeability is a question of fact, there remain
cases where foreseeability can be determined as a matter of
law, such as by summary judgment.
from the District Court for Douglas County: Horacio J.
Wheelock, Judge. Reversed and remanded for further
Matthew A. Lathrop, of Law Offices of Matthew A. Lathrop. PC,
L.L.O., and Kathy Pate Knickrehm for appellant.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellees.
Pirtle, Riedmann, and Arterburn, Judges.
Neb.App. 289] ...