Esbenshade v. National Life Insurance ( 1981 )

Boslaugh, J.,

dissenting.

According to the majority opinion, the evidence in this case would sustain a finding that the defendant had created a condition involving unreasonable risk of harm to the plaintiff and the plaintiff did not know or have rqason to know of the condition and risk of harm.

The evidence is that the tree had been planted 1 to 5 months before the accident and the plaintiff had walked past it many times. In her deposition, the plaintiff testified that at one time or another she had “probably noticed” or “observed” the wires apd stakes supporting the tree. There was nothing concealed or hidden about the wires and stakes, although the wires would not be easily seen when it was dark.

The majority opinion relies upon Nebraska cases involving dangerous conditions on floors in grocery and department stores; stairways and porches of apartment houses; excavations in parking lots; and elevated stop boxes in sidewalks. It should be readily apparent that none of these cases has any application to the facts in this case.