Packard v. Darveau

• Decision Date: 17 July 2014
• Docket Number: No. 13–3487.,13–3487.
• Citation: 759 F.3d 897
• Parties: Diane PACKARD, the Executrix of the Estate of Edward A. Packard, Plaintiff–Appellant v. Steven J. DARVEAU, Jr., Defendant Falls City Area Jaycees, a Nebraska Non–Profit Corporation, Defendant–Appellee CJS Entertainment, Inc., a Nebraska Corporation, Defendant Carico Farms Incorporated, a Nebraska Corporation; Cory Snethen, an individual, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

759 F.3d 897

Diane PACKARD, the Executrix of the Estate of Edward A. Packard, Plaintiff–Appellant

v.Steven J. DARVEAU, Jr., Defendant

Falls City Area Jaycees, a Nebraska Non–Profit Corporation, Defendant–Appellee

CJS Entertainment, Inc., a Nebraska Corporation, Defendant

Carico Farms Incorporated, a Nebraska Corporation; Cory Snethen, an individual, Defendants–Appellees.

No. 13–3487.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 15, 2014.

Filed: July 17, 2014.

Alan Joel Statman, argued, (Colleen M. Hegge, on the brief), Cincinnati, OH, for appellant.

Patrick S. Cooper, argued, Omaha, NE (Betty Egan, Richard C. Gordon, David J. Stubstad, Omaha, NE, Robert Shively, of Lincoln, NE, on the brief), for appellee.

Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

Edward Packard tragically died from a motorcycle collision with a pickup truck driven by Steven Darveau Jr. Darveau entered Edward Packard's lane of travel to turn left. Darveau planned to attend an event sponsored by the Falls City (Nebraska) Area Jaycees (Jaycees) on property owned by Carico Farms Incorporated (Carico Farms) and leased by Cory Snethen. Diane Packard, as executrix of her husband's estate (Packard), sued Darveau, the Jaycees, Carico Farms, and Snethen, alleging common law negligence claims and wrongful death actions under Neb.Rev.Stat. § 30–809(1). Snethen moved to dismiss for failure to state a claim, and the Jaycees and Carico Farms each moved for judgment on the pleadings. The district court ¹ granted all three motions and dismissed Darveau after Packard filed an agreed entry of voluntary dismissal of Darveau following a settlement. Packard appeals the dismissal of her claims against Snethen, the Jaycees, and Carico Farms. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUNDA. Facts²

On August 5, 2011, the Jaycees held their annual Demolition Derby and Tractor Pull (event) at the Falls City Jaycees Community Field (property) in Richardson County, Nebraska. The property is owned by Carico Farms and leased by Snethen.

The entrance gate to the event was near the intersection of South 703 Loop and U.S. Highway 73 (intersection), three miles south of Falls City, Nebraska. On the day of the event, the defendants knew traffic on Highway 73 would be heavier than usual because traffic was diverted to Highway 73 from Interstate 29, which was closed because of flooding and a bridge closure. Traffic would also be heavier because event patrons would travel on Highway 73 to attend the event. To enter the gate to the event, patrons traveling southbound on Highway 73 had to turn left, crossing the oncoming northbound lane of Highway 73 traffic. At previous Jaycees events, either county or local police assisted in traffic control. On the day of this accident, no one was directing the traffic or warning motorists of any danger at the intersection.

Around 6:58 p.m., Darveau was driving his pickup truck southbound on Highway 73. As Darveau approached the intersection, he turned left “with the intention of entering the [e]vent.” Edward Packard, who was riding his motorcycle northbound on Highway 73, struck the passenger side of Darveau's truck. Edward Packard was fatally injured.

B. Procedural History

Packard filed a third amended complaint against Darveau, the Jaycees, Carico Farms, and Snethen. Carico Farms and the Jaycees answered, but Snethen moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Jaycees then moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). In a single order, the district court granted Snethen's and the Jaycees' motions. Next, Carico Farms moved for judgment on the pleadings, which the district court also granted. Packard timely appealed the district court's judgment “[i]n accordance with the various orders dismissing [Packard's] claims against” Snethen, the Jaycees, and Carico Farms.

II. DISCUSSIONA. Standard of Review

“A pleading ... must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). “Whether a complaint states a cause of action is a question of law which we review on appeal de novo.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 936 (8th Cir.2012). “We review de novo a district court's grant of a motion for judgment on the pleadings, using the same standard as when we review the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir.2012).

B. Defendants' Duty to Edward Packard

In this diversity jurisdiction case, see28 U.S.C. § 1332(a)(1); Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), none of the parties contest the district court's application of Nebraska state law. Because there is no dispute, we also apply Nebraska substantive law. See Netherlands Ins. Co. v. Main St. Ingredients, LLC, 745 F.3d 909, 913 (8th Cir.2014).

In Nebraska, “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.” A.W. v. Lancaster Cnty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907, 913 (2010). “The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.” Id. “[A]n actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.” Id. at 915. “[A]s a general proposition, in negligence cases, the duty is always the same—to conform to the legal standard of reasonable conduct in light of the apparent risk.” Id.

“ ‘[W]hen the avoidance of ... harm requires a defendant to control the conduct of another person ... the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim.’ ” Danler v. Rosen Auto Leasing, Inc., 259 Neb. 130, 609 N.W.2d 27, 32 (2000) (alteration and second omission in original) (quoting Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765, 770 (1998)); see also Martensen v. Rejda Bros., Inc., 283 Neb. 279, 808 N.W.2d 855, 863 (2012) (“[S]pecial relationships can give rise to a duty.”).

Foreseeability is no longer considered as part of the duty determination in Nebraska. Nebraska “case law has, in the past, placed factual questions of foreseeability in the context of a legal duty when they are more appropriately decided by the finder of fact in the context of determining whether an alleged tort-feasor's duty to take reasonable care has been breached.” A.W., 784 N.W.2d at 911. The Nebraska Supreme Court “expressly h[e]ld that foreseeability is not a factor to be considered by courts when making determinations of duty.” Id. at 918.

On appeal, Packard does not allege either Darveau or Edward Packard had a “special relationship” with any of the appellees that would give rise to a duty in this case. Rather, Packard argues appellees had a duty to the public at large to “control ... the traffic at or around the Intersection.” So the question is whether Snethen, the Jaycees, or Carico Farms had a duty to exercise reasonable care to protect motorists on Highway 73, where Packard's complaint states the accident occurred.

“When deciding ... state law issue[s] ..., we are bound in our interpretations of Nebraska law by the decisions of the Nebraska Supreme Court.” Lindsay Mfg. Co. v. Hartford Acc. & Indem. Co., 118 F.3d 1263, 1267 (8th Cir.1997). The parties have not identified, nor have we found, any Nebraska case explicitly addressing whether any private party bears the duty to protect the general public on Nebraska's highways. “In a diversity case where a state court has not spoken on an issue,” we “should ‘predict what that court would decide if it were to address the issue.’ ” Life Investors Ins. Co. of Am. v. Fed. City Region, Inc., 687 F.3d 1117, 1122 (8th Cir.2012) (quoting Lindsay Mfg., 118 F.3d at 1267–68). “ ‘In making our prediction, we may consider relevant state precedent, analogous decisions, considered dicta, ... and any other reliable data.’ ” Lindsay Mfg., 118 F.3d at 1268 (omission in original) (quoting Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir.1995)). In making our determination in this case, we look to relevant Nebraska statutes, as well as persuasive case law from other jurisdictions.

1. Nebraska Statutes

Nebraska statutes place the responsibility of regulating traffic traveling on Nebraska highways squarely on state and local government actors. See, e.g., Neb.Rev.Stat. § 60–680(1)(b) (“Any local authority with respect to highways under its jurisdiction ... may ... [r]egulate traffic by means of peace officers or traffic control devices.”); Neb.Rev.Stat. § 39–1337 (“The construction, maintenance, protection, and control of the state highway system shall be under the authority and responsibility of the [D]epartment [of Roads].”); Neb.Rev.Stat. § 39–1402 (“General supervision and control of the public roads of each county is vested in the county board.”); Neb.Rev.Stat. § 60–6,121 (“Local authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdictions ... to regulate, warn, or guide traffic.”); Neb.Rev.Stat. § 60–6,127(1) (“No person shall place ... in view of any highway any unauthorized sign ... which implies the need or requirement of stopping or the existence of danger, which attempts to direct the movement of traffic, [or] which otherwise copies or resembles any lawful traffic control device.”); Neb.Rev.Stat. § 60–6,127(4) (“Every such prohibited sign ... is hereby declared to be a public nuisance.”). As the district court reasonably concluded, “these statutes indicate that the government bears the responsibility for controlling traffic at the Intersection, not Snethen and [the Jaycees].” Similarly, as to Carico...