Wiles v. Metzger, s. 89-165

Citation238 Neb. 943,473 N.W.2d 113
Decision Date23 August 1991
Docket Number89-166,Nos. 89-165,s. 89-165
CourtSupreme Court of Nebraska
PartiesFred E. WILES, Personal Representative of the Estate of Mark A. Wiles, Deceased, 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. Fred E. WILES, Personal Representative of the Estate of Michael W. Wiles, Deceased, 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.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is 2. 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, if the evidence presented for summary judgment remains uncontroverted.

entitled to judgment as a matter of law. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives the party the benefit of all reasonable inferences deducible from the evidence.

3. Summary Judgment: Proof. After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.

4. Negligence: Liability: Minors: Nuisances. In Nebraska, the attractive nuisance doctrine has developed to mitigate the severity of common-law liability based on possession of real estate insofar as premises liability applies to young children.

5. Negligence: Minors: Nuisances. Underlying the attractive nuisance doctrine is recognition of a young child's inability to protect himself in a situation encountered through a child's attraction to a dangerous condition and the child's immaturity and lack of judgment for appreciation of danger involved in the condition encountered.

6. Negligence: Liability: Minors: Nuisances. Under the attractive nuisance doctrine, a possessor of premises may be liable for a young child's injury or death if the possessor fails to exercise reasonable care to eliminate the danger from the premises or otherwise protect young children from the dangerous condition of the premises.

7. Negligence: Minors: Nuisances: Proof. For applicability of the attractive nuisance doctrine to a negligence action, a plaintiff has the burden to show that as the result of the child's youth, the child involved in the action failed to discover a dangerous condition on the possessor's land or realize the risk from the dangerous condition.

8. Negligence: Minors: Nuisances. If a child understood and appreciated the dangerous condition of or on the possessor's land, the attractive nuisance doctrine is inapplicable to a negligence action for a child's bodily injury or death.

9. Negligence: Minors: Proof. A child's realization of the risk from a dangerous condition, in or on a possessor's land, may be established by circumstantial evidence.

10. Circumstantial Evidence: Words and Phrases. "Circumstantial evidence" means facts or circumstances, proved or known, from which existence or nonexistence of another fact may be logically inferred or deduced through a rational process.

11. Negligence: Minors: Nuisances. A child's age in connection with applicability of the attractive nuisance doctrine is important only as a factor in determining whether a child discovers the condition which proves to be dangerous and realizes, or can be expected to realize, the risk from the dangerous condition on another's land.

12. Negligence: Minors: Nuisances. Applicability 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.

13. Licensee: Words and Phrases. A licensee may be defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor.

David V. Chebatoris, of Clements, Svoboda & Chebatoris, Weeping Water, for appellant.

Thomas A. Otepka and John W. Iliff, of Gross & Welch, Omaha, P.C., for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Mark A. and Michael W. Wiles died when the ceiling of a cave in which they were camping collapsed on the boys. Fred E. Wiles, personal representative of the estates of Mark and Michael Wiles, filed wrongful death actions against the estates of William A. Metzger, the owner who possessed the real estate where the cave was located. The district court for Cass County granted summary judgments for Metzger, and Wiles appeals.

FACTUAL BACKGROUND

The cave on the Metzger property was located in the side of a sandstone hill situated in a remote wooded area. Trees grew on the hill above the cave's entrance and on the slope of the hill leading to the cave's entrance, an opening approximately 12 feet wide and 18 feet high in the concave side of the hill. One approaching the cave's entrance would climb a gentle slope at the base of the hill. From the mouth of the cave there was a slight incline descending to an interior plateau in the cave's main chamber several feet within the hill, although part of the chamber was still visible from the cave's opening. From the main chamber, tunnels, some as much as 100 yards long, led further into the hill. These tunnels were apparently used in a former quarrying operation for extraction of quartz pebble conglomerate from the "Cretaceous Age Dakota Sandstone" composition of the earth. Mining operations inside the hill had ceased very many years ago. There were no braces or shoring evident from the prior mining operations, and there were no present braces or shoring for any aspect of the cave or tunnels.

As early as 1983, Mark Wiles and his friends camped in the cave on the Metzger property and enjoyed exploring the cave. On one trip to the cave, Mark took his brother, Michael, and showed Michael around the cave. Other people had also visited the cave and left their "writings on the wall." Metzgers were aware that in some areas of the cave, the ceiling collapsed from time to time. One of the Metzgers had even considered sealing the cave. However, the cave remained open, since Metzgers' horses used the cave to keep cool in the summer. There was some fencing on the perimeter of the premises where the cave was located.

On the evening of August 16, 1985, Mark, who had visited the Metzger cave at least three times since 1983, decided to take his brother and some friends, Douglas Miller, David Terry, and David Funkhouser, on an overnight camping trip to the cave. Mark, 18 years of age, had been an average student and was a high school graduate who was undecided about his future. He went hunting and fishing and "enjoyed the outdoors." Mark was interested in mechanics, worked on his car, and had summer farm jobs while he was trying to decide whether he would enter the military service or pursue some type of vocational training. Michael, who was 12 years of age and had previously visited the Metzger cave, had just completed seventh grade and was scheduled to return to school in the fall. Michael participated in athletics and, like Mark, was an average student who enjoyed the outdoors. Neither Mark nor Michael had any disability and each had the average intelligence and general life experiences of boys their own age.

Mark, Michael, and their friends collected their camping gear and drove on a gravel road along the north side of the Metzger property. After parking the car, the boys walked south across a field toward the wooded area where the cave was located. On arrival at the cave, the boys built a small fire in the main chamber of the cave, ate, and bedded down for the night. Ten minutes later, the cave ceiling collapsed, crushing and killing Mark, Michael, and David Funkhouser. Miller and Terry dashed from the cave and ran approximately a mile to the Omaha Fish and Wildlife Reserve headquarters north of the Metzger Responding to the summons for assistance shortly after midnight, Deputy Sheriff Joseph Baldassano drove his cruiser to the wildlife headquarters, picked up Miller, and proceeded west on the gravel road between the wildlife station and the Metzger property. Baldassano drove to the end of the road, parked his cruiser, and, with Miller, crossed some railroad tracks, crawled over a barbed wire fence, and began running toward the Metzger cave, where Baldassano found the bodies of the three boys buried in the cave-in. Although Baldassano never saw the boys' car on his arrival at the scene, he had parked his cruiser at a location different from the site where the boys had parked their car, or, as Baldassano described the locations, the boys had parked their car in "a different location than where I entered" the field leading to the Metzger cave. That night, Baldassano, in the course of moving from his cruiser to the cave, never noticed any "keep out" or "no trespassing" signs, although one of the Metzgers later told Baldassano that people ignored the signs posted at the Metzger property. Later, Baldassano recalled a newspaper photograph depicting an...

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