Lamprecht v. Schluntz ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
A rthur and Linda Lamprecht, appellants,
v. Brent Schluntz and Gerald
Schluntz, appellees.
___ N.W.2d ___
Filed October 20, 2015. No. A-14-995.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue
as to any material facts or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judgment as a
matter of law.
2. ____: ____. In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. When the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
5. Negligence: Presumptions. The doctrine of res ipsa loquitur is an
exception to the general rule that negligence cannot be presumed. Res
ipsa loquitur is a procedural tool that, if applicable, allows an inference
of a defendant’s negligence to be submitted to the fact finder, where it
may be accepted or rejected.
6. Negligence: Proof. The essence of res ipsa loquitur is that the facts
speak for themselves and lead to a proper inference of negligence by the
fact finder without further proof.
7. ____: ____. There are three elements that must be met for res ipsa
loquitur to apply: (1) The occurrence must be one which would not, in
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LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
the ordinary course of things, happen in the absence of negligence; (2)
the instrumentality which produces the occurrence must be under the
exclusive control and management of the alleged wrongdoer; and (3)
there must be an absence of explanation by the alleged wrongdoer.
8. Negligence: Evidence. When deciding whether res ipsa loquitur applies,
a court must determine whether evidence exists from which reasonable
persons can say that it is more likely than not that the three elements of
res ipsa loquitur have been met. If such evidence is presented, then there
exists an inference of negligence which presents a question of material
fact, and summary judgment is improper.
9. Negligence: Proof. The court should not weigh the evidence to deter-
mine whether res ipsa loquitur applies. Instead, the court must determine
whether there is sufficient evidence from which reasonable persons
could find that it is more likely than not that the three elements of res
ipsa loquitur have been proved and that it is therefore more likely than
not that there was negligence associated with the event.
10. Negligence: Presumptions: Proof. As a general rule, the mere occur-
rence of a fire, with resultant damage, does not raise a presumption of
negligence, although the circumstances under which a fire occurs may
sometimes be such as to justify the application of the doctrine res ipsa
loquitur and impose upon the defendant the burden of proving his free-
dom from fault.
11. Negligence. Res ipsa loquitur does not apply where the occurrence
alone, without more, rests on conjecture, or where the accident was
just as reasonably attributable to other causes as to the negligence of
the defendant.
12. Negligence: Presumptions. Liability cannot result from an inference
upon an inference or from a presumption upon a presumption; an infer-
ence of negligence could arise only from an established foundation fact
and not from a further inference.
13. Negligence. The doctrine of res ipsa loquitur is of limited and restricted
scope and should ordinarily be applied sparingly.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis which is not needed to adjudicate the controversy before it.
15. Affidavits. Under the terms of Neb. Rev. Stat. § 25-1334 (Reissue
2008), affidavits offered for the truth of a particular fact (1) shall be
made on personal knowledge, (2) shall set forth such facts as would be
admissible into evidence, and (3) shall show affirmatively that the affi-
ant is competent to testify to the matters stated therein.
16. Trial: Witnesses. The opinion of a lay witness, formed without personal
knowledge, would be inadmissible at trial and, therefore, would not sat-
isfy the requirements of Neb. Rev. Stat. § 25-1334 (Reissue 2008).
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Decisions of the Nebraska Court of A ppeals
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LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
Appeal from the District Court for Furnas County: David
Urbom, Judge. Affirmed.
Tony Brock, of Brock Law Offices, P.C., for appellants.
James B. Luers and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellees.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
Arthur Lamprecht and his wife, Linda Lamprecht, brought
this action against Brent Schluntz and his brother, Gerald
Schluntz, seeking compensation for property damage that the
Lamprechts sustained from a fire that originated on Brent’s
farm during a wheat harvest. The Lamprechts’ sole theory of
recovery was premised on the doctrine of res ipsa loquitur. The
district court for Furnas County granted summary judgment
in favor of the Schluntzes, and the Lamprechts now appeal.
We affirm.
BACKGROUND
On a hot and windy day in June 2012, Brent, Gerald, and
their employee, Christopher Joppa, were harvesting wheat on
Brent’s real property in Furnas County. As part of the harvest-
ing operation, Joppa was operating a Case 9260 tractor with a
grain cart attached. Brent and Gerald were operating combines.
Brent and Gerald jointly owned the wheat, tractor, and com-
bines, and Gerald was the sole owner of the grain cart.
According to Brent, he, Gerald, and Joppa were doing
“back-landing” in the wheatfield; Brent was operating a com-
bine and was heading west, Gerald was in a combine head-
ing east, and Joppa was in the tractor with the attached grain
cart heading to unload Gerald’s combine. Brent testified that
“as soon as the grain cart pulled up,” he saw a “flash . . .
underneath the tractor.” Brent testified that he “pulled out and
tried to wave at those guys, because they couldn’t see it, to
get out and try to stomp it out or get out of there, but it just
exploded.” Brent called the fire department immediately, and
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LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
he, Gerald, and Joppa drove their respective pieces of farm
equipment to the road. Brent testified the fire spread “like
gasoline” although they attempted to “disk” the fields to cre-
ate firebreaks to stop the fire. Several firefighters and other
personnel responded to the fire around 3:30 p.m. Joe Kresser,
the Stamford, Nebraska, fire chief, testified that when he
arrived on the scene, the fire was in the wheatfield east of
Brent’s house.
Brent’s property was located approximately 2 miles south
and half a mile west of the Lamprechts’ farm in Oxford,
Nebraska, where Arthur raised corn, wheat, beans, and cattle.
On the day of the fire, Arthur and his son were harvesting
on Arthur’s property and had gone to Holdrege, Nebraska,
to pick up Arthur’s truck from the repair shop. When they
returned to Arthur’s farm around 4:30 p.m., Arthur saw
smoke coming in their direction from the south. When Arthur
got to where the fire was located, his wheat stubble was on
fire and it had burned through a couple neighboring fields.
Arthur attempted to shred his crops to make a firebreak or
“disk out the fire.” Arthur testified that the fire came so
fast he “couldn’t get in front of it” and that it went into his
pasture. Arthur continued to disk lengthwise to the fire so
it would not burn sideways, and one of his neighbors also
helped disk with his tractor. Arthur testified that there were
“lots of people there from the fire departments and the neigh-
bors” trying to put the fire out.
Kresser testified that when he first arrived at Brent’s prop-
erty to put out the fire, he spoke to Brent to get his opinion
about what caused the fire. Kresser testified that a field fire
can sometimes start when a “bearing” “go[es] out or get[s] hot
or something of that sort, and somebody can drive in a field,
an exhaust pipe can start it.” Kresser recalled that Brent at that
time thought the fire was caused by an electrical short on the
tractor. Kresser did not examine the tractor because by the time
the fire was under control enough to where he felt comfortable
leaving the scene, the tractor was no longer in the field and
Brent “wasn’t around.”
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LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
Kresser authored a fire log the day after the fire. According
to the fire log, the fire burned approximately 1,200 acres and
was driven by high winds from the south and temperatures in
excess of 100 degrees Fahrenheit. The fire log notes that the
property owner, Brent, suspected the cause of the fire was an
electrical short on the tractor pulling the grain cart and that
upon inspection there was a “burnt wire” on the tractor.
According to Brent, he asked Joppa what started the fire,
but “[h]e didn’t know, either.” Brent told Joppa he saw “[the
fire] come down from underneath the tractor.” Brent recalled
that he told Kresser that he saw a “burnt wire” underneath the
tractor, but he did not know “if it was from the fire coming up
on it.” None of the farm equipment, including the tractor, were
“burn[ed] up” in the fire.
Brent testified that when he called his insurance company,
“they found an expert to come out to examine the tractor,” but
Brent did not recall who the expert was and did not testify as
to what the expert’s conclusion was. When Brent was asked if
he agreed that wheatfields do not typically spontaneously com-
bust, he agreed that “[u]sually something starts everything.”
Brent had never personally seen a wheatfield spontaneously
combust and did not know anyone who had seen a wheatfield
spontaneously combust.
Joppa testified that all he remembers about the start of
the fire was that he was getting ready to unload Brent’s or
Gerald’s combine, when he saw one of them waving and
signaling him to get out. Joppa looked in the mirror above
the steering wheel of the tractor and saw flames, and he then
“took off out of the field.” Joppa did not see the fire start
and did not know for sure what started the fire, but “we were
looking at the tractor.” Joppa recalled that the Schluntzes’
mechanic told him that “the insurance adjuster was coming
down to look at the equipment . . . that I was using” and that
“they were looking at . . . the differentials. Something to do
with the differentials.” Joppa explained that, in a four-wheel-
drive tractor (like the type he was driving), a differential
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LAMPRECHT v. SCHLUNTZ
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switch box “locks your differential so you can pull — all four
tires can pull at the same time.”
Joppa testified that he grew up in North Dakota on a farm
and that during his life, he had seen two wildfires start during
harvest; Joppa testified that one of those fires was started by
a bearing that “went out in the combine” and “[o]verheated
and started the fire.” Joppa agreed that fires in wheatfields
are not normal occurrences, although “they do have spon-
taneous combustions” caused by too much heat. However,
Joppa then testified, “I know that didn’t happen that day,”
followed by his statement that “it could have happened that
day, I guess. I mean, I don’t think it would have. I know it
was really hot.”
Although Joppa is not a mechanic and has no training as
a mechanic, he has experience changing oil and filters, and
greasing farm equipment, and he testified that he had previ-
ously changed the oil and greased the tractor at issue. Joppa
testified that their farm equipment is “serviced every morn-
ing.” Joppa stated that he had no reason to believe that the
tractor he was driving was dangerous or unsafe on the day
of the fire and that he had no reason to believe there was a
mechanical defect in the tractor he was driving.
Arthur did not know what started the fire, other than what he
read in the fire log authored by Kresser.
The Lamprechts filed a complaint against Brent on May 30,
2013. The Lamprechts initially alleged two theories of recov-
ery: negligence for failure to properly maintain and repair the
farming machinery and res ipsa loquitur.
Brent filed a motion for summary judgment on January
31, 2014.
On March 10, 2014, the Lamprechts filed a motion for
leave to file an amended complaint, which leave the court
granted on March 20. The Lamprechts filed an amended com-
plaint on March 31, containing the same allegations as the first
complaint, but adding Gerald as a defendant.
The Lamprechts filed a motion for leave to file a second
amended complaint on September 25, 2014, which leave the
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LAMPRECHT v. SCHLUNTZ
Cite as 23 Neb. Ct. App. 335
court granted on October 27. The Lamprechts filed a second
amended complaint the same day, alleging that “[t]his action
arises out of the negligent maintenance and/or operation of
farm equipment that started a fire which damaged the property
of [the Lamprechts]. The matter is being prosecuted on the
theory of res ipsa loquitur.”
A summary judgment hearing was held on September 29,
2014. Depositions of Brent, Arthur, Kresser, and Joppa were
received into evidence. The Lamprechts offered an affidavit
from Arthur into evidence, in which he stated that he had
been farming in Nebraska for over 50 years and that he has
operated and maintained tractors and other equipment used
to harvest wheat. Arthur averred that in his experience, farm
equipment will not start a fire unless it is negligently main-
tained and/or operated. Arthur further averred that tractors
and combines are universally used to harvest wheat, and
fires and explosions caused by that equipment does not in
the ordinary course of things happen unless there was negli-
gence by the owners and/or operators of that equipment. The
Schluntzes objected to Arthur’s affidavit on the bases that
“[Arthur] is a farmer as alleged in his affidavit, but [Neb.
Rev. Stat. §] 27-701 [(Reissue 2008)] require[s] experts to
render opinions like [Arthur] is trying to do in this case”; that
Arthur’s affidavit “offer[ed] a legal opinion with regards to
whether there was negligence”; that Arthur did not base his
opinion on firsthand observation or knowledge; that there
was insufficient foundation, method, or basis for how Arthur
arrived at his conclusion; and that Arthur’s opinion “even
contradicts his own expert, . . . Kresser,” and also contra-
dicted Joppa’s testimony. The court reserved ruling on the
receipt of Arthur’s affidavit.
On October 28, 2014, the court entered an order on the
summary judgment motion. The court stated that “[t]he
[Schluntzes’] objection to the receipt of [Arthur’s affidavit] is
sustained and [Arthur’s affidavit] is not received.” The court’s
order then made various factual findings, including the fol-
lowing: The tractor ignited the fire, the Schluntzes “properly
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maintained and kept their equipment in good repair,” and
“[t]he equipment was serviced every morning before harvest-
ing started.”
The court concluded that the instant case resembled the
case of Security Ins. Co. v. Omaha Coca-Cola Bottling Co.,
157 Neb. 923, 62 N.W.2d 127 (1954), wherein the Nebraska
Supreme Court concluded res ipsa loquitur did not apply
where a building was damaged by smoke from a fire in a
lunchroom that housed a Coca-Cola vending machine. The
district court in the instant case concluded that based upon
the evidence received, there was “not sufficient evidence from
which reasonable persons could find it more likely than not
that there was negligence on the part of the [Schluntzes].”
The court found that no genuine issue of material fact existed
and that the Schluntzes were entitled to judgment as a mat-
ter of law. Summary judgment was granted in favor of the
Schluntzes; the district court dismissed the Lamprechts’ second
amended complaint.
The Lamprechts now appeal.
ASSIGNMENTS OF ERROR
The Lamprechts assign as error, summarized and restated,
that the district court erred (1) in granting summary judgment
based on its conclusion that res ipsa loquitur did not apply,
(2) in making certain findings of fact, and (3) in excluding
Arthur’s affidavit.
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as
to any material facts or the ultimate inferences that may be
drawn from those facts and that the moving party is entitled
to judgment as a matter of law. O’Brien v. Bellevue Public
Schools, 289 Neb. 637, 856 N.W.2d 731 (2014). In reviewing
a summary judgment, the court views the evidence in the light
most favorable to the party against whom the judgment was
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granted and gives that party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d
749 (2015). When the Nebraska Evidence Rules commit the
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Erickson v. U-Haul Internat., 278 Neb. 18,
767 N.W.2d 765 (2009).
ANALYSIS
[5,6] The Lamprechts initially alleged two theories of
recovery: (1) negligence for failure to properly maintain and
repair the farming machinery and (2) res ipsa loquitur. The
Lamprechts subsequently abandoned their negligence theory
and amended their complaint to proceed solely on the theory of
res ipsa loquitur. The doctrine of res ipsa loquitur is an excep-
tion to the general rule that negligence cannot be presumed.
McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798
N.W.2d 386 (2011). Res ipsa loquitur is a procedural tool that,
if applicable, allows an inference of a defendant’s negligence
to be submitted to the fact finder, where it may be accepted or
rejected. Id. The essence of res ipsa loquitur is that the facts
speak for themselves and lead to a proper inference of neg-
ligence by the fact finder without further proof. Swierczek v.
Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991).
[7] There are three elements that must be met for res ipsa
loquitur to apply: (1) The occurrence must be one which would
not, in the ordinary course of things, happen in the absence of
negligence; (2) the instrumentality which produces the occur-
rence must be under the exclusive control and management
of the alleged wrongdoer; and (3) there must be an absence
of explanation by the alleged wrongdoer. McLaughlin Freight
Lines, supra.
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[8,9] When deciding whether res ipsa loquitur applies, a
court must determine whether evidence exists from which
reasonable persons can say that it is more likely than not
that the three elements of res ipsa loquitur have been met.
Id. If such evidence is presented, then there exists an infer-
ence of negligence which presents a question of material fact,
and summary judgment is improper. Id. The court should not
weigh the evidence to determine whether res ipsa loquitur
applies. Id. Instead, the court must determine whether there is
sufficient evidence from which reasonable persons could find
that it is more likely than not that the three elements of res
ipsa loquitur have been proved and that it is therefore more
likely than not that there was negligence associated with the
event. Id.
Our analysis turns on the first element of res ipsa loquitur,
that the occurrence must be one which would not, in the ordi-
nary course of things, happen in the absence of negligence.
See McLaughlin Freight Lines, supra. Our Supreme Court has
stated that this element “‘is of course only another way of stat-
ing an obvious principle of circumstantial evidence: that the
event must be such that in the light of ordinary experience it
gives rise to an inference that someone must have been negli-
gent.’” Anderson v. Service Merchandise Co., 240 Neb. 873,
880, 485 N.W.2d 170, 175 (1992).
[10] As a general rule, the mere occurrence of a fire, with
resultant damage, does not raise a presumption of negligence,
although the circumstances under which a fire occurs may
sometimes be such as to justify the application of the doctrine
res ipsa loquitur and impose upon the defendant the burden
of proving his freedom from fault. See Security Ins. Co. v.
Omaha Coca-Cola Bottling Co., 157 Neb. 923, 62 N.W.2d
127 (1954). In Security Ins. Co., the Nebraska Supreme Court
affirmed a directed verdict in favor of the defendant bottling
company, concluding that res ipsa loquitur did not apply to
the plaintiff-insurer’s claim that the bottling company had
negligently permitted its vending machine to catch fire. At
some point during a day when no one was in the building, a
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fire broke out in the lunchroom where the vending machine
was located. The evening janitor found the building filled
with smoke and damage, but did not see a fire, and noticed
the vending machine and adjacent wooden pop cases had
been completely burned, leaving only the metal shell of the
machine. Nothing else in the lunchroom had caught fire. The
court in Security Ins. Co. concluded that the doctrine of res
ipsa loquitur was of limited and restricted scope and should
ordinarily be applied sparingly, and the court considered the
doctrine inapplicable to the case before it, finding no prece-
dent wherein a party had even attempted to apply the doctrine
to a like situation.
Our research has revealed no Nebraska cases wherein the
doctrine of res ipsa loquitur was utilized against a defendant
in an action for damages resulting from a field fire allegedly
caused by the defendant’s tractor or other farm equipment
where the exact cause of the fire was unknown. Outside of
Nebraska, however, res ipsa loquitur has been rejected under
circumstances similar to those in the case before us.
In Hamilton v. Smith, 163 Colo. 88, 428 P.2d 706 (1967),
owners of a wheat crop which had been destroyed in a fire
that was allegedly started by a truck which had been used by
the defendants in harvesting the wheat were held not to be
entitled to rely on the doctrine of res ipsa loquitur. Viewing
the evidence in the light most favorable to the crop owners,
the court in Hamilton found that the fire had broken out in the
field either near or under the defendants’ truck and that there
was a high stubble on the field which could have ignited on
contact with a hot exhaust pipe. The plaintiffs, it concluded,
had failed to produce any proof, beyond pure speculation, that
the truck had started the fire or that there had been some negli-
gence on the part of the defendants. Res ipsa loquitur, it ruled,
did not apply where proof of the occurrence alone, without
more, still rested on conjecture or where the accident was just
as reasonably attributable to other causes as to the negligence
of the defendant.
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Similarly, in Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901
(1948), the plaintiff owner and lessee of a wheatfield could
not rely on res ipsa loquitur to state a cause of action against
a truck owner, whose truck allegedly started a fire that burned
the plaintiff’s wheat crop. In that case, a fire started in wheat
stubble at a point where the truck had just passed over, and no
other persons or vehicles had been near that point. The Emigh
court held that, at best, the facts raised a presumption that the
truck caused the fire, but a mere presumption could not sup-
port a further inference that the truck had been defective or
improperly operated. The court in Emigh further noted that
courts were reluctant to draw an inference of negligence from
the starting of fires because fires are frequent occurrences and,
in many cases, result without negligence on the part of any-
one. The court noted that the established rule was that liability
cannot result from an inference upon an inference or from a
presumption upon a presumption, and concluded that, in the
case before it, the presumption that the truck caused the fire
“cannot well be said to speak ‘for itself.’” Id. at 736, 191 P.2d
at 904.
In Anderton v. Downs, 459 S.W.2d 101 (Mo. App. 1970),
res ipsa loquitur was held not to apply to the plaintiff-farmer’s
claim for damages to 35 acres of his wheat, damaged by a fire
that had broken out along the path that the defendant’s truck
had taken in the plaintiff’s wheatfield. Although there was
evidence that the truck had caught fire on a previous occa-
sion, and the farmer alleged that the truck owner had been
negligent in failing to repair known defects in the truck’s
electrical and exhaust systems, the court found that res ipsa
loquitur was not applicable, in part, because the court found
that the plaintiff-farmer had failed to establish the cause of
the fire. The mere occurrence of a fire, the court stated, does
not prove negligence or raise any presumption as to the cause
of the fire.
In National Union Fire Insurance Company v. Elliott, 298
P.2d 448 (Okla. 1956), the court held that res ipsa loquitur
did not apply to an action filed by the insurer of a wheat crop
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destroyed by fire that was allegedly caused by the defendant’s
truck while harvesting wheat. The defendant had left one of
his trucks in the field, and when he returned, he noticed that
the wheat stubble around the truck was on fire and the truck
was engulfed in flames. The insurer argued that there was suf-
ficient evidence to bring res ipsa loquitur into play because the
truck was 6 years old, and was likely to have wiring defects
and other malfunctions, and because the truck was shortly
ablaze after it had been parked on the field away from the
roadway where the fire could not have been started by inter-
vening agencies. The court disagreed and refused to apply res
ipsa loquitur, concluding that an inference of negligence could
arise only from an established foundation fact and not from
a further inference; the mere occurrence of an accident under
unexplained circumstances would not support the application
of res ipsa loquitur.
In Thurman v. Johnson, 330 S.W.2d 179 (Mo. App. 1959),
a barn was destroyed by fire that originated in the defendant’s
truck, which the defendant had driven onto the property to pick
up a delivery of the plaintiff-owner’s oats. The truck caught
fire after getting stuck in a rut as the driver brought the truck
into the barn. The owner sought to recover damages for the
fire under the theory of res ipsa loquitur, which the court in
Thurman rejected. The court stated that although the occur-
rence was “certainly one that does not ordinarily happen,” such
an occurrence was not usually caused by lack of due care by
the owner-operator. Id. at 182.
[11] In reviewing the above cases, it is clear that unex-
plained fires can occur during harvesting and farming opera-
tions, on or around trucks or other equipment used in farming
operations. However, as observed by those courts, the mere
fact that the fire occurred in such a manner does not warrant an
inference of negligence. Res ipsa loquitur does not apply where
the occurrence alone, without more, rests on conjecture, or
where the accident was just as reasonably attributable to other
causes as to the negligence of the defendant. See Hamilton v.
Smith, 163 Colo. 88, 428 P.2d 706 (1967). See, also, Thurman,
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supra. Courts are reluctant to draw an inference of negligence
from the starting of fires because fires are frequent occurrences
and, in many cases, resulted without negligence on the part of
anyone. See Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901
(1948). See, also, Thurman, supra.
We note that there are cases where res ipsa loquitur has
been applied to vehicles alleged to have started a fire. In
one case, for example, a truck backed into a barn filled with
hay and allegedly caused a fire from its hot exhaust gas and
sparks; the court found that fires do not ordinarily occur
during the loading or unloading of bales of hay in a barn
absent someone’s negligence. See Seeley v. Combs, 65 Cal.
2d 127, 416 P.2d 810, 52 Cal. Rptr. 578 (1966). In another
case where a vehicle was alleged to have started a forest fire,
Roddiscraft, Inc. v. Skelton Logging Co., 212 Cal. App. 2d
784, 28 Cal. Rptr. 277 (1963), a logging tractor that had been
used in proximity to the fire had not been equipped with a
spark arrester and had been smoking excessively. The court
concluded that this supported an inference of negligence
because as a matter of common knowledge, forest fires do
not occur, other than perhaps from lightning, unless someone
has been negligent, and therefore the cause of this forest fire
was more likely than not from the negligence of the logging
tractor owner.
[12,13] In Nebraska, as a general rule, the mere occurrence
of a fire, with resultant damage, does not raise a presumption
of negligence, unless the circumstances under which a fire
occurs justify the application of res ipsa loquitur. See Security
Ins. Co. v. Omaha Coca-Cola Bottling Co., 157 Neb. 923,
62 N.W.2d 127 (1954). In the instant case, the only evidence
presented with respect to the fire’s cause was that Brent saw a
“flash” underneath the tractor and that he found a “burnt wire”
under the tractor. Kresser testified that a field fire can start
when a bearing goes out or gets hot or that an exhaust pipe
can start a fire, and Brent thought the fire could have been
caused by an electrical short on the tractor. However, none
of those explanations are ones which are more likely than not
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explained by negligence; and the mere fact that a fire started
under Brent’s tractor does not lead to an inference that there
was negligence. Even though a fire in a wheatfield may not
ordinarily happen, such an occurrence is not so unusual as to
justify an inference of negligence based upon an alleged lack
of due care by the owner and/or operator of a tractor or other
equipment being used to harvest the wheat. As with the cases
cited above, we too are reluctant to draw an inference of neg-
ligence from the mere happening of the fire, because fires are
frequent occurrences and, in many cases, result without negli-
gence on the part of anyone. See Emigh v. Andrews, 164 Kan.
732, 191 P.2d 901 (1948). Further, as in Emigh, even when
the facts may raise a presumption that the vehicle caused the
fire, that mere presumption cannot support a further inference
that the vehicle was defective or improperly maintained or
operated. See id. (liability cannot result from inference upon
inference or from presumption upon presumption). See, also,
National Union Fire Insurance Company v. Elliott, 298 P.2d
448 (Okla. 1956) (inference of negligence could arise only
from established foundation fact and not from further infer-
ence). Moreover, we bear in mind that the doctrine of res ipsa
loquitur is of limited and restricted scope and should ordinar-
ily be applied sparingly. Security Ins. Co., supra. We con-
clude that fires like the one at issue can occur in the ordinary
course of things in the absence of negligence and that thus, the
Lamprechts cannot and did not establish the first element of
res ipsa loquitur.
[14] Our conclusion above is not based upon any of the
findings of fact that the Lamprechts argue were error by the
district court. We therefore find it unnecessary to address the
Lamprechts’ assignment of error related to the district court’s
factual findings. An appellate court is not obligated to engage
in an analysis which is not needed to adjudicate the controversy
before it. Papillion Rural Fire Prot. Dist. v. City of Bellevue,
274 Neb. 214, 739 N.W.2d 162 (2007).
Because the Lamprechts cannot establish the first element
of res ipsa loquitur, we agree with the district court that the
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doctrine of res ipsa loquitur is inapplicable as a matter of law,
and affirm summary judgment in favor of the Schluntzes.
The Lamprechts also assign as error the district court’s
exclusion of Arthur’s affidavit offered into evidence at the
summary judgment hearing. In his affidavit, Arthur stated that
he had been farming in Nebraska for over 50 years, that he
has operated and maintained tractors and other farm equipment
used to harvest wheat, and that in his experience, farm equip-
ment will not start a fire unless it is negligently maintained
and/or operated. Arthur further averred that tractors and com-
bines are universally used to harvest wheat and that fires and
explosions caused by such equipment do not in the ordinary
course of things happen unless there was negligence by the
equipment’s owners and/or operators.
[15,16] Under the terms of Neb. Rev. Stat. § 25-1334
(Reissue 2008), affidavits offered for the truth of a particular
fact (1) shall be made on personal knowledge, (2) shall set forth
such facts as would be admissible into evidence, and (3) shall
show affirmatively that the affiant is competent to testify to the
matters stated therein. Whalen v. U S West Communications,
253 Neb. 334, 570 N.W.2d 531 (1997). Statements in affidavits
as to opinion, belief, or conclusions of law are of no effect.
Id. Arthur’s testimony was that of a lay witness. The opinion
of a lay witness, formed without personal knowledge, would
be inadmissible at trial and, therefore, would not satisfy the
requirements of § 25-1334. See Boyle v. Welsh, 256 Neb. 118,
589 N.W.2d 118 (1999). Arthur’s statements in his affidavit
were merely legal conclusions that fires do not start by farm
equipment without negligence. Such statements were properly
excluded by the district court.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
district court.
A ffirmed.