Ermel v. SMA Enters.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/22/2022 08:06 AM CDT
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754Andrew M. Ermel, appellant, v. SMA
Enterprises, Inc., doing business as
Baxter Ford South, appellee.
___ N.W.2d ___
Filed March 22, 2022. No. A-21-080.
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. 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.
3. Negligence: Liability: Proximate Cause. A possessor of land is sub-
ject 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 discov-
ered 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 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 reason-
able care to protect the lawful visitor against the danger; and (5) the
condition was a proximate cause of damage to the plaintiff. Of the five
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754elements recited above, the first three clarify the scope of a land pos-
sessor’s duty to lawful entrants, as they identify those conditions which
give rise to a duty of reasonable care to protect lawful entrants from
physical harm.
4. Negligence: Words and Phrases. While there is no fixed rule for deter-
mining when a risk of harm is unreasonable, the plain meaning of the
term suggests a uniquely or unacceptably high risk of harm.
5. ____: ____. An unreasonable risk of harm means a risk that a reason-
able person, under all the circumstances of the case, would not allow
to continue.
6. Negligence. Generally, when a dangerous condition is open and obvious,
the owner or occupier is not liable in negligence for harm caused by the
condition. The rationale behind this general rule is that the open and
obvious nature of the condition gives caution so that the risk of harm
is considered slight, since reasonable people will avoid open and obvi-
ous risks.
7. ____. A condition on the land is considered open and obvious when the
risk is apparent to and of the type that would be recognized by a reason-
able person in the position of the invitee exercising ordinary perception,
intelligence, and judgment.
8. ____. Under the open and obvious doctrine, a possessor of land is not
liable to invitees for physical harm caused by any activity or condition
on the land whose danger is known or obvious to the invitee, unless
the possessor should anticipate the harm despite such knowledge or
obviousness.
9. ____. A determination that a risk or danger is open and obvious does
not end the duty analysis in a premises liability case. A court must also
determine whether the possessor should have anticipated that lawful
entrants would fail to protect themselves despite the open and obvi-
ous risk.
Appeal from the District Court for Sarpy County: Michael A.
Smith, Judge. Reversed and remanded for further proceedings.
Matthew A. Lathrop, of Law Office of Matthew A. Lathrop,
P.C., L.L.O., and Kathy Pate Knickrehm for appellant.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellee.
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Andrew M. Ermel appeals from an order of the district
court for Sarpy County granting summary judgment in favor
of appellee, SMA Enterprises, Inc., doing business as Baxter
Ford South (Baxter). Ermel was injured after slipping on an
accumulation of ice while dropping his vehicle off at Baxter
for a service appointment the following day. The court found
that under the circumstances of this case, the accumulation of
ice was an open and obvious risk that did not create an unrea-
sonable risk of harm to Ermel. Accordingly, the court granted
summary judgment in favor of Baxter under the doctrine of
premises liability, recently reiterated in Sundermann v. Hy-Vee,
306 Neb. 749, 947 N.W.2d 492 (2020). For the reasons that
follow, we reverse, and remand for further proceedings.
BACKGROUND
At approximately 11:45 p.m., on February 24, 2017, Ermel
and his girlfriend arrived at Baxter in separate vehicles, because
Ermel intended to leave his vehicle for a service appoint-
ment the following morning. Baxter had installed a “key drop
box” near its service bay doors for customers to use when
leaving vehicles after hours. Ermel parked to the north of the
service garage, whereas his girlfriend parked immediately in
front of the service bay doors, under a large sign which indi-
cated “Service.”
According to a weather report from the day in question,
the temperature dropped below freezing around 7 a.m. and
remained below freezing the rest of the day. In addition to
some light rain in the morning, there were periods of snow
and light snow ending between 4:15 and 4:35 p.m. In a later
deposition, Ermel testified that “[i]t was very cold [and] was
precipitating in different forms, snow, sleet, rain, what have
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754you.” Ermel further testified that the roads were wet as he
drove to the dealer­ship and that he was aware the conditions
were favorable for the formation of ice. He testified that upon
arriving at Baxter, the parking lot appeared “wet and slick,”
but that when he got out of the vehicle, “[i]t wasn’t as slick as
I had anticipated” and “I had no issues with traction.” Ermel’s
girlfriend also testified that she had no problems walking, but
that she knew it was slick and thus “probably walked more
carefully.”
Ermel testified that he walked from his vehicle, around
the back of his girlfriend’s vehicle, and to the west side of the
building because he believed that is where he would find the
key drop box. According to Ermel, such was the location of
the key drop box when he had visited the property a number
of years prior. However, the record shows that the key drop
box was actually located on the north side of the building, in
between the two service bay doors, near where Ermel’s girl-
friend had parked her vehicle.
Nevertheless, Ermel walked around to the west side of the
building and slipped on a patch of “downspout ice,” sustaining
injury to his right elbow. Ermel testified that he was not aware
of the downspouts or the accumulation of ice prior to the fall.
It was only after the fall that he then noticed the downspouts
and ice accumulation, which he described as being “much
thicker” and more slippery than the other surfaces he encoun-
tered that night. In contrast to the good traction Ermel experi-
enced elsewhere in the parking lot, “[t]here was no traction” on
the accumulation of ice under the downspout.
Ermel filed a complaint in the district court seeking compen-
sation for injuries caused by the fall. Ermel first alleged that
Baxter owed him a duty of reasonable care under Nebraska’s
premises liability doctrine. Ermel alleged that there were park-
ing stalls and “a walkway” located on the west side of the
building and that there was a pair of rain downspouts located
on the northwest corner of the building, which “face west
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754and release runoff across the walkway.” In its answer, Baxter
admitted there were parking stalls on both the west and north
sides of the service garage. Baxter further admitted there was
“space between the parking stalls on the west side of the serv­
ice garage and the west wall of the service garage” but denied
that it was a “‘walkway.’”
Baxter admitted there was “a pair of downspouts located on
the west side of the service garage closest to its north end” that
“release runoff in a westerly direction across the space,” which
Ermel referred to as a “walkway.” Ermel further alleged in his
complaint that Baxter breached its duty of reasonable care, to
wit: Ermel slipped and fell on ice which had “formed because
of runoff from the roof which is directed to this location by
the downspouts.” Finally, Ermel alleged that Baxter had proxi-
mately caused the fall and the injuries sustained thereby. The
following images were admitted into evidence to illustrate the
location at issue:
Image No. 1
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754Image No. 2
Image No. 3
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754Image No. 1 shows the actual location of the key drop box
between the service bay doors. Image No. 2 shows Ermel’s
view of the downspout location as he walked from where he
parked his vehicle toward the west side of the building. Also
visible in image No. 2 are the parking spaces on the west side
of the building and the “walkway” Ermel described. Image
No. 3 shows the downspouts located on the northwest corner
of the building.
In its answer, Baxter raised a number of affirmative defenses,
alleging first that Ermel’s recovery should be barred or reduced
on account of his own negligence. Baxter alleged that Ermel
negligently failed to avoid the “open and obvious” patch of ice.
Baxter further alleged that Ermel assumed the risk of injury,
that Ermel’s injuries were caused by the negligence of others,
and that Baxter is entitled to a setoff for medical payments
made on Ermel’s behalf.
In September 2020, Baxter moved for summary judgment on
the basis of the pleadings, photographs taken of the scene, and
excerpts from depositions taken of Ermel, his girlfriend, and
Tom Kroll, who was a “lender relations manager” employed
by Baxter.
Aside from the following, the facts of this case were largely
undisputed at the time the case was submitted on the motion
for summary judgment. First, Baxter alleged that Ermel con-
sumed “a beer and marijuana” at home prior to driving to
Baxter. Indeed, Ermel testified that prior to taking his vehicle
to Baxter, he consumed one beer and “some marijuana.” Ermel
objected to this allegation, arguing Baxter failed to offer com-
petent evidence and asserting “it is a disputed fact whether
one beer and a small amount of marijuana would have any
effect on [Ermel] at the time of the fall.” Second, where Baxter
alleged that Ermel’s girlfriend left her vehicle running with the
headlights on, Ermel testified that the vehicle and headlights
were off. Moreover, Baxter alleged that the parking lot was
installed with “‘big parking lot bright lights’” that had been
upgraded within the 2 years prior to the accident. However,
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754Ermel testified that the “lighting conditions were very dim” in
the parking area.
With regard to ice and snow removal, Kroll testified that
he was not aware of any written policy or procedure related
to ice and snow removal at Baxter. However, Kroll was aware
that Baxter had an unwritten contract with a lawn care com-
pany to provide ice and snow removal on an as-needed basis.
Additionally, Kroll testified that the service manager and gen-
eral manager are “collective[ly]” responsible for addressing ice
and snow as it accumulates, noting that they use salt spreaders
and a “multitude of guys” who address the sidewalks “as best
they can.”
In January 2021, the court entered an order granting Baxter’s
motion for summary judgment. In reciting the facts above, the
court noted that Ermel “mistakenly walked away from the key
drop box and around the corner of the building . . . . As he
turned the corner of the building, [Ermel] slipped and fell on
ice that had accumulated underneath a downspout at that loca-
tion.” While the order will be discussed in more detail below,
the court ultimately concluded that “under the facts of this
case, the presence of ice was an open and obvious risk, and
did not create an unreasonable risk of harm.” The court fur-
ther concluded:
In addition, the facts do not support a finding that [Baxter]
should have anticipated a user of the lock box would fail
to protect themselves from the acknowledged danger of
ice, or that a late-arriving customer would walk around
the building and away from the drop box location.
Ermel now appeals.
ASSIGNMENT OF ERROR
Ermel assigns that the district court erred in granting Baxter’s
motion for summary judgment.
STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754that 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] 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. Id. The present case, like Sundermann v.
Hy-Vee, supra, falls squarely in the first category, as Ermel
argues he was injured by an unreasonably dangerous condi-
tion on the property, to wit: the accumulation of ice under
the downspouts.
[3] 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 condi-
tion involved an unreasonable risk of harm to the lawful visi-
tor; (3) the possessor should have expected that a lawful visitor
either (a) would not discover or realize the danger or (b) would
fail to protect himself or herself against the danger; (4) the pos-
sessor failed to use reasonable care to protect the lawful visitor
against the danger; and (5) the condition was a proximate cause
of damage to the plaintiff. Id. Of the five elements recited
above, the first three clarify the scope of a land possessor’s
duty to lawful entrants, as they identify those conditions which
give rise to a duty of reasonable care to protect lawful entrants
from physical harm. See id.- 763 -
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754In granting Baxter’s motion for summary judgment, the
court concluded as a matter of law that Baxter had no duty
to protect Ermel from what it characterized as the “open and
obvious risk of ice.” The parties agree that the central issue
in this case is the court’s analysis of the second and third ele-
ments of the premises liability doctrine. As to the first element,
Baxter conceded that the evidence was sufficient to find in
favor of Ermel for purposes of summary judgment. As to the
fourth and fifth elements, the court found it unnecessary to
address them, having concluded that the second and third ele-
ments were dispositive.
[4,5] While there is no fixed rule for determining when
a risk of harm is unreasonable, the plain meaning of the
term suggests a uniquely or unacceptably high risk of harm.
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
The Nebraska Supreme Court has at times defined the phrase
“unreasonable risk of harm” to mean “‘“a risk that a reason-
able person, under all the circumstances of the case, would not
allow to continue.”’” Id. at 768, 947 N.W.2d at 506. The court
observed that “the evidence is that [Ermel] slipped on ice that
had formed underneath a downspout.” The court found that the
“condition at issue in this case is not the downspout, but the
formation of ice” and “[m]erely applying [the Sundermann]
definition, there is an issue of material fact as to whether the
formation of ice in this location is an unreasonable risk of
harm.” (Emphasis supplied.) We agree.
Despite apparently acknowledging a genuine dispute of fact
under the second element, the court concluded its analysis of
the second element by noting that “the analysis if [sic] the
second element is also influenced by the third element.” With
regard to the third element, the court correctly observed that
“a possessor of land is not liable to invitees for physical harm
caused by any activity or condition on the land whose dan-
ger is known or obvious to the invitee, unless the possessor
should anticipate the harm despite such knowledge or obvi-
ousness.” Characterizing the dangerous condition in this case
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754as the “risk of ice” in general, the court ultimately concluded
that such was an open and obvious risk for which Baxter was
under no duty to correct.
The court emphasized that the “formation and presence of
ice was known,” as Ermel admitted that “the risk of ice was
a risk he perceived as he left his car.” The court observed
that Ermel described the parking lot as wet and icy, and “he
expected to find slippery conditions when he left his car.” The
court further noted that “the facts do not support a finding that
[Baxter] should have anticipated a user of the lock box would
fail to protect themselves from the acknowledged danger of
ice, or that a late-arriving customer would walk around the
building and away from the drop box location.”
We agree that the risk of ice in general, on an indisputably
wintery day, was an open and obvious risk to Ermel. However,
we disagree that the dangerous condition in this case can be
properly characterized as the risk of ice in general. Rather,
the record reflects that Ermel slipped and fell on the specific
accumulation of ice under the downspouts. Ermel described the
accumulation of ice in that location as thicker and more slip-
pery than the surfaces he encountered elsewhere in the park-
ing lot. Viewing the evidence in Ermel’s favor, we find there
is a reasonable inference that the accumulation of ice under
the downspouts created a risk of harm which was different
in character from the risk of ice in general. Accordingly, we
conclude that there is a material question of fact as to whether
the specific accumulation of ice under the downspouts created
an unreasonable risk of harm under the second element of the
premises liability doctrine.
[6-8] Furthermore, there is a material question of fact as to
whether the risk presented by the accumulation of ice under
the downspouts was open and obvious to Ermel. Generally,
when a dangerous condition is open and obvious, the owner
or occupier is not liable in negligence for harm caused by the
condition. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d
492 (2020). The rationale behind this general rule is that the
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754open and obvious nature of the condition gives caution so that
the risk of harm is considered slight, since reasonable people
will avoid open and obvious risks. Id. A condition on the land
is considered open and obvious when the risk is apparent to
and of the type that would be recognized by a reasonable per-
son in the position of the invitee exercising ordinary percep-
tion, intelligence, and judgment. Id. Under the open and obvi-
ous doctrine, a possessor of land is not liable to invitees for
physical harm caused by any activity or condition on the land
whose danger is known or obvious to the invitee, unless the
possessor should anticipate the harm despite such knowledge
or obviousness. Id.Ermel testified that he did not see the downspouts or the
accumulation of ice until after he fell. Indeed, image No. 2
above suggests that the downspouts would not have been vis-
ible to Ermel until after he rounded the corner of the building.
This is especially true given the time of day that Ermel fell and
his testimony that the area was dimly lit. Accordingly, viewing
the evidence in Ermel’s favor, there is a material question of
fact as to whether the accumulation of ice under the down-
spouts was an open and obvious risk under the third element of
the premises liability doctrine.
[9] Moreover, even if the risk of harm created by the accu-
mulation of ice under the downspouts was open and obvious,
there would still be a material question of fact as to whether
Baxter should have nevertheless anticipated the harm caused
thereby. A determination that a risk or danger is open and
obvious does not end the duty analysis in a premises liability
case. Sundermann v. Hy-Vee, supra. A court must also deter-
mine whether the possessor should have anticipated that lawful
entrants would fail to protect themselves despite the open and
obvious risk. Id. For example, where the possessor has reason
to expect the invitee’s attention may be distracted, or where
the possessor has reason to expect the invitee will proceed to
encounter the known or obvious danger because the advantages
of doing so would outweigh the apparent risks. See id.- 766 -
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ERMEL v. SMA ENTERS.
Cite as 30 Neb. App. 754The court emphasized that Baxter should not be expected to
anticipate a customer unnecessarily walking around the build-
ing past the key drop box as Ermel did in this case. However,
the proper question is not what Ermel did in this case, but,
rather, what Baxter should have anticipated in any case. Ermel
points out that there were parking stalls located on the west
side of the building, such that customers could have parked on
the west side and encountered the ice under the downspouts as
they walked north to the key drop box. Accordingly, even if
the risk of ice accumulating under the downspouts was open
and obvious, a question which we do not need to decide, there
remains a material question of fact as to whether Baxter should
have nevertheless anticipated a customer’s encountering and
slipping on the ice accumulation under the downspouts.
Altogether, the record in this case reveals several material
questions of fact as to both the second and third elements of
the premises liability doctrine, such that summary judgment
was improper. Under the second element, there is a material
question of fact as to whether the specific accumulation of ice
under the downspouts created an unreasonable risk of harm.
Under the third element, there is a material question of fact
as to whether the risk of harm created by the accumulation
of ice under the downspouts was open and obvious to Ermel.
Moreover, even if such was an open and obvious risk, there is
a material question of fact as to whether Baxter should have
nevertheless anticipated the harm and taken some action to
protect customers from it.
CONCLUSION
For the foregoing reasons, we reverse the order of the dis-
trict court granting Baxter’s motion for summary judgment and
remand the cause for further proceedings.
Reversed and remanded for
further proceedings.