Durre v. Wilkinson Dev., Inc.
| Decision Date | 10 May 2013 |
| Docket Number | No. S–12–627.,S–12–627. |
| Citation | 285 Neb. 880,830 N.W.2d 72 |
| Parties | Mark DURRE, as Personal Representative of the Estate of Diana Durre, appellant, v. WILKINSON DEVELOPMENT, INC., a Nebraska corporation, et al., appellees. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 880]1. 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.
2. Summary Judgment: Appeal and Error. An appellate court will affirm 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.
3. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an appellate court judicially construes a statute and that construction fails to evoke an amendment, it is presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.
4. Fraud: Estoppel: Limitations of Actions: Proof. In order to successfully assert the doctrine of fraudulent concealment and thus estop the defendant from claiming a statute of limitations defense, the plaintiff must show the defendant has, either by deception or by a violation of a duty, concealed from the plaintiff material facts which prevent the plaintiff from discovering the misconduct.
5. 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.
6. 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, 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.
7. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.
8. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.
9. Judgments: Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the conclusion reached by the trial court.
10. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.
[285 Neb. 881]11. Negligence. The threshold inquiry in any negligence action is whether the defend ant owed the plaintiff a duty.
12. Negligence: Words and Phrases. A “duty” is an obligation, to which the law gives recognition and effect, to conform to a particular standard of conduct toward another.
13. Negligence. If there is no duty owed, there can be no negligence.
Jeffry D. Patterson and Robert F. Bartle, of Bartle & Geier Law Firm, Lincoln, and Douglas J. Stratton, Norfolk, and Joel E. Carlson, Madison, of Stratton, DeLay, Doele, Carlson & Buettner, for appellant.
David D. Ernst and Lisa M. Meyer, of Pansing, Hogan, Ernst & Bachman, L.L.P., Omaha, for appellee Love Signs of North Platte, L.L.C., doing business as Condon's House of Signs.
Jerald L. Rauterkus and Patrick R. Guinan, of Erickson & Sederstrom, P.C., L.L.O., Omaha, for appellee Tri–City Sign Company.
Mark Durre brought suit against Wilkinson Development, Inc. (Wilkinson); Tri–City Sign Company (Tri–City); and Love Signs of North Platte, L.L.C., doing business as Condon's House of Signs (Love Signs), for personal injury and wrongful death. A sign fell onto Durre's pickup truck while it was parked in a lot owned by Wilkinson. Durre was injured, and his wife was killed. The district court sustained Tri–City's motion for summary judgment, because the action was barred by the 10–year statute of repose in Neb.Rev.Stat. § 25–223 (Reissue 2008). The court also sustained Love Signs' motion for summary judgment, because the court found there was no evidence Love Signs breached a duty of reasonable care when it performed work on the sign. We affirm.
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. Swift v. Norwest Bank–Omaha West, 285 Neb. 619, 828 N.W.2d 755 (2013).
On April 3, 2009, Durre and his wife were sitting in their pickup truck, which was parked at a gas station/fast-food restaurant in North Platte, Nebraska. About 1 p.m., the restaurant's sign fell onto the cab of the truck, injuring Durre and killing his wife.
The restaurant's sign and the pole structure to which the sign was attached were designed, built, and installed by Tri–City's employees. Tri–City obtained a building permit for the installation of the sign from the city of North Platte, designating 65 feet as the height of the sign. Installation of the sign was completed on or about May 15, 1999. There was no evidence that any of the defendants measured the height of the sign after its construction was completed.
In November 2008, Love Signs was contracted by Wilkinson to replace lamps and ballasts in the sign. One of Love Signs' employees, Chad Condon, acknowledged that it was part of his job to alert the owner of a sign to any unsafe conditions noticed. There was no evidence that Condon or any employee of Love Signs was requested to, or actually did, review the construction drawings to determine the correct height or design of the sign and the pole structure.
The sign collapsed as a result of the shearing of a section of the steel pole which held the sign. After its collapse, Condon measured the length of the sign and pole and determined that the erected sign was 75 feet tall. Durre's structural engineering expert inspected the sign and determined the total height was at least 74 feet. This was 9 to 10 feet greater than the 65–foot height allowed by the permit issued by the city.
On November 13, 2009, Durre filed suit against Wilkinson for personal injury and wrongful death. He alleged that Wilkinson negligently maintained the pole and sign, and failed to warn those on its premises of the danger caused by the improper construction of the sign. Durre filed an amended complaint on March 10, 2011, naming Wilkinson, Tri–City, and Love Signs as defendants. He alleged that Tri–City negligently designed and constructed the pole and sign, and failed to warn any person of the unreasonably dangerous condition of the pole and sign. In a second amended complaint, he alleged that Tri–City concealed the height of the sign from the general public. He also alleged that Love Signs negligently maintained and inspected the sign. Tri–City denied any action or inaction on its part that caused the pole to fail and alleged that all claims against it were barred by the applicable statutes of limitations and repose, which included § 25–223. Love Signs denied liability.
The district court sustained Tri–City's motion for summary judgment, concluding that Durre's actions were barred by the 10–year statute of repose in § 25–223. It sustained Love Signs' motion for summary judgment, because there was no evidence Love Signs breached a duty of reasonable care when it performed work on the sign in 2008. In a separate order, the claims brought against Wilkinson were dismissed without prejudice. Durre appeals the district court's order sustaining summary judgment for both Tri–City and Love Signs. We moved the case to our docket pursuant to our authority to regulate the dockets of this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24–1106(3) (Reissue 2008).
Durre assigns, restated, that the district court erred in concluding that (1) the statute of repose in § 25–223 barred his claims against Tri–City, (2) the doctrine of fraudulent concealment did not toll the running of the statute of repose against Tri–City, and (3) Love Signs did not owe a duty to Wilkinson to discover the inherently dangerous condition of the pole structure and sign on Wilkinson's premises and warn Wilkinson accordingly.
The first issue is whether, as a matter of law, Durre's cause of action against Tri–City is time barred by § 25–223. An appellate court will affirm 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. Swift v. Norwest Bank–Omaha West, 285 Neb. 619, 828 N.W.2d 755 (2013).
The applicable statute, § 25–223, provides in part:
In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than ten years beyond the time of the act giving rise to the cause of action.
Durre has alleged a claim to recover for personal injury caused by Tri–City's negligence. He argues that § 25–223 does not apply to personal injuries resulting from an inherently dangerous condition or latent defect of the property caused by a contractor's negligence. We disagree.
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