Fuller v. Burrito Builders Lincoln 102, LLC
| Decision Date | 16 May 2023 |
| Docket Number | A-22-683 |
| Parties | Renae C. Fuller, appellant, v. Burrito Builders Lincoln 102, L.L.C., doing business as Pancheros Mexican Grill, et al., appellees. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: JODI L. NELSON Judge.
Staci Hartman-Nelson for appellant.
Leslie S. Stryker Viehman, of Nolan, Olson & Stryker, P.C. L.L.O., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Renae C. Fuller filed an action in the district court for Lancaster County, as a result of her falling on a sidewalk outside of a restaurant in Lincoln, Nebraska. The defendants named in Fuller's suit jointly filed a motion for summary judgment, which the district court sustained. Fuller appeals from the district court's decision to sustain the motion for summary judgment. Upon our review of the record, we conclude that there is no genuine issue of material fact as to whether a dangerous condition on the sidewalk outside of the restaurant was the proximate cause of Fuller's fall because there is no evidence that any such dangerous condition existed at the time of the fall. As such, we affirm the district court's granting of summary judgment in favor of the defendants.
On January 22, 2016, between 2:30 and 3 in the afternoon, Fuller fell on the sidewalk outside of Pancheros Mexican Grill (Pancheros), a restaurant located on North 66th Street in Lincoln. As a result of the fall, Fuller broke her hip and had to undergo surgery and rehabilitation.
Fuller subsequently filed a complaint against the following defendants: Burrito Builders Lincoln 102, LLC and Burrito Builders, Inc. (both doing business as Pancheros); Dan Hiserote, President of Burrito Builders Lincoln 102, LLC and Burrito Builders, Inc.; Panchero's Franchise Corporation Rodney Anderson, President of Panchero's Franchise Corporation; 200 Lincoln Retail, LLC, owners of the building where Pancheros was located in Lincoln; and Pacific Realty Commercial, LLC (doing business as Colliers International), the property managers for the building where Pancheros was located in Lincoln.
In Fuller's complaint, she alleged that on January 22, 2016, "she tripped over an area of raised concrete at the entrance of [Pancheros] and fell to the ground, fracturing her left hip." Fuller further alleged that each of the defendants had a duty to maintain the area in front of the restaurant in a reasonably safe condition and to warn and protect customers from any dangerous conditions. Fuller contended that the defendants had breached their duties and/or were negligent in that they either created the defect on the sidewalk, knew of the defect, or should have discovered the defect and fixed it or warned customers of its existence. Fuller sought a judgment against the defendants for special damages, medical expenses, and general damages.
The defendants moved collectively for summary judgment. In their motion, the defendants denied that they were in any way negligent in their control of the sidewalk outside of the restaurant: At a hearing on the defendants' motion for summary judgment, they offered into evidence Fuller's deposition testimony; their answers to some of Fuller's interrogatories; and affidavits from representatives for 200 Lincoln Realty, LLC and Pacific Realty Commercial, LLC and from Dan Hiserote. In opposition to the motion for summary judgment, Fuller offered, among other evidence, her own affidavit and the defendants' answers to her interrogatories and to her requests for production of documents.
In her deposition, Fuller testified that on the morning of January 22, 2016, she traveled to Lincoln from her home in Deshler for work. Fuller described the weather that day as very cold, but with no falling precipitation. After arriving in Lincoln and completing some work, Fuller decided to go get something to eat and then go to her hotel. She stopped at Pancheros, which was near to her hotel. When Fuller arrived at Pancheros, it was still light outside and she did not notice anything irregular about either the parking lot or the sidewalk on her walk from her vehicle to the doors of the restaurant. Fuller ended up not staying inside of the restaurant very long because she decided she did not want to eat there after viewing the menu.
Fuller exited Pancheros from the same door she entered. She testified that after opening the door to leave, "my boot got caught, and there was raised concrete, and then I went tumbling forward." Initially, Fuller "guestimat[ed]" that the location of the raised concrete was "probably right underneath [the] door area." However, when Fuller was shown a picture which depicts a slight depression in a portion of concrete that is further from the restaurant's door, she testified that she must have been further away from the door than she thought because she must have tripped over this flaw in the concrete. Fuller admitted that she did not see any flaw in the concrete at the time of the fall. She also did not know when the picture of the concrete shown to her was taken or whether the plates of concrete shifted, causing the depression, prior to her fall or between the time of her fall and when the pictures were taken.
During her deposition, Fuller was also unable to recall approximately how many steps she had taken from the door prior to her fall. She was unable to recall how her feet were positioned at the time of the fall or whether it was her left or right foot which got caught on the concrete. Essentially, Fuller testified that she believed that there must have been a flaw in the concrete at the time of her fall because otherwise her boot would not have gotten caught on the concrete and she would not have fallen.
Other evidence presented by the defendants at the summary judgment hearing demonstrated that none of the defendants had knowledge of any defects in the sidewalk outside of Pancheros at the time of Fuller's fall. Pacific Realty Commercial indicated that as the property manager for the building, it was tasked with regularly inspecting the sidewalks for defects. It did so in April 2016 after learning of Fuller's fall. During this inspection, it was noted "that the alleged incident occurred in the middle of winter when concrete heaving is very typical." Burrito Builders indicated that employees of Pancheros would routinely inspect the area in front of the restaurant for trash or clutter. No other complaints were received regarding Pancheros' sidewalks either before or after Fuller's fall.
Fuller presented her own sworn affidavit in opposition to the motion for summary judgment. This affidavit was dated December 2021, approximately 8 months after Fuller gave her deposition. In the affidavit, Fuller alleged, "As I was exiting the restaurant my boot got caught on raised concrete and caused me to fall." She further alleged, "There were no warning signs or notice placed on the sidewalk at the entrance of the restaurant." Attached as an exhibit to Fuller's affidavit was a written statement she claimed was made on January 28, 2016, six days after the fall. The district court granted the defendants' motion to not consider this statement.
Other evidence presented by Fuller included Pacific Realty Commercial's indication in its response to Fuller's request for production of documents, that in November 2016 ten months after Fuller's fall, it completed routine inspections of the sidewalk outside of Pancheros and routine caulking of the building. Attached to Pacific Realty's responses was the picture shown to Fuller during her deposition which depicted the sidewalk outside of Pancheros with a slight depression in a part of the concrete. This photograph is not dated. While it is not apparent in our electronic version of this photograph, testimony in the record from Fuller indicates that a coin...
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