Wichman v. Hy-Vee ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/07/2021 08:09 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415Beti Wichman, appellant,
v. Hy-Vee, Inc., appellee.
___ N.W.2d ___
Filed December 7, 2021. No. A-21-130.
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: Liability: Proximate Cause. In premises liability cases,
an owner or occupier is subject to liability for injury to a lawful visi-
tor resulting from a condition on the owner or occupier’s premises if
the lawful visitor proves (1) that the owner or occupier either created
the condition, knew of the condition, or by exercise of reasonable care
would have discovered the condition; (2) that the owner or occupier
should have realized the condition involved an unreasonable risk of
harm to the lawful visitor; (3) that the owner or occupier should have
expected that the visitor either would not discover or realize the danger
or would fail to protect himself or herself against the danger; (4) that
the owner or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate cause of
damage to the visitor.
3. Negligence: Words and Phrases. Constructive knowledge is gener-
ally defined as knowledge that one using reasonable care or diligence
should have.
4. Negligence: Liability: Invitor-Invitee: Notice. In order for a defendant
to have constructive notice of a condition, the condition must be visible
and apparent and it must exist for a sufficient length of time prior to an
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415accident to permit a defendant or the defendant’s employees to discover
and remedy it.
5. Negligence: Evidence: Liability: Jurors. In the absence of evidence to
support an inference of the possessor’s actual or constructive knowledge
of a hazardous condition, the Nebraska Supreme Court has refused to
allow the jury to speculate as to the possessor’s negligence.
6. Summary Judgment. Inferences based upon guess or speculation do
not create material issues of fact for purposes of a summary judgment.
7. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.
Torrey J. Gerdes and Christopher M. Schmidt, of Baylor
Evnen, L.L.P., for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
Beti Wichman appeals the order of the district court for
Madison County, which granted the motion for summary judg-
ment of Hy-Vee, Inc., in this premises liability action. Finding
no error in the court’s decision, we affirm.
BACKGROUND
This case arises out of a slip-and-fall incident that occurred
on August 10, 2015, at a Hy-Vee grocery store located in
Norfolk, Nebraska. The facts are generally undisputed.
Wichman and her 12-year-old granddaughter were shopping
at Hy-Vee around 9 p.m. on August 10. As they came around
the end of an aisle, a Hy-Vee employee was stocking chicken
in an endcap freezer. Wichman engaged the Hy-Vee stocker
in brief conversation before walking away from her grand­
daughter and their shopping cart to look at the items on sale in
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415a chest freezer. As Wichman was standing in front of the chest
freezer, Wichman’s granddaughter yelled, “Grandma, you’re
standing in milk.” Wichman looked down and saw that she
was standing in a puddle of milk. She attempted to walk out
of it, but slipped and fell, sustaining injuries to her right elbow
and wrist.
Thereafter, Wichman filed this action against Hy-Vee.
Hy-Vee moved for summary judgment, offering in support of
its motion several depositions, including that of the stocker
taken July 12, 2018. According to the evidence presented
at the summary judgment hearing, the stocker with whom
Wichman conversed had been in the area for approximately
20 minutes prior to Wichman’s fall. He was stocking frozen
chicken in an endcap freezer and had a cart loaded with large
boxes of chicken positioned behind him. His back was to the
chest freezer where Wichman fell. He testified at his deposition
that he did not hear anything, because the doors to the endcap
freezer were open, so it was a “little loud” because the freezer
fan was running. Thus, he did not see or hear Wichman fall. It
was not until he turned around to grab another item from the
cart that he saw Wichman on the floor.
The stocker also testified that he did not recall if he saw
milk on the floor, but if he would have seen it, he would have
cleaned it up. He returned to the store’s back freezer to restock
his cart approximately three or four times before the slip and
fall, and while doing so, he did not walk past the chest freezer
where Wichman fell. He was asked why, if he made several
trips to and from the back freezer while stocking the chicken,
he would not have seen the milk on the floor, and he replied
that he was not paying attention to “it” and that the floor is
white so it would be hard to see spilled milk on the floor if
he was not specifically looking for it. He explained that he
was not looking in the area of the chest freezer; he was just
going back and forth. He was not stocking the chest freezer
or working at the chest freezer, he did not walk past it on his
path, and he did not see any milk by the chest freezer. He later
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415clarified that when he said he was not paying attention to “it,”
he meant that he was paying attention to doing his job and was
not particularly focused on the area of the chest freezer.
The stocker explained that according to his training from the
store, if he saw a foreign substance on the floor, he was to put
out a yellow caution sign and then either clean it up or find
another employee to do so. He also explained that store man-
agers walk around the store while on duty and would be more
actively looking for spills.
The retail store director for the Hy-Vee at the time of the
incident also testified that the store’s training and operat-
ing procedure dictates that if an employee sees a puddle on
the floor, he or she is to clean it right away. The area where
Wichman fell would have been behind where the stocker was
stocking frozen chicken. The store director was asked if the
stocker should have been able to see the puddle of milk on the
floor, and he replied, “No, not necessarily,” because, according
to his 30 years of experience, observing spilled milk on a white
floor from approximately 20 feet away would “probably [be]
pretty hard to see.”
The store manager who was on duty at the time Wichman
fell testified that he began working at 2 p.m. that day. Part
of his management duties included walking the store to look
for things like spills. He walked the store when he came in at
2 p.m. and did not see any spills on the floor. He would gen-
erally walk through the store two or three times per night, in
part looking for spills or debris on the floor. Hy-Vee’s policy
dictates that if an employee finds a spill, he or she is to clean it
up immediately. The store also does a “sweep schedule” where
a manager will send an employee around the store with a
broom to clean up loose debris and other things from the floor,
pick up signs, and clean up anything that needs attention. This
is done periodically throughout the day, at least two to three
times per day or more frequently depending on the number of
staff on duty at the time. The manager did not recall the last
time that was done prior to Wichman’s fall.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415Wichman testified at her deposition that she did not see
the milk on the floor until her granddaughter brought it to
her attention. She specified that she did not initially see the
milk because it was the same color as the floor. She did not
know where the milk came from or how long it had been on
the floor before she stepped in it. Wichman’s granddaughter
testified similarly, describing the Hy-Vee floor as “white with
light blue specks.” She explained that she looked at Wichman
while Wichman was standing in front of the chest freezer and
then looked down at the floor and thought, “[W]hat the heck
is that?” She noticed the substance on the floor was white and
wondered if it was milk. She also described seeing a milk
jug and its red top on the floor near the chest freezer and the
puddle of milk.
The district court granted summary judgment in favor of
Hy-Vee. The court observed that the question in this case was
whether Hy-Vee, by the exercise of reasonable care, should
have discovered the spilled milk prior to Wichman’s fall or,
in other words, whether Hy-Vee had constructive knowledge
of the existence and location of the milk. The court found
that the evidence was insufficient to support an inference that
Hy-Vee had constructive knowledge of the spilled milk prior
to Wichman’s fall because Wichman failed to submit evidence
concerning how long the milk had been on the floor or whether
any employee knew of the condition of the floor at the time of
her fall. Ultimately, because there was no evidence or reason-
able inference that Hy-Vee knew or should have known of the
spilled milk on the floor, the district court found that Hy-Vee
was entitled to judgment as a matter of law.
Wichman filed motions for a new trial and to alter or amend.
The district court denied Wichman’s motions but granted
Hy-Vee’s motion to alter or amend to tax costs to Wichman.
Wichman appeals.
ASSIGNMENTS OF ERROR
Wichman assigns that the district court erred in (1) grant-
ing the motion for summary judgment, (2) concluding that
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415there were no issues of material fact and that Hy-Vee was
entitled to judgment as a matter of law, and (3) denying her
motion for new trial.
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 matter of law.
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
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. Id.ANALYSIS
[2] In premises liability cases, an owner or occupier is sub-
ject to liability for injury to a lawful visitor resulting from a
condition on the owner or occupier’s premises if the lawful
visitor proves (1) that the owner or occupier either created the
condition, knew of the condition, or by exercise of reasonable
care would have discovered the condition; (2) that the owner or
occupier should have realized the condition involved an unrea-
sonable risk of harm to the lawful visitor; (3) that the owner or
occupier should have expected that the visitor either would not
discover or realize the danger or would fail to protect himself
or herself against the danger; (4) that the owner or occupier
failed to use reasonable care to protect the visitor against the
danger; and (5) that the condition was a proximate cause of
damage to the visitor. Edwards v. Hy-Vee, 294 Neb. 237, 883
N.W.2d 40 (2016).
The parties agree that this case revolves around the first
element and that it is undisputed Hy-Vee did not create the
condition or have actual knowledge of the condition. Thus,
as the district court recognized, the question here is whether
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415a genuine issue of material fact exists as to whether Hy-Vee,
by the exercise of reasonable care, should have discovered the
condition of the spilled milk prior to the slip and fall or, in
other words, whether Hy-Vee had constructive knowledge of
the existence and location of the spilled milk.
[3-6] Constructive knowledge is generally defined as knowl-
edge that one using reasonable care or diligence should have.
Id. In order for a defendant to have constructive notice of a
condition, the condition must be visible and apparent and it
must exist for a sufficient length of time prior to an accident
to permit a defendant or the defendant’s employees to discover
and remedy it. Id. In the absence of evidence to support an
inference of the possessor’s actual or constructive knowledge
of the hazardous condition, the Nebraska Supreme Court has
refused to allow the jury to speculate as to the possessor’s
negligence. Id. Inferences based upon guess or speculation do
not create material issues of fact for purposes of a summary
judgment. Id.Wichman argues that summary judgment was improper in
this case because there is a genuine issue of material fact as to
whether Hy-Vee acted with reasonable care when the stocker
was in the area of Wichman’s fall for approximately 20 min-
utes prior to the fall and testified that he was not paying atten-
tion to his surroundings. We disagree.
As outlined in Edwards v. Hy-Vee, supra, the dangerous
condition must be visible and apparent and it must exist for a
sufficient length of time to permit the defendant or its employ-
ees to discover and remedy it. In Edwards v. Hy-Vee, supra,
the plaintiff slipped on what was presumed to be a piece of
watermelon approximately 6 feet from where a person was
passing out watermelon samples. On appeal, the Supreme
Court upheld a grant of summary judgment in favor of the
defendant, finding that there was no evidence to support an
inference that the defendant had constructive knowledge of the
watermelon on the floor, despite the fact that the watermelon
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415was being passed out approximately 6 feet from where the
plaintiff fell. The Supreme Court stated simply, “[The plain-
tiff] did not know how long the watermelon was on the floor,
and there was no evidence that [the defendant’s] employees
observed any watermelon on the floor.” Id. at 243, 883 N.W.2d
at 45.
Similarly, in Herrera v. Fleming Cos., 265 Neb. 118, 655
N.W.2d 378 (2003), the plaintiff slipped on water and fell in a
grocery store restroom. The trial court entered summary judg-
ment for the defendant. In affirming that decision on appeal,
the Supreme Court determined that the plaintiff failed to pro-
duce any evidence from which a reasonable inference could be
drawn that the defendant knew or by the exercise of reason-
able care should have known of the water on the floor when
the plaintiff testified in her deposition she did not know how
long the water had been on the floor and when the defendant’s
store director stated that no one had reported water on the floor
and that he did not know how long the water had been there.
The evidence further indicated that the defendant had a policy
of keeping the floors clean and that the floors were regularly
inspected for spills.
Likewise here, Wichman did not know how long the milk
had been on the floor, and there was no evidence that Hy-Vee
employees observed it or knew how long it had been on
the floor either. The fact that the stocker was in the area of
Wichman’s fall for approximately 20 minutes prior to the fall
is insufficient evidence to support an inference that Hy-Vee
had constructive knowledge of the milk on the floor. Hy-Vee
employees and managers regularly walked around the store
looking for spills or debris on the floor, and the manager did
so on the day Wichman fell. None of the Hy-Vee employees
reported seeing any milk on the floor before Wichman fell.
In the absence of evidence to support an inference of the pos-
sessor’s actual or constructive knowledge of the hazardous
condition, it is improper to allow the jury to speculate as to the
possessor’s negligence. See Edwards v. Hy-Vee, 294 Neb. 237,
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415883 N.W.2d 40 (2016). We therefore conclude that Wichman
failed to adduce any evidence which would permit a fact finder
to infer that Hy-Vee should have discovered the spilled milk
on the floor and remedied the condition prior to her fall. The
district court therefore did not err in granting summary judg-
ment in favor of Hy-Vee.
Wichman also briefly argues that summary judgment was
inappropriate because a fact question existed as to whether
Hy-Vee employees would realize that a customer would have
been distracted from seeing the spilled milk on the floor. She
refers to this as the “momentary distraction” rule.
We outlined the five elements that a plaintiff must prove to
establish a premises liability claim above. Of those five ele-
ments, the first three clarify the scope of the land possessor’s
duty to lawful entrants. See Sundermann v. Hy-Vee, 306 Neb.
749, 947 N.W.2d 492 (2020). The Supreme Court has described
this duty as a specialized standard of care that includes three
elements in addition to the ordinary duty of reasonable care.
See id. 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 physi-
cal harm. Id.Wichman’s argument regarding the momentary distraction
rule relates to the third of the five elements, which requires
Wichman to prove that Hy-Vee should have expected that
she either would not discover or realize the danger or would
fail to protect herself against the danger. See id. See, also,
Edwards v. Hy-Vee, supra. Because we have concluded that
Wichman failed as a matter of law to produce evidence
of the first element, we need not address whether Hy-Vee
should have expected that Wichman would not discover the
spilled milk.
[7] Wichman also assigns that the district court erred in
denying her motion for new trial. She does not argue this
issue in her brief. An alleged error must be both specifically
assigned and specifically argued in the brief of the party
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WICHMAN v. HY-VEE
Cite as 30 Neb. App. 415asserting the error to be considered by an appellate court. AVG
Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d
212 (2020). Because Wichman has not done so, we do not
address this issue.
CONCLUSION
We conclude that the district court did not err in granting
Hy-Vee’s motion for summary judgment. Its decision is there-
fore affirmed.
Affirmed.