Susman v. Kearney Towing & Repair Ctr. , 310 Neb. 910 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/04/2022 08:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910Rysta Leona Susman et al., appellants, v.
Kearney Towing & Repair Center, Inc.,
a Nebraska corporation, appellee.
___ N.W.2d ___
Filed February 11, 2022. No. S-21-277.
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.
2. ____: ____. 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.
3. Limitations of Actions: Statutes. Limitations are created by statute and
derive their authority therefrom.
4. Limitations of Actions. The essential attribute of a statute of limitations
is that it accords and limits a reasonable time within which a suit may
be brought upon causes of action which it affects.
5. Limitations of Actions: Presumptions. The statute of limitations is
enacted upon the presumption that one having a well-founded claim will
not delay enforcing it beyond a reasonable time if that person has the
right to proceed.
6. ____. The mischief which statutes of limitations are intended to remedy
is the general inconvenience resulting from delay in the assertion of a
legal right which is practicable to assert.
7. Limitations of Actions: Torts. Neb. Rev. Stat. § 25-207 (Reissue 2016)
provides that a tort action, described as an action for an injury to the
rights of the plaintiff, not arising on contract, can only be brought within
4 years.
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310 Nebraska Reports
SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 9108. Limitations of Actions. A cause of action accrues and the statute of
limitations begins to run when the aggrieved party has the right to insti-
tute and maintain a suit.
9. ____. Until the plaintiff has a right of action, the statute of limitations
does not run and the plaintiff will have the full statutory period once the
right of action comes into being.
10. Actions. A cause of action cannot accrue before the occurrence of all the
elements that constitute a defendant’s violation of a plaintiff’s judicially
protected right.
11. Torts: Liability: Warranty. Tort liability is not based upon representa-
tions or warranties.
12. Torts: Liability: Negligence. Tort liability is based on a duty imposed
by the law to exercise that degree of care as would be exercised by a
reasonable person under the circumstances.
13. Torts: Liability: Negligence: Probable Cause. It suffices to charge a
person with liability for a negligent act if some injury to another ought
reasonably to have been foreseen as the probable result thereof by the
ordinarily intelligent and prudent person under the same circumstances.
14. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary
negligence must prove all four essential elements of the claim: the
defendant’s duty not to injure the plaintiff, a breach of that duty, proxi-
mate causation, and damages.
15. Negligence: Proof. A cause of action for negligence depends not only
upon the defendant’s breach of duty to exercise care to avoid injury to
the plaintiff, but also depends upon a showing that the injury suffered
by the plaintiff was caused by the alleged wrongful act or omission of
the defendant.
16. Negligence. A cause of action for negligence does not consist simply of
negligence or duty or injury standing alone.
17. Justiciable Issues. A party is not aggrieved and cannot institute and
maintain suit if any element of that party’s claim depends upon abstract
questions or issues that might arise in a hypothetical or fictitious situa-
tion or setting and may never come to pass.
18. ____. The alleged injury to the plaintiff cannot be merely hypothetical;
there must be an injury in fact in both a qualitative and temporal sense.
19. ____. To be an aggrieved party, the party must be able to allege an
injury to itself that is distinct and palpable, as opposed to merely
abstract, and the alleged harm must be actual or imminent, not conjec-
tural or hypothetical.
20. Actions: Proof. The litigant must show that the injury can be fairly
traced to the challenged action and is likely to be redressed by a favor-
able decision.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 91021. Limitations of Actions: Negligence. A plaintiff is not required to antici-
pate an injury from the probable negligence of someone else. The statute
of limitations does not run until the injury has been actually received.
22. Negligence. Plaintiffs in an ordinary negligence action generally cannot
rest their claims on the legal rights or interests of third parties.
Appeal from the District Court for Buffalo County:
John H. Marsh, Judge. Reversed and remanded for further
proceedings.
Michael F. Coyle and Karson S. Kampfe, of Fraser Stryker,
P.C., L.L.O., for appellants.
Kristina J. Kamler and Stephen G. Olson II, of Engles,
Ketcham, Olson & Keith, P.C., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
A vehicle owned by a construction company was involved
in an accident that occurred when a rear tire of the vehicle
suffered a tread separation. Employees of the construction
company that were passengers of the vehicle at the time of the
accident were injured. The employees brought a suit against
the tire repair company that mounted the tire for the construc-
tion company, alleging ordinary negligence. Their action was
brought more than 4 years after the installation of the tire but
within 4 years of the accident. The tire repair company filed
a motion for summary judgment based on the 4-year statute
of limitations, which was initially denied but was ultimately
granted upon a motion to reconsider. Plaintiffs appeal.
BACKGROUND
Rysta Leona Susman, both individually and as natural
mother of Shane Allen Loveland, a protected person; Loveland,
by and through his temporary guardian and conservator, John
Sauder; and Jacob Summers (individually and collectively
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910Loveland and Summers), filed a complaint against Kearney
Towing & Repair Center, Inc. (Kearney Towing), on April
12, 2019, for negligence and breach of contract regarding a
single-vehicle accident of a pickup truck, in which Loveland
and Summers were passengers, occurring on May 1, 2015. The
pickup was owned by Loveland’s and Summers’ employer,
Dandee Concrete Construction, Inc. (Dandee Concrete).
The complaint alleged that the accident occurred when the
right rear tire of the pickup truck suffered a tread separation
which caused the driver to lose control, resulting in a roll-
over. The complaint alleged that Kearney Towing “inspected,
mounted, installed and balanced the used tires,” which were on
the pickup truck involved in the accident, and that at the time
the used tires were installed, “the tires were 20 years of age in
that they were manufactured in 1994.”
The complaint alleged that Kearney Towing was negligent
in that Kearney Towing holds itself out to the public as experts
in “tire inspections, auto inspections and automobile main-
tenance”; owes a duty to all customers and all ­individuals,
including but not limited to Loveland and Summers; and is
obligated to perform its work in a reasonably skilled and safe
manner. Loveland and Summers alleged that Kearney Towing
breached this duty and was negligent in the manner in which it
inspected the used tires and installed them on the pickup truck.
The complaint alleged that the negligence of Kearney Towing
was the direct and proximate cause of both Loveland’s and
Summers’ “catastrophic injuries.”
In its answer, Kearney Towing affirmatively alleged, among
other things, that Loveland and Summers’ claim was barred by
the applicable statute of limitations. Kearney Towing filed a
motion for summary judgment on the basis that the matter was
barred by the 4-year statute of limitations “provided for oral
contracts and as set forth in Neb. Rev. Stat. § 25-206.”
As part of this motion, Kearney Towing filed a statement
of undisputed facts. The undisputed facts stated that the case
revolved around a single-vehicle accident that occurred on
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910May 1, 2015. Loveland and Summers alleged in the complaint
that Kearney “‘inspected, mounted, installed and balanced the
used tires that were on the subject 2003 Chevrolet Silverado
SC1 truck occupied by . . . Loveland and . . . Summers at the
time of the accident.’” Forming the basis of the complaint was
an invoice by Kearney Towing, dated June 10, 2014, which
was issued to Loveland’s and Summers’ employer, Dandee
Concrete. This invoice stated that Kearney Towing performed
“SCRAP TIRE 13-17 INCH TIRE” and “MOUNT AND
BALANCE TIRE.” The pickup truck involved in this incident
was owned by Dandee Concrete. Loveland and Summers con-
ceded that for the purposes of the motion for summary judg-
ment, the court could assume Kearney Towing mounted the
tire on a Dandee Construction pickup truck on June 10, 2014;
that the tire failed on May 1, 2015, injuring Loveland and
Summers; and that Loveland and Summers brought suit against
Kearney Towing on April 12, 2019.
Kearney Towing argued at the hearing that the statute of
limitations on Loveland and Summers’ complaint is 4 years,
whether it is based on the tort statute or the contract statute,
and that the statute begins to run on the date of the act or the
omission which gives rise to the claim. Ultimately, Kearney
Towing argued that the cause of action was based upon an
invoice from June 10, 2014; Loveland and Summers did not
file their action until April 2019; and thus, it was outside the
4-year statute of limitations that expired in June 2018, so their
claim was barred.
Loveland and Summers argued at the hearing that a cause of
action accrues and the statute of limitations begins to run when
the aggrieved party has a right to institute and maintain a suit.
They asserted that no case in Nebraska has ever found that the
statute of limitations starts before the injury occurs or before
the existence of causation and damages. Thus, they asserted
their causes of action accrued and the statute of limitations
began when the injury occurred on the date of the accident.
They claimed they gained the right to institute a lawsuit on
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910May 1, 2015, and timely filed their action within 4 years of
that date.
The district court’s original order on Kearney Towing’s
motion for summary judgment found that Loveland and
Summers’ negligence claim was governed by a 4-year statute
of limitations under Neb. Rev. Stat. § 25-207 (Reissue 2016)
and that the breach of contract claim was governed by Neb.
Rev. Stat. § 25-206 (Reissue 2016) upon an oral contract. The
court found that the negligence cause of action accrued on the
date of the injury, which was May 1, 2015, and that thus, it was
not barred by the 4-year statute of limitations under § 25-207.
And the court found that “[t]here is at least a question of fact
as to whether [Loveland and Summers’] contract claim is
barred by the statute of limitations under [§] 25-206.”
Kearney Towing filed a motion to reconsider, asserting, as
relevant to this appeal, that the court erred in concluding that
the statute of limitations for negligence actions, as set forth
in § 25-207, begins to run on the date of a plaintiff’s injury.
Meanwhile, Loveland and Summers expressed their intention
to dismiss their breach of contract claim with prejudice. In the
court’s order on Kearney Towing’s motion to reconsider, the
court acknowledged Loveland and Summers’ stated intent to
dismiss their breach of contract claim. The court then deter-
mined that, upon reconsideration, Loveland and Summers’
cause of action for negligence accrued at the time the tire was
installed, which was June 10, 2014, even though this date of
the act or omission occurred before any injury to Loveland
and Summers. The court accordingly found the negligence
action was barred by the statute of limitations under § 25-207.
The court reversed its original order and sustained Kearney
Towing’s motion for summary judgment, dismissed the neg-
ligence action, and found all other pending motions moot
or overruled.
Still pending was a third-party complaint by Kearney
Towing and Loveland and Summers’ breach of contract action.
On March 8, 2021, Loveland and Summers filed a motion
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Cite as 310 Neb. 910asking the court to dismiss their breach of contract cause
of action with prejudice and either (1) reverse its March 2
order granting Kearney Towing’s motion for summary judg-
ment and entering judgment against Loveland and Summers
on their negligence claim or (2) amend its March 2 order to
also dismiss for lack of jurisdiction a third-party complaint by
Kearney Towing. Alternatively, Loveland and Summers asked
the court, in the event it overruled their motion to reconsider,
to dismiss Kearney Towing’s third-party complaint in order to
“render all claim and controversy resolved and the [c]ourt’s
[o]rder final.”
After a hearing was held, the court dismissed Loveland and
Summers’ breach of contract claim with prejudice as requested.
The court also agreed that Kearney Towing’s third-party claim
was a derivative claim and dismissed it with prejudice for lack
of jurisdiction. But, the court stated, it “remains convinced
that a negligence cause of action accrues as soon as the act
or omission occurs” and, while that rule results in [Loveland
and Summers’] having fewer than 4 years after the accident
to file their action, “a contrary rule would subject [Kearney
Towing] to suit more than four years after it had any involve-
ment with the tire in question.” Loveland and Summers appeal
the dismissal of their negligence claim on summary judgment
as barred by the statute of limitations.
ASSIGNMENTS OF ERROR
Loveland and Summers generally assign that the district
court erred in sustaining Kearney Towing’s motion to recon-
sider and, thereafter, granting summary judgment in favor of
Kearney Towing. More specifically, Loveland and Summers
assign that the district court erred in (1) ruling all tort claims
accrue when the wrongful act or omission occurs, rather than
when the plaintiff has the right to institute and maintain suit,
disregarding the requirements of Neb. Rev. Stat. § 25-201(Reissue 2016); (2) ruling negligence claims governed by
§ 25-207(3) accrue when the wrongful act or omission occurs,
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910rather than when a plaintiff suffers a direct injury to his or
her rights resulting in actual damage; (3) ruling Loveland and
Summers’ negligence claim accrued, under § 25-207(3), on
the date Kearney Towing’s acts or omissions occurred, June
10, 2014, rather than the date their rights were directly injured
and they sustained actual damage, May 1, 2015; and (4) ruling
Loveland and Summers’ negligence claim was time barred,
under § 25-207(3), despite admitting they only had the right to
institute and maintain suit for about 3 years, from May 1, 2015,
to June 10, 2018.
STANDARD OF REVIEW
[1,2] 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. 1 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
ANALYSIS
The only issue presented in this appeal is the question of
law of whether Loveland and Summers’ cause of action for
ordinary negligence accrued at the time of the accident or,
instead, when Kearney Towing installed the tire on the pickup
truck of Loveland and Summers’ employer. Loveland and
Summers do not claim that a discovery exception or estop-
pel applies to their action. If Loveland and Summers’ cause
of action accrued at the time of the accident, the statute of
limitations did not begin to run until that time and the district
1
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
2
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910court erred in granting Kearney Towing’s motion for summary
judgment that was based on the statute of limitations. If, on the
other hand, Loveland and Summers’ cause of action accrued
when Kearney Towing installed the tire, their action is time
barred and the court did not err in granting the motion.
[3-6] Limitations are created by statute and derive their
authority therefrom. 3 The essential attribute of a statute of
limitations is that it accords and limits a reasonable time within
which a suit may be brought upon causes of action which it
affects. 4 The statute of limitations is enacted upon the pre-
sumption that one having a well-founded claim will not delay
enforcing it beyond a reasonable time if that person has the
right to proceed. 5 The mischief which statutes of limitations
are intended to remedy is the general inconvenience resulting
from delay in the assertion of a legal right which is practicable
to assert. 6
Three statutes govern the limitations period in this case.
First, § 25-201 provides, in relevant part, that “[a] civil action
shall be commenced only within the time prescribed in this
chapter, after the cause of action has accrued.” Neb. Rev. Stat.
§ 25-204 (Reissue 2016) then states that “[c]ivil actions, other
than for the recovery of real property, can only be brought
within the following periods, after the cause of action shall
have accrued.”
[7] A series of statutes thereafter set forth the limitation
periods for the specified civil actions. Of those, § 25-207
3
State ex rel. Labedz v. Beermann, 229 Neb. 657, 428 N.W.2d 608 (1988);
Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821 (1939).
4
Id.5
Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984). See,
also, Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376(2007); Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).
6
See Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001). See, also,
Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018); Shlien v. Board of
Regents, supra note 5; Condon v. A. H. Robins Co., supra note 5.
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Cite as 310 Neb. 910directly pertains to the present case. It provides, “The follow-
ing actions can only be brought within four years: . . . (3) an
action for an injury to the rights of the plaintiff, not arising
on contract, and not hereinafter enumerated . . . .” We have
explained that “[s]ection 25-207 provides that a tort action,
described as ‘an action for an injury to the rights of the
plaintiff, not arising on contract,’ ‘can only be brought within
four years.’” 7
[8,9] The controlling statutes of limitations for ordinary
negligence have not changed in substance since this State’s
inception. It has long been recognized in Nebraska that a
cause of action accrues and the statute of limitations begins
to run when the aggrieved party has the right to institute and
maintain a suit. 8 We have said that until the plaintiff has a
right of action, the statute of limitations does not run and the
plaintiff will have the full statutory period once the right of
action comes into being: “The universal rule of law is that the
statute of limitations does not begin to run against a right of
action until that right exists. The party who has the right of
action has the full period of the statute in which to enforce
it.” 9 This is consistent with the standard rule that a claim
7
Alston v. Hormel Foods Corp., supra note 5, 273 Neb. at 425, 730 N.W.2d
at 381.
8
Condon v. A. H. Robins Co., supra note 5. See, also, Andersen v. A.M.W.,
Inc., 266 Neb. 238, 665 N.W.2d 1 (2003); Egan v. Stoler, 265 Neb. 1,
653 N.W.2d 855 (2002); Cavanaugh v. City of Omaha, 254 Neb. 897, 580
N.W.2d 541 (1998); Association of Commonwealth Claimants v. Moylan,
246 Neb. 88, 517 N.W.2d 94 (1994); Central States Resources v. First Nat.
Bank, 243 Neb. 538, 501 N.W.2d 271 (1993); Hoffman v. Reinke Mfg. Co.,
227 Neb. 66, 416 N.W.2d 216 (1987); Lake v. Piper, Jaffray & Hopwood
Inc., 219 Neb. 731, 365 N.W.2d 838 (1985); Kearney Clinic Bldg. Corp.
v. Weaver, 211 Neb. 499, 319 N.W.2d 95 (1982); T. S. McShane Co., Inc.
v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979); Barney v.
City of Lincoln, 144 Neb. 537, 13 N.W.2d 870 (1944).
9
Bohrer v. Davis, 94 Neb. 367, 370, 143 N.W. 209, 210 (1913), overruled
on other grounds, Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302(1917).
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Cite as 310 Neb. 910accrues when the plaintiff has a complete and present cause
of action. 10
[10] It is the combination of all the elements of a claim that
gives rise to a cause of action. 11 Thus, we have long held that
a cause of action cannot accrue before the occurrence of all the
elements that constitute a defendant’s violation of a plaintiff’s
judicially protected right. 12
[11-13] Tort liability is not based upon representations or
warranties. 13 Rather, it is based on a duty imposed by the
law to exercise that degree of care as would be exercised by
a reasonable person under the circumstances. 14 A person acts
negligently if the person does not exercise reasonable care
under all the circumstances. 15 It suffices to charge a person
with liability for a negligent act if some injury to another ought
reasonably to have been foreseen as the probable result thereof
by the ordinarily intelligent and prudent person under the same
circumstances. 16
[14-16] A plaintiff in ordinary negligence must prove all
four essential elements of the claim: the defendant’s duty not
10
See, Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 166 L. Ed. 2d
973 (2007); 1 Am. Jur. 2d Actions § 63 (2016). See, also, Anthony K. v.
Nebraska Dept. of Health & Human Servs., 289 Neb. 540, 855 N.W.2d
788 (2014).
11
See Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685 (1928).
12
See, Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992);
Condon v. A. H. Robins Co., supra note 5; Westover v. Hoover, 94 Neb.
596, 143 N.W. 946 (1913). See, also, Ward v. City of Alliance, 227 Neb.
306, 417 N.W.2d 327 (1988).
13
Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
14
See, Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017);
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907(2010).
15
Hodson v. Taylor, 290 Neb. 348, 860 N.W.2d 162 (2015).
16
McClelland v. Interstate Transit Lines, 142 Neb. 439, 6 N.W.2d 384(1942). See, also, Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d
99 (1984); Gillotte v. Omaha Public Power Dist., 185 Neb. 296, 176
N.W.2d 24 (1970).
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Cite as 310 Neb. 910to injure the plaintiff, a breach of that duty, proximate causa-
tion, and damages. 17 A cause of action for negligence depends
not only upon the defendant’s breach of duty to exercise care
to avoid injury to the plaintiff, but also depends upon a show-
ing that the injury suffered by the plaintiff was caused by the
alleged wrongful act or omission of the defendant. 18 In one of
our earliest cases on this subject, we explained: “‘The cause
of action in any case embraces not only the injury which the
complaining party has received, but it includes more. All the
facts which, taken together, are necessary to fix the responsi-
bility are parts of the cause of action.’” 19 A “cause of action,”
we said, “has never consisted simply of negligence or duty or
injury standing alone.” 20
[17] And, under longstanding principles of justiciability, a
party is not aggrieved and cannot institute and maintain suit if
any element of that party’s claim depends upon abstract ques-
tions or issues that might arise in a hypothetical or fictitious
situation or setting and may never come to pass. 21 This fails to
present a present case or controversy for the court. 22
[18-21] More specifically, we have explained that the
alleged injury to the plaintiff cannot be merely hypotheti-
cal; there must be an injury in fact in both a qualitative and
temporal sense. 23 To be an aggrieved party, the party must be
able to allege an injury to itself that is distinct and palpable,
as opposed to merely abstract, and the alleged harm must be
17
See Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988).
See, also, Talbot v. Douglas County, 249 Neb. 620, 544 N.W.2d 839 (1996).
18
See Condon v. A. H. Robins Co., supra note 5.
19
Westover v. Hoover, supra note 12, 94 Neb. at 601, 143 N.W. at 948.
20
Id. See, also, e.g., Emel v. Standard Oil Co., supra note 11.
21
See State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993). See, also,
Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994).
22
See Ryder Truck Rental v. Rollins, supra note 21.
23
See City of Springfield v. City of Papillion, 294 Neb. 604, 883 N.W.2d 647(2016).
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Cite as 310 Neb. 910actual or imminent, not conjectural or hypothetical. 24 Further,
the litigant must show that the injury can be fairly traced to the
challenged action and is likely to be redressed by a favorable
decision. 25 In summary, we have plainly held, “A [plaintiff] is
not required to anticipate an injury from the probable negli-
gence of some one else. The statute of limitations does not run
until the injury has been actually received.” 26
[22] Before the accident, Loveland and Summers were not
aggrieved parties with a right to institute and maintain a suit
against Kearney Towing for ordinary negligence. While the
manner in which Kearney Towing installed the tire could
arguably have given rise at that time to an action against it
by Loveland’s and Summers’ employer as the aggrieved party,
plaintiffs in an ordinary negligence action generally cannot rest
their claims on the legal rights or interests of third parties. 27 It
is undisputed that Loveland and Summers had no professional
or contractual relationship with Kearney Towing.
When Kearney Towing allegedly negligently installed the
tire, any future accident and resultant harm to Loveland and
Summers, as the proximate result of the allegedly negligent
tire installation, would have been purely speculative. Kearney
Towing argues that at the time of its alleged misconduct in
installing the tire, it breached its duty to all persons and enti-
ties Kearney Towing reasonably should have foreseen might
be injured as the probable result of its actions. We express no
opinion regarding the duty, if any, owed by Kearney Towing
to anyone as a result of mounting the tire. But it is obvious
that Loveland and Summers could not have brought and main-
tained suit at the time of the tire installation based merely
24
See Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533,
788 N.W.2d 252 (2010).
25
See id.26
Morse v. Chicago, B. & Q. R. Co., 81 Neb. 745, 747, 116 N.W. 859, 860
(1908). Accord, Shavlik v. Walla, 86 Neb. 768, 126 N.W. 376 (1910);
Chicago, R. I. & P. R. Co. v. Andreesen, 62 Neb. 456, 87 N.W. 167 (1901).
27
See State v. Baltimore, supra note 21.
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910upon being within a broad group of persons who might suf-
fer some harm in the future. This would allow the plaintiff to
anticipate the injury before it was actually received.
Accordingly, Loveland and Summers had no right at the
time of the tire installation to institute and maintain an ordinary
negligence action against Kearney Towing. Indeed, Kearney
Towing does not assert otherwise. Instead, Kearney Towing
suggests the Legislature has determined as a policy matter that
the statute of limitations shall begin to run upon the occurrence
of the misconduct against all parties who then or thereafter
might be harmed by the misconduct, whether or not they had
a right to institute and maintain suit when the misconduct
occurred. That this could lead in some circumstances to the
statute of limitations running against a right of action before
that right exists, depriving the party of the full period of the
statute to enforce it, or of any period at all, is of no conse-
quence. Kearney Towing argues the Legislature has determined
that the moment of the misconduct is easily identifiable and
that ordinary tort-feasor liability is thereby reasonably limited
in time.
We disagree that the statutes controlling the limitations
period for ordinary negligence reflect any such determina-
tions. We find no merit to Kearney Towing’s argument that
the Legislature has adopted, for ordinary negligence actions,
an “occurrence rule” under which the cause of action accrues
and the statute of limitations begins to run against all possible
future, hypothetically aggrieved parties upon the occurrence
of the defendant’s misconduct standing alone. Nor has the
Legislature enacted a “discovery” rule to govern the accrual of
ordinary negligence claims.
Specifically, we do not agree with Kearney Towing’s argu-
ment that § 25-207 delimits to the sole element of “injury” when
the “cause of action” for ordinary negligence has “accrued,”
as stated in §§ 25-201 and 25-204. Leaving aside for the
moment that this injury is “to the rights of the plaintiff,” and
not to hypothetical rights that might foreseeably be affected
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310 Nebraska Reports
SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910in the future, § 25-207 is, similar to many other statutes after
§ 25-204, simply setting forth the period of years of limitation
in bringing the specified cause of action once it has accrued.
For example, § 25-206 simply sets forth that “[a]n action upon
a contract, not in writing,” can only be brought within 4 years.
We cannot conceive how this provision describes which of the
traditional elements of an action upon a contract, not in writ-
ing, must exist before such “cause of action” has “accrued.”
While we have said that Neb. Rev. Stat. § 25-222 (Reissue
2016) adopts an occurrence rule for professional negligence
actions, it is not applicable here, and its language is notably
different from § 25-207. Section 25-222 sets forth the occur-
rence rule by stating that an action to recover damages based
on alleged professional negligence shall be commenced within
2 years “after the alleged act or omission,” and the occurrence
rule is, in that same statute, “tempered or ameliorated by a pro-
vision for discovery.” 28
We disagree with Kearney Towing’s argument that if
§ 25-222 modifies when a “cause of action” has “accrued,”
then all the statutes following § 25-204 must likewise be delin-
eating what elements are required for the respective causes of
action to accrue. As we have said, § 25-207 provides that a tort
action, described as “an action for an injury to the rights of the
plaintiff, not arising on contract,” can only be brought within
4 years. 29 It does not do more.
In any event, we do not agree with Kearney Towing’s sug-
gestion that the term “injury” in § 25-207 would equate to the
defendant’s general act of misconduct, abstracted from any
harm the plaintiff may or may not have suffered. We have
concluded that a cause of action for professional negligence
accrues upon the dereliction of duty, even when the breach
may have produced a recovery of only nominal damages. 30
28
Rosnick v. Marks, 218 Neb. 499, 506, 357 N.W.2d 186, 191 (1984).
29
Alston v. Hormel Foods Corp., supra note 5.
30
See Rosnick v. Marks, supra note 28. See, also, Williams v. Elias, 140 Neb.
656, 1 N.W.2d 121 (1941).
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910We have relatedly discussed, principally in the context of
professional negligence, that “injury, in its legal sense, is mis-
conduct” or “the invasion of any legally protected interest of
another,” while “damage is the legal term applied to the loss
resulting from misconduct,” 31 stating that the “tort accrues as
soon as the act or omission occurs.” 32
But we have not thereby simply equated the element of the
defendant’s breach of a duty with the plaintiff’s “injury” or
held that the statute of limitations begins to run against persons
who are not yet aggrieved and would, therefore, be unable
to present a justiciable action. The discussed invasion of the
plaintiff’s legally protected right has never been solely based
on being a member of the public who could foreseeably be
harmed in the future. Instead, we have reiterated in this context
that the statute of limitations begins to run when the aggrieved
party has the right to institute and maintain suit. 33 We simply
clarified that such right exists even when the full nature and
extent of damages may not be known. 34
Finally, in support of its contention that the statute of
limitations started running upon the installation of the tire,
31
Rosnick v. Marks, supra note 28, 218 Neb. at 504, 357 N.W.2d at 190(internal quotation marks omitted).
32
Guinn v. Murray, 286 Neb. 584, 596, 837 N.W.2d 805, 816 (2013). Accord
Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006); Alston v. Hormel
Foods Corp., supra note 5; Berntsen v. Coopers & Lybrand, 249 Neb.
904, 546 N.W.2d 310 (1996); St. Paul Fire & Marine Ins. Co. v. Touche
Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). See, also, In re Estate
of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020); Shlien v. Board of
Regents, supra note 5; Teater v. State, 252 Neb. 20, 559 N.W.2d 758(1997).
33
Rosnick v. Marks, supra note 28.
34
Id. See, also, Wallace v. Kato, supra note 10; Weyh v. Gottsch, 303 Neb.
280, 929 N.W.2d 40 (2019); Irving F. Jensen Co. v. State, 272 Neb. 162,
719 N.W.2d 716 (2006); Murphy v. Spelts-Schultz Lumber Co., 240 Neb.
275, 481 N.W.2d 422 (1992); Broekemeier Ford v. Clatanoff, 240 Neb.
265, 481 N.W.2d 416 (1992); L.J. Vontz Constr. Co. v. Department of
Roads, 232 Neb. 241, 440 N.W.2d 664 (1989); Witherspoon v. Sides
Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).
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SUSMAN v. KEARNEY TOWING & REPAIR CTR.
Cite as 310 Neb. 910Kearney Towing relies heavily on one paragraph in Grand
Island School Dist. #2 v. Celotex Corp. 35 In that paragraph, this
court stated the proposition that statutes of limitations begin to
run upon accrual of a cause of action and that a cause of action
accrues when the aggrieved party has the right to institute and
maintain a suit. It then went on to say that “[i]n a contract
action[,] this means as soon as breach occurs, and in tort, as
soon as the act or omission occurs.” 36 This language was dicta,
as the issue in Celotex Corp. was whether a discovery rule
could apply to save the plaintiff’s claims. To the extent the
statement in Celotex Corp. could be interpreted as saying that
the statute of limitations for claims covered by § 25-207(3)
will begin to run upon the act or omission of the defendant,
regardless of whether the plaintiff has yet been aggrieved by
that misconduct, we find it inconsistent with other precedent
and the controlling statutes and it is disapproved.
Until the accident, Loveland and Summers were not
aggrieved parties and their ordinary negligence action had not
yet accrued. Accordingly, the 4-year statute of limitations did
not begin to run against Loveland and Summers when the tire
was installed, and the court erred in granting summary judg-
ment in favor of Kearney Towing on the grounds that it was
barred by the statute of limitations.
CONCLUSION
For the foregoing reasons, we reverse the district court’s
order of summary judgment and remand the cause for further
proceedings.
Reversed and remanded for
further proceedings.
Miller-Lerman, J., not participating.
35
Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d
603 (1979).
36
Id. at 562-63, 279 N.W.2d at 606.