Dowis v. Continental Elevator Co., Inc.

• Decision Date: 07 August 1992
• Docket Number: No. S-89-1271,S-89-1271
• Citation: 486 N.W.2d 916,241 Neb. 207
• Parties: Ronald Lee DOWIS, Individually and as Father and Next Friend of Justin Dowis, a Minor, Appellant, v. CONTINENTAL ELEVATOR COMPANY, INC., a Nebraska Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 916

486 N.W.2d 916

241 Neb. 207

Ronald Lee DOWIS, Individually and as Father and Next Friend of Justin Dowis, a Minor, Appellant, v. CONTINENTAL ELEVATOR COMPANY, INC., a Nebraska Corporation, et al., Appellees.

No. S-89-1271.

Supreme Court of Nebraska.

Aug. 7, 1992.

Syllabus by the Court

1. Summary Judgment. 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 fact or facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. 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.

3. Negligence. For actionable negligence, there must be a defendant's legal duty to protect or not injure the plaintiff, a failure to discharge that duty, and plaintiff's damage proximately caused by such undischarged duty.

4. Negligence. Foreseeability is a factor in establishing a defendant's duty.

5. Negligence. When one under no obligation to act does undertake action, one must act with reasonable care.

Joseph B. Muller, of The Law Offices of Ronald J. Palagi, P.C., Bellevue, for appellant.

Betty L. Egan, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellee Continental Elevator Co.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

This is a negligence action in which Ronald Lee Dowis, individually and as next friend of his minor son, Justin Dowis, appeals from the summary judgment granted to Continental Elevator Company, Inc., in the district court for Douglas County. Justin Dowis is a 2-year-old child who was injured in a fall down a freight elevator shaft. Continental Elevator maintained the elevator equipment involved in the accident. We reverse, and remand for further proceedings.

STANDARD OF REVIEW

In his appellate brief, Dowis refers to Bank of Valley v. Shunk, 208 Neb. 200, 205-06, 302 N.W.2d 711, 715 (1981), for the proposition that "[s]ummary judgment ... should be awarded only when the issue is clear beyond all doubt." However, in Anderson v. Service Merchandise Co., 240 Neb. 873, 878-79, 485 N.W.2d 170, 174-75 (1992), we recently and expressly disapproved of the "clear beyond all doubt" standard for a summary judgment and stated:

" '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 fact or facts and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] 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. [Citation omitted.]' " Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 277, 481 N.W.2d 422, 425 (1992) (quoting from Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988)). Accord, DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989); Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 (1988).

" 'On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.' " Murphy v. Spelts-Schultz Lumber Co., 240 Neb. at 277-78, 481 N.W.2d at 426 (quoting from Newman v. Hinky Dinky, 229 Neb. 382, 427 N.W.2d 50 (1988)).

" '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 if the evidence presented for summary judgment remains uncontroverted. [Citations omitted.] After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.' " Murphy v. Spelts-Schultz Lumber Co., 240 Neb. at 278, 481 N.W.2d at 426 (quoting from Wilson v. F & H Constr. Co., supra ). Accord Wiles v. Metzger, 238 Neb. 943, 473 N.W.2d 113 (1991).

ACTIONABLE NEGLIGENCE

"For actionable negligence, there must be a defendant's legal duty to protect or not injure the plaintiff, a failure to discharge that duty, and plaintiff's damage proximately caused by such undischarged duty." Burns v. Veterans of Foreign Wars, 231 Neb. 844, 851, 438 N.W.2d 485, 490 (1989).

" ' "[D]uty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk....

" 'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' Prosser and Keeton on the Law of Torts, Limited Duty § 53 at 356 (5th ed. 1984).

"Foreseeability is a factor in establishing a defendant's duty, or, as expressed by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 394, 111 N.E. 1050, 1054 (1916): ' "[F]oresight of the consequences involves the creation of a duty....' " See, also, Lock v. Packard Flying Service, Inc., 185 Neb. 71, 73, 173 N.W.2d 516, 518 (1970): ' " 'Foresight, not retrospect, is the standard of diligence....' " ' ..."

... "The view currently prevailing in this country [limits] the scope of the duty Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 172-73, 425 N.W.2d 872, 881 (1988). Accord, Ditloff v. Otto, 239 Neb. 377, 476 N.W.2d 675 (1991); Holden v. Urban, 224 Neb. 472, 398 N.W.2d 699 (1987).

to do or refrain from doing a given act to (1) those persons that are likely to be [241 Neb. 210] endangered by the act or omission, and (2) harm (to such person or interest) from a risk the likelihood of which made the act or omission negligent."

BACKGROUND

The Accident.

On September 28, 1981, the Dowis family was using a freight elevator to move some personal belongings into a part of an industrial building leased by Ronald Dowis' employer. At a rear corner of the elevator was a 10- to 14-inch opening between the elevator's unused rear door and a side wall of the elevator car. The opening, with its height sufficient to accommodate an average-sized standing adult, exposed the car's interior directly to the elevator shaft. At some point, while the Dowis family was returning to the stationary elevator car that had transported the Dowises, 2-year-old Justin ran ahead of everyone, entered the opening at the rear of the elevator, and fell 16 feet to the bottom of the shaft, sustaining severe injuries.

Pleadings and Motion for Summary Judgment.

Ronald Dowis brought suit on behalf of himself and his son against various defendants, including Continental Elevator; Guardsmark, Inc., a Tennessee corporation; and City of Omaha, a municipal corporation. In Dowis' amended petition, he alleged that Continental was under "an oral contract to do maintenance and repair work on the elevator," had negligently maintained an unsafe elevator which Continental knew or should have known that children were likely to enter and be injured, and had failed to warn elevator users concerning the elevator's unsafe condition.

The Dowis petition further alleged that Continental was also negligent:

a. In maintaining an elevator which had a recess located at a position which was not necessary for loading, unloading, or for the installation of elevator equipment;

b. In maintaining an elevator which had a clearance between the side wall of the car platform and the enclosure in excess of five inches;

c. In maintaining an elevator which was not enclosed on all sides;

d. In failing to provide car doors or gates;

e. In failing to warn individuals entering onto the elevator, and specifically Justin Dowis, of the unsafe condition of the elevator and the danger in utilizing the same.

Continental generally denied Dowis' allegations concerning the alleged negligence and later filed its motion for summary judgment.

Summary Judgment Hearing.

Testimony for the summary judgment hearing was supplied through depositions with corresponding exhibits.

Under a March 3, 1980, "Oil & Grease" contract with Midwest Animal Products, Inc. (Midwest), owner of the building in which the subject elevator is located, Continental was required to clean, lubricate, and make minor adjustments to the elevator mechanism for a flat fee of $150 per month under the contract, which also provided in pertinent part:

EXTENT OF COVERAGE

The Continental Elevator Company, Inc. will service the elevator equipment as hereinafter described on terms and conditions subsequently set forth. We will use trained, qualified men directly employed and supervised by us. This service shall consist of all labor required to make 1 examinations per month, and only such labor and materials as specified herein will be furnished under this agreement including:

Cleaning and Oiling Machine, Motor and Controller

Lubricating Bearings and Guides Necessary Minor Adjustments at the Time of Regular Examinations

Furnishing the Necessary Rope Preservatives and Cotton Waste

We also propose to furnish without charge all necessary lubricants and cleaning materials except reservoir oil for lifting medium on hydraulic elevators unless specified.

We also will examine, lubricate and adjust the following accessory equipment:

NONE

The...