Terry v. Metzger, S-89-1494
| Decision Date | 30 October 1992 |
| Docket Number | No. S-89-1494,S-89-1494 |
| Citation | 491 N.W.2d 50,241 Neb. 795 |
| Parties | David L. TERRY, Appellant, v. William R. METZGER, Trustee of the William A. Metzger Trust Estate and Personal Representative of the Estate of William A. Metzger, Deceased, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Negligence: Minors: Nuisances. The attractive nuisance doctrine is inapplicable
when the victim is old enough and experienced enough to appreciate and avoid the danger involved in the victim's activity.
2. Trespass: Words and Phrases. A trespasser is legally defined as one who enters or remains upon premises in the possession of another without the express or implied consent of the possessor.
3. Negligence: Trespass. The possessor of land owes a duty to trespassers to refrain from willfully and wantonly injuring them.
4. Negligence: Trespass. When the possessor of land takes steps to prevent trespassers from encountering a dangerous condition on the land, the possessor's conduct satisfies the duty he owes to the trespassers.
E. Terry Sibbernsen of Welsh & Sibbernsen, Omaha, for appellant.
John W. Iliff of Gross & Welch, P.C., Omaha, for appellee.
David L. Terry appeals the district court's grant of summary judgment in favor of William R. Metzger. Terry, who was injured in a cave-in while on the Metzger property, had sued Metzger, alleging that Metzger was negligent and liable under the attractive nuisance doctrine and as a possessor of land.
On August 16, 1985, Terry, then 19 years old, and four companions entered Metzger's land while on a camping trip. The five boys camped in an abandoned "cave" that had been created in the late 1800's as a sandstone quarry. During the night, a portion of the roof of the cave collapsed, killing three of the boys and injuring Terry.
Terry brought suit in Cass County District Court for personal injuries under theories of negligence and attractive nuisance. These same theories had been alleged in a companion case brought by the personal representative of the estates of Mark and Michael Wiles, two of the boys killed in the cave-in. In both the Wiles and Terry cases, the district court granted summary judgment for Metzger. The court, in both the Wiles and Terry cases, found that the attractive nuisance doctrine did not apply and that Metzger had not been "willfully and wantonly" negligent so as to warrant recovery by the plaintiffs. Both Terry and the Wiles' personal representative appealed.
Terry argues that the district court erred in (1) finding that the attractive nuisance doctrine did not apply to this case and (2) finding that no fact issue existed as to the willfulness and wantonness of Metzger's conduct.
In 1991, this court ruled on the Wiles appeal. Wiles v. Metzger, 238 Neb. 943, 473 N.W.2d 113 (1991). We held (1) that the attractive nuisance doctrine was inapplicable and that summary judgment was proper on that issue, (2) that the Wiles boys had been properly characterized as licensees by the district court and that Metzger had a duty not to injure them through willful and wanton negligence, and (3) that a question of fact existed as to whether Metzger had been willfully and wantonly negligent and that summary judgment on the issue of Metzger's liability as a possessor of land was improper.
Our decision in the Wiles case, because of its relation to the present case, provides guidance on many of the issues in Terry's appeal. In particular, our ruling in Wiles on the attractive nuisance issue applies to Terry's case. There are, however, discrepancies between the records in the two cases. These differences lead to a contrary result on the issue of Metzger's liability as a possessor of land. On that issue, as well as the attractive nuisance issue, we affirm the district court's grant of summary judgment.
With regard to the attractive nuisance issue, our decision in Wiles shows that the attractive nuisance doctrine does not apply to Terry. In Wiles we stated:
[A]pplicability of the attractive nuisance doctrine depends on various factors, such as a child's age, intelligence, knowledge experience, and ability or capacity to discover, observe, understand, or appreciate the nature of the danger or condition of or on a possessor's land and avoid the danger in the condition which causes the child's injury or death.
Wiles, 238 Neb. at 954-55, 473 N.W.2d at 121.
In Wiles, we held as a matter of law that the attractive nuisance doctrine did not apply to the Wiles boys (one of whom was 12 years old), because they were old enough and experienced enough to appreciate and avoid the danger involved in camping in the cave. Clearly, the same holds true for Terry, who was 19 years old at the time and spent much of his time engaged in outdoor pursuits. The district court correctly held that the attractive nuisance doctrine did not apply to Terry and that summary judgment was proper on this issue.
Summary judgment is properly granted only when the movant satisfactorily shows that no genuine issue of material fact appears from the pleadings, admissions, depositions, affidavits, and stipulations in the record or from the reasonable inferences deducible from that evidence and that the movant is entitled to judgment as a matter of law. Once the movant has met this burden, the nonmoving party has the burden of showing that an issue of material fact exists that prevents judgment as a matter of law. Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d 803 (1992); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992).
On appeal, this court reviews the evidence in a light most favorable to the party against whom summary judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Spittler, supra; Barelmann, supra. We must therefore examine the undisputed facts, and the reasonable inferences to be drawn from those facts, to determine whether Metzger's liability as an owner of land is precluded as a matter of law.
The district court determined that Terry was a trespasser. This finding was not assigned as error, and therefore, we will only reverse it if it constitutes plain error. See In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992). The district court's finding comports with the definition in Malolepszy v. Central Market, 143 Neb. 356, 360, 9 N.W.2d 474, 477 (1943), which states: " 'The word "trespasser" is legally defined as a person who enters or remains upon premises in possession of another without a privilege to do so created by the possessor's consent, either express or implied.' "
The record indicates that Terry never received permission from Metzger to enter the property where the cave was located. In addition, there was uncontroverted evidence that Metzger had placed "no trespassing" signs on the property on several occasions--thus negating any implied consent. In light of these facts, the district court's categorization of Terry as a trespasser was not clearly erroneous.
Because Terry was a trespasser, Metzger owed him a very limited duty with regard to his safety while on the property. Metzger was only obliged to refrain from willfully and wantonly injuring Terry. See, Bosiljevac v. Ready Mixed Concrete Co., 182 Neb. 199, 153 N.W.2d 864 (1967); Malolepszy, supra; Haley v. Deer, 135 Neb. 459, 282 N.W. 389 (1938). A review of the record shows that no material issue of fact existed as to the willfulness and wantonness of Metzger's conduct.
The requirements for "willful and wanton" conduct are well established:
In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or the omission to act, and a constructive intention as to the consequences....
To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of ...
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