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11/01/2019 09:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                        WILLIAMSON v. BELLEVUE MED. CTR.
                                                Cite as 304 Neb. 312




                         Jay Williamson, Personal R epresentative of the
                         Estate of Peggy Williamson, deceased, appellant,
                           v. Bellevue M edical Center, LLC, appellee.
                                                    ___ N.W.2d ___

                                        Filed October 18, 2019.   No. S-18-1069.

                 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. Summary Judgment. The primary purpose of the summary judgment
                    procedure is to pierce the allegations in the pleadings and show conclu-
                    sively that the controlling facts are other than as pled.
                 4. Summary Judgment: Proof. The party moving for summary judgment
                    must make a prima facie case by producing enough evidence to show
                    that the movant is entitled to judgment if the evidence were uncontro-
                    verted at trial.
                 5. ____: ____. If the party moving for summary judgment makes a prima
                    facie case, the burden shifts to the nonmovant to produce evidence
                    showing the existence of a material issue of fact that prevents judgment
                    as a matter of law.
                 6. Summary Judgment. At the summary judgment stage, the trial court
                    determines whether the parties are disputing a material issue of fact. It
                    does not resolve the factual issues.
                 7. Negligence: Liability: Proximate Cause. 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 condi-
                    tion, or by the exercise of reasonable care would have discovered the
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            Nebraska Supreme Court A dvance Sheets
                    304 Nebraska R eports
                  WILLIAMSON v. BELLEVUE MED. CTR.
                          Cite as 304 Neb. 312

    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 such as the plaintiff 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 rea-
    sonable care to protect the lawful visitor against the danger; and (5) the
    condition was a proximate cause of damage to the plaintiff.

  Appeal from the District Court for Sarpy County: Nathan B.
Cox, Judge. Affirmed.
  Michelle D. Epstein, of Ausman Law Firm, P.C., L.L.O., for
appellant.
  Kathryn J. Cheatle, of Cassem, Tierney, Adams, Gotch &
Douglas, for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Miller-Lerman, J.
                       NATURE OF CASE
   Peggy Williamson sustained injuries when she fell on a curb
between a driveway and a sidewalk outside the entrance to
Bellevue Medical Center, LLC (BMC), in Bellevue, Nebraska.
She brought an action for negligence and premises liability in
the district court for Sarpy County. Following her death, the
action was revived in the name of her husband, Jay Williamson,
as personal representative of Peggy’s estate (Williamson). The
district court granted summary judgment in favor of BMC, not-
ing that BMC presented evidence that there was no defect in
the curb, that it did not violate any code or ordinance, and that
Williamson failed to produce evidence that the curb created an
unreasonable danger. Williamson appeals, arguing it was error
to grant summary judgment because a material issue of fact
remained as to whether BMC should have expected that law-
ful entrants such as Peggy would not discover or realize the
danger of an unpainted sidewalk curb or would fail to protect
themselves against such danger. We affirm.
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

                    STATEMENT OF FACTS
   Peggy fell on a curb at BMC’s premises on August 5, 2012.
Peggy brought a personal injury action alleging BMC was
negligent with regard to the unpainted curb between the drive-
way and sidewalk approaching the BMC main entrance. The
complaint alleged, summarized and restated, that BMC was
negligent because it (1) created a hazardous condition on its
premises; (2) knew or should have known the unpainted curb
posed an unreasonable risk of harm to others, such as Peggy;
and (3) failed to reasonably warn or protect visitors against the
danger. Peggy alleged that she suffered significant injuries and
damages as a result of her fall, including a nasal bone fracture,
a closed head injury, and a right knee meniscus tear.
   BMC’s answer generally denied that it was negligent and
asserted various affirmative defenses not relevant to this appeal.
BMC later moved for summary judgment. While the proceed-
ings in the trial court were pending, Peggy died on February
3, 2018. Williamson was appointed personal representative of
Peggy’s estate, and the action was revived in his name as per-
sonal representative of Peggy’s estate.
   At a hearing on the motion for summary judgment, the dis-
trict court admitted evidence submitted by both parties, includ-
ing surveillance footage of the fall; photographs; depositions of
Peggy and Williamson; and affidavits and depositions regard-
ing the construction of the curb, BMC’s ongoing initiatives
to increase safety throughout the BMC campus, and remedial
measures taken after Peggy’s fall to mark the elevation change
of the curb.
   The evidence generally showed that on Sunday, August 5,
2012, at approximately 2 p.m., Peggy and Williamson drove to
BMC to visit a friend. They attempted to enter the BMC main
entrance and found the doors locked because it was the week-
end. A sign rerouted visitors to entrance doors at the emer-
gency department. They began to walk toward the emergency
department when a person stepped out from the main entrance
doors and offered to let them in. At this point, Peggy turned,
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

approached the main entrance again, and fell on an unpainted
curb area between the driveway to BMC and the sidewalk
approaching the main entrance. The curb featured a tapered or
flared edge where the elevation gradually changed from a flat
curb to a raised curb. The curb was the same color as the sur-
rounding concrete on the sidewalk and driveway.
   At her deposition, Peggy described the events leading up
to and following her fall. She watched the surveillance video
that showed her walking along the sidewalk; stepping down
the curb into the driveway; turning around to proceed back
along the same general area toward the main entrance, ahead
of Williamson; and tripping on the curb. Peggy denied having
observed any taper or elevation change in the sidewalk prior
to her fall and believed that the area was flat without a curb.
Peggy testified that the sole cause of her tripping was the
change in elevation between the driveway and the curb. She
stated in her affidavit that she believed that if the curb cutout
had been painted bright yellow at the time she fell, as was done
sometime after the incident, she would have “stepped differ-
ently” and not tripped over the change in elevation.
   Williamson testified in his disposition that he did not observe
Peggy actually trip and fall and that he did not know exactly
where she tripped. He helped Peggy up and into BMC, where
she was treated in the emergency department.
   In her deposition, Paulette Davidson, BMC’s chief execu-
tive officer, acknowledged that she visited Peggy when she
was in the emergency department and apologized for the
main entrance doors being locked, for staff of the emergency
department not coming out to help her, and for the fall itself.
Peggy averred in her affidavit that Davidson stated that the
curb should have been painted or marked. However, Davidson
testified that she did not remember making this statement
and believed she could not have known whether the curb was
painted at the time she spoke with Peggy because she was
unfamiliar with the curb when they spoke and did not know
exactly where Peggy had fallen.
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

   Brian Hovey, BMC’s acting facilities manager, and Brandon
Quindt, BMC’s director of support services at the time of the
fall, were also deposed. Both denied knowing of any com-
plaints, safety concerns, or discussions about issues navigating
the curbs along the driveway between the emergency room
doors and the main entrance doors prior to Peggy’s fall. They
testified that because of their job duties, any incidents of trip-
ping or any concerns related to tripping over the curb in ques-
tion would have been brought to their attentions. They also
testified they did not recall that the curb was obstructed from
view, difficult to view, damaged, in a state of disrepair, or any-
thing other than a standard curb.
   A letter (McGill Letter) dated August 2, 2012, to Hovey,
prior to Peggy’s fall, from Timothy McGill, the president of
McGill Restoration, discussed a bid to enhance markers on
the curb in question. Specifically, the McGill Letter stated that
McGill Restoration could “[m]ark the entire curb between the
two entrances and in the circle lane near the southeast entrance
yellow to identify the curb and hopefully eliminate trip and
fall incidents.” McGill Restoration is a business which special-
izes in concrete restoration and specialty coating systems with
a primary focus on the repair, strengthening, and protection
of parking structures, stadiums, bridges, and other infrastruc-
tures. Hovey testified that he did not recall why the bid was
requested from McGill Restoration, but, as noted above, he
stated he did not recall any incidents in the area, issues with
the curb, or complaints about the curb’s visibility prior to
Peggy’s incident.
   McGill acknowledged that he was asked to “submit a bid to
paint the slope between the street, curb, and handicap acces-
sible ramp . . . to make the change in slope more noticeable
for drivers and pedestrians.” McGill did not recall whether
the bid was requested as a result of an incident. McGill stated
that he inspected the area at issue before making his bid. The
McGill Restoration bid recommended several markings in the
area, including re-marking existing crosswalks, marking curbs
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

between the entrances, crosshatching the sidewalk, installing
signs for employees instructing them to avoid walking in the
driveway, and touching up faded pavement parking throughout
the facility.
   Quindt testified in his deposition that the McGill Letter was
consistent with work by a committee at BMC which was paint-
ing curbs throughout the BMC campus to “call out” elevation
points or, in other words, to provide additional notification to
visitors of elevation changes throughout the campus. Quindt
testified that the committee’s discussion or identification of
steps to make an aspect of BMC safer did not indicate it was
a hazard as it existed, but, rather, that it was part of continu-
ing efforts to try and improve the overall safety of the BMC
campus. He testified that the committee was not connected to
specific prior incidents or complaints.
   With regard to the curb construction, the court received the
affidavits of Bruce Carpenter and McGill submitted by BMC.
Carpenter is a senior vice president at an architectural firm,
a licensed member of Nebraska’s Board of Engineers and
Architects, and a member of relevant professional organiza-
tions. Both Carpenter and McGill stated that the curb at issue
complied with all applicable building codes and regulations.
Carpenter denied the existence of “a building code or require-
ment that the curb at issue be painted or otherwise marked.” He
stated that the design contract and planning documents were in
compliance with the applicable building codes when the city of
Bellevue issued a building permit to BMC in 2008. He further
stated that all habitable portions of BMC were inspected by
Bellevue’s city inspector, who issued temporary and permanent
occupancy certificates stating the structure was in compliance
with the ordinances of the city of Bellevue regulating building
construction and use.
   The district court evaluated the evidence presented by both
parties and granted the motion for summary judgment filed by
BMC. In its written order granting BMC’s motion, the district
court noted that there was no unreasonable defect in the curb, it
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

did not violate any code or ordinance, and no expert had identi-
fied the construction of the curb as a danger.
   Williamson appeals.
                ASSIGNMENTS OF ERROR
   Williamson claims that the district court erred when it
granted summary judgment in favor of BMC. Specifically, he
contends there was evidence which could support an inference
that the unpainted, tapered curb at the BMC main entrance
posed an unreasonable risk of harm to lawful entrants such as
Peggy who would predictably fail to protect themselves against
the danger.
                  STANDARDS 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. Hughes v. School Dist. of Aurora, 290 Neb. 47, 858
N.W.2d 590 (2015). 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
   Williamson claims that the district court erred when it
granted summary judgment in favor of BMC and dismissed his
claims for negligence and premises liability related to Peggy’s
fall over an unpainted, tapered curb located between the drive-
way and the BMC main entrance. He argues that the evidence
and inferences, viewed in his favor, created genuine disputes
of material facts as to whether the unpainted curb between
the driveway and the BMC main entrance created a danger-
ous condition and whether BMC should have expected that
Peggy would not discover or realize the danger or would fail to
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

protect herself against the danger. As we discuss below, BMC
carried its burden to show it was entitled to summary judg-
ment, and even if the curb were deemed a dangerous condition,
Williamson failed to produce evidence showing a genuine issue
of material fact as to whether BMC should have expected per-
sons such as Peggy would not discover or realize the danger
from the unpainted curb and protect themselves against the
danger. Accordingly, we affirm.
   [3-6] We have noted that the primary purpose of the sum-
mary judgment procedure is to pierce the allegations in the
pleadings and show conclusively that the controlling facts are
other than as pled. Hughes v. School Dist. of Aurora, supra.
Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2018) provides in part
that a motion for summary judgment shall be granted “if the
pleadings and the evidence admitted at the hearing show that
there is no genuine dispute as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
The party moving for summary judgment must make a prima
facie case by producing enough evidence to show that the
movant is entitled to judgment if the evidence were uncon-
troverted at trial. Hughes v. School Dist. of Aurora, supra. If
the party moving for summary judgment makes a prima facie
case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents
judgment as a matter of law. Id. At the summary judgment
stage, the trial court determines whether the parties are dis-
puting a material issue of fact. It does not resolve the factual
issues. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96
(2018). Where reasonable minds could draw different conclu-
sions from the facts presented, there is a triable issue of mate-
rial fact. See id.
   [7] We have recognized that 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 exercise of reasonable care would
have discovered the condition; (2) the possessor should have
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

realized the condition involved an unreasonable risk of harm to
the lawful visitor; (3) the possessor should have expected that
a lawful visitor such as the plaintiff either (a) would not dis-
cover or realize the danger or (b) would fail to protect himself
or herself against the danger; (4) the possessor failed to use
reasonable care to protect the lawful visitor against the dan-
ger; and (5) the condition was a proximate cause of damage to
the plaintiff. See Herrera v. Fleming Cos., 265 Neb. 118, 655
N.W.2d 378 (2003). See, also, Warner v. Simmons, 288 Neb.
472, 849 N.W.2d 475 (2014); NJI2d Civ. 8.26.
   Had the matter proceeded to trial, Williamson, as plaintiff,
would have had the burden of proving each of the five ele-
ments identified above. But because the case was disposed of
by a ruling on BMC’s motion, it was incumbent on BMC to
make a showing that even giving the inferences in favor of
Williamson, Williamson’s case would not be successful and
it was entitled to judgment. See Hughes v. School Dist. of
Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
   In the district court and on appeal, BMC contends that no
reasonable finder of fact could infer from the evidence that
Williamson could prove all five elements of a premises liabil-
ity claim. Thus, BMC argued particularly that Williamson
could not show that the unpainted curb posed an unreasonable
risk of harm, because although it was unpainted and tapered,
it was located between a driveway and a sidewalk where one
ordinarily expects to find a curb. BMC asserts that a curb is
not a condition which subjects it to liability as summarized
in NJI2d Civ. 8.26. That is, the curb is merely an ordinary
risk. See Parker v. Lancaster Cty. Sch. Dist. No. 001, 254
Neb. 754, 579 N.W.2d 526 (1998). To put our analysis in con-
text, we note that we have held that curbs are not inherently
dangerous. See id. In the alternative, BMC also submitted
evidence with regard to the third element identified above,
because even if the unpainted curb did present an unreason-
able risk of harm, its evidence showed that BMC should not
have expected that a lawful visitor such as the plaintiff would
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

fail to discover and protect himself or herself against that risk.
See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d
82 (2004).
   The evidence BMC adduced showed that the curb was not
obstructed from view, was in good repair, and met applicable
building codes. Although BMC had previously elicited bids
from McGill Restoration that included a bid to paint and mark
curbs, including the curb where Peggy tripped, the uncon-
troverted evidence showed that the McGill Letter was not a
response to an incident or specific safety concern, but instead
was part of an initiative to improve safety across the BMC
campus. According to the evidence, BMC had received no prior
complaints and BMC employees denied there was any reason
to have safety concerns with the curb where Peggy tripped or
similar curbs at BMC. Although not the determinative factor,
BMC also directs our attention to the uncontroverted evidence
that Peggy had successfully walked down the curb in the same
area 12 seconds before her fall.
   BMC relies on our precedent stating that even where a dan-
gerous condition exists, a premises owner will not be liable
unless the premises owner should have expected that a lawful
visitor such as the plaintiff either (a) would not discover or
realize the danger or (b) would fail to protect himself or herself
against the danger. E.g., Edwards v. Hy-Vee, 294 Neb. 237, 883
N.W.2d 40 (2016); Aguallo v. City of Scottsbluff, supra; Heins
v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996). This
principle follows the language of the Restatement (Second)
of Torts § 343 (1965) and is consistent with 2 Restatement
(Third) of Torts: Liability for Physical and Emotional Harm
§ 51 (2012).
   We agree with the district court that BMC carried its initial
burden showing it was entitled to judgment as a matter of law.
Even assuming that a curb could pose a risk of danger, there
was no evidence that BMC was on notice that a visitor such
as Peggy either (a) would not discover or realize the danger or
(b) would fail to protect himself or herself against the danger.
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
               WILLIAMSON v. BELLEVUE MED. CTR.
                       Cite as 304 Neb. 312

To the contrary, the curb was, by all accounts, ordinary and
obvious, despite its tapered edge, and traversing it is the type
of action a pedestrian walking between a parking lot and side-
walk would expect to encounter and navigate successfully.
There was no evidence that the tapered edge made it less vis-
ible than a more commonplace step-style curb and no evidence
of prior falls. Given BMC’s showing, the burden shifted to
Williamson to produce evidence that the curb posed an unrea-
sonable risk of harm and that BMC should have been aware
that persons similar to Peggy would fail to protect themselves
against the danger or peril associated with the unpainted curb
in this location. Williamson failed to do so.
   In its order, the district court stated:
         There is no indication from the evidence received that
      there was any defect in the curb. There is no evidence
      that the unpainted curb was in violation of any code or
      ordinance. There is, likewise, no evidence of an expert
      identifying this unpainted curb as a danger. Moreover,
      [Peggy] walked over the exact same spot seconds earlier
      without issue, turned around and when walking back over
      the same spot, she then fell. These facts are undisputed
      and Williamson has failed to offer evidence to contradict
      the same.
   Although our reasoning differs somewhat from that of the
district court, we conclude that the district court did not err
when it granted summary judgment in favor of BMC.
                          CONCLUSION
   There was no evidence from which a reasonable finder of
fact could infer that Williamson had established all the ele-
ments of his premises liability case, and accordingly, we affirm
the order of the district court which granted summary judgment
in favor of BMC.
                                                     A ffirmed.
