Hyer v. Target Corp.
| Docket Number | A-22-805 |
| Decision Date | 06 June 2023 |
| Parties | Sharon L. Hyer, appellant, v. Target Corporation et al., appellees |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge. Affirmed.
James R. Welsh and Christopher Welsh, of Welsh &Welsh, P.C. L.L.O., for appellant.
Ronald F. Krause and Michael R. Faz, of Cassem, Tierney, Adams Gotch & Douglas, for appellee Target Corporation.
Robert S. Keith and Dominique A. Westhoff, of Engles, Ketcham, Olson & Keith, P.C., for appellees T L Street Marketplace NE L.L.C., T L Street Marketplace Main NE, L.L.C., T L Street Marketplace Land NE, L.L.C., and T L Street Marketplace Pads NE, L.L.C.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Sharon L. Hyer filed an action in the district court for Douglas County after falling on a sidewalk she believed to be icy outside of a Target store. Hyer appeals the order of the district court granting summary judgment to the defendants. Upon our review of the record, we affirm the order of the district court.
On January 18, 2019, Hyer slipped and fell while approaching a Target store located in Omaha, Nebraska. Hyer had left work early that day because the weather forecast predicted freezing rain. Before going home, Hyer drove to the store. She parked in front of Ulta Beauty, which was located next door to the east of Target in the same strip mall. Hyer had no problems walking through the parking lot or in front of the Ulta Beauty entrance. Because of the forecasted freezing rain, Hyer had worn flat boots that day and approached the store cautiously. As she walked, Hyer noticed purple, pea-sized ice melt on the sidewalk in front of Ulta Beauty and heard the crunch of the ice melt under her boots. She purchased mascara, left Ulta Beauty, and proceeded toward the Target entrance.
After falling, Hyer rolled over into a sitting position. While she felt the pavement to be wet, cold, and hard, she did not feel ice where she fell. While on the ground, Hyer noticed for the first time a Target employee laying ice melt on the sidewalk. The Target employee was later identified as Ryan Spalti, a cart attendant for the store. Spalti testified in a later deposition that Target usually hired a third party to lay ice melt, but the company was running late that day, so Target took the initiative to begin the process. Spalti's supervisor instructed him to start laying the ice melt because there was freezing rain in the forecast. The width of the sidewalk required Spalti to do multiple laps in order to fully cover the area. He began the process on the east side of the Target entrance on the opposite side of where Hyer fell. Spalti believed that he had covered the area where Hyer fell as he recalled seeing purple ice melt in the area she was sitting. Later in his testimony, however, he expressed that he was not totally sure whether that area had been previously covered. He did not see Hyer fall but turned around to see her sitting on the ground. Spalti offered Hyer assistance but she refused so he continued to lay the ice melt. Spalti testified that he did not find the sidewalk to be slippery as he applied the ice melt. He further testified that there was no need to set out cones or warning signs as it would be common knowledge that if freezing rain were falling, the ground could be icy.
Following her fall, Hyer was able to get up to her feet and proceed into Target where she purchased a few items, but she cut her visit short due to pain in her knee and hand. She noticed blood on her knee while at the checkout stand. Hyer stated she used her cart to aid her in walking to her car due to her pain but did not notice any issues with ice while walking on the sidewalk or in the parking lot back to her car.
On October 31, 2019, Hyer filed a complaint against Target alleging both negligence and premises liability. On September 10, 2020, Hyer filed an amended complaint adding TL Street Marketplace NE, LLC; TL Street Marketplace Main NE, LLC; TL Street Marketplace Land NE, LLC; and TL Street Marketplace Pads, LLC (collectively TL Street), who owned the real estate upon which the fall had occurred, as defendants. Target and TL Street filed answers in which they denied negligence and premises liability, and alleged Hyer was contributorily negligent.
On March 11, 2022, Target and TL Street filed separate motions for summary judgment regarding Hyer's premises liability claim. A hearing on the motions was held June 21. In support of the motions, the deposition testimony of Hyer and Spalti were received as evidence as well as photographs of the sidewalk in front of the Target entrance. In an order dated September 7, the district court granted the motions for summary judgment. The district court first held that the alleged condition of the sidewalk, which Hyer characterizes as black ice, was an open and obvious risk that a reasonable person would have recognized using ordinary perception, intelligence, and judgment. In the alternative, the district court also found that even if the specific patch of black ice was not open and obvious, then summary judgment should still be granted because Hyer could not show that Target and TL Street created, knew of, or should have known of the alleged condition. The district court explained that Target and TL Street were "not required to see what cannot be seen" citing Cloonan v. Food-4-Less, 247 Neb. 677, 529 N.W.2d 759 (1995). The district court concluded there was no evidence that Target and TL Street had actual or constructive notice of the non-visible ice. Hyer filed a motion to alter or amend the judgment, which was denied by order of the court on September 29, 2022.
Hyer now appeals.
Hyer asserts the district court erred in entering summary judgment on the grounds that (1) the condition of the ice was open and obvious, and, in the alternative, (2) Target and TL Street did not have actual or constructive knowledge of the alleged condition of ice on the sidewalk.
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 those facts and that the moving party is entitled to judgment as a matter of law. Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023). 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. Id.
Generally speaking, premises liability cases fall into one of three categories: (1) those concerning the failure to protect lawful entrants from a dangerous condition on the land, (2) those concerning the failure to protect lawful entrants from a dangerous activity on the land, and (3) those concerning the failure to protect lawful entrants from the acts of a third person on the land. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020). The present case falls squarely in the first category, as Hyer argues she was injured by an unreasonably dangerous condition on the property.
A possessor of land is subject to liability for injury caused to a lawful visitor by a condition on the land if (1) the possessor either created the condition, knew of the condition, or by the existence of reasonable care would have discovered the condition; (2) the possessor should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the possessor should have expected that a lawful visitor either (a) would not discover or realize the danger or (b) would fail to protect himself or herself...
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