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www.nebraska.gov/apps-courts-epub/
05/20/2016 09:07 AM CDT




                                                      - 569 -
                                         Nebraska A dvance Sheets
                                          293 Nebraska R eports
                                              PITTMAN v. RIVERA
                                               Cite as 293 Neb. 569




                             Joseph Pittman, appellant and cross-appellee,
                               v. M atthew R ivera and Teresa Erpelding,
                                appellees, and 2nd Street Slammer, I nc.,
                                 et al., appellees and cross-appellants.
                                                 ___ N.W.2d ___

                                        Filed May 20, 2016.     No. S-15-159.

                1.	 Summary Judgment: Appeal and Error. An appellate court will
                     affirm 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 those 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.	 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.
                4.	 Negligence. The question whether a legal duty exists for actionable
                     negligence is a question of law dependent on the facts in a particu-
                     lar situation.
                5.	 Innkeepers: Alcoholic Liquors: Liability. Businesses that are open to
                     the public are subject to a duty of reasonable care, regardless of whether
                     they serve alcoholic liquor.
                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.
                7.	 ____. 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.
                                    - 570 -
                       Nebraska A dvance Sheets
                        293 Nebraska R eports
                            PITTMAN v. RIVERA
                             Cite as 293 Neb. 569

  8.	 ____. In order to make a risk of attack foreseeable, the circumstances to
      be considered must have a direct relationship to the harm incurred.

   Appeal from the District Court for Adams County: Terri S.
H arder, Judge. Affirmed.

   Siegfried H. Brauer, of Brauer Law Office, for appellant.

   Stephen G. Olson and Kristina J. Kamler, of Engles, Ketcham,
Olson & Keith, P.C., for appellees 2nd Street Slammer, Inc.,
et al.

   Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.

   Wright, J.
                      NATURE OF CASE
   Joseph Pittman filed a negligence action against 2nd
Street Slammer, Inc. (2nd Street), and its owners, Walter C.
Bienkowski and Diana C. Bienkowski (collectively the appel-
lees); Matthew Rivera; Nellie Snyder; and Teresa Erpelding
for injuries he sustained when he was struck by a vehicle
while standing in or near a parking lot owned and maintained
by 2nd Street. The driver of the vehicle was Rivera, another
patron who had been forcibly removed from 2nd Street earlier
that evening by an employee of 2nd Street. The district court
granted summary judgment in favor of the appellees, finding
that Rivera’s conduct in striking Pittman with his vehicle was
not reasonably foreseeable and that therefore, 2nd Street did
not breach its duty of reasonable care. Pittman appeals, and the
appellees cross-appeal.

                       BACKGROUND
   The Bienkowskis own 2nd Street, a drinking establishment
in Hastings, Nebraska, that serves alcohol. In the early morn-
ing hours of December 2, 2007, while at 2nd Street, Rivera
got into a physical altercation with his girlfriend, Snyder. An
employee of 2nd Street, Craig Hubbard, intervened in the
                              - 571 -
                  Nebraska A dvance Sheets
                   293 Nebraska R eports
                       PITTMAN v. RIVERA
                        Cite as 293 Neb. 569

altercation and forcibly removed Rivera from the premises.
As he was being escorted out, Rivera was aggressive and
assaultive toward Hubbard, but ultimately got into a vehicle
with friends and was driven away by a designated driver.
Hubbard considered the incident “‘handled’” and did not con-
tact police.
   About an hour later and just as the bar was closing, Rivera
returned to 2nd Street looking for Snyder. Hubbard confronted
Rivera at the door and told him he was not allowed to come
inside. Rivera became aggressive, and Hubbard escorted him
outside to the parking lot once again. Rivera got into his
vehicle and sped out of the parking lot, away from 2nd Street.
He abruptly performed a U-turn and traveled toward and then
past 2nd Street. He abruptly performed another U-turn, revved
his engine, and raced toward a crowd of patrons who were
standing on or near the property line between 2nd Street’s
parking lot and an adjacent roadway. At this moment, Pittman
and some of his friends had recently left 2nd Street and were
standing outside talking.
   An employee of 2nd Street saw the vehicle approaching and
yelled for Pittman to get out of the way. Pittman did not react
in time and was struck by Rivera’s vehicle. Rivera’s assault
with his vehicle happened quite rapidly. Approximately 60
seconds lapsed from the time Rivera entered his vehicle to the
time Pittman was struck. Pittman sustained serious injuries as
a result of the impact. Hubbard immediately called the 911
emergency dispatch service after Pittman was struck. Rivera
was later convicted of and sentenced to prison for first degree
assault and leaving the scene of an accident.
   Pittman filed this action in the district court for Adams
County, Nebraska, alleging that 2nd Street breached its duty
to protect him from Rivera’s actions. The appellees moved for
summary judgment, asserting that they did not owe Pittman a
duty of care and that even if they did, there was no breach of
any duty because Rivera’s conduct in running down Pittman
with his vehicle was not reasonably foreseeable. The district
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                              PITTMAN v. RIVERA
                               Cite as 293 Neb. 569

court found that 2nd Street owed Pittman a duty of reason-
able care but held that the material and undisputed evidence
confirmed that Rivera’s conduct in striking Pittman with his
vehicle was not a foreseeable risk. It therefore concluded as a
matter of law that 2nd Street did not breach its duty to Pittman.
It granted summary judgment in favor of the appellees. Pittman
appeals, and the appellees cross-appeal. In previous proceed-
ings, Snyder had been dismissed from the action. In a sepa-
rate court order, Rivera and Erpelding, Rivera’s mother and
cosigner of the loan for the vehicle which struck Pittman, were
found liable for negligence and assessed damages. They are not
involved in this appeal.

                 ASSIGNMENTS OF ERROR
   On appeal, Pittman assigns seven errors, which we com-
bine and restated as follows: The district court erred in grant-
ing summary judgment in favor of the appellees, because
foreseeability was a factual question upon which reasonable
minds could differ and, therefore, such determination should
have been left to the jury.
   On cross-appeal, the appellees assign that the district court
erred in finding that 2nd Street owed a duty of reasonable care
to Pittman, because Nebraska’s public policies warrant a no-
duty determination in this case.

                  STANDARD OF REVIEW
   [1,2] An appellate court will affirm 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 those
facts and that the moving party is entitled to judgment as a
matter of law.1 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that

 1	
      Sulu v. Magana, ante p. 148, ___ N.W.2d ___ (2016).
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                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                               PITTMAN v. RIVERA
                                Cite as 293 Neb. 569

party the benefit of all reasonable inferences deducible from
the evidence.2
                           ANALYSIS
   [3] 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.3 To warrant
summary judgment in their favor, the appellees had to submit
evidence showing the absence of at least one of these elements.
Here, the appellees moved for summary judgment on the bases
that 2nd Street did not owe Pittman a duty of care and that
even if it did, no reasonable person would find that it breached
such duty, because Rivera’s conduct in running down Pittman
with his vehicle was not reasonably foreseeable.
   On appeal, Pittman argues that 2nd Street had a duty to take
reasonable steps to prevent danger or injury to its patrons if it
knew or had reason to know of circumstances that presented
a threat of injury by a third party. Pittman asserts that 2nd
Street had knowledge of Rivera’s assaultive and threatening
behavior in its place of business and failed to take meaningful
action to prevent Rivera from causing harm to other patrons.
He argues that 2nd Street should have called law enforcement
to remove Rivera, or at least should have warned its patrons
that a violent and drunken person had been turned loose on
the city streets, especially when Rivera got behind the wheel
of a vehicle and 2nd Street knew its patrons were or soon
would be leaving the bar. Pittman argues that summary judg-
ment was improper, because foreseeability was a question of
fact for the jury unless no reasonable person could differ on
the question.
   On cross-appeal, the appellees assert that the district court
erred in finding 2nd Street owed Pittman a duty of reasonable
care. They argue that Nebraska’s premises liability is limited,

 2	
      Id.
 3	
      Phillips v. Liberty Mutual Ins. Co., ante p. 123, 876 N.W.2d 361 (2016).
                                     - 574 -
                         Nebraska A dvance Sheets
                          293 Nebraska R eports
                              PITTMAN v. RIVERA
                               Cite as 293 Neb. 569

as a matter of public policy, to the boundaries of the prem-
ises and for the protection of individuals on the premises for
business purposes. They also assert that the Nebraska Liquor
Control Act, adopted in 1935, repealed the former dram shop
acts which imposed civil liability upon drinking establishments
for the intoxicated acts of its patrons. Thus, they argue that
the public policy against imposing dram shop liability over-
rides any duty based upon premises liability and requires a
no-duty determination.

                              Duty
   [4] We begin our analysis by addressing whether 2nd Street
owed Pittman a duty of care. The question whether a legal duty
exists for actionable negligence is a question of law dependent
on the facts in a particular situation.4 We have articulated the
duty a business proprietor owes to protect its patrons from
third parties as follows:
         “The modern general rule, summarized in its simplest
      terms, is that the proprietor of a place of business who
      holds it out to the public for entry for his business pur-
      poses, 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.”5
   [5] Businesses that are open to the public are subject to
a duty of reasonable care, regardless of whether they serve

 4	
      Peterson v. Kings Gate Partners, 290 Neb. 658, 861 N.W.2d 444 (2015).
 5	
      Schroer v. Synowiecki, 231 Neb. 168, 173-74, 435 N.W.2d 875, 879 (1989)
      (emphasis omitted).
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                        Nebraska A dvance Sheets
                         293 Nebraska R eports
                             PITTMAN v. RIVERA
                              Cite as 293 Neb. 569

alcoholic liquor.6 Thus, we agree with the district court’s find-
ing that 2nd Street owed a general duty based on premises
liability, and we find no merit to the appellees’ argument on
cross-appeal that such duty is overridden by the public policy
against dram shop liability.
                              Breach
   Having determined that 2nd Street owed a duty of reason-
able care to its patrons, we examine if there was a material
issue of fact whether 2nd Street breached its duty of reason-
able 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.7 The extent of fore-
seeable risk depends on the specific facts of the case and can-
not be usefully assessed for a category of cases; small changes
in the facts may make a dramatic change in how much risk is
foreseeable.8 Thus, courts should leave such determinations to
the trier of fact unless no reasonable person could differ on the
matter.9 Here, we agree with the district court’s determination
that Rivera’s conduct in running down Pittman with his vehicle
was not a foreseeable risk, and we conclude that summary
judgment was proper because no reasonable person could differ
on this matter.
   [8] In order to make a risk of attack foreseeable, the cir-
cumstances to be considered must have a direct relationship
to the harm incurred.10 Rivera’s prior conduct at the bar that
night (i.e., assaultive and threatening behavior toward Snyder
and Hubbard) was completely different in nature from his

 6	
      See id.
 7	
      A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
      (2010).
 8	
      See id.
 9	
      See id.
10	
      Id.
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                  Nebraska A dvance Sheets
                   293 Nebraska R eports
                       PITTMAN v. RIVERA
                        Cite as 293 Neb. 569

later actions that harmed Pittman. There was no evidence
that Rivera knew Pittman, that he had any reason to assault
Pittman, or that he would intentionally try to run over a person
outside the bar. Hubbard, as an employee of 2nd Street, had
promptly removed Rivera from the premises upon observing
his assaultive behavior and had observed him leaving the scene
with a designated driver.
   When Rivera returned to the premises and Hubbard discov-
ered that he was driving a vehicle, it was not reasonably fore-
seeable that Rivera would use his vehicle to assault Pittman.
   Even when viewed in the light most favorable to Pittman,
he has not established there is a genuine issue of material fact
whether 2nd Street breached its duty of reasonable care to
Pittman. We conclude as a matter of law that no reasonable
person would find that 2nd Street breached its duty of reason-
able care regarding Pittman. Summary judgment in favor of
2nd Street was proper.
                        CONCLUSION
   For the reasons set forth above, we affirm the judgment of
the district court.
                                                   A ffirmed.
   Miller-Lerman, J., participating on briefs.
