Durre v. Wilkinson Development ( 2013 )

Nebraska Advance Sheets
880 285 NEBRASKA REPORTS
Mark Durre, as P ersonal R epresentative of
the Estate of Diana Durre, appellant, v.
Wilkinson Development, Inc., a Nebraska
corporation, et al., appellees.
___ N.W.2d ___
Filed May 10, 2013. No. S-12-627.
1. Summary Judgment: Appeal and Error. 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.
2. ____: ____. 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 the facts and that the moving party is entitled to judgment as a matter
of law.
3. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an
appellate court judicially construes a statute and that construction fails to evoke
an amendment, it is presumed that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent.
4. Fraud: Estoppel: Limitations of Actions: Proof. In order to successfully assert
the doctrine of fraudulent concealment and thus estop the defendant from claim-
ing a statute of limitations defense, the plaintiff must show the defendant has,
either by deception or by a violation of a duty, concealed from the plaintiff mate-
rial facts which prevent the plaintiff from discovering the misconduct.
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. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment 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.
7. Summary Judgment. If a genuine issue of fact exists, summary judgment may
not properly be entered.
8. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
9. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
10. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, a plaintiff must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proximately caused by the
failure to discharge that duty.
Nebraska Advance Sheets
DURRE v. WILKINSON DEVELOPMENT 881
Cite as 285 Neb. 88011. Negligence. The threshold inquiry in any negligence action is whether the
defend­ nt owed the plaintiff a duty.
a
12. Negligence: Words and Phrases. A “duty” is an obligation, to which the law
gives recognition and effect, to conform to a particular standard of conduct
toward another.
13. Negligence. If there is no duty owed, there can be no negligence.
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.
Jeffry D. Patterson and Robert F. Bartle, of Bartle & Geier
Law Firm, and Douglas J. Stratton and Joel E. Carlson, of
Stratton, DeLay, Doele, Carlson & Buettner, for appellant.
David D. Ernst and Lisa M. Meyer, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellee Love Signs of North
Platte, L.L.C., doing business as Condon’s House of Signs.
Jerald L. Rauterkus and Patrick R. Guinan, of Erickson &
Sederstrom, P.C., L.L.O., for appellee Tri-City Sign Company.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Wright, J.
NATURE OF CASE
Mark Durre brought suit against Wilkinson Development,
Inc. (Wilkinson); Tri-City Sign Company (Tri-City); and Love
Signs of North Platte, L.L.C., doing business as Condon’s
House of Signs (Love Signs), for personal injury and wrong-
ful death. A sign fell onto Durre’s pickup truck while it was
parked in a lot owned by Wilkinson. Durre was injured, and his
wife was killed. The district court sustained Tri-City’s motion
for summary judgment, because the action was barred by the
10-year statute of repose in Neb. Rev. Stat. § 25-223 (Reissue
2008). The court also sustained Love Signs’ motion for sum-
mary judgment, because the court found there was no evidence
Love Signs breached a duty of reasonable care when it per-
formed work on the sign. We affirm.
SUMMARY JUDGMENT
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
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against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence. Swift v. Norwest Bank-Omaha West, ante p. 619, ___
N.W.2d ___ (2013).
FACTS
On April 3, 2009, Durre and his wife were sitting in their
pickup truck, which was parked at a gas station/fast-food
restaurant in North Platte, Nebraska. About 1 p.m., the restau-
rant’s sign fell onto the cab of the truck, injuring Durre and
killing his wife.
The restaurant’s sign and the pole structure to which the sign
was attached were designed, built, and installed by Tri-City’s
employees. Tri-City obtained a building permit for the instal-
lation of the sign from the city of North Platte, designating 65
feet as the height of the sign. Installation of the sign was com-
pleted on or about May 15, 1999. There was no evidence that
any of the defendants measured the height of the sign after its
construction was completed.
In November 2008, Love Signs was contracted by Wilkinson
to replace lamps and ballasts in the sign. One of Love Signs’
employees, Chad Condon, acknowledged that it was part of
his job to alert the owner of a sign to any unsafe conditions
noticed. There was no evidence that Condon or any employee
of Love Signs was requested to, or actually did, review the
construction drawings to determine the correct height or design
of the sign and the pole structure.
The sign collapsed as a result of the shearing of a section of
the steel pole which held the sign. After its collapse, Condon
measured the length of the sign and pole and determined that
the erected sign was 75 feet tall. Durre’s structural engineering
expert inspected the sign and determined the total height was
at least 74 feet. This was 9 to 10 feet greater than the 65-foot
height allowed by the permit issued by the city.
On November 13, 2009, Durre filed suit against Wilkinson
for personal injury and wrongful death. He alleged that
Wilkinson negligently maintained the pole and sign, and failed
to warn those on its premises of the danger caused by the
improper construction of the sign. Durre filed an amended
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DURRE v. WILKINSON DEVELOPMENT 883
Cite as 285 Neb. 880complaint on March 10, 2011, naming Wilkinson, Tri-City,
and Love Signs as defendants. He alleged that Tri-City negli-
gently designed and constructed the pole and sign, and failed
to warn any person of the unreasonably dangerous condition of
the pole and sign. In a second amended complaint, he alleged
that Tri-City concealed the height of the sign from the general
public. He also alleged that Love Signs negligently maintained
and inspected the sign. Tri-City denied any action or inac-
tion on its part that caused the pole to fail and alleged that
all claims against it were barred by the applicable statutes of
limitations and repose, which included § 25-223. Love Signs
denied liability.
The district court sustained Tri-City’s motion for summary
judgment, concluding that Durre’s actions were barred by
the 10-year statute of repose in § 25-223. It sustained Love
Signs’ motion for summary judgment, because there was no
evidence Love Signs breached a duty of reasonable care when
it performed work on the sign in 2008. In a separate order, the
claims brought against Wilkinson were dismissed without prej-
udice. Durre appeals the district court’s order sustaining sum-
mary judgment for both Tri-City and Love Signs. We moved
the case to our docket pursuant to our authority to regulate the
dockets of this court and the Nebraska Court of Appeals. See
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
Durre assigns, restated, that the district court erred in con-
cluding that (1) the statute of repose in § 25-223 barred his
claims against Tri-City, (2) the doctrine of fraudulent con-
cealment did not toll the running of the statute of repose
against Tri-City, and (3) Love Signs did not owe a duty to
Wilkinson to discover the inherently dangerous condition of
the pole structure and sign on Wilkinson’s premises and warn
Wilkinson accordingly.
ANALYSIS
Statute of R epose
[2] The first issue is whether, as a matter of law, Durre’s
cause of action against Tri-City is time barred by § 25-223. An
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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 the facts and that
the moving party is entitled to judgment as a matter of law.
Swift v. Norwest Bank-Omaha West, ante p. 619, ___ N.W.2d
___ (2013).
The applicable statute, § 25-223, provides in part:
In no event may any action be commenced to recover
damages for an alleged breach of warranty on improve-
ments to real property or deficiency in the design, plan-
ning, supervision, or observation of construction, or con-
struction of an improvement to real property more than
ten years beyond the time of the act giving rise to the
cause of action.
Durre has alleged a claim to recover for personal injury caused
by Tri-City’s negligence. He argues that § 25-223 does not
apply to personal injuries resulting from an inherently danger-
ous condition or latent defect of the property caused by a con-
tractor’s negligence. We disagree.
Our resolution of this claim is controlled by our decision in
Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32(1987). Henry Williams, a school janitor, fell 30 feet backward
inside a pipe chase. His fall was caused by a missing section of
concrete wall and occurred more than 10 years after construc-
tion of the school was completed in 1968. Williams argued
that § 25-223 applied only to causes of action for damage to
property and not to actions for personal injury. We determined
that § 25-223 applied to an action in tort for personal injuries
caused by the negligent construction of a building. We held the
10-year period of repose began to run when construction of the
building was completed. Thus, Williams’ cause of action was
time barred before it accrued.
Williams asked this court to conclude that the Legislature
did not intend § 25-223 to apply to actions for personal injury.
We declined to do so, because we determined that the words of
§ 25-223 were plain, direct, and unambiguous and, therefore,
required no interpretation. “The phrase ‘[a]ny action to recover
damages’ in § 25-223 [meant] any action, including an action
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DURRE v. WILKINSON DEVELOPMENT 885
Cite as 285 Neb. 880in tort for damages caused by the negligent construction of a
building.” Williams, 225 Neb. at 240, 404 N.W.2d at 35. We
held that § 25-223 barred the personal injury negligence claim
that Williams commenced in 1982.
Durre asks that we reconsider our decision in Williams,
supra, because the plain and ordinary meaning of § 25-223
excludes claims for personal injury and wrongful death. Our
analysis has not changed. We determined that the language of
§ 25-223 applies to all actions for damages, including causes of
action for personal injury. Williams, supra.
[3] Since our decision in Williams in 1987, the Legislature
has not amended § 25-223 to limit its application to actions for
damages to property. If the Legislature did not agree, it could
have amended § 25-223. It has not done so. When an appellate
court judicially construes a statute and that construction fails
to evoke an amendment, it is presumed that the Legislature
has acquiesced in the court’s determination of the Legislature’s
intent. Trumble v. Sarpy County Bd., 283 Neb. 486, 810
N.W.2d 732 (2012).
Durre’s action against Wilkinson was filed in November
2009, which was more than 10 years after the May 1999 com-
pletion and installation of the sign. His action against Tri-City
was not commenced until March 10, 2011. The 10-year stat-
ute of repose in § 25-223 barred Durre’s claim for damages
against Tri-City.
Fraudulent Concealment
Having determined that Durre’s action was subject to
§ 25-223, we consider whether there was any evidence that
Tri-City fraudulently concealed a material fact which prevented
Durre from filing his action within 10 years of completion of
the sign’s construction.
Durre argues that if § 25-223 applies to claims for per-
sonal injury, Tri-City’s fraudulent concealment of the danger-
ous condition of the sign estopped it from asserting a statute
of repose defense. But the district court found that Durre had
not advanced any evidence in support of this claim and that
there was no continuing fiduciary relationship between Durre
and Tri-City.
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[4] In order to successfully assert the doctrine of fraudu-
lent concealment and thus estop the defendant from claiming
a statute of limitations defense, the plaintiff must show the
defendant has, either by deception or by a violation of a duty,
concealed from the plaintiff material facts which prevent the
plaintiff from discovering the misconduct. Andres v. McNeil
Co., 270 Neb. 733, 707 N.W.2d 777 (2005). See Schendt v.
Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997). Generally, for
fraudulent concealment to estop the running of the statute of
limitations, the concealment must be manifested by an affirma-
tive act or misrepresentation. Andres, supra.
In Andres, the plaintiff contracted with McNeil Company,
Inc., to design and build a house. The house was completed
in January 1994. Soon after the plaintiff took possession of
the house, water began to leak through the roof. Repairs were
made, but the leaks continued. The plaintiff claimed McNeil
Company knew of the defects but continually assured her that
such defects did not exist. In 2002, the plaintiff contacted
a roofing company that told her the leaks were caused by
improper construction of the roof. She alleged that McNeil
Company fraudulently concealed material facts that prevented
her from discovering the improper construction until 2002.
The plaintiff in Andres presented evidence that she was
repeatedly given assurances between 1995 and 2002 that the
roof was being fixed. McNeil Company presented evidence
specifically disputing the plaintiff’s evidence regarding the
claimed representations. Because the evidence was in dispute,
we concluded there were genuine issues of material fact that
prevented summary judgment on the statute of limitations.
[5-7] In the case at bar, the parties disagree who has the
burden to provide evidence of fraudulent concealment. Durre
argues that it was Tri-City’s burden to provide the district court
with evidence that it did not fraudulently conceal the condition
of the sign. We disagree. The party moving for summary judg-
ment 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.
Jeremiah J. v. Dakota D., ante p. 211, 826 N.W.2d 242 (2013).
After the movant for summary judgment makes a prima facie
Nebraska Advance Sheets
DURRE v. WILKINSON DEVELOPMENT 887
Cite as 285 Neb. 880case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontro-
verted 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. Id.
If a genuine issue of fact exists, summary judgment may not
properly be entered. Id.
Tri-City moved for summary judgment. It provided evi-
dence that the sign was completed in May 1999, that Durre
did not file suit until November 2009, and that Durre did not
join Tri-City in the action until 2011. It made a prima facie
case that Durre’s claim was barred by the statute of repose.
The burden then shifted to Durre to provide evidence that the
statute of repose should be tolled because of Tri-City’s fraud-
ulent concealment of the defect in the sign. It was Durre’s
burden to provide evidence of the existence of a genuine
issue of material fact regarding his claim of fraudulent con-
cealment. It was not Tri-City’s burden to provide evidence
that Tri-City did not fraudulently conceal the latent defect of
the sign.
In his second amended complaint, Durre alleged that
Tri-City was negligent in failing to properly design and con-
struct the sign and that Tri-City failed to warn of its dangerous
condition. Durre alleged that the defect in the sign violated
Tri-City’s duty to him and was a danger concealed from him
and that as a direct and proximate result of Tri-City’s negli-
gence, his wife sustained fatal injuries.
At the summary judgment hearing, Durre provided evidence
that the plans and specifications for the sign called for it to
be 65 feet high and that the invoice sent to Wilkinson after
the sign’s completion stated that Tri-City manufactured and
installed a 65-foot pole and sign. Durre then provided evi-
dence that the actual height of the sign was 9 or 10 feet greater
than 65 feet. He argued that Tri-City’s employees either knew
or should have known the structure failed to conform to the
design specifications and that the employees misrepresented
the height to Wilkinson. He asserted that Tri-City was required
to exercise a high degree of care to prevent injury and damage
to the public.
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However, Durre did not present any evidence that would
create a material issue of fact that Tri-City fraudulently con-
cealed information from him that prevented his timely filing of
the action. Tri-City was not joined as a defendant until March
10, 2011. Tri-City’s owner stated in his affidavit and deposi-
tion that Tri-City did not have any information that the sign
was higher than 65 feet. Although the height of the sign was
determined by the length of the steel used in the installation,
the company did not have a practice of measuring a sign’s
height after installation. There was no indication that Tri-City
attempted to hide or conceal the sign’s height prior to the
accident. Following the accident, both an employee from Love
Signs and Durre’s expert measured the height of the sign. But
there is no evidence that Tri-City knew the height of the sign
before it was measured by Love Signs.
Durre’s argument implies that the latent defect of the sign
should have been disclosed to anyone and everyone who
entered the vicinity of the sign. But Durre has not provided
evidence that Tri-City knew of the latent defect before meas­
urements were taken on the sign; nor has he provided evidence
that created a material issue of fact which would estop Tri-City
from asserting its statute of repose defense. Durre has not pro-
vided any evidence that Tri-City fraudulently concealed the
latent defect in order to prevent Durre from timely filing his
action against Tri-City.
An appellate court will affirm a lower court’s grant of sum-
mary 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 the facts
and that the moving party is entitled to judgment as a matter
of law. Jeremiah J. v. Dakota D., ante p. 211, 826 N.W.2d
242 (2013).
From our review of the pleadings and the evidence offered
at the hearing on the motions for summary judgment, we
conclude that Durre has failed to provide any evidence that
created a material issue of fact whether Tri-City fraudulently
concealed any material fact, either with the intention that
Durre would act or refrain from acting, or which prevented
Durre from timely filing his action against Tri-City. The
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DURRE v. WILKINSON DEVELOPMENT 889
Cite as 285 Neb. 880district court did not err in sustaining Tri-City’s motion for
summary judgment.
Love Signs’ Duty
In his brief, Durre concedes that Love Signs had no inde-
pendent duty to inspect the pole structure. However, he argues
that Love Signs had a duty to exercise reasonable care when
performing service work on the sign.
[8,9] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation. Olson v. Wrenshall, 284 Neb. 445, 822
N.W.2d 336 (2012). When reviewing a question of law, an
appellate court resolves the question independently of the con-
clusion reached by the trial court. Id.
[10-13] In order to prevail in a negligence action, a plain-
tiff must establish the defendant’s duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.
Id. Thus, the threshold inquiry in any negligence action is
whether the defendant owed the plaintiff a duty. Id. A “duty”
is an obligation, to which the law gives recognition and
effect, to conform to a particular standard of conduct toward
another. Id. If there is no duty owed, there can be no negli-
gence. Id.
Love Signs was hired by Wilkinson in 2008 to replace lamps
and ballasts within the lighted portion of the sign. It was not
requested to inspect, maintain, care for, or repair the pole upon
which the sign was mounted. There was no evidence of an
open and obvious defect in the pole or the sign that should
have been discovered when Love Signs replaced the bulbs and
ballasts. There was no evidence that Love Signs had a duty to
inspect for latent defects.
There was no evidence that Love Signs breached a duty of
reasonable care when it performed its work. It was not aware
that the height of the sign exceeded the limits imposed by city
code. It was not aware of any defects in the sign or any hazard-
ous and latent defects in the sign or pole structure.
The sign collapsed as a result of the shearing of a section of
the steel pole holding the sign. Durre has not established that
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Love Signs had a duty to discover any latent defect in the sign
that could cause the sign to collapse.
The district court concluded that Love Signs clearly had
no duty to inspect, maintain, or care for the sign and pole on
Wilkinson’s premises. It concluded that Love Signs’ obliga-
tions were to service the sign and replace lamps and ballasts
within the sign. It sustained Love Signs’ motion for sum-
mary judgment. The district court did not err in sustaining
the motion.
CONCLUSION
Durre’s claims against Tri-City are time barred by the statute
of repose in § 25-223. There was no fraudulent concealment
by Tri-City that prevented Durre from timely filing his claim
against Tri-City. Love Signs owed Durre no duty to discover
any latent defect in the sign. Therefore, we affirm the judgment
of the district court.
Affirmed.
McCormack, J., participating on briefs.