Clark v. Scheels All Sports, Inc.

Citation314 Neb. 49
Decision Date21 April 2023
Docket NumberS-21-624
PartiesKristine Clark, appellant, v. Scheels All Sports, Inc., appellee.
CourtSupreme Court of Nebraska

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. 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.

2. Summary Judgment. One of the primary purposes of summary judgment is to pierce the allegations in the pleadings and show conclusively that the controlling facts are other than as pled.

3. . 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.

4. Summary Judgment: Proof. The party moving for summary judgment must make a prima facie case by producing enough evidence to show the movant would be entitled to judgment if the evidence were uncon-troverted at trial. If the moving party 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. But in the absence of a prima facie showing by the movant that he or she is entitled to summary judgment, the opposing party is not required to reveal evidence which he or she expects to produce at trial.

5. ___ ___. If the burden of proof at trial would be on the nonmov- ing party, then the party moving for summary judgment may satisfy its prima facie burden either by citing to materials in the record that affirmatively negate an essential element of the nonmoving party's claim or by citing to materials in the record demonstrating that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.

6. Negligence: Words and Phrases. There is no fixed rule for determining when a condition presents an unreasonable risk of harm, but the plain meaning of the term suggests a uniquely or unacceptably high risk of harm-something more than the usual risks commonly encountered.

7. Negligence: Liability: Words and Phrases. In the context of premises liability cases, an unreasonable risk of harm generally means a risk that a reasonable person under all the circumstances of the case, would not allow to continue.

8. Summary Judgment. When the summary judgment standard is properly, carefully, and cautiously applied to enter judgment as a matter of law on a claim or defense that is shown to be undisputed, it is not an extreme remedy; it is simply another procedural tool by which undisputed claims or defenses can be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.

9. Negligence: Presumptions. The mere fact that a fall occurred is not evidence of negligence, nor does it raise a presumption of negligence.

10. Summary Judgment: Evidence. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for the purposes of summary judgment; the evidence must be sufficient to support an inference in the nonmovant's favor without the fact finder engaging in guesswork.

11. Evidence: Proof. The failure of proof on an essential element of the nonmoving party's claim necessarily renders all other facts immaterial.

12. Summary Judgment: Pleadings. The pleadings frame the issues to be considered on a motion for summary judgment.

13. ___: ___. Courts may not enter summary judgment on an issue not presented by the pleadings.

14. Summary Judgment. In the summary judgment context, a disputed fact is material only if it would affect the outcome of the case.

Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.

Cathy S. Trent-Vilim, Brian J. Brislen, and Maria T. Lighthall, of Lamson, Dugan & Murray, L.L.P., and Tyler K. Spahn, Assistant Lincoln City Attorney, for appellant.

Michael L. Moran, of Engles, Ketcham, Olson & Keith. PC, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.



Kristine Clark filed a premises liability action against Scheels All Sports, Inc. (Scheels), alleging she tripped and fell due to a dangerous condition on the premises. Scheels successfully moved for summary judgment, and Clark appeals. One of Clark's primary arguments on appeal is that Scheels, as the moving party on summary judgment, could not satisfy its initial burden merely by citing to discovery showing that Clark did not have evidence to prove a material element of her claim. According to Clark, the only way Scheels could meet its initial burden was to offer evidence affirmatively negating Clark's claim that Scheels was negligent.

We analyze the 2017 amendments to Neb. Rev. Stat. § 25-1332(2) (Cum. Supp. 2022) and conclude they expressly allow a moving party to show the absence of a genuine dispute as to any material fact by showing that "an adverse party cannot produce admissible evidence to support the fact."[1] We also conclude that Scheels satisfied its prima facie burden by showing that Clark could not produce admissible evidence to support a material element of her premises liability claim, and we further conclude that Clark did not thereafter show a genuine dispute of material fact sufficient to preclude summary judgment. We therefore affirm the judgment of the district court.


In February 2019, Clark filed a complaint against Scheels in the district court for Douglas County. As relevant to the issues on appeal, Clark's complaint alleged that on April 18. 2016, while entering a Scheels store in Omaha, Nebraska, her "shoelace got caught in the foot grate in the store foyer between the outside and inside doors [and the] entanglement caused her to trip on the grate and fall." The complaint identified two conditions in the foyer that Clark alleged caused her fall: (1) an unsafe or poorly maintained "foot grate" and (2) a strong "wind tunnel effect" that increased the falling hazard. Scheels' answer denied these allegations and alleged several affirmative defenses.

1. Discovery

Both parties conducted discovery focused on whether Clark's fall was caused by an unreasonably dangerous condition in Scheels' foyer. Because the information learned from discovery is central to the parties' arguments on summary judgment, we review it in some detail.

Before suit was filed, Clark requested, and Scheels provided, a copy of its surveillance video of the foyer area at the time of Clark's fall. That video was recorded by a motion-activated camera mounted inside the store near the checkout area. The camera was aimed at a panel of eight glass doors leading directly into the foyer area where Clark fell. The foyer area is visible through the glass doors, but several display mannequins inside the store partially obstructed the camera's view of the area beyond several doors near the center of the panel. The motion-activated camera did not record continuously, but it did capture approximately 13 minutes of video that showed Clark as she walked through the exterior doors into the foyer area and approached the doors near the center of the panel. The video did not capture the precise moment or mechanism of Clark's fall, and the mannequins blocked the camera's view of the area where Clark landed. But the video did capture some of the activity in the foyer after Clark's fall as store employees and emergency personnel came to Clark's aid.

Scheels also produced a "Guest Injury Accident Report" prepared by its employees at or near the time of the fall. According to the report, Clark told store employees she "fell because her shoelace got caught in the grate." The report states that Clark's shoelaces were "very long" and that one set of shoelaces was untied when store employees arrived in the foyer, but the shoelaces were not stuck in the grate.

Clark deposed several of the Scheels employees on duty at the time of her fall. None recalled seeing any substance, obstacle, or defect in the foyer area, none had knowledge of any problem with the grate in the foyer, and none recalled any other customer tripping on the grate. The employees were not asked about a wind tunnel effect in the foyer.

Before deposing Clark, Scheels served interrogatories and requests for production. This discovery asked Clark to identify all witnesses with information bearing on any of the allegations of the complaint and to identify any expert witness expected to be called at trial and state the substance of and grounds for the expert's opinion. It also asked Clark to produce any exhibits she intended to introduce at trial and to produce copies of any expert reports. Clark's initial and supplemental discovery responses did not identify any exhibits, other than Scheels' surveillance video, to support her claim that the foyer was unreasonably dangerous in any of the ways alleged in the complaint. Nor did her discovery responses identify any witness or expert who was expected to testify as to the existence of an unreasonably dangerous condition in the foyer area.

When Scheels deposed Clark, she did not testify that she fell because her shoelaces got caught in the foot grate, although that...

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