Latzel v. Bartek
| Decision Date | 02 May 2014 |
| Docket Number | No. S–13–053,S–13–053 |
| Citation | 846 N.W.2d 153,288 Neb. 1 |
| Parties | Amanda Latzel, as Personal Representative of the Estate of Thomas Latzel, Deceased, and herself, individually, Appellant, v. Ronald Bartek et al., Appellees. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.
Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O., for appellant.
Gary J. Nedved and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellee Ronald Bartek.
Robert W. Shively, Jr., and Emily R. Cameron, of Shively & Lannin, P.C., L.L.O., for appellee Doug Bartek.
Brian S. Kruse, of Rembolt Ludtke, L.L.P., for amicus curiae Nebraska Agricultural Legal Foundation.
1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing 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.
2. 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.
3. Summary Judgment. Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.
4. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.
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 makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgmentif the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of facts that prevents judgment as a matter of law shifts to the party opposing the motion.
7. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.
8. Negligence: Proof. In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.
9. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.
10. Negligence. It is for the fact finder in a negligence case to determine, on the facts of each individual case, whether or not the evidence establishes a breach of that duty.
11. Negligence: Proximate Cause: Proof. To establish proximate cause, the plaintiff must meet three basic requirements. First, without the negligent action, the injury would not have occurred, commonly known as the “but for” rule. Second, the injury was a natural and probable result of the negligence. Third, there was no efficient intervening cause.
12. Negligence: Proximate Cause: Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the causal connection between the original conduct and the injury. The causal connection is severed when (1) the negligent actions of a third party intervene, (2) the third party had full control of the situation, (3) the third party's negligence could not have been anticipated by the defendant, and (4) the third party's negligence directly resulted in injury to the plaintiff.
13. Negligence: Proximate Cause: Tort-feasors: Liability. The doctrine that an intervening act cuts off a tort-feasor's liability comes into play only when the intervening cause is not foreseeable. But if a third party's negligence is reasonably foreseeable, then the third party's negligence is not an efficient intervening cause as a matter of law.
Thomas Latzel died as a result of catastrophic injuries he sustained in an automobile accident between drivers Daniel J. Vanekelenburg and Patrick L. Gaughen that occurred on October 6, 2007, at the unmarked intersection of County Road 17 and County Road T in Saunders County, Nebraska. Thomas was a passenger in Vanekelenburg's vehicle at the time of the accident. Landowners and brothers, Ronald Bartek and Doug Bartek, owned the land to the southwest of the corner of the intersection, and they had planted corn on that land up to the ditch alongside the road. At the time of the accident, the corn had grown in excess of 7 feet high and obstructed the view of the intersection to some extent.
While Thomas was still alive, his wife, Amanda Latzel, brought this negligence action on behalf of herself and on behalf of Thomas against the drivers and the landowners. The district court for Lancaster County determined that the negligence of the drivers constituted an intervening cause as a matter of law and that therefore, Ronald and Doug were not liable. The district court granted the joint motion for summary judgment filed by the landowners, Ronald and Doug. After the remainder of the claims in the case were disposed of, Amanda appealed from the district court's order granting summary judgment in favor of Ronald and Doug. We determine that because reasonable minds could not differ, the actions of the drivers, Vanekelenburg and Gaughen, constituted an efficient intervening cause, which severed the causal connection between the landowners' conduct and Thomas' injuries. Thus, the district court did not err when it granted summary judgment in favor of the landowners, and we therefore affirm.
This case arises out of an automobile accident that occurred on October 6, 2007, at the unmarked intersection of County Road 17 and County Road T in Saunders County. Both County Road 17 and County Road T are gravel roads.
On the day of the accident, Thomas and two other people were passengers in a pickup truck driven and owned by Vanekelenburg. Vanekelenburg was driving his pickup truck eastbound on County Road T when it collided with another pickup truck driven and owned by Gaughen, who was traveling northbound on County Road 17. The intersection of County Road 17 and County Road T was unmarked.
The land to the southwest of the intersection was owned by brothers Ronald and Doug. Ronald and Doug had planted corn to the southwest of the corner of the intersection up to the ditch that runs alongside the road. The record indicates that at the time of the collision, the corn to the southwest of the corner of the intersection had not been harvested and had grown in excess of 7 feet tall.
Thomas was catastrophically injured as a result of the accident. He suffered permanent traumatic injuries, which ultimately led to his death 3 years later. Thomas' wife, Amanda, was appointed by the district court as the guardian and conservator for Thomas, who was incapacitated due to his injuries resulting from the collision.
On September 4, 2009, while Thomas was still living, Amanda filed this negligence action on behalf of herself and Thomas against Ronald, Doug, Vanekelenburg, and Gaughen. With respect to the claim on behalf of Thomas against the landowners, the complaint alleged that Ronald and Doug were negligent by planting the corn too close to the roadside, choosing to plant corn near the southwest corner of the intersection of County Road 17 and County Road T rather than other crops less likely to obstruct motorists' vision, and failing to use reasonable and proper care in the maintenance of their land. The complaint further alleged that Ronald and Doug were negligent pursuant to Neb.Rev.Stat. § 39–308 (Reissue 2008). Section 39–308 provides:
It shall be the duty of the owner of real property to remove from such property any tree, plant, shrub, or other obstruction, or part thereof, which, by obstructing the view of any driver, constitutes a traffic hazard. When the Department of Roads or any local authority determines upon the basis of engineering and traffic investigation that such a traffic hazard exists, it shall notify the owner and order that the hazard be removed within ten days. Failure of the owner to remove such traffic hazard within ten days shall constitute a Class V misdemeanor, and every day such owner fails to remove it shall be a separate offense.
With respect to Amanda's individual claim, the complaint alleges that as a result of the negligence of the landowners and drivers, Amanda had incurred compensable damages, including loss of consortium, loss of services, and loss of past wages.
On June 30, 2010, by order of the district court, Amanda's case was consolidated with another case that had been brought against the drivers, Vanekelenburg and Gaughen, by the estate of another passenger in Vanekelenburg's pickup truck at the time of the accident.
On August 5, 2010, Ronald and Doug filed a joint motion for summary judgment. A hearing was held on the joint motion on October 12. At the hearing, Ronald and Doug jointly offered and the court received 14 exhibits, which were primarily photographs of the accident and depositions, including their own and those of the drivers. Amanda offered and the court received two exhibits, which were affidavits.
In their depositions, both Vanekelenburg and Gaughen stated that they were experienced rural drivers. Vanekelenburg testified that he had driven through unmarked intersections over the years and that when approaching such an intersection, he would slow down and look both ways before proceeding through the intersection. Vanekelenburg further testified that he understood it...
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