Brown v. Nebraska Public Power Dist.

• Decision Date: 29 May 1981
• Docket Number: No. 43464,43464
• Citation: 306 N.W.2d 167,209 Neb. 61
• Parties: Valerie A. BROWN, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, a political subdivision of the State of Nebraska; Lexington Alfalfa Dehydrators, Inc., a corporation; and Leslie H. Turner, Appellees.
• Court: Nebraska Supreme Court

Page 167

306 N.W.2d 167

209 Neb. 61

Valerie A. BROWN, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, a political subdivision of the State of Nebraska; Lexington Alfalfa Dehydrators, Inc., a corporation; and Leslie H. Turner, Appellees.

No. 43464.

Supreme Court of Nebraska.

May 29, 1981.

Syllabus by the Court

1. Summary Judgment. The primary purpose of the summary judgment statute is to pierce sham pleadings and to further dispose of cases where there is no genuine claim or defense.

2. Summary Judgment. The court examines the evidence, with a view most favorable to the party against whom the motion is directed, to discover if any real issue of fact exists. If reasonable persons might reach different conclusions, the motion should be denied and the case tried on its merits.

3. Highways. One causing an obstruction on the highway must use ordinary care to prevent injury to others using the highway.

4. Words and Phrases: Highways. An obstruction includes anything which will interfere with the public's use of the highway easement, and includes inanimate objects or substances which are just as dangerous and obstructive as solid obstructions.

5. Negligence: Proximate Cause. The question whether negligence is such a continuing and substantial factor in producing an accident as to be a proximate cause of the injury, taking into consideration the foreseeability of the intervening act, is a question of fact.

Stanley J. Bell, San Francisco, Cal., and John A. Wagoner, Grand Island, for appellant.

Kay & Kay, North Platte, for appellees.

Heard before KRIVOSHA, C. J., McCOWN, WHITE, and HASTINGS, JJ., and MORAN, District Judge.

HASTINGS, Justice.

The appellant, Valerie A. Brown, appealed from an order of the District Court for Dawson County which sustained a motion for summary judgment against Brown and in favor of the appellee Nebraska Public Power District (NPPD). Brown assigns as error the sustaining of the motion for summary judgment and the overruling of her motion for a new trial. We reverse.

This is an action for damages for personal injuries sustained in an automobile-truck collision which occurred on June 19, 1974. Valerie Brown was driving her automobile from Lexington, Nebraska, to North Platte, Nebraska, via U.S. Highway 30 and Darr Road to Interstate 80. Her two minor children were passengers in the automobile. While driving south on Darr Road, she saw what she thought was dust blowing across the highway. She continued on, and when she drove into it she realized that it was smoke, not dust. After a short period, the smoke became dense and she decided to turn around and go back to Lexington. Brown turned west onto a graveled county road and attempted to make a U-turn back onto Darr Road to head north. Sometime during the U-turn the Brown car was struck broadside by a northbound truck hauling alfalfa, which truck was driven by defendant Leslie H. Turner.

Turner had been hauling hay since 6 a. m. that day, and had traveled Darr Road several times prior to the accident. He first noticed smoke just before 2 p. m. while traveling south on Darr Road. Turner saw three men and a pickup on the east side of Darr Road, and it appeared that they had just started burning out the ditch. Turner stated that the smoke did not amount to much, and his southbound lane was pretty clear. He proceeded south through the smoke and drove approximately 2 miles farther to a field where he picked up a load of hay and then began to return north on Darr Road to the mill.

While traveling north, Turner noticed that the smoke where Darr Road and the graveled county road intersected had become "real heavy." The smoke came from the east side of the road at the corner of the intersection and flowed west, straight across the road. The smoke covered both lanes as well as the intersecting county road. The evidence is not clear as to how fast the truck was traveling, other than testimony that it could not have been exceeding 55 miles per hour and that Turner had his foot on the accelerator when entering the smoke. Once he entered the smoke, Turner said visibility was negligible and he did not see the Brown car until he was right upon it. The Brown car was facing east in the northbound lane and was struck broadside right in the center of the car. There were skid marks from both vehicles of slightly more than 100 feet from the intersection, straight north. Both children were killed, and Valerie Brown suffered severe and permanent injuries as a result of the collision.

The smoke was created by employees of NPPD who were burning the weeds in the borrow pit of defendant's right-of-way to prepare it for irrigation waters. The three employees had been sent out to burn the ditch, using a propane burner pulled by a tractor. Two of the men were responsible for the burning and one was responsible for fire control; the latter was equipped with a pickup carrying a supply of 100 gallons of water in a tank attached to a powered sprayer, and 50 or 100 feet of hose. According to Kenneth Kring, the man responsible for fire control, he considered his duties as being limited to keeping fire from spreading across the field, and that he was not responsible for the smoke or the hazards caused by the shift in the direction of the wind that might blow it across the highway. According to the employees, the fire was never out of control, although Kring did describe the wind as "Shifty, squirrely winds. Breezes." Kring's attention was focused on keeping the fire away from the fields, and the other two employees were operating the equipment to do the actual burning. None of them noticed the smoke blowing across the road.

Kring, who testified by means of his deposition, stated that he was told by Mr. Atterberry, the NPPD manager who assigned him to this job, "Make sure you don't get it across the road. This is if you can anyway help it." He also said that he didn't make any effort to determine the wind conditions because he wasn't around when they started the fire. Additionally, he had come upon the scene driving from the east to the west, and had driven through the smoke. He said it was drifting north, but he couldn't tell if it was drifting west. He did acknowledge that the fire had burned over to the west edge of the ditch, closer to Darr Road. He was asked whether he remembered seeing smoke moving westward across Darr Road, and he replied, "No, because I was on the east side of the ditch putting the fire out.... I could have cared less. I was interested in that fire right there."

Valerie Brown filed suit against both the driver of the truck, Leslie Turner, and NPPD for recovery of damages for personal injuries. Both defendants filed motions for summary judgment. The court overruled the motion by defendant Turner, but sustained the motion of NPPD. Plaintiff's motion for a new trial against defendant NPPD was overruled and this appeal was taken.

"The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact and where, under the facts, he is entitled to judgment as a matter of law. Upon a motion for summary judgment the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists." Pettis v. Lozier, 205 Neb. 802, 806, 290 N.W.2d 215, 217 (1980). The primary purpose of the summary judgment statute is to pierce sham pleadings and to further dispose of cases where there is no genuine claim or defense. Partridge v. Younghein, 202 Neb. 756, 277 N.W.2d 100 (1979). The court should take the view of the evidence most favorable to the party...