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05/28/2019 09:07 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
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                                           SUNDERMANN v. HY-VEE
                                            Cite as 27 Neb. App. 287




                              R ita Sundermann, appellant, v. Hy-Vee, Inc.,
                                    and Sweetbriar II, LLC, appellees.
                                                  ___ N.W.2d ___

                                        Filed May 28, 2019.     No. A-18-250.

                 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, the court views the
                    evidence in the light most favorable to the party against whom the
                    judgment was granted and gives such party the benefit of all reasonable
                    inferences deducible from the evidence.
                 3. Summary Judgment: Proof. A party moving for summary judgment
                    makes a prima facie case for summary judgment by producing enough
                    evidence to demonstrate that the movant is entitled to judgment if the
                    evidence were uncontroverted at trial.
                 4. ____: ____. Once the moving party makes a prima facie case, the
                    burden shifts to the party opposing the motion to produce admissible
                    contradictory evidence showing the existence of a material issue of fact
                    that prevents judgment as a matter of law.
                 5. Summary Judgment. On a motion for summary judgment, the ques-
                    tion is not how the factual issue is to be decided but whether any real
                    issue of material fact exists.
                 6. ____. Summary judgment is proper if the pleadings and admissible
                    evidence offered at the hearing show 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.
                 7. Summary Judgment: Appeal and Error. In reviewing a summary
                    judgment, an appellate court views the evidence in the light most
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                           SUNDERMANN v. HY-VEE
                            Cite as 27 Neb. App. 287

       favorable to the party against whom the judgment was granted and
       gives that party the benefit of all reasonable inferences deducible from
       the evidence.
 8.    Negligence: Proof. To prevail in any negligence action, a plaintiff must
       show a legal duty owed by the defendant to the plaintiff, a breach of
       such duty, causation, and resulting damages. To warrant summary judg-
       ment in its favor in a negligence action, a party must submit evidence
       showing the absence of at least one of these elements.
 9.    Negligence. Whether a duty exists is a policy decision, and a lack of
       foreseeable risk in a specific case may be a basis for a no-breach deter-
       mination, but such a ruling is not a no-duty determination.
10.    ____. In order to determine whether appropriate care was exercised, the
       fact finder must assess the foreseeable risk at the time of the defend­
       ant’s alleged negligence.
11.    Negligence: Judgments. 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. Courts should leave such determinations
       to the trier of fact unless no reasonable person could differ on the mat-
       ter. And if the court takes the question of negligence away from the
       trier of fact because reasonable minds could not differ about whether
       an actor exercised reasonable care (for example, because the injury was
       not reasonably foreseeable), then the court’s decision merely reflects
       the one-sidedness of the facts bearing on negligence and should not
       be misrepresented or misunderstood as involving exemption from the
       ordinary duty of reasonable care.
12.    Negligence: Judgments: Summary Judgment. Although foreseeability
       is a question of fact, there remain cases where foreseeability can be
       determined as a matter of law, such as by summary judgment.

   Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Reversed and remanded for further
proceedings.

   Matthew A. Lathrop, of Law Offices 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 appellees.

      Pirtle, R iedmann, and A rterburn, Judges.
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                     SUNDERMANN v. HY-VEE
                      Cite as 27 Neb. App. 287

  A rterburn, Judge.
                       INTRODUCTION
   Rita Sundermann appeals from an order of the district court
for Douglas County granting the motion for summary judgment
made by Hy-Vee, Inc., and Sweetbriar II, LLC (collectively
Hy-Vee). Sundermann argues on appeal that the district court
erred in finding, as a matter of law, that Hy-Vee could not have
breached its duty of care to her because the motor vehicle acci-
dent that injured her on Hy-Vee’s property was not reasonably
foreseeable. For the following reasons, we reverse the grant of
summary judgment of the district court and remand the matter
for further proceedings.

                       BACKGROUND
   Sundermann filed a complaint against Hy-Vee on December
21, 2015, alleging that she was injured as a result of Hy-Vee’s
negligence during a motor vehicle accident on its property on
March 2, 2012. On January 12, 2016, Sundermann filed an
amended complaint. Hy-Vee filed an answer to the amended
complaint, which included affirmative defenses, on January
29. Also on January 29, Hy-Vee filed a third-party complaint
against Robert Swanson, alleging that he was the driver who
negligently struck Sundermann with his vehicle. On March
16, the third-party complaint against Swanson was dismissed
with prejudice. Hy-Vee filed a motion for summary judgment
against Sundermann on December 4, 2017.
   A hearing on the motion for summary judgment was held
on February 16, 2018. No testimony was offered, but 17 total
exhibits were offered and admitted, in particular a deposition
given by Sundermann and a deposition given by Swanson.
   Hy-Vee, Inc., owns a grocery store on North 156th Street
in Omaha, Nebraska. On the corner of 156th Street and West
Maple Road, Hy-Vee, Inc., owns and operates a filling station
and convenience store, which sits on land owned by Sweetbriar
II. Immediately to the north of the convenience store on a
grassy area was an air compressor and hose for filling tires.
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To the north of the air compressor was a 24-foot-wide paved
access drive that vehicles used to enter and exit the property.
Swanson described the northern access drive as being busier
and used by more vehicles than a second access drive located
to the south of the convenience store. On the north side of
the northern access drive was a row of six parking spots,
which were described as “‘right angle’” or “‘90-degree’”
parking spots, meaning they were situated perpendicular to
the access drive. There was no designated parking space for
patrons using the air compressor, but drivers could park along
the south curb of the northern access drive in order to fill
their tires.
    On March 2, 2012, Sundermann stopped at Hy-Vee and
filled her car with gasoline. She said that it was a windy, chilly
day that was nearing dusk. As she had done on prior occa-
sions, she used the air compressor to refill her tires. Because
the parking spots in front of the air compressor—to the conve-
nience store’s east—were occupied, she parked alongside the
south curb of the northern access drive. Her car was facing
west. She said that she had parked in the same place in the past
when using the air compressor.
    Sundermann noticed a number of vehicles, including a
pickup truck that belonged to Swanson, parked in the right-
angle parking spots to the north of the access drive. She stated
that she looked at the pickup truck before filling her tires,
but could not tell whether anyone was inside it, and that she
noticed no illuminated brake lights, exhaust, or other indica-
tions that the pickup truck was running. She never saw anyone
walk out of the store and get into the pickup truck.
    Sundermann first filled her two driver’s-side tires
before looping the hose over the hood of her car to fill the
­passenger’s-side tires. As she was facing her car and crouched
 down filling the front passenger-side tire, she heard Swanson’s
 pickup truck’s ignition start. Sundermann stood up but did not
 have time to turn around or get out of the way before she felt
 the impact of the pickup truck hitting her. She said that she
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was hit from the hips down to her knees and collapsed to the
ground once Swanson pulled forward, because her legs would
not support her. As a result of her injuries, a metal rod was
implanted in Sundermann’s left leg.
   Swanson worked as a cashier at the Hy-Vee convenience
store from 2009 through 2013 or 2014 and usually worked
from 10 a.m. to 6 p.m. Swanson stated that employees were
supposed to park in the right-angle parking spots to the north
of the store and that he had parked his pickup truck in one
of those spots on March 2, 2012. Swanson also stated that he
had observed people park their vehicles alongside the south
curb of the northern access drive in order to use the air com-
pressor. He said that more people parked in the access drive
than in the parking spots to the east of the store when they
used the air compressor.
   Noting that there was no signage advising where to park to
use the air compressor, Swanson stated that he thought it cre-
ated an unsafe situation. He believed that the air compressor
should not be located where it was because the northern access
drive was “very, very busy.” Swanson said that on past occa-
sions, he had been parked in a right-angle parking spot to the
north of the store and had to wait to leave until a car finished
using the air compressor if it was parked alongside the south
curb of the access drive. In order to get out of the right-angle
parking spots when someone was parked alongside the south
curb using the air compressor, Swanson stated, a driver would
have to “cut [his or her] tires real hard to the back.” Swanson
acknowledged that he had never heard of any accidents involv-
ing someone using the air compressor, however.
   On March 2, 2012, Swanson exited the convenience store
shortly after 6 p.m. and got in his pickup truck, which was
parked in a right-angle parking spot to the north of the store.
He said that Sundermann’s car was not parked in the north-
ern access drive when he exited the store. Swanson said that
it was dark enough that he turned on his headlights. He also
said that he called his wife while he was sitting in his pickup
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truck, which was running, but that he hung up before putting
his pickup truck in reverse.
   Swanson stated that he waited for three to four cars to pass
behind him before beginning to back up. Then, when he saw
Sundermann’s car behind him, he hit the wrong pedal, press-
ing on the accelerator instead of the brake pedal. Swanson said
that he never saw Sundermann herself until he realized he had
hit a car and a person. After the collision with Sundermann,
Swanson pulled back into his parking spot and waited for the
authorities to arrive. Swanson said that he was not ticketed,
although he has never denied responsibility for the acci-
dent and has accepted fault. Swanson also acknowledged
that his insurance company had settled Sundermann’s claim
against him.
   At the hearing on Hy-Vee’s motion for summary judgment,
the court also received as exhibits depositions from the parties’
expert witnesses. Sundermann retained Daniel Robison, whose
report and deposition were admitted as evidence. Hy-Vee
retained Jason Stigge, whose report and deposition were like-
wise admitted. Hy-Vee’s director of site planning, Jeff Stein,
was also deposed, and his deposition was admitted, as were
exhibits containing photographs of the site and an affidavit
signed by Sundermann’s counsel.
   Robison, who has 40 years’ experience complying with
codes in designing facilities that include convenience stores
and gas stations, opined that it was unsafe for Hy-Vee to place
the air compressor in a location that would cause patrons to
park in the drive aisle when using it. Robison said he believed
that if Hy-Vee had properly designed and constructed the
property, the accident would not have occurred. Robison also
stated that he had not encountered many cases in which a
convenience store placed devices like an air compressor in
a location that encouraged patrons to block drive aisles, but
he acknowledged that other stores in Omaha positioned their
air compressors similarly to the one at issue in this matter.
He opined it was foreseeable both that a patron would park
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                     SUNDERMANN v. HY-VEE
                      Cite as 27 Neb. App. 287

as Sundermann did and that drivers would make errors while
backing out of a parking spot as Swanson did.
   In his written report, Robison said that Hy-Vee ought to
have adhered to safety guidelines that designated a separate
area for exterior amenities such as an air compressor. Robison
noted that the original site design did not include installing a
tire filling station on the north side of the convenience store.
He opined that Hy-Vee’s failure to construct a dedicated
parking area that was separated from the drive aisle was a
cause of Sundermann’s injuries. Such a failure also violated
codes and standards for maintaining safe premises according
to Robison.
   In contrast, Stigge, a mechanical engineer and consultant,
opined that the Hy-Vee convenience store was designed in
compliance with relevant codes and safety standards and found
that the parking lot was not dangerous. Stigge stated that a
convenience store does not necessarily have a predetermined
flow of traffic, so an air compressor could never really be
placed outside possible traffic flow. Stigge also opined that the
physical separation of pedestrian and automobile traffic was
not feasible based on a convenience store’s purpose.
   In his written report, Stigge noted that there were not
specific requirements related to the location of an air filling
station included in codes adopted by the city of Omaha. He
also reviewed the police report and photographs and pointed
out in his report that Swanson’s tires left acceleration marks
on the ground, leaving the impression that Swanson had
pressed the accelerator fully to the floor before colliding with
Sundermann. Based on his inspection of the accident scene
and automotive accident reconstruction techniques, Stigge
wrote that Swanson struck Sundermann with enough force to
rotate the front of her car around the curb and place a gouge
on the concrete curb. He opined that Hy-Vee’s layout and
location of its air compressor had not created an unsafe con-
dition, however. Stigge noted that Hy-Vee’s placement of the
air compressor was common among convenience stores in the
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                     SUNDERMANN v. HY-VEE
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area and that convenience stores naturally create a mixture of
pedestrian and vehicular traffic. Additionally, Stigge opined
that it was not reasonably foreseeable that a driver such as
Swanson would lose control of his vehicle and strike a person
like Sundermann, who was positioned beside another vehicle
immediately behind the first vehicle.
   Stein, Hy-Vee’s director of site planning, acknowledged in
his deposition that not all Hy-Vee convenience stores include
a designated area for using such an air compressor. He stated
that convenience store parking lots necessarily include a mix-
ture of both pedestrian and automobile traffic using the same
space, including in drive aisles. Stein said that he did not think
it was unreasonable for Sundermann to park where she did in
order to use the air compressor. He also stated that it appeared
there was plenty of room for other drivers to have navigated
around Sundermann when she parked where she did.
   Having reviewed the parties’ briefs and exhibits, the dis-
trict court entered an order on February 23, 2018, granting
Hy-Vee’s motion for summary judgment. The district court
found that Hy-Vee owed a legal duty to all patrons of its con-
venience store premises, including Sundermann. However, the
district court further found that Hy-Vee did not, as a matter of
law, breach the duty of care it owed to Sundermann.
   The district court held that a breach of duty occurs only
when the resulting injury to a plaintiff is a reasonably foresee-
able consequence of the defendant’s conduct. The court held
that the accident in this instance was not reasonably fore-
seeable as a matter of law. The court specifically examined
whether it was reasonably foreseeable that a “person filling
[a] vehicle’s tires with air at a gas station will be hit by the
driver of another vehicle whose foot slipped off the break [sic]
onto the accelerator and caused injury to a plaintiff.” The court
found that no reasonable jury could find that Hy-Vee breached
its duty of care to Sundermann, because the accident that
injured her was not reasonably foreseeable.
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                     SUNDERMANN v. HY-VEE
                      Cite as 27 Neb. App. 287

   In finding that Hy-Vee did not, as a matter of law, breach
the duty of care it owed to Sundermann, the district court
therefore also found that Hy-Vee was not negligent as a matter
of law. Thus, the district court granted Hy-Vee’s motion for
summary judgment.
   Sundermann now appeals.

                 ASSIGNMENTS OF ERROR
   On appeal, Sundermann assigns that the district court erred
in granting Hy-Vee’s motion for summary judgment based on
the findings, as a matter of law, that Hy-Vee did not breach its
duty of care and that it did not cause Sundermann’s injuries.

                  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. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb.
434, 915 N.W.2d 36 (2018). In reviewing a summary judg-
ment, the court views the evidence in the light most favorable
to the party against whom the judgment was granted and gives
such party the benefit of all reasonable inferences deducible
from the evidence. Id.

                          ANALYSIS
   Sundermann argues that summary judgment should not
have been granted in this matter because she presented evi-
dence of genuine issues of material fact related to Hy-Vee’s
breach of its duty of care and Hy-Vee’s causation of her inju-
ries. Hy-Vee argues in response that because the accident was
not a reasonably foreseeable consequence of Hy-Vee’s actions,
Hy-Vee could not, as a matter of law, breach the duty it owed
to Sundermann. Hy-Vee also argues that its site design was
not the proximate cause of Sundermann’s injuries. Viewing
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the evidence in the light most favorable to Sundermann, we
disagree with the district court’s finding that Hy-Vee did
not, as a matter of law, breach its duty of care. We find that
Sundermann presented sufficient evidence of Hy-Vee’s negli-
gence as to engender a question of material fact that must be
determined by the finder of fact in this matter. We therefore
reverse the judgment of the district court and remand the mat-
ter for further proceedings.
   [3,4] A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment
if the evidence were uncontroverted at trial. Thomas v. Board
of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017). Once the
moving party makes a prima facie case, the burden shifts to
the party opposing the motion to produce admissible contra-
dictory evidence showing the existence of a material issue of
fact that prevents judgment as a matter of law. Id.
   [5-7] On a motion for summary judgment, the question is
not how the factual issue is to be decided but whether any real
issue of material fact exists. Cisneros v. Graham, 294 Neb.
83, 881 N.W.2d 878 (2016). Summary judgment is proper if
the pleadings and admissible evidence offered at the hearing
show 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. Id. 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.
   [8] To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and resulting damages.
Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018). To
warrant summary judgment in its favor in a negligence action,
a party must submit evidence showing the absence of at least
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one of these elements. See Thomas v. Board of Trustees,
supra. Because the district court granted summary judgment
based on an absence of evidence supporting Hy-Vee’s breach
of its duty to Sundermann, we turn our attention to that ele-
ment of negligence.
   [9,10] In adopting the duty analysis contained in 1
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010), the Nebraska Supreme Court
held that whether a duty exists is a policy decision and that
a lack of foreseeable risk in a specific case may be a basis
for a no-breach determination, but that such a ruling is not a
no-duty determination. See A.W. v. Lancaster Cty. Sch. Dist.
0001, 280 Neb. 205, 784 N.W.2d 907 (2010). In order to deter-
mine whether appropriate care was exercised, the fact finder
must assess the foreseeable risk at the time of the defendant’s
alleged negligence. Id.
   [11,12] The extent of foreseeable risk depends on the spe-
cific facts of the case and cannot be usefully assessed for a
category of cases; small changes in the facts may make a dra-
matic change in how much risk is foreseeable. Id. “[D]eciding
what is reasonably foreseeable involves common sense, com-
mon experience, and application of the standards and behav-
ioral norms of the community—matters that have long been
understood to be uniquely the province of the finder of fact.”
Id. at 212, 784 N.W.2d at 914. Thus, courts should leave such
determinations to the trier of fact unless no reasonable person
could differ on the matter. Id. And if the court takes the ques-
tion of negligence away from the trier of fact because reason-
able minds could not differ about whether an actor exercised
reasonable care (for example, because the injury was not rea-
sonably foreseeable), then the court’s decision merely reflects
the one-sidedness of the facts bearing on negligence and
should not be misrepresented or misunderstood as involving
exemption from the ordinary duty of reasonable care. A.W.
v. Lancaster Cty. Sch. Dist. 0001, supra. Therefore, although
foreseeability is a question of fact, there remain cases where
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foreseeability can be determined as a matter of law, such as
by summary judgment. Thomas v. Board of Trustees, 296 Neb.
726, 895 N.W.2d 692 (2017).
   Turning to the present case, we are mindful that in evaluating
an appeal from a summary judgment, we evaluate only whether
the parties’ pleadings and admitted evidence show a genuine
issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts. See Ray Anderson, Inc. v.
Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 (2018). We are also
mindful that we give the benefit of all reasonable inferences
deducible from the evidence and review the evidence in the
light most favorable to Sundermann because she is the party
against whom summary judgment was granted. See id.
   Evidence was presented to the district court showing that
Sundermann parked alongside the south curb of Hy-Vee’s
northern access drive in order to use the store’s air compres-
sor to fill her car’s tires. As employees were instructed to do,
Swanson was parked in the right-angle parking spots when
Sundermann was parked in the northern access drive. Swanson
described needing to sharply turn his vehicle when backing out
of those parking spots if someone was parked alongside the
curb using the air compressor. Swanson stated in his deposi-
tion that during the 4 to 5 years he worked as a store cashier,
he had observed more people use the air compressor while
parked in the access drive than parked in the parking spots on
the east side of the convenience store. Swanson opined that he
believed the location of the air compressor created an unsafe
situation for people parked in the access drive.
   Robison, the expert witness retained by Sundermann,
opined that it was foreseeable that patrons would park where
Sundermann had parked in the northern access drive if they
intended to use the air compressor. He noted that Hy-Vee’s
placement of the air compressor encouraged patrons to block
drive aisles in order to fill their tires. Robison also opined that
it was foreseeable that a driver may make errors while back-
ing out of a parking spot. Hy-Vee’s director of site planning,
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Stein, stated that it was not unreasonable for Sundermann to
have parked alongside the northern access drive’s curb when
using the air compressor. He also acknowledged that conve-
nience stores necessarily include a mixture of both pedestrian
and automobile traffic within the same spaces.
   Considering this evidence in a light most favorable to
Sundermann, it is clear that a finder of fact could find it rea-
sonably foreseeable that a patron would park in the northern
access drive while using Hy-Vee’s air compressor. There is
some evidence that more patrons who used the air compressor
actually parked in the northern access drive than elsewhere.
It is also clear that a finder of fact could find it foreseeable
that automobiles would be parked in the right-angle parking
spots to the north of the access drive, including automobiles
belonging to store employees.
   Moreover, finders of fact may—when using their common
sense and common experience and applying the standards and
behavioral norms of the community—infer from the evidence
that automobiles could simultaneously be parked in the north-
ern access drive and in the right-angle parking spots farther
to the north. Finders of fact may also reasonably infer from
the evidence that an automobile would back out from one of
the right-angle parking spots and collide with an automobile
parked in the northern access drive, perhaps owing, in part,
to the need for drivers to sharply turn their vehicles when
backing out of those parking spots. We note the district court
focused on the very narrow fact pattern present in this case,
that being the foreseeability that a person’s foot would slip off
the brake pedal and inadvertently hit the gas pedal, resulting
in the collision. We find that such a fact-specific analysis is
not necessary in assessing the question at hand and find that
a reasonable person could conclude that it was foreseeable to
Hy-Vee that a vehicle could be operated in such a manner as
to fail to observe a person such as Sundermann utilizing the
air compressor in the access drive area, resulting in a collision
and injury.
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   Reasonable minds may differ in their assessment of foresee-
able risk at the time of Hy-Vee’s alleged negligence—which
is to say that material questions of fact surround whether
Hy-Vee exercised appropriate care or breached its duty of care
to Sundermann. We find that Sundermann proffered sufficient
evidence to engender questions of material fact that must
be resolved by a trier of fact. Thus, summary judgment was
inappropriate in this matter. We therefore reverse the judg-
ment of the district court and remand the matter for further
proceedings.
   As a final matter, we note that Sundermann also assigned
that the district court erred in its findings related to the causa-
tion element of her negligence action. Both Sundermann and
Hy-Vee also briefed this issue. However, the district court’s
order makes only passing reference to causation and did not
fully evaluate the issue. Nonetheless, we have reviewed the
parties’ arguments and, for substantially the same reasons
discussed herein, hold that material questions of fact do exist
related to causation as well, which warrant a finder of fact’s
review upon further proceedings.

                         CONCLUSION
   Based on the foregoing, we reverse the district court’s order
granting Hy-Vee’s motion for summary judgment and remand
the matter for a trial on the merits.
	R eversed and remanded for
                                  further proceedings.
