Latzel v. Bartek ( 2014 )

CASES DETERMINED
IN THE
SUPREME COURT OF NEBRASKA
Amanda Latzel, as P ersonal R epresentative
of the Estate of Thomas Latzel, deceased,
and herself, individually, appellant, v.
Ronald Bartek et al., appellees.
___ N.W.2d ___
Filed May 2, 2014. No. S-13-053.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing 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. 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 reason-
able inferences deducible from the evidence.
3. Summary Judgment. Summary judgment proceedings do not resolve factual
issues, but instead determine whether there is a material issue of fact in dispute.
4. ____. If a genuine issue of fact exists, summary judgment may not properly
be entered.
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 judgment
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. In the summary judgment context, a fact is material only
if it would affect the outcome of the case.
8. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
9. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
(1)
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10. ____. It is for the fact finder in a negligence case to determine, on the facts
of each individual case, whether or not the evidence establishes a breach of
that duty.
11. Negligence: Proximate Cause: Proof. To establish proximate cause, the plaintiff
must meet three basic requirements. First, without the negligent action, the injury
would not have occurred, commonly known as the “but for” rule. Second, the
injury was a natural and probable result of the negligence. Third, there was no
efficient intervening cause.
12. Negligence: Proximate Cause: Words and Phrases. An efficient intervening
cause is new and independent conduct of a third person, which itself is a proxi-
mate cause of the injury in question and breaks the causal connection between
the original conduct and the injury. The causal connection is severed when (1) the
negligent actions of a third party intervene, (2) the third party had full control of
the situation, (3) the third party’s negligence could not have been anticipated by
the defendant, and (4) the third party’s negligence directly resulted in injury to
the plaintiff.
13. Negligence: Proximate Cause: Tort-feasors: Liability. The doctrine that an
intervening act cuts off a tort-feasor’s liability comes into play only when the
intervening cause is not foreseeable. But if a third party’s negligence is reason-
ably foreseeable, then the third party’s negligence is not an efficient intervening
cause as a matter of law.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law
Firm, P.C., L.L.O., for appellant.
Gary J. Nedved and Joel Bacon, of Keating, O’Gara, Nedved
& Peter, P.C., L.L.O., for appellee Ronald Bartek.
Robert W. Shively, Jr., and Emily R. Cameron, of Shively &
Lannin, P.C., L.L.O., for appellee Doug Bartek.
Brian S. Kruse, of Rembolt Ludtke, L.L.P., for amicus curiae
Nebraska Agricultural Legal Foundation.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Thomas Latzel died as a result of catastrophic injuries he
sustained in an automobile accident between drivers Daniel
J. Vanekelenburg and Patrick L. Gaughen that occurred on
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October 6, 2007, at the unmarked intersection of County Road
17 and County Road T in Saunders County, Nebraska. Thomas
was a passenger in Vanekelenburg’s vehicle at the time of the
accident. Landowners and brothers, Ronald Bartek and Doug
Bartek, owned the land to the southwest of the corner of the
intersection, and they had planted corn on that land up to the
ditch alongside the road. At the time of the accident, the corn
had grown in excess of 7 feet high and obstructed the view of
the intersection to some extent.
While Thomas was still alive, his wife, Amanda Latzel,
brought this negligence action on behalf of herself and on
behalf of Thomas against the drivers and the landowners. The
district court for Lancaster County determined that the neg-
ligence of the drivers constituted an intervening cause as a
matter of law and that therefore, Ronald and Doug were not
liable. The district court granted the joint motion for summary
judgment filed by the landowners, Ronald and Doug. After the
remainder of the claims in the case were disposed of, Amanda
appealed from the district court’s order granting summary judg-
ment in favor of Ronald and Doug. We determine that because
reasonable minds could not differ, the actions of the drivers,
Vanekelenburg and Gaughen, constituted an efficient interven-
ing cause, which severed the causal connection between the
landowners’ conduct and Thomas’ injuries. Thus, the district
court did not err when it granted summary judgment in favor
of the landowners, and we therefore affirm.
STATEMENT OF FACTS
This case arises out of an automobile accident that occurred
on October 6, 2007, at the unmarked intersection of County
Road 17 and County Road T in Saunders County. Both County
Road 17 and County Road T are gravel roads.
On the day of the accident, Thomas and two other peo-
ple were passengers in a pickup truck driven and owned by
Vanekelenburg. Vanekelenburg was driving his pickup truck
eastbound on County Road T when it collided with another
pickup truck driven and owned by Gaughen, who was traveling
northbound on County Road 17. The intersection of County
Road 17 and County Road T was unmarked.
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The land to the southwest of the intersection was owned by
brothers Ronald and Doug. Ronald and Doug had planted corn
to the southwest of the corner of the intersection up to the ditch
that runs alongside the road. The record indicates that at the
time of the collision, the corn to the southwest of the corner
of the intersection had not been harvested and had grown in
excess of 7 feet tall.
Thomas was catastrophically injured as a result of the acci-
dent. He suffered permanent traumatic injuries, which ulti-
mately led to his death 3 years later. Thomas’ wife, Amanda,
was appointed by the district court as the guardian and conser-
vator for Thomas, who was incapacitated due to his injuries
resulting from the collision.
On September 4, 2009, while Thomas was still living,
Amanda filed this negligence action on behalf of herself and
Thomas against Ronald, Doug, Vanekelenburg, and Gaughen.
With respect to the claim on behalf of Thomas against the
landowners, the complaint alleged that Ronald and Doug were
negligent by planting the corn too close to the roadside, choos-
ing to plant corn near the southwest corner of the intersection
of County Road 17 and County Road T rather than other crops
less likely to obstruct motorists’ vision, and failing to use rea-
sonable and proper care in the maintenance of their land. The
complaint further alleged that Ronald and Doug were negligent
pursuant to Neb. Rev. Stat. § 39-308 (Reissue 2008). Section
39-308 provides:
It shall be the duty of the owner of real property to
remove from such property any tree, plant, shrub, or other
obstruction, or part thereof, which, by obstructing the
view of any driver, constitutes a traffic hazard. When the
Department of Roads or any local authority determines
upon the basis of engineering and traffic investigation
that such a traffic hazard exists, it shall notify the owner
and order that the hazard be removed within ten days.
Failure of the owner to remove such traffic hazard within
ten days shall constitute a Class V misdemeanor, and
every day such owner fails to remove it shall be a sepa-
rate offense.
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With respect to Amanda’s individual claim, the complaint
alleges that as a result of the negligence of the landowners and
drivers, Amanda had incurred compensable damages, including
loss of consortium, loss of services, and loss of past wages.
On June 30, 2010, by order of the district court, Amanda’s
case was consolidated with another case that had been brought
against the drivers, Vanekelenburg and Gaughen, by the estate
of another passenger in Vanekelenburg’s pickup truck at the
time of the accident.
On August 5, 2010, Ronald and Doug filed a joint motion
for summary judgment. A hearing was held on the joint motion
on October 12. At the hearing, Ronald and Doug jointly offered
and the court received 14 exhibits, which were primarily pho-
tographs of the accident and depositions, including their own
and those of the drivers. Amanda offered and the court received
two exhibits, which were affidavits.
In their depositions, both Vanekelenburg and Gaughen stated
that they were experienced rural drivers. Vanekelenburg testi-
fied that he had driven through unmarked intersections over the
years and that when approaching such an intersection, he would
slow down and look both ways before proceeding through the
intersection. Vanekelenburg further testified that he under-
stood it was the responsibility of a driver to yield to a driver
approaching on the right. In this case, Vanekelenburg was
eastbound on County Road T and Gaughen was northbound on
County Road 17, thus approaching on Vanekelenburg’s right.
Like Vanekelenburg, Gaughen testified that he was familiar
with the rule of the road that the driver on the left approaching
an unmarked intersection is required to yield to the driver on
the right.
With respect to the accident, Vanekelenburg testified that
when he was approximately one-half mile away from the
intersection, he was driving 15 to 20 miles per hour. He
further stated that as he approached the intersection, he was
“distracted,” because he was uncertain which direction he was
supposed to go. When asked whether he came to a full stop
before the intersection, Vanekelenburg stated, “I’m pretty sure
I did. But I can’t swear to it.” He further testified that due to
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the accident, he does not have any memories of what happened
once he entered the intersection. Vanekelenburg also stated
that if the corn to the southwest of the corner of the intersec-
tion had been planted farther back from the intersection or if
soybeans or alfalfa had been planted instead of corn, he would
have had a better chance of seeing whether other vehicles were
approaching the intersection.
With respect to the accident, Gaughen testified that he was
traveling northbound on County Road 17, at approximately
46 to 47 miles per hour. In Gaughen’s answers to Amanda’s
interrogatories, which were attached as an exhibit to his depo-
sition, Gaughen stated that he was traveling 49 to 50 miles
per hour. In his deposition, Gaughen stated that once he saw
Vanekelenburg’s vehicle as he approached the intersection,
Gaughen thought that Vanekelenburg was going to stop, but
then Gaughen “noticed nobody [in Vanekelenburg’s vehicle]
was even looking [his] way,” so Gaughen applied his brakes
and turned his vehicle to the right in an attempt to avoid the
collision. Gaughen testified that if the corn to the southwest
of the corner of the intersection had been planted farther
back from the intersection or if a crop that did not grow as
high as the corn had been planted on the land, he would have
had a better chance of seeing the Vanekelenburg vehicle as it
approached the intersection.
In their depositions, Ronald and Doug each testified that
they owned the land at the southwest corner of County Road
17 and County Road T. Ronald stated that he had been a farmer
for 35 years, and Doug stated that he had been a farmer for 20
to 25 years. Ronald and Doug each testified that they rotate the
type of crop they plant on an annual basis, generally between
corn and soybeans, in order to avoid toxicities that would build
up in the soil if the same type of crop were planted each year.
They each testified that they grow their crop up to the ditch
that runs alongside the road.
Ronald testified in his deposition that he could anticipate
that people would sometimes speed on gravel roads, and he
agreed that “not everybody drives like grandpa and grandma.”
Doug also testified that people may speed on roads that
go by his property. Neither Ronald nor Doug testified that
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they anticipated drivers would proceed through the intersec-
tion when they could not see other traffic. When Ronald
was asked whether he believed that his corn “obstructed the
views of any drivers,” Ronald responded that “[i]t would
obstruct, yes.”
At the hearing on the motion for summary judgment,
Amanda offered and the court received the affidavit of the
traffic crash reconstructionist who analyzed the accident at
issue in this case. The traffic crash reconstructionist stated in
his affidavit that the average height of the unharvested corn
to the southwest side of the intersection was 7.1 feet and that
the unharvested corn “was a contributing factor in this crash
and influenced the crash as a view obstruction.” He further
stated that Vanekelenburg’s eastbound vehicle was traveling at
approximately 15 miles per hour at the time of impact and that
Gaughen’s northbound vehicle was traveling at approximately
44 miles per hour at the time of impact.
The traffic crash reconstructionist stated in his affidavit that
once Vanekelenburg’s vehicle was approximately 47 feet from
the area of impact, it reached its point of no return, or immi-
nent impact, and that at that moment, “the Gaughen vehicle
would have just started to enter Vanekelenburg’s available
field of view, obstructed partially by the cornfield.” He further
stated that once the Gaughen vehicle was approximately 206
feet from the area of impact, it reached its point of no return,
or imminent impact, and at that moment, “the Vanekelenburg
vehicle would have been out of view, completely obstructed by
the cornfield.”
At the hearing, Amanda also offered the affidavit of a wit-
ness to the accident. In his affidavit, the witness stated that the
eastbound pickup truck on County Road T, Vanekelenburg’s
vehicle, stopped at the intersection of County Road 17 and
County Road T “for quite awhile.” He also stated that the
northbound pickup truck on County Road 17, Gaughen’s vehi-
cle, “was driving over 65 miles per hour as he approached
the intersection from the south” and that it “was definitely
substantially exceeding the speed limit.” The speed limit was
50 miles per hour. Amanda did not offer evidence that the
landowners should reasonably have anticipated that drivers
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would proceed through the intersection when they could not
see other traffic.
After the hearing, on January 18, 2011, the district court
filed an order granting summary judgment in favor of the
landowners, Ronald and Doug. This is the order at issue in
this appeal. In the order, the district court noted that in A.W. v.
Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010), this court adopted portions of the Restatement (Third)
of Torts: Liability for Physical and Emotional Harm (2010).
Citing Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786
N.W.2d 902, (2010), the district court noted that in order to
prove negligence, a plaintiff must show: “1) that there is a
legal duty on the part of the defendant to protect the plaintiff
from injury, 2) a failure to discharge that duty, 3) damage to the
plaintiff, and 4) that the damage was proximately caused by the
failure to discharge the duty.”
The district court stated that “the [landowners] Barteks do
not argue the absence of duty though its existence in this case
is far from certain.” The court then noted that in Amanda’s
complaint, she alleged that a legal duty could be found in
§ 39-308. The district court stated that an argument could be
made that under § 39-308, a landowner’s duty does not arise
until the landowner has been notified that a traffic hazard
exists. Citing A.W., the district court stated that “[a]bsent the
existence of a specific duty or a policy exemption, a land-
owner would owe only the ‘duty that an actor ordinarily has
to exercise reasonable care when the actor’s conduct creates a
risk of physical harm.’” The district court then stated, “For the
purposes of this order, the court has assumed the existence of a
duty and does not address the issue of duty further.”
The district court then stated that “[p]roximate cause is the
next consideration.” Notably, the district court did not explic-
itly discuss whether or not Ronald and Doug breached their
duty. Such discussion ordinarily follows consideration of the
existence of duty. Because the district court proceeded to con-
sider causation, we assume for purposes of analysis that the
district court found that Ronald and Doug had breached the
applicable standard of care.
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Regarding proximate cause, the district court stated that for
Ronald’s and Doug’s actions to be considered the proximate
cause, there must be no intervening cause. The district court
order described an intervening cause by stating:
An intervening cause is a new and independent force
that severs the causal connection between the defendant’s
actions and the plaintiff’s injuries. The causal connec-
tion is severed when: 1) “the negligent actions of a third
party intervene, 2) the third party had full control of
the situation, 3) the third party’s negligence could not
have been anticipated by the defendant, and 4) the third
party’s negligence directly resulted in injury to the plain-
tiff.” . . . Importantly, the doctrine of intervening cause
comes “into play only when the intervening cause is
not foreseeable.”
(Citations omitted.)
The district court then discussed the “[c]hanging [c]ontext
of [f]orseeability.” Paraphrasing this court’s opinion in A.W.,
the district court stated that “while the rules of duty serve as
broadly applicable guidelines to be applied to corresponding
categories of cases, foreseeability determinations are fact spe-
cific and incapable of serving as useful behavioral guides.”
The district court next cited Nebraska cases involving blind
intersections and intervening cause. Although certain of the
cases had been resolved upon summary judgment and oth-
ers after trial, the district court stated its understanding that
it had been determined in these cases that “a driver’s actions
are unforeseeable as a matter of law where he or she has dis-
regarded the obvious danger of the intersection.” See, e.g.,
Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d
483 (2006); Delaware v. Valls, 226 Neb. 140, 409 N.W.2d
621 (1987); Gerlach v. State, 9 Neb. Ct. App. 806, 623 N.W.2d
1 (2000).
Thus, based on its understanding of our prior cases, the dis-
trict court reasoned that for intervening cause purposes, “the
negligence of a driver who disregards the obvious dangers
of an obscured intersection is not foreseeable” as a matter
of law. The district court also stated that it was undisputed
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that the drivers traversed the intersection “‘when [they] could
not see what [they] needed to see,’” quoting Delaware v.
Valls, supra, thus creating an intervening cause as a mat-
ter of law. Therefore, the court determined that an efficient
intervening cause existed due to the negligence of the driv-
ers, Vanekelenburg and Gaughen. Having determined that an
efficient intervening cause existed as a matter of law, the
landowners’ conduct was not the proximate cause of the acci-
dent and Ronald and Doug were not liable. Accordingly, the
district court granted the landowners’ joint motion for sum-
mary judgment.
After the district court filed its order granting summary
judgment in favor of Ronald and Doug, Amanda filed a motion
to alter or amend or, in the alternative, for pronouncement
and certification under Neb. Rev. Stat. § 25-1315(1) (Reissue
2008) of final judgment regarding the claims against Ronald
and Doug. After a hearing, the district court overruled this
motion on January 31, 2011.
Amanda later settled with Gaughen, and Gaughen was dis-
missed by stipulation of the parties on November 9, 2011.
Following Gaughen’s dismissal, Amanda filed an amended
complaint on January 26, 2012, which added an additional
defendant, the State of Nebraska, Department of Health and
Human Services (DHHS). With respect to DHHS, Amanda
sought an order determining DHHS’ interest in the proceeds
of the settlement with Gaughen. On December 5, the district
court filed an order resolving the dispute between DHHS
and Amanda over the proceeds of the settlement. Thus, as
of December 5, the only outstanding claim was Amanda’s
claim against Vanekelenburg, which was later dismissed with
prejudice on January 14, 2013. With the dismissal of the
claim against Vanekelenburg, all claims at issue in this case
were resolved.
Amanda appeals from the order granting summary judg-
ment in favor of the landowners, Ronald and Doug.
ASSIGNMENTS OF ERROR
Amanda claims on appeal that the district court erred when
it granted summary judgment in favor of Ronald and Doug.
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STANDARDS OF REVIEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there
is no genuine issue as to any material facts or as to the ulti-
mate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014).
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 evi-
dence. Id.
ANALYSIS
In this case, the district court determined that it was undis-
puted both drivers disregarded the obvious dangers of the
obscured intersection by proceeding to traverse the intersec-
tion when they could not see what they needed to see and that
such conduct was not foreseen by the landowners. Because
the actions of the drivers, Vanekelenburg and Gaughen, could
not have been anticipated by the landowners, the actions
of the drivers constituted an intervening cause of the acci-
dent as a matter of law. The district court determined that
because the drivers’ negligence was an intervening cause, the
causal connection between Ronald’s and Doug’s actions and
Thomas’ injuries was severed, and accordingly, the district
court granted Ronald and Doug’s joint motion for summary
judgment. On appeal, Amanda argues that a genuine issue of
material fact exists as to whether the negligence of the drivers
was foreseeable, and thus contends that summary judgment
was improper. Even giving Amanda favorable inferences from
the record, we find no merit to Amanda’s argument, and we
therefore affirm.
[3,4] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing 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. Harris
v. O’Connor, supra. Summary judgment proceedings do not
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resolve factual issues, but instead determine whether there
is a material issue of fact in dispute. Peterson v. Homesite
Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013). If a gen­
uine issue of fact exists, summary judgment may not properly
be entered. Id.
[5-7] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Id. After
the movant for summary judgment 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. Id. In the summary
judgment context, a fact is material only if it would affect the
outcome of the case. Id.
[8] The case before us is a negligence action. In order to
recover in a negligence action, a plaintiff must show a legal
duty owed by the defendant to the plaintiff, a breach of such
duty, causation, and damages. Martensen v. Rejda Bros., 283
Neb. 279, 808 N.W.2d 855 (2012).
[9,10] The district court and the parties devote considerable
attention to the relevance of our negligence analysis in A.W.
v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d
907 (2010), and subsequent cases applying the framework
described in A.W. See, e.g., Martensen v. Rejda Bros., supra;
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487
(2012); Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011);
Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786 N.W.2d
902 (2010). In A.W., we abandoned the risk-utility test and
adopted the duty analysis set forth in the Restatement (Third)
of Torts: Liability for Physical and Emotional Harm (2010)
(hereinafter Restatement (Third)). Under the Restatement
(Third), as a general matter, the existence of a duty serves as a
legal conclusion that an actor must exercise that degree of care
as would be exercised by a reasonable person under the cir-
cumstances. See A.W. v. Lancaster Cty. Sch. Dist. 0001, supra.
We stated in A.W. that
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[t]he question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in
a particular situation. But it is for the fact finder to deter-
mine, on the facts of each individual case, whether or not
the evidence establishes a breach of that duty.
180 Neb. at 210-11, 784 N.W.2d at 913. We made clear in A.W.
that foreseeability is not a factor to be considered by the courts
when making determinations of duty and that “foreseeability”
determinations in the context of breach are determinations of
fact. We comment further on the Restatement (Third) later in
this opinion.
For the landowners, Ronald and Doug, to be successful on
their motion for summary judgment, the record must show as a
matter of law that they owed no duty to Thomas, that any duty
owed was not breached, or that any breach was not the proxi-
mate cause of the accident.
In its analysis of negligence, the district court stated that for
the purposes of its order, it assumed the existence of a duty
owed by the landowners, Ronald and Doug, to Thomas. We
have noted, however, that after the district court stated that
it assumed the existence of duty, the court was silent on the
question of breach. Instead, after stating that it assumed the
existence of a duty, the district court stated that “[p]roximate
cause is the next consideration.” No party has assigned error
to the district court’s failure to address breach in general or in
what manner the landowners’ conduct undisputedly failed to
adhere to a standard of reasonable care in particular. It would
have been informative if the district court had commented on
breach of duty and articulated its analysis, and in another case,
findings regarding breach could be pivotal. However, given
the manner in which the parties have framed the issues in this
appeal, the absence of such analysis does not prevent our reso-
lution of this case. For purposes of our analysis, we understand
the district court’s order to have implicitly assumed that the
landowners breached their duty.
The district court considered proximate cause and deter-
mined that the negligent conduct of the drivers, Vanekelenburg
and Gaughen, of disregarding the dangers of an obstructed
intersection and proceeding through it when they could not
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see what they needed to see, was an efficient intervening
cause of the accident as a matter of law. The district court
determined that because the drivers’ negligence was an inter-
vening cause, the causal connection between the landowners’
actions and Thomas’ injuries was severed, and therefore,
the court granted Ronald and Doug’s joint motion for sum-
mary judgment.
For the purposes of this opinion, we assume without decid-
ing that the landowners owed a duty to Thomas and, as noted
above, that the landowners breached their duty. For purposes
of this opinion, when we refer to “negligent drivers,” we are
merely saying they “owed some duty of care to another yet
failed to abide by that duty.” See Hersh v. E-T Enterprises,
Ltd. Partnership, ___ W. Va. ___, ___, 752 S.E.2d 336,
341 (2013). Accordingly, we turn our focus to the element
of causation.
[11] To establish proximate cause, the plaintiff must meet
three basic requirements. Wilke v. Woodhouse Ford, 278 Neb.
800, 774 N.W.2d 370 (2009). First, without the negligent
action, the injury would not have occurred, commonly known
as the “but for” rule. Id. Second, the injury was a natural and
probable result of the negligence. Id. Third, there was no effi-
cient intervening cause. Id.
[12,13] An efficient intervening cause is new and indepen-
dent conduct of a third person, which itself is a proximate
cause of the injury in question and breaks the causal con-
nection between the original conduct and the injury. Id. The
causal connection is severed when (1) the negligent actions of
a third party intervene, (2) the third party had full control of
the situation, (3) the third party’s negligence could not have
been anticipated by the defendant, and (4) the third party’s
negligence directly resulted in injury to the plaintiff. Id. We
have stated that “[t]he doctrine that an intervening act cuts off
a tort-feasor’s liability comes into play only when the interven-
ing cause is not foreseeable. But if a third party’s negligence is
reasonably foreseeable, then the third party’s negligence is not
an efficient intervening cause as a matter of law.” Id. at 816-17,
774 N.W.2d at 383.
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As an example of the application of the doctrine of efficient
intervening cause, we considered whether such intervening
cause existed in Zeller v. County of Howard, 227 Neb. 667, 419
N.W.2d 654 (1988), which was an appeal after trial. In Zeller,
a passenger in a truck was injured after the truck was struck
by another vehicle while driving at a low rate of speed through
an unprotected and obstructed intersection. The passenger sued
Howard County, Nebraska, for failing to replace a stop sign at
the intersection. We observed that the truckdriver failed to take
appropriate measures to avoid the collision and unreasonably
disregarded the obvious danger of the intersection. We deter-
mined that the truckdriver’s conduct was an efficient interven-
ing cause of the collision, because his behavior was unforeseen
to the county. We stated that
[the truckdriver] had complete control over the situation
because he could have avoided the collision by exercis-
ing reasonable care while driving the pickup toward and
into the intersection. Howard County, even if negligent
regarding the absent stop sign in question, was not bound
to anticipate, and could not have contemplated, that [the
truckdriver] would totally and unreasonably disregard the
obvious danger inherent in vehicular travel into a visually
obstructed intersection of public roads and fail to take
appropriate measures to avoid the collision.
Id. at 675, 419 N.W.2d at 659.
We further illustrate the application of the efficient interven-
ing cause doctrine in the following examples of intersection
accidents from our case law and note that in each of these
cases the matter was properly disposed of on summary judg-
ment essentially because the third party’s negligence could not
have been anticipated.
In Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d
483 (2006), a negligence action was brought against Lancaster
County, Nebraska, to recover for injuries sustained follow-
ing a two-vehicle collision. The driver of one of the vehicles
involved in the collision ran a stop sign and struck Todd
Willet’s vehicle at an intersection where a private landowner
had constructed a berm. Willet argued that the berm obstructed
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the drivers’ views at the intersection and that the county
breached its duty by ignoring the risk created by the berm. The
trial court granted summary judgment in favor of the county,
and we affirmed.
In Willet, we determined that even if the county breached
its duty owed to Willet, the other driver’s negligent conduct
constituted an efficient intervening cause. We stated that the
negligent driver could have avoided the collision by exercising
reasonable care in obeying the stop sign or reducing his speed
so that he could react appropriately. We determined that if the
negligent driver had stopped at the stop sign and proceeded
cautiously, he would have seen Willet’s vehicle approaching
the intersection. We stated that
[t]he County was not bound to anticipate—and could not
have contemplated—that [the negligent driver] would dis-
regard the obvious danger inherent in disobeying a stop
sign and entering an obstructed intersection at high speed.
Thus, [the negligent driver’s] negligent behavior was
unforeseeable to the County and constituted an efficient
intervening cause of the collision.
Id. at 578, 713 N.W.2d at 489.
In Delaware v. Valls, 226 Neb. 140, 409 N.W.2d 621
(1987), a collision occurred between a dirt bike and an
automobile at an intersection that was visually obstructed. A
passenger on the dirt bike filed suit against the private land-
owner who was responsible for the obstruction. We ruled that
the landowners
were not bound to anticipate and cannot be said to have
contemplated that [the dirt bike driver] would negligently
attempt to traverse the intersection when he could not see
what he needed to see in order to do so safely or that [the
automobile driver] would . . . fail to see [the dirt bike] in
time to avoid the collision. Thus, [the dirt bike driver’s]
negligence and that alleged on the part of [the automobile
driver] are efficient intervening causes.
Id. at 145, 409 N.W.2d at 624. We affirmed the summary judg-
ment in favor of the landowners.
Notwithstanding case law represented by the foregoing
examples, Amanda suggests that after A.W. v. Lancaster Cty.
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Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010), the
issue of whether the negligence of the drivers, Vanekelenburg
and Gaughen, was foreseeable and could have been antici-
pated is a determination for the finder of fact and should
not be decided as a matter of law on summary judgment.
Amanda reads A.W. too broadly. As noted in A.W., 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. In A.W., we discussed foreseeability in the
context of breach and stated that
[u]nder the Restatement (Third), foreseeable risk is an
element in the determination of negligence, not legal
duty. 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. 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. Thus, 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 misrep-
resented or misunderstood as involving exemption from
the ordinary duty of reasonable care.
280 Neb. at 216, 784 N.W.2d at 917. Thus, under the
Restatement (Third) and after A.W., foreseeability determina-
tions can properly be made as a matter of law where indi-
cated. See, e.g., Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d
181 (2011).
Amanda’s argument regarding the impact of A.W. on our
efficient intervening cause case law leads to another topic
touched on by the parties and the district court. Although the
parties assert variously that we need not reevaluate interven-
ing cause case law and A.W. does not change intervening cause
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case law, there was, nevertheless, some consideration at the
trial level regarding the wisdom of adopting the Restatement
(Third) version of intervening cause and related principles.
For several reasons, we need not settle this discussion in
this case.
With respect to negligence or breach of care, the Restatement
(Third), § 19 at 215, provides: “The conduct of a defendant can
lack reasonable care insofar as it foreseeably combines with or
permits the improper conduct of the plaintiff or a third party.”
We referred to this section in Ginapp v. City of Bellevue, 282
Neb. 1027, 809 N.W.2d 487 (2012).
The Restatement (Third), § 34 at 569, provides: “When a
force of nature or an independent act is also a factual cause of
harm, an actor’s liability is limited to those harms that result
from the risks that made the actor’s conduct tortious.” And
§ 29 at 493 provides: “An actor’s liability is limited to those
harms that result from the risks that made the actor’s conduct
tortious.” The preceding proposition is sometimes referred to
as “scope-of-risk” analysis, Hale v. Brown, 38 Kan. App. 2d
495, 499, 167 P.3d 362, 365 (2007), affirmed 287 Kan. 320,
197 P.3d 438 (2008), or “‘scope-of-liability’” analysis, Dew v.
Crown Derrick Erectors, Inc., 208 S.W.3d 448, 452 n.4 (Tex.
2006) (plurality opinion). In connection with scope of liability,
one court has observed that the term “proximate cause” has
been criticized and that the Restatement (Third) has there-
fore adopted a two-prong test for causation which “asks (1)
whether the actor’s conduct was a necessary condition of the
harm (but-for or factual cause) and (2) whether the harm was
the product of the risks that made the actor’s conduct unlawful
(scope of liability or proximate cause).” U.S. v. Monzel, 746 F.
Supp. 2d 76, 85-86 (D.D.C. 2010).
Although the scope of risk approach has been explicitly
adopted in certain jurisdictions, e.g., Thompson v. Kaczinski,
774 N.W.2d 829 (Iowa 2009), and Hill v. Damm, 804 N.W.2d
95 (Iowa App. 2011), other jurisdictions have declined to
adopt it, e.g. Hale, supra, and Dew, supra, noting that adop-
tion would require the courts to abandon decades of causation
law and would increasingly preclude disposition without a
trial. In a jurisdiction where the scope of liability approach
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to causation has been adopted, it has been conceded that the
provisions of the Restatement (Third) regarding the scope of
liability analysis “seem as clear as mud.” Hill v. Damm, 804
N.W.2d at 103. See, also, U.S. v. Monzel, 746 F. Supp. 2d at
86 n.16 (stating that “[d]espite the well-established reputa-
tion of the [American Law Institute], the [c]ourt has strong
concerns about whether the second prong of its causation
analysis, which addresses the scope of liability, is going to
be any easier or clearer for judges, who must write appropri-
ate instructions on causation, or for jurors, who must apply
them”). Furthermore, recognizing the difficulty of implement-
ing the Restatement (Third) approach, a comment to § 19 of
the Restatement (Third) observes that “the issues of defendant
negligence and scope of liability often tend to converge.” § 19,
comment c. at 216. The importation of foreseeability jurispru-
dence from our causation cases by the concurrence into its
breach analysis illustrates this point.
Even if we were inclined to adopt the entire Restatement
(Third) approach to negligence, causation, and interven-
ing cause, it could not be applied in this case. Under the
Restatement (Third) two-prong approach referred to above, we
would have to examine, inter alia, the trial court’s undisputed
findings as to the risks that made the landowners’ conduct
unlawful. This we cannot do. Here, there is no discussion
of breach by the district court or identification of the harms
that resulted from the particular risks that made the landown-
ers’ conduct tortious in the first place. Therefore, we could
not assess whether the conduct of the landowners, which
according to the district court impliedly breached the standard
of care, increased the likelihood of the harms that actually
ensued. See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb.
205, 784 N.W.2d 907 (2010). As we noted earlier, although
we have treated the district court’s order as having implicitly
ruled that the landowners’ conduct was a breach of duty, the
district court made no ruling regarding breach and no party
assigns error to this aspect of the district court’s order. The
order as written does not permit the review contemplated by
the Restatement (Third). Thus, at this time and in this case, we
do not rely on the Restatement (Third) approach to intervening
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cause and, instead, continue to adhere to our existing efficient
intervening cause jurisprudence, which the district court cor-
rectly described.
In the present case, the record shows that the landowners
planted corn up to the ditches that ran alongside County Road
17 and County Road T, that the corn had grown to over 7 feet
high, and that it partially obstructed the intersection. However,
just as in Zeller v. County of Howard, 227 Neb. 667, 419
N.W.2d 654 (1988), the drivers, Vanekelenburg and Gaughen,
had complete control over the situation, because either driver
could have prevented the collision by exercising reasonable
care while driving toward and into the obstructed intersec-
tion. The traffic crash reconstructionist stated in his report that
“[h]ad either driver been operating their [sic] vehicle more
cautiously, the crash could have been avoided.” There was no
evidence that the landowners could have reasonably foreseen
the drivers’ conduct.
We have viewed the evidence in the light most favorable to
Amanda and given her the benefit of all reasonable inferences
deducible from the evidence. Based upon the undisputed facts
of this case, although the landowners anticipated speeding,
they were not bound to anticipate that drivers would disre-
gard the obvious danger of traversing a visually obstructed
unmarked intersection without being able to see what they
needed to see to do so safely. Reasonable minds cannot differ
that the drivers’ actions could not have been anticipated by the
landowners and that as a matter of law, the drivers’ negligence
constituted an efficient intervening cause of the collision,
thus severing the causal connection between the landown-
ers’ conduct and Thomas’ injuries. Landowners, Ronald and
Doug, were entitled to judgment, and Amanda did not show a
material fact in dispute preventing judgment. The district court
did not err when it granted the landowners’ motion for sum-
mary judgment.
CONCLUSION
The district court correctly determined that the actions of the
drivers, Vanekelenburg and Gaughen, constituted an efficient
intervening cause of the collision, which severed the causal
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connection between the conduct of the landowners, Ronald
and Doug, and Thomas’ injuries. Therefore, the district court
did not err when it granted summary judgment in favor of the
landowners. We affirm.
Affirmed.
Stephan, J., concurring.
I agree that the judgment of the district court should be
affirmed. But in reaching that result, I see no need to “assume
without deciding” that the landowners breached a duty of care.
Instead, I conclude as a matter of law that there was no breach,
and thus no negligence, on the part of the landowners who
were simply making lawful use of their agricultural land to
raise crops.
In A.W. v. Lancaster Cty. Sch. Dist. 0001,1 this court adopted
the principles of the Restatement (Third) of Torts2 with respect
to the first two elements of a negligence action: A legal duty
owed by the defendant to the plaintiff and a breach of such
duty. Under prior law, foreseeability of a particular injury was
considered in the legal determination of whether a duty was
owed.3 Under the Restatement (Third), an actor has a duty to
exercise reasonable care when the actor’s conduct creates a
risk of physical harm.4 But foreseeable risk is an element in the
determination of breach, not legal duty.5 In A.W., we reframed
the issue of foreseeability: The lack of foreseeable risk in a
specific case may be a basis for a no-breach determination but
not a no-duty determination.6
The majority cites and quotes A.W. for the principle
that “[i]n order to determine whether appropriate care was
1
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
2
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
(2010).
3
See, e.g., Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889
(2000); Knoll v. Board of Regents, 258 Neb. 1, 601 N.W.2d 757 (1999).
4
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 1; Restatement, supra
note 2, § 7(a).
5
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 1.
6
Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786 N.W.2d 902 (2010).
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exercised, the fact finder must assess the foreseeable risk at
the time of the defendant’s alleged negligence.”7 But we rec-
ognized in A.W. that while foreseeability is usually an issue of
fact, a court may decide the issue as a matter of law “where
reasonable people could not disagree about the unforeseeabil-
ity of the injury.”8 We subsequently applied that principle in
Riggs v. Nickel.9
It is axiomatic that if a defendant’s conduct is not negli-
gent, it does not matter whether it was the proximate cause
of the plaintiff’s injury. Therefore, rather than jumping to
causation as the district court did, and the majority does, I
would follow the A.W. protocol and examine the issue of
foreseeability in the context of whether the landowners in this
case were negligent.
Under the Restatement (Third) formulation which we
adopted in A.W.:
“A person acts negligently if the person does not exer-
cise reasonable care under all the circumstances. Primary
factors to consider in ascertaining whether a person’s
conduct lacks reasonable care are the foreseeable likeli-
hood that the persons conduct will result in harm, the
foreseeable severity of any harm that may ensue, and
the burden of precautions to eliminate or reduce the risk
of harm.”10
In this context, the “extent of foreseeable risk depends on the
specific facts of the case” and “small changes in the facts may
make a dramatic change in how much risk is foreseeable.”11
The alleged negligence of the Bartek brothers consisted of
planting and raising corn in their field up to the point where
the road ditch begins, which is approximately 25 to 30 feet
from the center of the road. Ronald Bartek testified that he
7
See A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 1, 280 Neb. at 216,
784 N.W.2d at 917.
8
Id. at 218, 784 N.W.2d at 918.
9
Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
10
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 1, 280 Neb. at 218, 784
N.W.2d at 918, quoting Restatement, supra note 2, § 3.
11
Id. at 216, 784 N.W.2d at 917.
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and his brother had been raising corn in this manner for 35
years and that there was nothing unusual about the practice
of planting corn “up to the ditch.” Doug Bartek testified that
he was unaware of any other motor vehicle accidents at rural
intersections abutting the Barteks’ farmland and that he was
unaware of any such accidents at other Saunders County
road intersections due to corn growing in an abutting field.
Similarly, the drivers involved in the accident, Gaughen and
Vanekelenburg, testified that there was nothing unusual about
the rural intersection at that time of year. Gaughen, who farms
in the same area, testified that there was nothing improper
about the manner in which the Barteks planted their corn and
that it was consistent with the manner in which he and other
farmers in Saunders County plant corn.
Although violation of a statute may constitute evidence of
negligence,12 there is no merit in the appellant’s argument that
the Barteks violated Neb. Rev. Stat. § 39-308 (Reissue 2008).
That statute provides in pertinent part:
It shall be the duty of the owner of real property to
remove from such property any tree, plant, shrub, or
other obstruction, or part thereof, which, by obstructing
the view of any driver, constitutes a traffic hazard. When
the Department of Roads or any local authority deter-
mines upon the basis of engineering and traffic inves-
tigation that such a traffic hazard exists, it shall notify
the owner and order that the hazard be removed within
ten days.
The statute obligates a landowner to remove a visual obstruc-
tion that is a “traffic hazard,” but it entrusts the determina-
tion of when a condition is a “traffic hazard” to state and
local officials. There is no evidence that such officials ever
notified the Barteks that their growing corn crop was a traf-
fic hazard. To the contrary, Doug Bartek testified that no one
from the Department of Roads or any local authority had ever
contacted him with respect to the intersection and that no one
else had ever questioned the proximity of the crop to the road.
Similarly, Ronald Bartek testified that he had never heard of
12
See Goodenow v. State, 259 Neb. 375, 610 N.W.2d 19 (2000).
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24 288 NEBRASKA REPORTS
anyone complaining of corn growing too close to a road or
obstructing visibility.
The Barteks acknowledged that motorists sometimes speed
on gravel roads and that their corn obstructed a motorist’s view
to some degree. But this general knowledge does not support
an inference that a traffic accident was a reasonably foresee-
able risk of the manner in which the Barteks grew their corn.
The authors of the Restatement (Third) recognized that, in
determining whether specific conduct constitutes negligence,
“the law itself must take care to avoid requiring excessive pre-
cautions of actors relating to harms that are immediately due to
the improper conduct of third parties, even when that improper
conduct can be regarded as somewhat foreseeable.”13 As the
majority notes, we have held as a matter of law that a motor-
ist’s negligence in proceeding through a visually obstructed
intersection in disregard of obvious danger is not a reason-
ably foreseeable risk.14 While we reached this conclusion in
the context of efficient intervening cause, I think it is equally
apposite to the assessment of foreseeability of risk in the con-
text of negligence.
An appellate court will affirm a lower court’s ruling that
reaches the correct result, although based on different reason-
ing.15 I would conclude as a matter of law that the Barteks
were not negligent in planting their corn up to the edge of their
field, and I would affirm the summary judgment in their favor
on that basis.
Heavican, C.J., and Connolly, J., join in this concurrence.
13
Restatement, supra note 2, § 19, comment g. at 221.
14
See, Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d 483 (2006);
Delaware v. Valls, 226 Neb. 140, 409 N.W.2d 621 (1987).
15
Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160 (2012).