Perry v. Buchanan , 31 Neb. Ct. App. 715 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
04/11/2023 08:04 AM CDT
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PERRY V. BUCHANAN
Cite as 31 Neb. App. 715DeTron L. Perry, appellant, v. Steve Buchanan
and Bucks, Inc., appellees.
___ N.W.2d ___
Filed April 4, 2023. No. A-22-060.
1. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
2. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a district court’s denial of a motion to amend under
Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an
appellate court reviews de novo any underlying legal conclusion that the
proposed amendments would be futile.
4. Negligence: Proof. In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.
5. Negligence: Liability. The proprietor of a place of business who holds
it out to the public for entry for his or her business purposes is subject
to liability to members of the public while upon the premises for such a
purpose for bodily harm caused to them by the accidental, negligent, or
intentionally harmful acts of third persons, if the proprietor by the exer-
cise of reasonable care could have discovered that such acts were being
done or were about to be done, and could have protected the members of
the public by controlling the conduct of the third persons or by giving a
warning adequate to enable them to avoid harm.
6. Negligence. In a negligence action, in order to determine whether appro-
priate care was exercised, the fact finder must assess the foreseeable risk
at the time of the defendant’s alleged negligence.
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Cite as 31 Neb. App. 7157. ____. The extent of foreseeable risk depends on the specific facts of
the case and cannot be usefully assessed for a category of cases; small
changes in the facts may make a dramatic change in how much risk is
foreseeable. Thus, courts should leave such determinations to the trier of
fact unless no reasonable person could differ on the matter.
8. Negligence: Liability. 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, (2) those concerning the failure
to protect lawful entrants from a dangerous activity on the land, and (3)
those concerning the failure to protect lawful entrants from the acts of a
third person on the land.
9. ____: ____. A possessor of land who holds it open to the public for
entry for his or her business purposes is subject to liability to members
of the public while they are upon the land for such a purpose, for physi-
cal harm caused by the accidental, negligent, or intentionally harmful
acts of third persons or animals, and by the failure of the possessor to
exercise reasonable care to (a) discover that such acts are being done or
are likely to be done or (b) give a warning adequate to enable the visi-
tors to avoid the harm, or otherwise to protect them against it.
10. 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
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.
11. 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.
12. ____: ____. 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.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
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PERRY V. BUCHANAN
Cite as 31 Neb. App. 715DeTron L. Perry, pro se.
Steven R. Hogan and David C. Mullin, of Fraser Stryker,
P.C., L.L.O., for appellees.
Moore, Bishop and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
DeTron L. Perry, pro se, appeals from the order entered
by the Douglas County District Court dismissing his com-
plaint for failure to state a claim upon which relief may be
granted and denying him an opportunity to amend his plead-
ing. We affirm.
II. BACKGROUND
Perry filed a pro se complaint on August 5, 2021, against
Steve Buchanan and “Buchanan Energy, Operating LLC
of Bucky’s” (collectively Bucky’s), alleging two causes of
action: (1) negligence and (2) “Loss of Excitement Claim
of Children.” Perry alleged that in September 2017, he was
injured by a third party in the parking lot of a Bucky’s conve-
nience store in Omaha, Nebraska, as a result of the negligence
of Bucky’s. Perry claimed that “as a result of the negligence
and carelessness of said defendant; [he] was criminally, vio-
lently, savagely assaulted, and injured by an intoxicated driver
. . . in the parking lot on the defendant premises.” He alleged
that Bucky’s “owed a duty to the public . . . to exercise rea-
sonably [sic] and ordinary care to keep and maintain its prem-
ises in a condition reasonably safe for the use of the public”
and that Bucky’s “had a duty to take such precautions as were
reasonably necessary to protect its invitees and employees . . .
from criminal assaults/attacks which were reasonably foresee-
able.” Perry requested $17,767,726.61 in damages, including
damages for past medical expenses ($152,629.09), perma-
nent injury and disability, past lost wages ($115,283.03),
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Cite as 31 Neb. App. 715permanent impairment of his earning capacity, physical pain
and mental suffering, “[t]otal disability and incapacity in
the past,” and loss of enjoyment and quality of life with his
six children.
On September 10, 2021, the defendants filed a motion
to dismiss Perry’s complaint pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6) for failure to state a claim upon which relief
can be granted. Additionally, the defendants noted that the cor-
rect name for “Buchanan Energy, Operating LLC of Buckys”
is “Bucks, Inc.” (corporate entity will still be referred to as
“Bucky’s” in this opinion).
A hearing on the motion to dismiss was held on November
2, 2021. The district court subsequently entered an order on
January 27, 2022, dismissing Perry’s claim after finding that
he failed to state a claim upon which relief could be granted
and that any proposed amendments to Perry’s complaint would
be futile.
Perry appeals.
III. ASSIGNMENTS OF ERROR
Perry assigns that the district court erred in (1) finding that
Bucky’s had no duty to him, (2) “following the legal standard
accepting the allegations of the Complaint as true and drew
all reasonable inferences of law and fact in favor of [Perry],
but not [Perry’s] conclusion,” (3) “not allowing Discovery to
reveal facts that were gone to support cause of action,” (4) dis-
missing claims against Bucky’s, (5) “finding that any proposed
amendments to [Perry’s] Complaint are futile and will not
withstand a rule 12(b)(6) motion to dismiss,” and (6) “denying
[Perry’s] Leave to Amend the Complaint.”
[1] We note that Perry did not argue assignments of error
Nos. 2, 3, or 5 in his brief. To be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error.
Buttercase v. Davis, 313 Neb. 1, 982 N.W.2d 240 (2022).
Accordingly, we will not address errors Nos. 2, 3, or 5.
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Cite as 31 Neb. App. 715IV. STANDARD OF REVIEW
[2] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
the factual allegations in the complaint as true and drawing all
reasonable inferences of law and fact in favor of the nonmov-
ing party. Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb.
606, 980 N.W.2d 420 (2022).
[3] An appellate court reviews a district court’s denial of
a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for
an abuse of discretion. Williams v. State, 310 Neb. 588, 967
N.W.2d 677 (2021). However, we review de novo any underly-
ing legal conclusion that the proposed amendments would be
futile. Id.V. ANALYSIS
1. Claims Against Buchanan
In its order, the district court stated that “both parties agree
that Defendant Steve Buchanan should be dismissed from the
case.” Although that agreement does not appear on the record,
Perry does not contest the district court’s statement in his brief
on appeal. As previously stated, to be considered by an appel-
late court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error. Buttercase v. Davis, supra. Accordingly, we will address
Perry’s assignments of error and arguments on appeal only as
they pertain to Bucky’s.
2. Claims Against Bucky’s
In his complaint, Perry brought a negligence claim against
Bucky’s. However, both at the hearing on the motion to dis-
miss and in its brief, Bucky’s contends this is really a premises
liability case. Like the district court, we find that whether the
claim is one of negligence or premises liability, Perry has not
stated a claim for which relief can be granted.
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Cite as 31 Neb. App. 715(a) Negligence
[4] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plain-
tiff, a breach of such duty, causation, and damages. Pittman v.
Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016).
[5] The Nebraska Supreme Court has articulated the duty a
business proprietor owes to protect its patrons from third par-
ties as follows:
“‘The modern general rule, summarized in its sim-
plest terms, is that the proprietor of a place of business
who holds it out to the public for entry for his business
purposes, is subject to liability to members of the public
while upon the premises for such a purpose for bodily
harm caused to them by the accidental, negligent, or
intentionally harmful acts of third persons, if the pro-
prietor by the exercise of reasonable care could have
discovered that such acts were being done or were about
to be done, and could have protected the members of
the public by controlling the conduct of the third per-
sons or by giving a warning adequate to enable them to
avoid harm.’”
Pittman v. Rivera, 293 Neb. at 574, 879 N.W.2d at 16 (quoting
Schroer v. Synowiecki, 231 Neb. 168, 435 N.W.2d 875 (1989))
(emphasis supplied). Businesses that are open to the public are
subject to a duty of reasonable care, regardless of whether they
serve alcoholic liquor. Pittman v. Rivera, supra.Contrary to Perry’s assertion otherwise, the district court
did find that Bucky’s owed him a duty of reasonable care.
However, the real question is whether Bucky’s breached its
duty of reasonable care.
[6,7] In order to determine whether appropriate care was
exercised, the fact finder must assess the foreseeable risk at
the time of the defendant’s alleged negligence. Pittman v.
Rivera, supra. The extent of foreseeable risk depends on the
specific facts of the case and cannot be usefully assessed
for a category of cases; small changes in the facts may
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Cite as 31 Neb. App. 715make a dramatic change in how much risk is foreseeable. Id.Thus, courts should leave such determinations to the trier of
fact unless no reasonable person could differ on the matter.
Id. See Erichsen v. No-Frills Supermarkets, 246 Neb. 238,
518 N.W.2d 116 (1994) (appellant alleged sufficient facts
in petition to overcome demurrer of appellees in negligence
action; appellant claimed that on at least 10 occasions within
16-month period prior to assault on appellant, similar crimes,
including theft, purse snatching, and robbery, occurred in or
about the business’ parking lot; court has denied relief where
appellant based allegations of negligence on single act of vio-
lence, but allegation of many occasions of similar criminal
activity in one fairly contiguous area in limited timespan may
make further such acts sufficiently foreseeable to create duty
to business invitee).
In Pittman v. Rivera, supra, a bar patron brought a negli-
gence action against the bar after the patron was struck by a
vehicle in or near the bar’s parking lot; the vehicle was driven
by another patron who had been forcibly removed from the bar
twice that evening by a bar employee. The Nebraska Supreme
Court agreed with the district court that one patron’s conduct
in running down another patron with his vehicle was not a
foreseeable risk and that no reasonable person could differ on
the matter. The court said that in order to make a risk of attack
foreseeable, the circumstances to be considered must have a
direct relationship to the harm incurred. The court then found
that the patron’s conduct at the bar that evening (assaulting and
threatening behavior toward other individuals) was completely
different in nature from his later actions with his vehicle; there
was no evidence that the patrons knew each other or that one
had any reason to harm the other, nor was there evidence that
the patron would intentionally try to run over a person outside
of the bar.
Similar to Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d
12 (2016), and like the district court in the present case,
we find that no reasonable person could find that the injury
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Cite as 31 Neb. App. 715to Perry by an intoxicated driver in the Bucky’s parking lot was
a foreseeable risk from which Bucky’s could have protected
Perry. Bucky’s did not have control over the intoxicated driver
and could not have discovered the accident was about to occur
through the exercise of reasonable care. See Pittman v. Rivera,
supra. Accordingly, Perry has failed to plead a negligence
claim against Bucky’s for which relief can be granted.
(b) Premises Liability
[8] Generally speaking, 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, (2)
those concerning the failure to protect lawful entrants from a
dangerous activity on the land, and (3) those concerning the
failure to protect lawful entrants from the acts of a third person
on the land. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d
492 (2020).
(i) Act of Third Person
As noted by the district court, this case falls squarely
within the third category of premises liability cases, because
Perry claims he was injured due to the failure of Bucky’s to
protect business invitees from the acts of a third person on
the property.
[9] While the Nebraska Supreme Court has established a test
for determining when a possessor of land is liable for injury
to a lawful entrant caused by a dangerous condition on the
land, see Sundermann v. Hy-Vee, supra, it has not established
a test for determining liability for injuries caused by a failure
to protect lawful entrants from the acts of a third person on the
land. However, both the district court in its order and Perry in
his appellate brief note that the Restatement (Second) of Torts
§ 344 (1965) provides insight. The Restatement, supra, § 344
at 223-24, provides:
A possessor of land who holds it open to the public
for entry for his business purposes is subject to liability
to members of the public while they are upon the land
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Cite as 31 Neb. App. 715for such a purpose, for physical harm caused by the acci-
dental, negligent, or intentionally harmful acts of third
persons or animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are likely
to be done, or
(b) give a warning adequate to enable the visitors to
avoid the harm, or otherwise to protect them against it.
The Restatement, supra, § 344, comment d. at 225, states:
A public utility or other possessor of land who holds it
open to the public for entry for his business purposes is
not an insurer of the safety of such visitors against the
acts of third persons, or the acts of animals. He is, how-
ever, under a duty to exercise reasonable care to give
them protection. In many cases a warning is sufficient
care if the possessor reasonably believes that it will be
enough to enable the visitor to avoid the harm, or protect
himself against it. There are, however, many situations
in which the possessor cannot reasonably assume that a
warning will be sufficient. He is then required to exercise
reasonable care to use such means of protection as are
available, or to provide such means in advance because of
the likelihood that third persons, or animals, may conduct
themselves in a manner which will endanger the safety of
the visitor.
(Emphasis supplied.) The Restatement, supra, § 344, comment
f. at 225-26, states:
Since the possessor is not an insurer of the visitor’s
safety, he is ordinarily under no duty to exercise any care
until he knows or has reason to know that the acts of the
third person are occurring, or are about to occur. He may,
however, know or have reason to know, from past expe-
rience, that there is a likelihood of conduct on the part
of third persons in general which is likely to endanger
the safety of the visitor, even though he has no reason
to expect it on the part of any particular individual. If
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Cite as 31 Neb. App. 715the place or character of his business, or his past experi-
ence, is such that he should reasonably anticipate careless
or criminal conduct on the part of third persons, either
generally or at some particular time, he may be under a
duty to take precautions against it, and to provide a rea-
sonably sufficient number of servants to afford a reason-
able protection.
Perry did not allege facts that Bucky’s could have discov-
ered an intoxicated driver was about to strike him or that
Bucky’s could have given him a warning enabling him to avoid
the harm or otherwise protect him against it. Accordingly,
Perry has failed to plead a premises liability claim against
Bucky’s—concerning the failure to protect lawful entrants
from the acts of a third person on the land—for which relief
can be granted.
(ii) Condition of Land
Even if we analyzed this case as one concerning the failure
to protect lawful entrants from a dangerous condition on the
land, Perry’s pleading fails.
[10] 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 realized the con-
dition involved an unreasonable risk of harm to the lawful
visitor; (3) the possessor should have expected that a law-
ful 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. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d
492 (2020). 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
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Cite as 31 Neb. App. 715harm. Id. We need only address the second and third elements,
because they are dispositive in this case.
Cases considering conditions on the land have generally
drawn a distinction between conditions which present ordinary
or common risks and those which present unreasonable risks.
Id. 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. Id. Here, Perry has not alleged
any facts that Bucky’s should have realized the condition
involved an “unreasonable” risk of harm to a lawful visitor.
Perry has not alleged any facts that the Bucky’s property pre­
sents a risk outside of the ordinary or common risks inherent
to all parking lots.
[11,12] Additionally, 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. Id. Consequently, even where a dangerous condi-
tion 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. Id. The dangers of parking lots are obvious, including
the risk of a car accident or being struck by a vehicle. See id.And Perry has not alleged any facts to show that he was not
aware of the danger or that Bucky’s should have anticipated
that lawful patrons would fail to protect themselves against
such danger.
For the reasons stated above, Perry failed to properly plead
facts supporting a premises liability claim.
(c) Leave to Amend Complaint
Perry argues that the district court erred by denying him
leave to amend his complaint. An appellate court reviews
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Cite as 31 Neb. App. 715a district court’s denial of a motion to amend under § 6-1115(a)
for an abuse of discretion. Williams v. State, 310 Neb. 588, 967
N.W.2d 677 (2021). However, we review de novo any underly-
ing legal conclusion that the proposed amendments would be
futile. Id. A motion to amend should only be deemed as being
futile if the amendment could not survive a § 6-1112(b)(6)
motion to dismiss. See Bailey v. First Nat. Bank of Chadron,
16 Neb. App. 153, 741 N.W.2d 184 (2007).
At the hearing on the motion to dismiss, Perry did not
ask for leave to amend his complaint. It was Perry’s brother
(who had a separate negligence case against Bucky’s and a
simultaneous hearing on a motion to dismiss his case) who
said, “[I]f our complaint is insufficient, Your Honor, we just
ask that you give us the opportunity to amend it.” Regardless,
at the hearing, Perry did not allege additional facts to be
added to his complaint that would have allowed it to survive
a § 6-1112(b)(6) motion to dismiss. Accordingly, the district
court did not abuse its discretion when it did not grant Perry
leave to amend his complaint.
Additionally, we note that even in his appellate brief, Perry
has not alleged additional factual allegations that would have
allowed his claim to survive a § 6-1112(b)(6) motion to dis-
miss. He claims that Bucky’s knew or should have known that
its premises and the area immediately surrounding its premises
was a “high crime area” and that there had been “numerous
criminal acts and attacks perpetrated on the public in said area,
and that such criminal acts and attacks were reasonable [sic]
likely to be perpetrated on business invitees of the business
owner unless owner and owner employees took steps to pro-
vide proper security for such individuals.” Brief for appellant
at 11. Perry also alleged that Bucky’s “still allow[s] intoxi-
cated individuals on [its] premises regularly and even [has]
knowledge intoxicated individuals are on their property.” Id. at
12. He contends Bucky’s failed to provide adequate security,
including security guards and closed-circuit television cameras
to protect customers and invitees.
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Cite as 31 Neb. App. 715However, Bucky’s did not have control over the intoxicated
driver and could not have discovered the accident was about to
occur through the exercise of reasonable care, and therefore, a
negligence claim fails. Further, a premises liability claim fails
because (1) Perry did not allege facts that Bucky’s could have
discovered an intoxicated driver was about to strike him or
that Bucky’s could have given him a warning enabling him to
avoid the harm or otherwise protect him against it (neither
security guards nor security cameras would have protected
Perry) and (2) the dangers of parking lots, including car acci-
dents, are obvious, and Perry has not alleged any facts to show
that he was not aware of the danger or that Bucky’s should
have anticipated that lawful patrons would fail to protect them-
selves against such danger.
VI. CONCLUSION
For the reasons stated above, we affirm the order of the
district court dismissing Perry’s complaint for failure to state
a claim upon which relief may be granted and denying him an
opportunity to amend his pleading.
Affirmed.