Sundermann v. Hy-Vee , 306 Neb. 749 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/16/2020 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
Rita Sundermann, appellant, v. Hy-Vee, Inc.,
and Sweetbriar II, LLC, appellees.
___ N.W.2d ___
Filed August 14, 2020. No. S-18-250.
1. Summary Judgment: Appeal and Error. An appellate court affirms 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. 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. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
4. Negligence: Damages: Proximate Cause. In order to prevail in a neg-
ligence 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. As such, the
threshold issue in any negligence action is whether the defendant owes
a legal duty to the plaintiff.
5. Negligence. Not every negligence action involving an injury suffered on
someone’s land is properly considered a premises liability case.
6. Negligence: Liability: Proximate Cause. A possessor of land is subject
to liability for injury caused to a lawful visitor by a condition on the
land if (1) the possessor either created the condition, knew of the condi-
tion, or by the existence of reasonable care would have discovered the
condition; (2) the possessor should have realized the condition involved
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
an unreasonable risk of harm to the lawful visitor; (3) the possessor
should have expected that a lawful visitor such as the plaintiff either
(a) would not discover or realize the danger or (b) would fail to protect
himself or herself against the danger; (4) the possessor failed to use rea-
sonable care to protect the lawful visitor against the danger; and (5) the
condition was a proximate cause of damage to the plaintiff.
7. Negligence: Liability: Proof. The first element of the premises liability
test may be met by proving any one of its three subparts, namely, that
the defendant created the condition, knew of the condition, or would
have discovered the condition by the exercise of reasonable care.
8. Negligence: Words and Phrases. An unreasonable risk of harm means
a risk that a reasonable person, under all the circumstances of the case,
would not allow to continue.
9. Negligence: Liability. A land possessor is not liable to a lawful entrant
on the land unless the possessor has or should have had superior knowl-
edge of the dangerous condition.
10. ____: ____. Even where a dangerous condition exists, a premises
owner will not be liable unless the premises owner should have
expected that a lawful visitor such as the plaintiff either would not dis-
cover or realize the danger or would fail to protect himself or herself
against the danger.
11. Negligence. Generally, when a dangerous condition is open and obvious,
the owner or occupier is not liable in negligence for harm caused by
the condition.
12. ____. Under the open and obvious doctrine, a possessor of land is not
liable to invitees for physical harm caused by any activity or condition
on the land whose danger is known or obvious to the invitee, unless
the possessor should anticipate the harm despite such knowledge or
obviousness.
13. ____. A condition on the land is considered open and obvious when the
risk is apparent to and of the type that would be recognized by a reason-
able person in the position of the invitee exercising ordinary perception,
intelligence, and judgment.
14. ____. A determination that a risk or danger is open and obvious does
not end the duty analysis in a premises liability case. A court must also
determine whether the possessor should have anticipated that lawful
entrants would fail to protect themselves despite the open and obvi-
ous risk.
15. Judgments: Appeal and Error. Where the record demonstrates that the
decision of the trial court is ultimately correct, although such correctness
is based on a ground or reason different from that assigned by the trial
court, an appellate court will affirm.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
Petition for further review from the Court of Appeals, Pirtle,
Riedmann, and Arterburn, Judges, on appeal thereto from
the District Court for Douglas County, Horacio J. Wheelock,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Matthew A. Lathrop, of Law Offices of Matthew A. Lathrop,
P.C., L.L.O., and Kathy Pate Knickrehm for appellant.
Raymond E. Walden and Michael T. Gibbons, of Woodke &
Gibbons, P.C., L.L.O., for appellees.
Jason Ausman, of Ausman Law Firm, P.C., L.L.O., and
Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus
curiae Nebraska Association of Trial Attorneys.
Brian J. Fahey and Robert W. Futhey, of Fraser Stryker, and
Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for
amicus curiae The Nebraska Defense Counsel Association.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
This is a personal injury action arising from an accident
between a pickup truck and a pedestrian in a convenience store
parking lot. The pedestrian sued the convenience store, alleg-
ing the accident was caused by a dangerous condition on the
land. The district court granted summary judgment in favor
of the convenience store, finding the driver’s negligence was
not reasonably foreseeable. The Nebraska Court of Appeals
reversed, and remanded for further proceedings. 1 We granted
further review, and although our reasoning differs from that
relied upon by the district court, we reverse the decision of
the Court of Appeals and remand the cause with directions to
affirm the judgment of the district court.
1
Sundermann v. Hy-Vee, 27 Neb. Ct. App. 287, 929 N.W.2d 919 (2019).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
I. BACKGROUND
On March 2, 2012, as it was becoming dusk, Rita Sundermann
was struck by a pickup truck while she was inflating her car’s
tires at a Hy-Vee, Inc., gas station and convenience store
in Omaha, Nebraska. Because the layout of the property is
central to the issues on appeal, we include an aerial photo-
graph received as an exhibit, and we describe the property in
some detail.
1. Property
The relevant design features of the property are not disputed.
The front of the convenience store faces east, and there are
marked parking stalls along the entire store front. There are
two access drives into and out of the property, but the one at
issue in this case is located just north of the convenience store.
That access drive is 24 feet wide and has two lanes which
the parties’ experts referred to as “drive aisles.” One drive
aisle accommodates eastbound traffic entering the convenience
store, and the other accommodates westbound traffic leaving
the property. Perpendicular to the westbound drive aisle are six
marked parking stalls. Convenience store employees are asked
to park in the stalls along the drive aisle rather than the stalls
in front of the store.
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
At the time of the accident, a tire inflation station was
located along the sidewalk on the northeast corner of the
convenience store. It consisted of a free standing air compres-
sor cabinet on a pole with a coiling air hose that, when fully
extended, reached to the northernmost parking stalls in front
of the store and to portions of the eastbound drive aisle. There
were no signs or curb markings directing patrons where to
park, or not to park, when using the air compressor. The front
of the air compressor faced east and had a large “START” but-
ton and a decal reading “FREE AIR.”
Prior to the accident, Hy-Vee was aware that patrons parked
both in front of the store and in the eastbound drive aisle to use
the air compressor. But there was no evidence of prior acci-
dents involving vehicles and patrons using the air compressor,
nor was there evidence that Hy-Vee had received safety com-
plaints involving the location of the air compressor.
2. Accident
After fueling her car at one of the Hy-Vee fuel pumps,
Sundermann parked her car along the curb facing westbound
in the eastbound drive aisle, near the air compressor, to
inflate her tires. She stood curbside and used the air compres-
sor to fill both tires on the driver’s side of the car. Then, she
draped the air hose over the hood and walked around the car
to inflate the tires on the passenger side. As she was walk-
ing, she looked around for approaching traffic and backing
vehicles. Seeing none, she crouched down in the drive aisle to
inflate the car’s front right tire. While doing so, she was facing
her car, but still watching the traffic around her. Sundermann
was not sure how long she was crouched inflating the tire, but
she recalled one car pulling into the lot and driving slowly
around her. As she remained crouched, she heard a loud
engine start behind her and she stood up. Sundermann did
not recall if she stood up as soon as she heard the engine, but
she was not able to turn around or get out of the way before
she was struck by a pickup truck being operated by Robert
Swanson. Sundermann was seriously injured in the collision
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
and required significant medical treatment, including place-
ment of a metal rod in her left leg.
Sundermann had used the Hy-Vee air compressor on prior
occasions, and when doing so, she had parked her car in a
similar manner in the eastbound drive aisle. She also had seen
other cars park in the drive aisle to use the air compressor.
Sundermann was aware of the dangers posed by parking in the
drive aisle, and on the day of the accident, she knew she “was
in a dangerous position.” She was “very aware” of the vehicles
around her, and while she filled her tires, she was looking and
listening for vehicles.
Sundermann testified she knew there were marked parking
stalls along the front of the store where she could have parked
to use the air compressor, but she explained that on the evening
of the accident, those stalls were occupied. She also testified
that in her opinion, parking in the marked stalls was no safer
than parking in the drive aisle, because crouching in the stalls
still presented the danger of getting hit by a car pulling into or
out of an adjacent stall. Sundermann testified that even after
the accident, she parked her car in the drive aisle to use the
Hy-Vee air compressor, but she positioned her car so she could
remain curbside while inflating her tires.
Swanson, the driver of the pickup truck that struck
Sundermann, had worked at the convenience store since 2009.
He had seen patrons using the air compressor both while parked
in the drive aisle and while parked in the first stall along the
front of the convenience store. But before the accident with
Sundermann, Swanson had not heard of anyone being injured
while using the air compressor in the drive aisle.
Swanson testified the Hy-Vee access drive was “very, very
busy.” On prior occasions, while he was backing from the
parking stalls along the access drive, he had encountered a
car parked in the eastbound drive aisle using the air compres-
sor. In those instances, he felt he had sufficient room to back
out so long as he “cut [the] tires real hard,” but his usual
practice was to stop and wait for the car to leave before he
finished backing.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
On the day of the accident, Swanson left work around 6
p.m. and walked to his pickup truck, which was parked in one
of the marked stalls adjacent to the westbound drive aisle.
As he walked past the air compressor, he did not see a car
parked in the eastbound drive aisle. After Swanson got into his
pickup truck and started the motor, he remained parked with
the engine running while several vehicles passed behind him
in the drive aisle. He then put the pickup truck in reverse and
started backing out of the stall. After moving about a foot, he
noticed Sundermann’s car parked behind him in the eastbound
drive aisle. He “went to hit the brake,” intending to stop and
wait for the car to move out of the way, but his foot slipped
onto the gas pedal instead, causing his pickup truck to acceler-
ate backward and strike Sundermann. Swanson’s rear tires left
acceleration marks on the pavement. Swanson testified that but
for his pedal error, he would have had plenty of room to stop
and would not have hit Sundermann.
After the accident, Swanson admitted his negligence. He
reached a settlement agreement with Sundermann and is no
longer a party to this action.
3. Sundermann’s Complaint
Against Hy-Vee
Sundermann sued Hy-Vee and Sweetbriar II, LLC
(Sweetbriar), for negligence. Her amended complaint alleged
that Hy-Vee owned and operated the gas station and conve-
nience store and that Sweetbriar owned the real property on
which it was situated. Sundermann alleged, summarized, that
the location of the air compressor was a dangerous condition
on the land because it was placed in an area of high vehicular
and pedestrian conflict, there were no barriers or signs to pre-
vent patrons from stopping in the access drive to use the air
compressor, and there were no posted warnings.
Hy-Vee and Sweetbriar filed an answer in which they denied
negligence, alleged Sundermann was contributorily negligent,
and alleged the accident was proximately caused by the actions
of others over whom Hy-Vee had no control.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
4. Motion for Summary Judgment
and Expert Testimony
Hy-Vee and Sweetbriar moved for summary judgment on
Sundermann’s amended complaint. At the hearing, 17 exhibits
were received, including the depositions of Sundermann and
Swanson, a deposition of Hy-Vee’s director of site planning,
and reports and depositions from expert witnesses retained by
Sundermann and Hy-Vee and Sweetbriar. The deposition tes-
timony of Sundermann and Swanson was consistent with the
facts recited above. As pertinent to the issues on appeal, we
summarize the opinions of the parties’ experts.
(a) Sundermann’s Expert
Sundermann’s expert, Daniel Robison, was a licensed archi-
tect. Over the course of his 40-year career, he had designed
approximately 15 gas station and convenience stores, generally
in Illinois and Wisconsin. He admitted there was nothing in
any Omaha or Nebraska code that specifically related to the
placement of tire inflation stations at convenience stores. He
also admitted that no national codes specifically addressed the
matter. But he opined that more general national architectural
standards applied, and he testified that according to such stan-
dards, it was not proper to “block drive aisles or encourage
people to block drive aisles.”
Robison explained that an access drive with perpendicu-
lar parking was required by national standards to be 24 to
25 feet wide, and he agreed that Hy-Vee’s access drive met
that width standard. He estimated the width of Sundermann’s
vehicle was 6 feet, and he explained that when she was parked
along the curb of the eastbound drive aisle, vehicles parked
in the perpendicular stalls, where Swanson was, had only 19
feet to maneuver, instead of the standard 25 feet. He admit-
ted it was impossible to eliminate all dangers that exist in a
mixed-use facility such as a convenience store, where cars and
pedestrians are interacting. But he testified the design goal
was to eliminate as much vehicular and pedestrian interaction
as possible.
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306 Nebraska Reports
SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
Robison’s report stated it was the general practice in the
industry to separate functions like loading, unloading, and
delivery from drive aisles because adding functions to drive
aisles increased hazardous conditions. According to Robison,
Hy-Vee placed the air compressor in a location where the
“most obvious” means of using it was to park in the drive aisle,
which created a dangerous condition due to traffic and pedes-
trians already using the area and which was “made more dan-
gerous with perpendicular parking across from where tire fill-
ing was taking place.” His report stated that “in the design of
gas station facilities . . . tire filling stations should be located in
designated parking areas or in the parking lot away from park-
ing and gas pump islands.”
Robison examined Hy-Vee’s site plan and opined that Hy-Vee
should have created a dedicated parking area for patrons using
the air compressor. In his opinion, such an area could have
been created in the grassy area just north of the convenience
store building.
(b) Hy-Vee’s Experts
Hy-Vee’s expert, Jason Stigge, is a mechanical engineer and
consultant. Stigge had never designed a convenience store or
gas station, but in preparing his report and forming his opin-
ions, he worked with a forensic architect licensed in Nebraska.
Stigge agreed with Robison that there are no local or national
policies, codes, or standards that directly address the location
or positioning of a tire inflation station at a convenience store.
He disagreed that several national standards cited by Robison
were applicable to the site design of the subject property.
Instead, he testified that the subject property was designed and
constructed in compliance with all relevant codes and safety
standards and that Hy-Vee’s design, including the location of
the air compressor, was safe. His report also noted that the
location of Hy-Vee’s air compressor was similar to that found
in a survey of other local gas stations and convenience stores,
which showed air compressors were typically located on a
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
driving lane within the parking lot with no physical barriers or
signage directing use.
Stigge admitted Hy-Vee could anticipate patrons would use
the air compressor as far as the air hose would reach, which
could include using it while parked in the drive aisle. But he
opined that drive aisles in retail parking lots are commonly
used for both vehicular and pedestrian traffic, as well as for
loading and unloading goods, and he suggested that physical
separation of vehicular and pedestrian traffic in such areas is
not feasible, explaining:
Fueling station and convenience store parking lots con-
sist of mixed use areas where pedestrians and vehicular
traffic are mixed extensively, to include the area compris-
ing drive aisles. Persons utilizing the services of a fueling
station, such as vehicle fueling, cleaning windows, filling
tires, checking fluid levels, or visiting the convenience
store, will inherently be exposed to vehicle traffic in the
area. The mixture of pedestrians and vehicles is typical
in the environment . . . as well as, many other parking
lot situations which people use every day. It is incumbent
on both the drivers and pedestrians in a mixed-use area
to be cautious and aware of the environment and their
surroundings, to include the positioning of themselves or
their vehicles.
Finally, based on photographs of the accident scene, Stigge
estimated that Sundermann’s car was parked 2 feet north of
the south curb of the eastbound drive aisle, so that only 17
feet at most separated the rear of Swanson’s pickup truck and
the passenger side of Sundermann’s car. Based on this distance
and his calculations as to how Swanson’s pickup truck traveled
after he hit the accelerator instead of the brake, Stigge opined
the accident would have happened even if the area had been
designed with a designated parking area in the manner pro-
posed by Sundermann’s expert.
Jeff Stein, a civil engineer, is Hy-Vee’s director of site plan-
ning. Stein was responsible for overseeing site development
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
of new stores, from acquisition of the property to “ribbon-­
cutting.” He testified that generally, if the local city approves
the submitted site plan as compliant with its codes and ordi-
nances, Hy-Vee considers the site plan to be safe.
Stein testified the Hy-Vee drive aisles are used by vehicles
and pedestrians for many purposes, including for ingress and
egress and to get from the fuel pumps to the convenience store.
He admitted that Hy-Vee could expect customers to use the air
compressor from any place the hose could reach, which would
include the drive aisle. Stein testified “we see people park in
all kinds of different locations throughout the site” and he did
not think it was possible to know for sure where patrons would
park. But he did not think it was unreasonable for Sundermann
to park where she did to use the air compressor, because
there appeared to be plenty of room for others to maneuver
around her.
5. District Court Order
The district court granted summary judgment in favor
of Hy-Vee and Sweetbriar. The court began its analysis by
addressing duty, and it concluded that “Hy-Vee owes a legal
duty to all patrons, including Sundermann at the gas station
premises.” The remaining analysis focused on whether Hy-Vee
had breached its duty of reasonable care.
The court reasoned a breach of duty occurs only when the
resulting injury to a plaintiff is a reasonably foreseeable conse-
quence of the defendant’s conduct, and it concluded Swanson’s
negligence in pressing the accelerator rather than the brake
was not reasonably foreseeable to Hy-Vee or Sweetbriar as a
matter of law. Specifically, the trial court reasoned:
No reasonable jury could find a breach of duty in
this case.
First, the complaint about the Hy-Vee station’s site
design is that it presents risks inherent in any design
involving people on foot and people in cars. The two
share the same limited space and have to be careful about
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
the normal hazards, such as inattentive drivers not seeing
pedestrians, pedestrians not seeing cars, vehicles passing
one another in already narrow lanes, etc. However, this
accident involved a driver who saw the plaintiff’s car and
was responding with safe and appropriate action, but then
his foot slipped onto the gas and his truck roared back-
wards before he could realize what had happened.
The district court reasoned that “a slipped foot and uncontrolled
acceleration from a driver operating a truck parked in a conve-
nience store parking spot” was not reasonably foreseeable.
Alternatively, the district court also concluded there was
no genuine issue of material fact as to causation, reasoning
that “Swanson’s admitted negligence in operating his truck in
reverse was an unforeseeable efficient intervening cause of his
truck striking Sundermann, which severed the conduct of the
landowner[] Hy-Vee to Sundermann’s injuries.”
The district court granted the defendants’ motion for sum-
mary judgment and dismissed the action with prejudice.
6. Court of Appeals
(a) Foreseeability and Breach
Sundermann appealed, and the Court of Appeals reversed,
and remanded for further proceedings. In doing so, it did not
address the source or scope of the duty owed by Hy-Vee and
Sweetbriar. Instead, considering Hy-Vee and Sweetbriar collec-
tively as one entity—Hy-Vee—the Court of Appeals assumed
Hy-Vee owed a duty of reasonable care to all patrons. The
Court of Appeals focused its analysis on whether, viewing the
evidence in the light most favorable to Sundermann and giv-
ing her the benefit of all reasonable inferences deducible from
the evidence, 2 there was a genuine issue of material fact as to
whether Hy-Vee breached its duty.
2
See Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36
(2018).
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SUNDERMANN v. HY-VEE
Cite as 306 Neb. 749
In that regard, relying on A.W. v. Lancaster Cty. Sch. Dist. 3
and 1 Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010), the Court of Appeals explained
that lack of a foreseeable risk can be a basis for a no-breach
determination. 4 It further explained, “‘[D]eciding what is rea-
sonably foreseeable involves common sense, common experi-
ence, and application of the standards and behavioral norms of
the community . . . .’” 5
Based on these principles and its review of the record, the
Court of Appeals found Sundermann had presented evidence
from which a finder of fact could conclude it was reasonably
foreseeable that a patron would park in the eastbound drive
aisle while using Hy-Vee’s air compressor. It continued:
Moreover, finders of fact may—when using their com-
mon sense and common experience and applying the stan-
dards and behavioral norms of the community—infer from
the evidence that automobiles could simultaneously be
parked in the [eastbound drive aisle] and in the right-angle
parking spots farther to the north. Finders of fact may also
reasonably infer from the evidence that an automobile
would back out from one of the right-angle parking spots
and collide with an automobile parked in the [eastbound
drive aisle], perhaps owing, in part, to the need for drivers
to sharply turn their vehicles when backing out of those
parking spots. We note the district court focused on the
very narrow fact pattern present in this case, that being the
foreseeability that a person’s foot would slip off the brake
pedal and inadvertently hit the gas pedal, resulting in the
collision. We find that such a fact-specific analysis is not
necessary in assessing the question at hand and find that a
reasonable person could conclude that it was foreseeable
3
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
4
See Sundermann, supra note 1.
5
Id. at 297, 929 N.W.2d at 926, quoting A.W., supra note 3.
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to Hy-Vee that a vehicle could be operated in such a man-
ner as to fail to observe a person such as Sundermann uti-
lizing the air compressor in the access drive area, resulting
in a collision and injury. 6
As such, the Court of Appeals concluded that there was a
genuine issue of material fact as to whether the harm was
foreseeable and that Hy-Vee was not entitled to a no-breach
determination as a matter of law.
(b) Proximate Cause
The Court of Appeals also briefly addressed Sundermann’s
assigned error relating to causation. In doing so, it noted “the
district court’s order makes only passing reference to causation
and did not fully evaluate the issue.” 7 The Court of Appeals
then concluded that, for substantially the same reasons dis-
cussed as to foreseeability of the harm, genuine issues of mate-
rial fact existed with respect to causation as well. The Court of
Appeals thus reversed the summary judgment and remanded
the cause for further proceedings.
We granted Hy-Vee and Sweetbriar’s petition for further
review and requested supplemental briefing on questions
related to foreseeability and efficient intervening cause. We
also accepted and considered briefs from several amici curiae
on these questions.
II. ASSIGNMENTS OF ERROR
On further review, Hy-Vee and Sweetbriar assign that the
Court of Appeals erred in reversing summary judgment because
(1) the uncontroverted evidence showed the collision and
Sundermann’s injuries would have occurred even if Hy-Vee
had designed the parking lot according to the alternate design
suggested by Sundermann’s expert and (2) the uncontroverted
evidence supported the trial court’s conclusion that it was not
6
Id. at 299, 929 N.W.2d at 927-28.
7
Id. at 300, 929 N.W.2d at 928.
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reasonably foreseeable that a backing driver would hit the
accelerator instead of the brake.
III. STANDARD OF REVIEW
[1] An appellate court affirms 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 mat-
ter of law. 8 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. 9
[2,3] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation. 10 When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court. 11
IV. ANALYSIS
Before addressing the issues in this case, we note that both
the district court and the Court of Appeals generally referred
to the two defendants in this case, Hy-Vee and Sweetbriar, col-
lectively as Hy-Vee. No party has objected to this characteriza-
tion, and because it is generally consistent with the pleadings
and the parties’ briefing, we similarly refer to the defendants
collectively as “Hy-Vee.”
1. Proper Legal Framework
[4] As a general matter, in order to prevail in a negli-
gence action, a plaintiff must establish the defendant’s duty to
8
DH-1, LLC v. City of Falls City, 305 Neb. 23, 938 N.W.2d 319 (2020).
9
Id.
10
Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
11
Id.
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protect the plaintiff from injury, a failure to discharge that
duty, and damages proximately caused by the failure to dis-
charge that duty. 12 The threshold issue in any negligence action
is whether the defendant owes a legal duty to the plaintiff. 13
The district court began its analysis by discussing the con-
cept of legal duty and ultimately concluded that Hy-Vee owed
a duty of reasonable care to all of its patrons, including
Sundermann. Without specifically identifying the source or
scope of such duty, the court proceeded to analyze the evi-
dence as it related to the elements of breach and proximate
cause, focusing primarily on the concept of foreseeability. The
Court of Appeals addressed the issues in a similar fashion. We
presume the approach taken by both courts was necessarily
driven by the manner in which the issues were presented by
the parties.
Given the assignments of error on further review, the par-
ties’ briefing before this court has also focused primarily on the
foreseeability inquiry as it relates to both breach and proximate
cause in our tort jurisprudence.
Although we have carefully considered the thoughtful and
thorough briefing on the issues of foreseeability and efficient
intervening cause, we find, as explained below, that the dis-
positive issue in this premises liability case actually involves
neither concept; it turns instead on the concept of duty.
(a) This Is a Premises
Liability Case
The parties occasionally refer to this as a “premises liability
case,” but neither the evidence nor Hy-Vee’s liability was ana-
lyzed in that legal framework. Because we agree that Hy-Vee’s
liability is governed by our premises liability jurisprudence,
we first set out, and then apply, the proper legal framework
governing such a case.
12
Id.
13
Id.
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[5] We have cautioned that “[n]ot every negligence action
involving an injury suffered on someone’s land is properly
considered a premises liability case.” 14 Generally speaking,
our premises liability cases fall into one of three categories:
(1) those concerning the failure to protect lawful entrants from
a dangerous condition on the land, 15 (2) those concerning the
failure to protect lawful entrants from a dangerous activity on
the land, 16 and (3) those concerning the failure to protect law-
ful entrants from the acts of a third person on the land. 17
This case falls squarely into the first category of premises
liability cases, because Sundermann has sued the owner and
possessor of property, claiming she was injured by an unrea-
sonably dangerous condition on the property. As such, whether
there is a genuine issue of material fact that would preclude the
trial court’s award of summary judgment in favor of Hy-Vee
must be evaluated using the premises liability framework.
14
Hodson v. Taylor, 290 Neb. 348, 361, 860 N.W.2d 162, 175 (2015) (claim
that lake was unreasonably dangerous because it was too shallow was only
premises liability action as against those who owned or occupied lake).
See, Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011) (not premises
liability where claim does not involve alleged dangerous condition or
activity on property); Semler v. Sears, Roebuck & Co., 268 Neb. 857,
689 N.W.2d 327 (2004) (not premises liability where claim landowner
provided defendant defective ladder). See, also, Whalen v. U S West
Communications, 253 Neb. 334, 570 N.W.2d 531 (1997) (not premises
liability where claim involves injury caused by misuse of defective equip­
ment), disapproved on other grounds, Gayton v. Wal-Mart, 289 Neb. 49,
853 N.W.2d 181 (2014).
15
See, e.g., Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (2016)
(plaintiff slipped and fell on piece of watermelon in grocery store); NJI2d
Civ. 8.26.
16
See, e.g., Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318 (1999)
(plaintiff injured during estate auction); NJI2d Civ. 8.27.
17
See, e.g., Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016) (plaintiff
injured by intentional act of another patron in tavern parking lot); NJI2d
Civ. 8.28.
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(b) Premises Liability Involving
Conditions on Land
[6] For more than 30 years we have applied the same five-
factor rule to premises liability actions involving a condition
on the land. 18 A possessor of land is subject to liability for
injury caused to a lawful visitor by a condition on the land
if (1) the possessor either created the condition, knew of the
condition, or by the existence of reasonable care would have
discovered the condition; (2) the possessor should have real-
ized the condition involved an unreasonable risk of harm to
the lawful visitor; (3) the possessor should have expected that
a lawful visitor such as the plaintiff either (a) would not dis-
cover or realize the danger or (b) would fail to protect himself
or herself against the danger; (4) the possessor failed to use
reasonable care to protect the lawful visitor against the dan-
ger; and (5) the condition was a proximate cause of damage to
the plaintiff. 19
Of the five elements recited above, the first three clarify
the scope of a land possessor’s duty to lawful entrants. 20 We
have described this duty as a “specialized standard of care that
include[s] three . . . elements” in addition to “the ordinary duty
of reasonable care.” 21 More precisely, the first three elements
identify those conditions on the land regarding which a land
possessor owes a duty of reasonable care to protect lawful
entrants from physical harm.
18
See, e.g., Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d
186 (2019); Hodson, supra note 14; Connelly v. City of Omaha, 284 Neb.
131, 816 N.W.2d 742 (2012); Herrera v. Fleming Cos., 265 Neb. 118, 655
N.W.2d 378 (2003); Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572
N.W.2d 356 (1998); Cloonan v. Food-4-Less, 247 Neb. 677, 529 N.W.2d
759 (1995); Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d
485 (1989).
19
Id.
20
See, Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014); Aguallo
v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
21
Aguallo, supra note 20, 267 Neb. at 805-06, 678 N.W.2d at 88.
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Neither the trial court nor the Court of Appeals expressly
applied the premises liability framework to Sundermann’s
claim. Consequently, neither court determined the scope of
Hy-Vee’s duty to Sundermann under the first three elements
of that framework, and that made consideration of the fourth
element—whether Hy-Vee breached its duty of reasonable
care—more difficult than it needed to be.
It is undisputed that Hy-Vee is the possessor/owner of the
subject property and that Sundermann was a lawful visitor
on that property. To determine the scope of Hy-Vee’s duty to
Sundermann under the circumstances, we consider the evi-
dence in light of the first three elements of our established
premises liability framework.
2. Hy-Vee Created Condition
[7] The first element of the premises liability test may be
met by proving any one of its three subparts, namely, that the
defendant created the condition, knew of the condition, or
would have discovered the condition by the exercise of reason-
able care. 22 Here, the condition on the land which Sundermann
alleges caused her injury is the location of the air compressor.
Hy-Vee generally admits it designed the parking lot area and
was responsible for the location of the air compressor. On this
record, there is no dispute that Hy-Vee created and knew of the
condition on the land about which Sundermann complains, and
the first element of premises liability is satisfied as a matter
of law.
3. Did Condition Involve
Unreasonable Risk
of Harm?
Our cases considering conditions on the land have generally
drawn a distinction between conditions which present ordi-
nary or common risks, and those which present unreasonable
22
Derr v. Columbus Convention Ctr., 258 Neb. 537, 604 N.W.2d 414 (2000).
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risks. 23 By limiting tort liability to only those conditions which
pose an unreasonable risk of harm, the traditional premises
liability test balances two competing policies: requiring busi-
nesses to exercise reasonable care to maintain the premises in
a safe condition and protecting businesses from becoming the
insurers of their patrons’ safety. 24
[8] There is no fixed rule for determining when a risk of
harm is unreasonable. But the plain meaning of the term sug-
gests a uniquely or unacceptably high risk of harm—something
more than the usual risks commonly encountered. 25 In some
premises liability cases, we have approved of defining the
phrase “unreasonable risk of harm” to mean “‘a risk that a rea-
sonable person, under all the circumstances of the case, would
not allow to continue.’” 26 This is an appropriate definition, and
we apply it here.
Both parties’ experts recognized there is some degree of
risk present in all convenience store parking lots, due to the
mix of vehicular and pedestrian traffic. Some of the ordinary
risks posed by common conditions in parking lots are famil-
iar to drivers and pedestrians alike, including the absence of
traffic signs, 27 the presence of moving vehicles, 28 concrete
23
See, Williamson, supra note 18 (finding unpainted, tapered curb outside
entrance to medical center presents ordinary risk, not unreasonable risk);
Parker v. Lancaster Cty. Sch. Dist. No. 001, 254 Neb. 754, 579 N.W.2d
526 (1998) (find as general rule that stairs, steps, and unmarked curbs
present common risks and are not inherently dangerous).
24
See Edwards, supra note 15.
25
See Richardson v. Rockwood Ctr., 275 Mich. App. 244, 737 N.W.2d 801
(2007) (common condition is not uniquely dangerous and thus does not
give rise to unreasonable risk of harm).
26
Danner v. Myott Park, Ltd., 209 Neb. 103, 105-06, 306 N.W.2d 580, 582
(1981). See Schwab v. Allou Corp., 177 Neb. 342, 128 N.W.2d 835 (1964).
See, also, NJI2d Civ. 8.83.
27
See Richardson, supra note 25 (lack of signs and traffic controls in
parking lots is common condition and not uniquely dangerous).
28
See id. (typical hazards posed by cars moving in parking lot are open and
do not present unreasonable risk of harm).
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wheel stops, 29 and curbs. 30 In the instant case, it is the location
of the air compressor in the parking area that is alleged to have
created an unreasonable risk of harm.
Hy-Vee offered, in support of summary judgment, expert
opinion testimony that both the design of the parking lot and
the location of the air compressor complied with all building
and safety codes, was similar to that of other area convenience
stores, and therefore did not involve an unreasonable risk of
harm. Left uncontroverted, this evidence would have entitled
Hy-Vee to summary judgment as a matter of law. 31
But Sundermann offered opinion testimony from her own
expert, who opined that the location of the air compressor,
although compliant with codes, still presented a dangerous con-
dition because patrons could access and use the air compressor
by parking in the eastbound drive aisle, which then blocked
traffic in the access drive and exposed patrons to “an unrea-
sonable conflict between vehicles and pedestrians,” which he
opined was “made more dangerous with perpendicular parking
across from where the tire filling was taking place.”
We question whether the opinion of Sundermann’s expert
created a genuine issue of material fact about whether the
location of the air compressor created an unreasonable risk
of harm—in other words, a risk that was unacceptably high
and which a reasonable person would not allow to continue.
The risk of being exposed to moving or backing vehicles in
a parking lot is a common one, inherent to all parking lots.
The experts for both parties recognized that a mixture of
cars and pedestrians is typical of a parking area and requires
both drivers and pedestrians to be cautious and aware of
29
See Bellini v. Gypsy Magic Enters., Inc., 978 N.Y.S.2d 73, 112 A.D.3d 867
(2013) (wheel stop or concrete parking lot divider which is clearly visible
presents no unreasonable risk of harm).
30
See Williamson, supra note 18 (unpainted curb not inherently dangerous
and does not present unreasonable risk of harm).
31
See Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808
(2019).
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their surroundings. Sundermann and Swanson recognized this
too, and both testified about the precautions they took to avoid
such conflict. This is not to say that a parking lot can never
be designed in a way that increases the typical risk of conflict
between pedestrians and vehicles to an unacceptably high
level. But here, it was undisputed that patrons had options
regarding where to park, and where to stand, while using the
air compressor. Sundermann’s evidence did not suggest that
any of those options inhibited sight lines or made it more dif-
ficult for drivers and patrons to be cautious and aware of their
surroundings, or less able to take ordinary precautions to avoid
conflict with one another.
However, we view the evidence in the light most favorable
to Sundermann and afford her all reasonable inferences from
that evidence. Assuming without deciding that the evidence,
when viewed in that light, created a genuine dispute of material
fact regarding whether the location of the air compressor cre-
ated an unreasonable risk of harm, we move on to consider the
next element in the premises liability analysis, which we find
is dispositive as a matter of law.
4. Hy-Vee Could Not Have Expected
Sundermann Either Would Not
Realize Danger or Would
Fail to Protect Herself
From Danger
[9,10] Generally speaking, a land possessor is not liable to
a lawful entrant on the land unless the possessor has or should
have had superior knowledge of the dangerous condition. 32
Consequently, even where a dangerous condition exists, a
premises owner will not be liable unless the premises owner
should have expected that a lawful visitor such as the plaintiff
either would not discover or realize the danger or would fail to
protect himself or herself against the danger. 33
32
See Warner, supra note 20.
33
Williamson, supra note 18.
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[11] Generally, when a dangerous condition is open and
obvious, the owner or occupier is not liable in negligence
for harm caused by the condition. 34 The rationale behind this
general rule is that the open and obvious nature of the condi-
tion gives caution so that the risk of harm is considered slight,
since reasonable people will avoid open and obvious risks. 35
Stated differently, “Known or obvious dangers pose less of a
risk [of harm] than comparable latent dangers because those
exposed can take precautions to protect themselves.” 36 Simply
stated, an open and obvious risk generally will not present an
unreasonable risk of harm.
[12,13] Under the open and obvious doctrine, a possessor of
land is not liable to invitees for physical harm caused by any
activity or condition on the land whose danger is known or
obvious to the invitee, unless the possessor should anticipate
the harm despite such knowledge or obviousness. 37 A condi-
tion on the land is considered open and obvious when the risk
is apparent to and of the type that would be recognized by a
reasonable person in the position of the invitee exercising ordi-
nary perception, intelligence, and judgment. 38
The dangers of parking in the drive aisle to use the air com-
pressor are obvious—they include the risk of being struck by
another vehicle either backing into or driving through the drive
aisle. Furthermore, the dangers of kneeling next to a parked
car in the drive aisle are obvious, as are the dangers of turning
one’s back to vehicular traffic.
Here, the evidence was undisputed that Sundermann knew
and appreciated the risks of parking in the drive aisle to use
34
Hodson, supra note 14.
35
Id.
36
2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 51, comment k. at 251 (2012).
37
Hodson, supra note 14, citing Restatement (Second) of Torts § 343A
(1965).
38
See, Hodson, supra note 14; Burns, supra note 18.
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the air compressor and crouching in the drive aisle to inflate
her tires. She testified that she was aware it was dangerous and
that she took precautions to avoid the risks by watching and
listening for approaching traffic. There is no dispute that the
risks were open and obvious.
[14] But a determination that a risk or danger is open and
obvious does not end the duty analysis in a premises liability
case. 39 A court must also determine whether the possessor
should have anticipated that lawful entrants would fail to pro-
tect themselves despite the open and obvious risk. 40
We have given examples of some circumstances that may
provide a land possessor with reason to expect invitees will fail
to protect themselves from an open and obvious danger on the
land, such as:
“‘[w]here the possessor has reason to expect that the
invitee’s attention may be distracted, so that he will not
discover what is obvious, or will forget what he has dis-
covered, or fail to protect himself against it. Such reason
may also arise where the possessor has reason to expect
that the invitee will proceed to encounter the known
or obvious danger because to a reasonable man in his
position the advantages of doing so would outweigh the
apparent risks.’” 41
Here, there was no evidence that Sundermann was dis-
tracted or forgot about the risk. Instead, she testified she was
aware of the danger and was watching and listening for traf-
fic the entire time she was using the air compressor. In order
for the distraction exception to apply, we have said the land
possessor must have reason to expect the attention of invitees
will be distracted, and there must also be evidence the plaintiff
39
See, Hodson, supra note 14; Connelly, supra note 18.
40
See id.
41
Hodson, supra note 14, 290 Neb. at 368, 860 N.W.2d at 179. Accord
Connelly, supra note 18.
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actually became distracted. 42 Because there was no evidence
that Sundermann failed to protect herself from an obvious
danger because she was distracted, the distraction rationale
has no application here.
Nor does the evidence support a reasonable inference that
Hy-Vee should have expected that patrons choosing to park in
the drive aisle would thereafter fail to protect themselves from
the obvious danger of vehicular traffic. It is true that Hy-Vee
knew its patrons were parking in the drive aisle to use the
air compressor, and this suggests that at least some patrons
thought the advantages of doing so outweighed the risks. But
even when a land possessor is aware lawful visitors are choos-
ing to encounter an obvious risk, it does not necessarily follow
that the land possessor has reason to expect the lawful visitors
will fail, or be unable, to protect themselves from that risk.
Here, the undisputed evidence showed that although some
patrons had been parking in the drive aisle to use the air com-
pressor, Hy-Vee had received no safety complaints about the
practice and there had been no accidents as a result of the
practice. Sundermann produced no evidence that before her
accident, Hy-Vee had any reason to expect patrons who chose
to park in the drive aisle would be unable to thereafter protect
themselves from the danger posed by approaching vehicles.
The sorts of precautions patrons would take to protect against
that obvious danger include things like watching and listening
for approaching vehicles, getting out of the drive aisle when a
vehicle is approaching, or parking in a way that allowed them
to inflate their tires while remaining on the curb. These are
typical precautions pedestrians already take every day in park-
ing lots, and they are the same precautions Sundermann said
she had taken.
Even when the evidence is viewed in the light most favor-
able to Sundermann, she has failed to produce any evidence
from which it can be inferred that Hy-Vee should have expected
42
See Connelly, supra note 18.
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patrons, who decided to park in the drive aisle to inflate their
tires, would fail or be unable to protect themselves against
the open and obvious danger posed by moving and backing
vehicles in the area.
We find, as a matter of law, that to the extent the location of
the air compressor allowed patrons to park in the drive aisle to
inflate their tires, it created a risk that was open and obvious.
We further find, as a matter of law, that Hy-Vee had no reason
to anticipate that lawful entrants like Sundermann, who chose
to park in the drive aisle to use the air compressor despite the
obvious risk, would fail to protect themselves against the dan-
ger. Under such circumstances, the third element of the prem-
ises liability test cannot be satisfied and Sundermann’s claim
against Hy-Vee fails as a matter of law.
[15] Where the record demonstrates that the decision of the
trial court is ultimately correct, although such correctness is
based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm. 43 Thus, although our
rationale differs from that of the trial court, we agree with its
conclusion that Hy-Vee is entitled to summary judgment as a
matter of law.
V. CONCLUSION
For the foregoing reasons, we reverse the decision of the
Court of Appeals and remand the cause with directions to
affirm the judgment of the district court.
Reversed and remanded with directions.
Heavican, C.J., not participating.
43
Hamilton Cty. EMS Assn. v. Hamilton Cty., 291 Neb. 495, 866 N.W.2d 523
(2015).