Blackbird v. SDB Investments

• Decision Date: 22 December 1995
• Docket Number: No. S-94-002,S-94-002
• Citation: 541 N.W.2d 25,249 Neb. 13
• Parties: Frances BLACKBIRD, Personal Representative of the Estate of Claude R. Blackbird, deceased, Appellant, V. SDB INVESTMENTS et al., Appellees.
• Court: Nebraska Supreme Court

Page 25

541 N.W.2d 25

249 Neb. 13

Frances BLACKBIRD, Personal Representative of the Estate of Claude R. Blackbird, deceased, Appellant,

V.

SDB INVESTMENTS et al., Appellees.

No. S-94-002.

Supreme Court of Nebraska.

Dec. 22, 1995.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact 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. 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 if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Proof. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party.

4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate 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.

5. Pleadings: Appeal and Error. An appellate court is obligated to dispose of cases on the basis of the theory presented by the pleadings on which the case was tried.

6. Pleadings: Appeal and Error. Any error or defect in the pleadings which does not affect the substantial rights of the adverse party must be disregarded.

7. Licensee: Words and Phrases. A licensee is defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor.

8. Licensee: Words and Phrases. A social guest is a licensee.

9. Licensee: Negligence. An owner or occupant of a premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn him as a licensee of a hidden danger or peril known to the owner or occupant but unknown or unobservable by the licensee, who is required to exercise ordinary care.

10. Negligence: Intent: Words and Phrases. In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or the omission to act, and a constructive intention as to the consequences.

11. Negligence: Intent: Words and Phrases. To constitute willful negligence, the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.

D.C. Bradford, of Bradford, Coenen & Welsh, Omaha, for appellant.

Terry K. Gutierrez, of Schmid, Mooney & Frederick, P.C., Omaha, for appellees SDB Investments and Beals Realty.

Alan M. Thelen, Assistant Omaha City Attorney, for appellee City of Omaha.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

Frances Blackbird, mother of, and personal representative of the estate of, Claude R. Blackbird, brought this wrongful death action against the defendants, SDB Investments, Beals Realty, and the City of Omaha, alleging their negligence caused her son's death. The district court for Douglas County sustained the defendants' motions for summary judgment. Under the authority granted to us by Neb.Rev.Stat. § 24-1106 (Cum.Supp.1994) to regulate the caseloads of the appellate courts of this state, we remove the appeal to this court. We affirm the district court's finding that there was no genuine issue of material fact as to any issue raised by the plaintiff. We therefore affirm.

ASSIGNMENT OF ERROR

The plaintiff alleges the district court erred in granting summary judgment because material facts exist in the record requiring that the issues of negligence and causation be submitted to the finders of fact.

SCOPE OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact 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. Poppleton v. Village Realty Co., 248 Neb. 353, 535 N.W.2d 400 (1995); Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995); Walpus v. Milwaukee Elec. Tool Corp., 248 Neb. 145, 532 N.W.2d 316 (1995).

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 if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law. Poppleton v. Village Realty Co., supra; Krohn v. Gardner, supra; Keefe v. Glasford's Enter., 248 Neb. 64, 532 N.W.2d 626 (1995). After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party. Krohn v. Gardner, supra; Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995); Keefe v. Glasford's Enter., supra.

In reviewing a summary judgment, an appellate 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. Poppleton v. Village Realty Co., supra; Krohn v. Gardner, supra; Walpus v. Milwaukee Elec. Tool Corp., supra.

BACKGROUND

On April 4, 1991, Blackbird fell to his death from a second-floor balcony of the Hamilton Terrace Apartments located at 210 South 24th Street in Omaha, Nebraska. The plaintiff brought this action against SDB Investments, the owner of the property; Beals Realty, the manager of the property; and the City of Omaha for the wrongful death of her son.

The record contains the deposition testimony of only one eyewitness to the accident--Alvin Norman. He testified that at approximately 8:30 a.m., on April 4, 1991, Blackbird, Norman, and others went to visit one Chris Romero, who lived at the Hamilton Terrace Apartments. Upon arrival, the group joined other friends in drinking beer on the second-floor balcony along the north side of the apartment building.

Immediately prior to the accident, while standing on the second-floor balcony, Norman and Blackbird engaged in a "spitting contest." They were spitting toward the apartment building into a shaft between the building and the south edge of the north balcony. Between the balcony and the shaft was a pair of iron railings, affixed to the side of the building, one above the other. The height of the topmost rail was almost 5 feet 6 inches.

At one time during the spitting contest, Blackbird, a 300-pound man, put both hands on the top rail of the upper railing and put his right foot on the top rail of the lower railing. He leaned back, extended his arms, gathered spit in his mouth, and then jerked himself forward, taking his left foot off the ground and putting all of his weight upon his right foot on the lower railing, so that he could lean over the top rail to spit. When he came forward, the lower railing broke off from the side of the building, he flipped over the upper railing, and he fell approximately 24 feet onto a concrete stairwell, causing his death.

Prior to Blackbird's death, city inspectors discovered numerous code violations in the apartment building and were in the process of condemning the building pursuant to chapter 43 of the Omaha Municipal Code. However, the iron railings over which Blackbird fell were not cited as a code violation and were not a focus of the condemnation proceedings. A condemnation hearing was set by the City of Omaha for December 19, 1990, but was continued until a later date on three separate occasions. The latest continuance was granted March 28, 1991, just 7 days before Blackbird's death. As a result, no hearing was ever conducted.

It is undisputed that the defendants did not repair the property or vacate the premises prior to Blackbird's death. In her third amended petition, the plaintiff alleged that Blackbird fell over a "wooden guard railing ... on the north side of the balcony." The petition further alleged that a proximate cause of the injury and death to Blackbird consisted of one or more of the following acts of negligence by each of the defendants: "(a) In failing to take the necessary action to cause the repair of said dangerous condition; (b) By failing to properly and adequately warn Mr. Blackbird of said dangerous condition."

The district court for Douglas County granted the defendants' motions for summary judgment finding that the plaintiff failed to raise a genuine issue of material fact as to any issue. The plaintiff appeals.

ANALYSIS

DEFECTS IN PLEADINGS

The plaintiff alleges that the trial court erred in granting summary judgment because material facts exist in the record requiring that the issues of negligence and causation be submitted to the finders of fact. As stated, in her third amended petition, the plaintiff alleged incorrectly, albeit before any meaningful discovery, that Blackbird fell An appellate court is obligated to dispose of cases on the basis of the theory...