Tolbert v. Jamison

• Decision Date: 11 March 2011
• Docket Number: No. S–09–687.,S–09–687.
• Citation: 794 N.W.2d 877,281 Neb. 206
• Parties: Alice TOLBERT et al., appellants,v.Mr. JAMISON and Mrs. Jamison, doing business as Jamison Realty, appellees.
• Court: Nebraska Supreme Court

281 Neb. 206

794 N.W.2d 877

Alice TOLBERT et al., appellants,

v.Mr. JAMISON and Mrs. Jamison, doing business as Jamison Realty, appellees.

No. S–09–687.

Supreme Court of Nebraska.

March 11, 2011.

Syllabus by the Court

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, giving that party the benefit of all reasonable inferences deducible from the evidence.

3. 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.

4. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

5. Negligence. Whether a duty exists is a policy determination. Duty rules are meant to serve as broadly applicable guidelines for public behavior, i.e., rules of law applicable to a category of cases.

6. Landlord and Tenant: Statutes: Ordinances. A statute or ordinance may impose a duty on a landlord.

7. 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.

8. Summary Judgment: Proof. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial.

9. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.

10. Appeal and Error. Appellate courts do not consider arguments and theories raised for the first time on appeal.

11. Landlord and Tenant: Liability. As a general rule, in the absence of statute, covenant, fraud, or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property.

12. Landlord and Tenant: Liability. To hold an owner of leased premises liable for injuries suffered as a result of the condition of the leased premises, it must appear that the landlord had a right to present possession or present control or dominion thereover.

13. Landlord and Tenant: Contracts. In the absence of an express agreement to the contrary, a lessor does not warrant the fitness or safety of the premises and the lessee takes them as he or she finds them.

Sheri E. Long Cotton for appellants.Daniel P. Chesire, Cathy S. Trent–Vilim, and Maria T. Lighthall, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees.HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

NATURE OF CASE

The plaintiffs-appellants in this case are Alice Tolbert and Chaz Tolbert, individually and as personal representatives of the estates of Victoria Lynn Tolbert Burgess (Victoria) and Tisha Cassandra Tolbert (Tisha), and John Tolbert, as guardian ad litem on behalf of Rictavianna Tolbert, a minor child who is the daughter of Tisha. They are referred to collectively as “the Tolberts” herein. The Tolberts were all related to Victoria and Tisha, a mother and daughter who were both killed in a house fire. Clarence and Phyllis Jamison, doing business as Jamison Realty (the Jamisons), owned the house in which Victoria and Tisha were tenants.

The Tolberts filed an action against the Jamisons and the Omaha Housing Authority (OHA), asserting, inter alia, that the Jamisons were negligent for failing to provide adequate fire safety features, including adequate escape routes from the rental house in the event of a fire. The district court for Douglas County granted summary judgment in favor of the Jamisons and dismissed the action after determining that because the Jamisons did not violate any regulations or codes, they met their duty, and that, even if the Jamisons were negligent, the actions of an arsonist who started the fire were not foreseeable and were an intervening cause of the fire and of Victoria's and Tisha's deaths. The Tolberts appealed, claiming that the district court erred when it failed to apply “notice pleading” principles and the law regarding premises liability. They also complained of certain evidentiary rulings. The Nebraska Court of Appeals affirmed the decision of the district court, based on the intervening cause aspect of the ruling. We granted the Tolberts' petition for further review. Albeit for reasons other than those articulated by the Court of Appeals, we affirm.

STATEMENT OF FACTS

Victoria and Tisha lived in “Section 8” federally subsidized housing owned by the Jamisons. The property at issue is a two-story, single-family dwelling. Victoria and Tisha died in April 2003 as the result of a house fire that was intentionally set by Decabooter Williams. See State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005). Another occupant of the house escaped through a window. See id.

The Tolberts filed this negligence action against the Jamisons, alleging that they were negligent in failing to provide appropriate ingress and egress, working fire alarms, and fire extinguishers or other extinguishing equipment “as required by the laws of the State of Nebraska, the U.S. Department of Housing governing participants in the Section 8 program and the City of Omaha Minimum Dwelling Codes.” The Tolberts alleged, inter alia, that the house had one door for ingress and egress and that the fire started by Williams blocked access to the one door.

The Tolberts also named OHA as a defendant. In 2006, the district court sustained OHA's motion to dismiss the suit against OHA. The court found two reasons to dismiss the suit against OHA: (1) Federal law bars a private right of action against a public housing authority administering Section 8 housing for failure to enforce housing quality standards, and (2) the actions of the arsonist, Williams, were an efficient intervening cause which precluded a finding that any negligence on the part of OHA proximately caused Victoria's and Tisha's deaths. The court certified the order sustaining OHA's motion to dismiss as a final judgment as to all claims against OHA, pursuant to Neb.Rev.Stat. § 25–1315 (Reissue 2008). The Tolberts appealed the dismissal of OHA to the Court of Appeals. The Court of Appeals affirmed the dismissal on the basis that federal law barred the action. Because such conclusion resolved the appeal, the Court of Appeals did not consider other rationale upon which dismissal of OHA had been based. Tolbert v. Omaha Housing Authority, 16 Neb.App. 618, 747 N.W.2d 452 (2008). We denied the Tolberts' petition for further review.

After the cause resumed in the district court, the Jamisons moved for summary judgment. The district court conducted an evidentiary hearing. The Jamisons contended they were not negligent. The Jamisons relied in part on various regulations and codes regarding fire safety requirements with which they had complied and which they asserted demonstrated they had met their duty and the standard of care. The district court made certain evidentiary rulings not relevant to our resolution of this case.

In an order filed on April 15, 2009, the court found that there was no evidence that the Jamisons failed to comply with federal Section 8 housing requirements, state law, or city of Omaha building codes with regard to ingress and egress and other fire safety issues. The court further found that Williams' actions in starting the fire “were not foreseeable to the Jamisons and presented an intervening cause which breaks the causal chain of any negligence which may be attributable to the Jamisons” and that Williams' actions were “the proximate cause of the injuries to the Tolberts.” The law generally defines “efficient intervening cause” as new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the casual connection between the original conduct and the injury. Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009). The court sustained the Jamisons' motion for summary judgment.

The Tolberts appealed to the Court of Appeals. In a memorandum opinion filed March 30, 2010, the Court of Appeals summarized the Tolberts' assignments of error as follows: The trial court erred in (1) determining that Williams' actions constituted an efficient intervening cause, cutting off the Jamisons' liability for any negligence; (2) failing to apply notice pleading principles to the Tolberts' complaint and failing to consider premises liability theory; and (3) sustaining the Jamisons' objections to the Tolberts' exhibits and in overruling the Tolberts' objections to the Jamisons' exhibits. In their brief filed in the Court of Appeals, the Tolberts claimed for the first time that the essence of their negligence action was that the Jamisons were liable under the common law regarding premises liability and specifically as such law applied to conditions on the land. The focus of the Tolberts' claim on appeal is that the Jamisons violated their duty to the Tolberts when the Jamisons failed to provide a second door for egress in the event of a fire.

The Court of...