Sundermann v. Hy-Vee, Inc.

Decision Date14 August 2020
Docket NumberNo. S-18-250.,S-18-250.
Citation306 Neb. 749,947 N.W.2d 492
Parties Rita SUNDERMANN, appellant, v. HY-VEE, INC., and Sweetbriar II, LLC, appellees.
CourtNebraska Supreme Court

306 Neb. 749
947 N.W.2d 492

Rita SUNDERMANN, appellant,
v.
HY-VEE, INC., and Sweetbriar II, LLC, appellees.

No. S-18-250.

Supreme Court of Nebraska.

Filed August 14, 2020


Matthew A. Lathrop, of Law Offices of Matthew A. Lathrop, P.C., L.L.O., and Kathy Pate Knickrehm, Lincoln, for appellant.

Raymond E. Walden and Michael T. Gibbons, Omaha, of Woodke & Gibbons, P.C., L.L.O., for appellees.

Jason Ausman, of Ausman Law Firm, P.C., L.L.O., Omaha, and Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus curiae Nebraska Association of Trial Attorneys.

Brian J. Fahey and Robert W. Futhey, of Fraser Stryker, Omaha, and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., Omaha, for amicus curiae The Nebraska Defense Counsel Association.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

947 N.W.2d 496
306 Neb. 751

This is a personal injury action arising from an accident between a pickup truck and a pedestrian in a convenience store parking lot. The pedestrian sued the convenience store, alleging the accident was caused by a dangerous condition on the land. The district court granted summary judgment in favor of the convenience store, finding the driver's negligence was not reasonably foreseeable. The Nebraska Court of Appeals reversed, and remanded for further proceedings.1 We granted further review, and although our reasoning differs from that relied upon by the district court, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the judgment of the district court.

947 N.W.2d 497
306 Neb. 752

I. BACKGROUND

On March 2, 2012, as it was becoming dusk, Rita Sundermann was struck by a pickup truck while she was inflating her car's tires at a Hy-Vee, Inc., gas station and convenience store in Omaha, Nebraska. Because the layout of the property is central to the issues on appeal, we include an aerial photograph received as an exhibit, and we describe the property in some detail.

1. PROPERTY

The relevant design features of the property are not disputed. The front of the convenience store faces east, and there are marked parking stalls along the entire store front. There are two access drives into and out of the property, but the one at issue in this case is located just north of the convenience store. That access drive is 24 feet wide and has two lanes which the parties’ experts referred to as "drive aisles." One drive aisle accommodates eastbound traffic entering the convenience store, and the other accommodates westbound traffic leaving the property. Perpendicular to the westbound drive aisle are six marked parking stalls. Convenience store employees are asked to park in the stalls along the drive aisle rather than the stalls in front of the store.

306 Neb. 753

At the time of the accident, a tire inflation station was located along the sidewalk on the northeast corner of the convenience store. It consisted of a free standing air compressor cabinet on a pole with a coiling air hose that, when fully extended, reached to the northernmost parking stalls in front of the store and to portions of the eastbound drive aisle. There were no signs or curb markings directing patrons where to park, or not to park, when using the air compressor. The front of the air compressor faced east and had a large "START" button and a decal reading "FREE AIR."

Prior to the accident, Hy-Vee was aware that patrons parked both in front of the store and in the eastbound drive aisle to use the air compressor. But there was no evidence of prior accidents involving vehicles and patrons using the air compressor, nor was there evidence that Hy-Vee had received safety complaints involving the location of the air compressor.

2. ACCIDENT

After fueling her car at one of the Hy-Vee fuel pumps, Sundermann parked her car along the curb facing westbound in the eastbound drive aisle, near the air compressor, to inflate her tires. She stood curbside and used the air compressor to fill both tires on the driver's side of the car. Then, she draped the air hose over the

947 N.W.2d 498

hood and walked around the car to inflate the tires on the passenger side. As she was walking, she looked around for approaching traffic and backing vehicles. Seeing none, she crouched down in the drive aisle to inflate the car's front right tire. While doing so, she was facing her car, but still watching the traffic around her. Sundermann was not sure how long she was crouched inflating the tire, but she recalled one car pulling into the lot and driving slowly around her. As she remained crouched, she heard a loud engine start behind her and she stood up. Sundermann did not recall if she stood up as soon as she heard the engine, but she was not able to turn around or get out of the way before she was struck by a pickup truck being operated by Robert Swanson. Sundermann was seriously injured in the collision

306 Neb. 754

and required significant medical treatment, including placement of a metal rod in her left leg.

Sundermann had used the Hy-Vee air compressor on prior occasions, and when doing so, she had parked her car in a similar manner in the eastbound drive aisle. She also had seen other cars park in the drive aisle to use the air compressor. Sundermann was aware of the dangers posed by parking in the drive aisle, and on the day of the accident, she knew she "was in a dangerous position." She was "very aware" of the vehicles around her, and while she filled her tires, she was looking and listening for vehicles.

Sundermann testified she knew there were marked parking stalls along the front of the store where she could have parked to use the air compressor, but she explained that on the evening of the accident, those stalls were occupied. She also testified that in her opinion, parking in the marked stalls was no safer than parking in the drive aisle, because crouching in the stalls still presented the danger of getting hit by a car pulling into or out of an adjacent stall. Sundermann testified that even after the accident, she parked her car in the drive aisle to use the Hy-Vee air compressor, but she positioned her car so she could remain curbside while inflating her tires.

Swanson, the driver of the pickup truck that struck Sundermann, had worked at the convenience store since 2009. He had seen patrons using the air compressor both while parked in the drive aisle and while parked in the first stall along the front of the convenience store. But before the accident with Sundermann, Swanson had not heard of anyone being injured while using the air compressor in the drive aisle.

Swanson testified the Hy-Vee access drive was "very, very busy." On prior occasions, while he was backing from the parking stalls along the access drive, he had encountered a car parked in the eastbound drive aisle using the air compressor. In those instances, he felt he had sufficient room to back out so long as he "cut [the] tires real hard," but his usual practice was to stop and wait for the car to leave before he finished backing.

306 Neb. 755

On the day of the accident, Swanson left work around 6 p.m. and walked to his pickup truck, which was parked in one of the marked stalls adjacent to the westbound drive aisle. As he walked past the air compressor, he did not see a car parked in the eastbound drive aisle. After Swanson got into his pickup truck and started the motor, he remained parked with the engine running while several vehicles passed behind him in the drive aisle. He then put the pickup truck in reverse and started backing out of the stall. After moving about a foot, he noticed Sundermann's car parked behind him in the eastbound drive aisle. He "went to hit the brake," intending to stop and wait for the

947 N.W.2d 499

car to move out of the way, but his foot slipped onto the gas pedal instead, causing his pickup truck to accelerate backward and strike Sundermann. Swanson's rear tires left acceleration marks on the pavement. Swanson testified that but for his pedal error, he would have had plenty of room to stop and would not have hit Sundermann.

After the accident, Swanson admitted his negligence. He reached a settlement agreement with Sundermann and is no longer a party to this action.

3. SUNDERMANN'S COMPLAINT AGAINST HY-VEE

Sundermann sued Hy-Vee and Sweetbriar II, LLC (Sweetbriar), for negligence. Her amended complaint alleged that Hy-Vee owned and operated the gas station and convenience store and that Sweetbriar owned the real property on which it was situated. Sundermann alleged, summarized, that the location of the air compressor was a dangerous condition on the land because it was placed in an area of high vehicular and pedestrian conflict, there were no barriers or signs to prevent patrons from stopping in the access drive to use the air...

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