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Sundermann v. Hy-Vee, Inc.

Court of Appeals of Nebraska

May 28, 2019

Rita Sundermann, Appellant,
v.
Hy-Vee, Inc.. And Sweetbriar II, LLC, Appellees.

         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, 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 evidence.

         3. 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.

         4. ___: ___. 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 law.

         5. 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.

         6. ___. 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.

         7. 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 the evidence.

         8. 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 elements.

         9. 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.

         10. ___. 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.

         11. 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.

         12. 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.

          Appeal from the District Court for Douglas County: Horacio J. Wheelock, Judge. Reversed and remanded for further proceedings.

          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.

         [27 Neb.App. 289] ...


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