Becerra v. Sulhoff
| Decision Date | 20 August 2013 |
| Docket Number | No. A–12–823.,A–12–823. |
| Citation | 837 N.W.2d 104,21 Neb.App. 178 |
| Parties | Mary Becerra, individually and as Personal Representative of the Estate of Mario E. Becerra III, appellant, v. Michael Sulhoff, Personal Representative of the Estate of Mario E. Becerra, Sr., and Union Pacific Railroad Company, a Delaware Corporation, appellees. |
| Court | Nebraska Court of Appeals |
21 Neb.App. 178
837 N.W.2d 104
Mary Becerra, individually and as Personal Representative of the Estate of Mario E. Becerra III, appellant,
v.
Michael Sulhoff, Personal Representative of the Estate of Mario E. Becerra, Sr., and Union Pacific Railroad Company, a Delaware Corporation, appellees.
No. A–12–823.
Court of Appeals of Nebraska.
Filed August 20, 2013.
Appeal from the District Court for Douglas County: Timothy P. Burns, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
E. Terry Sibbernsen and Andrew D. Sibbernsen, of Sibbernsen, Strigenz & Sibbernsen, P.C., for appellant.
Karen Weinhold and Angela D. Jensen–Blackford, of Engles, Ketcham, Olson & Keith, P.C., for appellee Michael Sulhoff.
William M. Lamson, Jr., Anne Marie O'Brien, and JoAnna S. Thomas, of Lamson, Dugan & Murray, L.L.P., for appellee Union Pacific Railroad Company.
Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.
[21 Neb.App. 178]1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or 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. Summary Judgment: Appeal and Error. 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. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approaching a railroad crossing, has a duty to look and listen for the approach of trains, and failure to do so without a reasonable excuse constitutes negligence.
[21 Neb.App. 179]4. Railroads: Motor Vehicles: Right–of–Way. Although railroad trains do not have an absolute right-of-way at grade crossings under all conditions, an engineer operating a train has no duty to yield the right-of-way until it appears to a reasonably prudent person that to proceed would probably result in a collision. At that time, it becomes the duty of the engineer to exercise ordinary care to avoid an accident, even to the extent of yielding the right-of-way.
5. Motor Vehicles: Negligence. Regardless of whether a road is icy, a motorist is expected to retain control of his or her vehicle and abide by his or her duties.
6. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
7. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial,
[837 N.W.2d 107]
the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
8. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.
9. Negligence: Proximate Cause. Under Nebraska negligence law, proximate cause consists of three elements: that (1) but for the negligence, the injury would not have occurred, (2) the injury is the natural and probable result of the negligence, and (3) there is no efficient intervening cause.
10. Negligence: Proximate Cause. The foreseeability of an injury that results from a negligent act determines whether that injury is the natural and probable result of the act.
11. Negligence: Proximate Cause. To constitute proximate cause, an injury must be the natural and probable result of the negligence, and be of such a character as an ordinarily prudent person could have known, or would or ought to have foreseen, might probably occur as the result.
12. Negligence: Proximate Cause. Regarding proximate cause, the law does not require precision in foreseeing the exact hazard or consequence which happens; it is sufficient if what occurs is one of the kind of consequences which might reasonably be foreseen.
13. Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence, unaccompanied by an efficient intervening cause, and without which the result would not have occurred.
14. Proximate Cause: Words and Phrases. An efficient intervening cause is a new and independent act, itself a proximate cause of a result, which breaks the causal connection between the original wrong and the result.
15. Negligence. A person is not legally responsible for a result if it would not have resulted but for the interposition of an efficient intervening cause, which he or she should not have reasonably anticipated or reasonably foreseen
16. Negligence: Proximate Cause. The question of whether an act is a proximate cause, or simply a nonactionable condition, is determined by whether it was [21 Neb.App. 180]foreseeable that the initial act could join with the intervening act to cause the alleged injuries.
17. Summary Judgment: Affidavits.Neb.Rev.Stat. § 25–1335 (Reissue 2008) prescribes a prerequisite for a continuance, or additional time or other relief under the statute, namely, an affidavit stating a reasonable excuse or good cause for a party's inability to oppose a summary judgment motion.
18. Summary Judgment: Affidavits. Without the appropriate affidavit required by Neb.Rev.Stat. § 25–1335 (Reissue 2008), a party is not entitled to a continuance or additional time to obtain affidavits or discovery to counteract an opposing party's motion for summary judgment.
19. Motor Vehicles: Negligence. The Nebraska guest statute, Neb.Rev.Stat. § 25–21,237 (Reissue 2008), states that the owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence
[837 N.W.2d 108]
of the owner or operator in the operation of such vehicle.
20. Motor Vehicles: Negligence: Parent and Child. Under the Nebraska guest statute, relationship by consanguinity or affinity within the second degree includes children.
21. Motor Vehicles: Negligence: Words and Phrases. Gross negligence, within the meaning of the Nebraska guest statute, means gross and excessive negligence or negligence in a very high degree, the absence of slight care in the performance of duty, an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the safety of others.
22. Negligence. Negligence that is purely momentary in nature generally does not constitute gross negligence.
23. Motor Vehicles: Negligence: Proof. Gross negligence on the part of a driver must be proved by the plaintiff.
Mullen, District Judge, Retired.
Mario E. Becerra III (Mario III) was a passenger in a motor vehicle operated by his father, Mario E. Becerra, Sr. (Mario Sr.). Mario III and Mario Sr. were killed when their vehicle collided with a train owned and operated by Union Pacific Railroad Company (Union Pacific). Mario III's mother, Mary Becerra (Becerra), individually and as the personal representative of the estate of Mario III, brought this negligence action against Michael Sulhoff, personal representative of the estate of Mario Sr., and Union Pacific. Becerra appeals from an order of the district court for Douglas County granting summary judgment in favor of Sulhoff and Union Pacific.
On December 23, 2007, at approximately 1:30 p.m., Mario Sr. drove a motor vehicle with his minor son, Mario III, riding as a passenger. The vehicle was traveling eastbound on County Road B in Otoe County when it crossed railroad tracks owned and operated by Union Pacific. As the vehicle crossed the tracks, it was struck on the right rear by a northbound train owned and operated by Union Pacific. The vehicle was propelled by the collision into a concrete signal set base owned by Union Pacific. Both Mario Sr. and Mario III were killed as a result of the collision. The road preceding the tracks was ice covered and slick. A crossing advanced warning sign and crossbucks are located near the railroad tracks.
On December 22, 2009, Becerra filed this negligence action against Sulhoff and Union Pacific, seeking to recover general and special damages related to the death of Mario III. Becerra alleged that Mario Sr. was grossly negligent in (1) driving at an excessive speed under the conditions existing at the time and place of the collision, (2) failing to yield to the northbound Union Pacific train at a designated railroad crossing, and (3) failing to keep a proper lookout for the northbound Union Pacific train. Becerra alleged that Union
[837 N.W.2d 109]
Pacific was [21 Neb.App. 182]negligent in (1) failing to keep a proper lookout for motor vehicular traffic under the conditions existing at the time and place of the collision, (2) failing to exercise due care under the last-clear-chance doctrine, and (3) failing to remove a concrete signal set base that presented a dangerous condition as a secondary impact object within close proximity to the crossing.
Union Pacific filed an answer on January 21, 2010, affirmatively alleging that the sole cause of the accident was the negligence of Mario Sr. On November 18, Union Pacific filed a motion for summary judgment alleging that there were no genuine issues of material...
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...facts of this case and that, based on those precedents, she has successfully pleaded causation. She notes that in Becerra v. Sulhoff , 21 Neb.App. 178, 837 N.W.2d 104 (2013), the Nebraska Court of Appeals stated "[t]he question of whether an act is a proximate cause, or simply a non-actiona......
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