Anderson v. Service Merchandise Co., Inc., S-89-1188

CourtSupreme Court of Nebraska
Citation240 Neb. 873,485 N.W.2d 170
Docket NumberNo. S-89-1188,S-89-1188
PartiesKathy ANDERSON, Appellant, v. SERVICE MERCHANDISE COMPANY, INC., and Sylvania Lighting Services Corporation, Appellees.
Decision Date12 June 1992

Page 170

485 N.W.2d 170
240 Neb. 873
Kathy ANDERSON, Appellant,
SERVICE MERCHANDISE COMPANY, INC., and Sylvania Lighting Services Corporation, Appellees.
No. S-89-1188.
Supreme Court of Nebraska.
June 12, 1992.

Page 171

Syllabus by the Court

1. Summary Judgment: Appeal and Error. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such

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fact or facts and that the moving party is entitled to judgment as a matter of law. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Negligence: Evidence. When an instrumentality under the exclusive control and management of the alleged wrongdoer produces an occurrence which would not, in the ordinary course of things, come to pass in the absence of the negligence of the one having such management and control, the occurrence itself, in the absence of explanation by the alleged wrongdoer, affords evidence that the occurrence arose as the result of the alleged wrongdoer's negligence.

3. Negligence: Circumstantial Evidence. Res ipsa loquitur operates as a type of circumstantial evidence.

4. Negligence: Circumstantial Evidence. Res ipsa loquitur is not a matter of substantive law, but, as a form of circumstantial evidence, is a procedural matter.

5. Trial: Negligence. If res ipsa loquitur applies, an inference of a defendant's negligence exists for submission to the fact finder, which may accept or reject the inference in the factual determination whether the defendant is negligent.

6. Invitor-Invitee. A business possessor of real estate has a duty to exercise reasonable care to keep the premises safe for its business invitees.

7. Invitor-Invitee. A business possessor's duty to use reasonable care for invitees on the premises is a nondelegable duty.

8. Invitor-Invitee. A business possessor of real estate cannot shift the duty of reasonable care for the premises to an agent or independent contractor employed to maintain all or part of the premises under the possessor's control.

9. Negligence: Liability. Liability for breach of a nondelegable duty is an exception to the general rule that one who employs an independent contractor is not liable for the independent contractor's negligence.

Thomas M. White, of Fitzgerald, Schorr, Barmettler & Brennan, Omaha, for appellant.

Thomas D. Wulff, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Service Merchandise.

[240 Neb. 874] Edward G. Warin and Lynn Ann Killeen, of Gross & Welch, Omaha, for appellee Sylvania.


SHANAHAN, Justice.

Kathy Anderson appeals from dismissal of her negligence action based on res ipsa loquitur. In granting the summary judgments and dismissing Anderson's action against Service Merchandise Company, Inc. (Service Merchandise), and Sylvania Lighting Services Corporation (Sylvania), the district court for Douglas County concluded that "the subject matter involved in this litigation was not under the exclusive control of each defendant." We affirm in part, and in part reverse and remand for further proceedings.


Service Merchandise operates a retail store on premises leased from Jewel Companies, Inc., since June 1, 1978. To maintain the store's overhead lighting system, Service Merchandise in April 1985 entered a service contract with Sylvania, which agreed to change the system's "ballasts" and "sockets" as needed at periodic intervals. The contract stated that "[n]o other scope of work will be performed without prior approval" of the Service Merchandise maintenance department and that "[a]ny and all services performed must be approved" by Service Merchandise. Pursuant to the service contract, Sylvania entered the Service Merchandise store in May and September 1985 and replaced a number of "lamps," in addition to ballasts, which are resistance units used to stabilize the current in a circuit for an arc lamp, a

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mercury-vapor lamp, or a fluorescent lamp. During that time, Sylvania spent a total of 12 hours over 3 days for work on the lighting system in Service Merchandise's store. Nothing presently indicates that before the accident Sylvania did any additional physical work on Service Merchandise's lighting system after the previously described services in 1985. On May 8, 1986, Sylvania returned to the Service Merchandise store and performed a "lighting inspection." What may have been involved in that inspection is [240 Neb. 875] undisclosed. Notwithstanding the service contract, Service Merchandise's employees "changed elements in the light fixtures in the store" and changed "the lamps when they burn[ed] out."

On June 27, 1986, some 7 weeks after Sylvania's inspection, Anderson was standing in the checkout line of Service Merchandise's store, when an overhead light fixture fell approximately 16 feet from the store's ceiling and struck Anderson on the back of the neck, head, and shoulder, resulting in Anderson's personal injury and medical expenses.


Anderson sued Service Merchandise under the doctrine of res ipsa loquitur, alleging in part that "[t]he light fixture was and remained under the exclusive control of the defendant up to the time it fell out of the ceiling and struck Kathy Anderson." In its answer, Service Merchandise denied negligence and specifically denied that the light fixture had been in its exclusive control, because Service Merchandise "was merely a lessee of the premises." With the court's permission, Anderson filed an amended petition, adding Sylvania as a codefendant and alleging that Sylvania had contracted to service and maintain the light fixtures in Service Merchandise's store and that the fixture which struck Anderson had been under the "exclusive control" of both defendants. With its answer to Anderson's amended petition, Service Merchandise filed a "cross claim" against Sylvania, alleging that Sylvania was the last entity to service the particular light fixture before the accident, and claiming that Service Merchandise was "entitled to contribution and/or indemnity" from Sylvania.

Service Merchandise and Sylvania each moved for a summary judgment on the grounds that res ipsa loquitur was inapplicable as a matter of law and that there was no genuine issue of material fact. The district court determined "as a matter of law that the subject matter involved in this litigation was not under the exclusive control of each defendant and therefore the doctrine of res ipsa loquitur does not apply." No information presented in conjunction with the summary judgment motions indicated any specific negligence by Service [240 Neb. 876] Merchandise or Sylvania. For that reason, the court dismissed Anderson's action.


Anderson has asserted six assignments of error on appeal, all of which coalesce into one contention: The court erred in concluding that the doctrine of res ipsa loquitur was inapplicable as a matter of law, because the court incorrectly concluded that the defendants were not in exclusive control of the instrumentality which struck Anderson.


Anderson refers to Bank of Valley v. Shunk, 208 Neb. 200, 302 N.W.2d 711 (1981), for the proposition that "[s]ummary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt." Brief for appellant at 8. The "clear beyond all doubt" standard has occasionally found its way into other opinions issued by this court; for example, see, Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989); Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982); Schaffert v. Hartman, 203 Neb. 271, 278 N.W.2d 343 (1979); Hollamon v. Eagle Raceway, Inc., 187 Neb. 221, 188 N.W.2d 710 (1971); Storz Brewing Co. v. Kuester, 178 Neb. 135, 132 N.W.2d 341 (1965).

Neb.Rev.Stat. § 25-1332 (Reissue 1989) provides in part: "The [summary] judgment sought shall be rendered forthwith if

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the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

"[A]s a procedural equivalent to a trial, a summary judgment is an extreme remedy because a summary judgment may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed." Wachtel v. Beer, 229 Neb. 392, 399, 427 N.W.2d 56, 61 (1988). Accord Wiles v. Metzger, 238 Neb. 943, 473 N.W.2d 113 (1991). A rationale for use of a summary judgment is the disposition and elimination of frivolous or baseless lawsuits that would otherwise necessitate unwarranted trials and consume valuable [240 Neb. 877] time, avoidable expense, and judicial resources better directed toward litigation that resolves real controversies, meritorious claims, and valid issues.

Section 25-1332 is virtually identical to Fed.R.Civ.Prac. 56. See In re Freeholders Petition, 210 Neb. 583, 316 N.W.2d 294 (1982). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court stated that a "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" and indicated a proper standard for granting a summary judgment:

[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of...

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