Susman v. Kearney Towing & Repair Ctr. , 310 Neb. 910 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/25/2022 09:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
    Cite as 
    310 Neb. 910
    Rysta Leona Susman et al., appellants, v.
    Kearney Towing & Repair Center, Inc.,
    a Nebraska corporation, appellee.
    ___ N.W.2d ___
    Filed February 11, 2022.   No. S-21-277.
    1. Summary Judgment: Appeal and Error. An appellate court affirms a
    lower court’s grant of summary judgment if the pleadings and admitted
    evidence show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts and that
    the moving party is entitled to judgment as a matter of law.
    2. ____: ____. 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, and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3. Limitations of Actions: Statutes. Limitations are created by statute and
    derive their authority therefrom.
    4. Limitations of Actions. The essential attribute of a statute of limitations
    is that it accords and limits a reasonable time within which a suit may
    be brought upon causes of action which it affects.
    5. Limitations of Actions: Presumptions. The statute of limitations is
    enacted upon the presumption that one having a well-founded claim will
    not delay enforcing it beyond a reasonable time if that person has the
    right to proceed.
    6. ____. The mischief which statutes of limitations are intended to remedy
    is the general inconvenience resulting from delay in the assertion of a
    legal right which is practicable to assert.
    7. Limitations of Actions: Torts. 
    Neb. Rev. Stat. § 25-207
     (Reissue 2016)
    provides that a tort action, described as an action for an injury to the
    rights of the plaintiff, not arising on contract, can only be brought within
    4 years.
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    8. Limitations of Actions. A cause of action accrues and the statute of
    limitations begins to run when the aggrieved party has the right to insti-
    tute and maintain a suit.
    9. ____. Until the plaintiff has a right of action, the statute of limitations
    does not run and the plaintiff will have the full statutory period once the
    right of action comes into being.
    10. Actions. A cause of action cannot accrue before the occurrence of all the
    elements that constitute a defendant’s violation of a plaintiff’s judicially
    protected right.
    11. Torts: Liability: Warranty. Tort liability is not based upon representa-
    tions or warranties.
    12. Torts: Liability: Negligence. Tort liability is based on a duty imposed
    by the law to exercise that degree of care as would be exercised by a
    reasonable person under the circumstances.
    13. Torts: Liability: Negligence: Probable Cause. It suffices to charge a
    person with liability for a negligent act if some injury to another ought
    reasonably to have been foreseen as the probable result thereof by the
    ordinarily intelligent and prudent person under the same circumstances.
    14. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary
    negligence must prove all four essential elements of the claim: the
    defendant’s duty not to injure the plaintiff, a breach of that duty, proxi-
    mate causation, and damages.
    15. Negligence: Proof. A cause of action for negligence depends not only
    upon the defendant’s breach of duty to exercise care to avoid injury to
    the plaintiff, but also depends upon a showing that the injury suffered
    by the plaintiff was caused by the alleged wrongful act or omission of
    the defendant.
    16. Negligence. A cause of action for negligence does not consist simply of
    negligence or duty or injury standing alone.
    17. Justiciable Issues. A party is not aggrieved and cannot institute and
    maintain suit if any element of that party’s claim depends upon abstract
    questions or issues that might arise in a hypothetical or fictitious situa-
    tion or setting and may never come to pass.
    18. ____. The alleged injury to the plaintiff cannot be merely hypothetical;
    there must be an injury in fact in both a qualitative and temporal sense.
    19. ____. To be an aggrieved party, the party must be able to allege an
    injury to itself that is distinct and palpable, as opposed to merely
    abstract, and the alleged harm must be actual or imminent, not conjec-
    tural or hypothetical.
    20. Actions: Proof. The litigant must show that the injury can be fairly
    traced to the challenged action and is likely to be redressed by a favor-
    able decision.
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    310 Nebraska Reports
    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
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    310 Neb. 910
    21. Limitations of Actions: Negligence. A plaintiff is not required to antici-
    pate an injury from the probable negligence of someone else. The statute
    of limitations does not run until the injury has been actually received.
    22. Negligence. Plaintiffs in an ordinary negligence action generally cannot
    rest their claims on the legal rights or interests of third parties.
    Appeal from the District Court for Buffalo County:
    John H. Marsh, Judge. Reversed and remanded for further
    proceedings.
    Michael F. Coyle and Karson S. Kampfe, of Fraser Stryker,
    P.C., L.L.O., for appellants.
    Kristina J. Kamler and Stephen G. Olson II, of Engles,
    Ketcham, Olson & Keith, P.C., for appellee.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Freudenberg, J.
    INTRODUCTION
    A vehicle owned by a construction company was involved
    in an accident that occurred when a rear tire of the vehicle
    suffered a tread separation. Employees of the construction
    company that were passengers of the vehicle at the time of the
    accident were injured. The employees brought a suit against
    the tire repair company that mounted the tire for the construc-
    tion company, alleging ordinary negligence. Their action was
    brought more than 4 years after the installation of the tire but
    within 4 years of the accident. The tire repair company filed
    a motion for summary judgment based on the 4-year statute
    of limitations, which was initially denied but was ultimately
    granted upon a motion to reconsider. Plaintiffs appeal.
    BACKGROUND
    Rysta Leona Susman, both individually and as natural
    mother of Shane Allen Loveland, a protected person; Loveland,
    by and through his temporary guardian and conservator, John
    Sauder; and Jacob Summers (individually and collectively
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    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
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    310 Neb. 910
    Loveland and Summers), filed a complaint against Kearney
    Towing & Repair Center, Inc. (Kearney Towing), on April
    12, 2019, for negligence and breach of contract regarding a
    single-vehicle accident of a pickup truck, in which Loveland
    and Summers were passengers, occurring on May 1, 2015. The
    pickup was owned by Loveland’s and Summers’ employer,
    Dandee Concrete Construction, Inc. (Dandee Concrete).
    The complaint alleged that the accident occurred when the
    right rear tire of the pickup truck suffered a tread separation
    which caused the driver to lose control, resulting in a roll-
    over. The complaint alleged that Kearney Towing “inspected,
    mounted, installed and balanced the used tires,” which were on
    the pickup truck involved in the accident, and that at the time
    the used tires were installed, “the tires were 20 years of age in
    that they were manufactured in 1994.”
    The complaint alleged that Kearney Towing was negligent
    in that Kearney Towing holds itself out to the public as experts
    in “tire inspections, auto inspections and automobile main-
    tenance”; owes a duty to all customers and all ­individuals,
    including but not limited to Loveland and Summers; and is
    obligated to perform its work in a reasonably skilled and safe
    manner. Loveland and Summers alleged that Kearney Towing
    breached this duty and was negligent in the manner in which it
    inspected the used tires and installed them on the pickup truck.
    The complaint alleged that the negligence of Kearney Towing
    was the direct and proximate cause of both Loveland’s and
    Summers’ “catastrophic injuries.”
    In its answer, Kearney Towing affirmatively alleged, among
    other things, that Loveland and Summers’ claim was barred by
    the applicable statute of limitations. Kearney Towing filed a
    motion for summary judgment on the basis that the matter was
    barred by the 4-year statute of limitations “provided for oral
    contracts and as set forth in 
    Neb. Rev. Stat. § 25-206
    .”
    As part of this motion, Kearney Towing filed a statement
    of undisputed facts. The undisputed facts stated that the case
    revolved around a single-vehicle accident that occurred on
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    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
    Cite as 
    310 Neb. 910
    May 1, 2015. Loveland and Summers alleged in the complaint
    that Kearney “‘inspected, mounted, installed and balanced the
    used tires that were on the subject 2003 Chevrolet Silverado
    SC1 truck occupied by . . . Loveland and . . . Summers at the
    time of the accident.’” Forming the basis of the complaint was
    an invoice by Kearney Towing, dated June 10, 2014, which
    was issued to Loveland’s and Summers’ employer, Dandee
    Concrete. This invoice stated that Kearney Towing performed
    “SCRAP TIRE 13-17 INCH TIRE” and “MOUNT AND
    BALANCE TIRE.” The pickup truck involved in this incident
    was owned by Dandee Concrete. Loveland and Summers con-
    ceded that for the purposes of the motion for summary judg-
    ment, the court could assume Kearney Towing mounted the
    tire on a Dandee Construction pickup truck on June 10, 2014;
    that the tire failed on May 1, 2015, injuring Loveland and
    Summers; and that Loveland and Summers brought suit against
    Kearney Towing on April 12, 2019.
    Kearney Towing argued at the hearing that the statute of
    limitations on Loveland and Summers’ complaint is 4 years,
    whether it is based on the tort statute or the contract statute,
    and that the statute begins to run on the date of the act or the
    omission which gives rise to the claim. Ultimately, Kearney
    Towing argued that the cause of action was based upon an
    invoice from June 10, 2014; Loveland and Summers did not
    file their action until April 2019; and thus, it was outside the
    4-year statute of limitations that expired in June 2018, so their
    claim was barred.
    Loveland and Summers argued at the hearing that a cause of
    action accrues and the statute of limitations begins to run when
    the aggrieved party has a right to institute and maintain a suit.
    They asserted that no case in Nebraska has ever found that the
    statute of limitations starts before the injury occurs or before
    the existence of causation and damages. Thus, they asserted
    their causes of action accrued and the statute of limitations
    began when the injury occurred on the date of the accident.
    They claimed they gained the right to institute a lawsuit on
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    310 Nebraska Reports
    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
    Cite as 
    310 Neb. 910
    May 1, 2015, and timely filed their action within 4 years of
    that date.
    The district court’s original order on Kearney Towing’s
    motion for summary judgment found that Loveland and
    Summers’ negligence claim was governed by a 4-year statute
    of limitations under 
    Neb. Rev. Stat. § 25-207
     (Reissue 2016)
    and that the breach of contract claim was governed by 
    Neb. Rev. Stat. § 25-206
     (Reissue 2016) upon an oral contract. The
    court found that the negligence cause of action accrued on the
    date of the injury, which was May 1, 2015, and that thus, it was
    not barred by the 4-year statute of limitations under § 25-207.
    And the court found that “[t]here is at least a question of fact
    as to whether [Loveland and Summers’] contract claim is
    barred by the statute of limitations under [§] 25-206.”
    Kearney Towing filed a motion to reconsider, asserting, as
    relevant to this appeal, that the court erred in concluding that
    the statute of limitations for negligence actions, as set forth
    in § 25-207, begins to run on the date of a plaintiff’s injury.
    Meanwhile, Loveland and Summers expressed their intention
    to dismiss their breach of contract claim with prejudice. In the
    court’s order on Kearney Towing’s motion to reconsider, the
    court acknowledged Loveland and Summers’ stated intent to
    dismiss their breach of contract claim. The court then deter-
    mined that, upon reconsideration, Loveland and Summers’
    cause of action for negligence accrued at the time the tire was
    installed, which was June 10, 2014, even though this date of
    the act or omission occurred before any injury to Loveland
    and Summers. The court accordingly found the negligence
    action was barred by the statute of limitations under § 25-207.
    The court reversed its original order and sustained Kearney
    Towing’s motion for summary judgment, dismissed the neg-
    ligence action, and found all other pending motions moot
    or overruled.
    Still pending was a third-party complaint by Kearney
    Towing and Loveland and Summers’ breach of contract action.
    On March 8, 2021, Loveland and Summers filed a motion
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    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
    Cite as 
    310 Neb. 910
    asking the court to dismiss their breach of contract cause
    of action with prejudice and either (1) reverse its March 2
    order granting Kearney Towing’s motion for summary judg-
    ment and entering judgment against Loveland and Summers
    on their negligence claim or (2) amend its March 2 order to
    also dismiss for lack of jurisdiction a third-party complaint by
    Kearney Towing. Alternatively, Loveland and Summers asked
    the court, in the event it overruled their motion to reconsider,
    to dismiss Kearney Towing’s third-party complaint in order to
    “render all claim and controversy resolved and the [c]ourt’s
    [o]rder final.”
    After a hearing was held, the court dismissed Loveland and
    Summers’ breach of contract claim with prejudice as requested.
    The court also agreed that Kearney Towing’s third-party claim
    was a derivative claim and dismissed it with prejudice for lack
    of jurisdiction. But, the court stated, it “remains convinced
    that a negligence cause of action accrues as soon as the act
    or omission occurs” and, while that rule results in [Loveland
    and Summers’] having fewer than 4 years after the accident
    to file their action, “a contrary rule would subject [Kearney
    Towing] to suit more than four years after it had any involve-
    ment with the tire in question.” Loveland and Summers appeal
    the dismissal of their negligence claim on summary judgment
    as barred by the statute of limitations.
    ASSIGNMENTS OF ERROR
    Loveland and Summers generally assign that the district
    court erred in sustaining Kearney Towing’s motion to recon-
    sider and, thereafter, granting summary judgment in favor of
    Kearney Towing. More specifically, Loveland and Summers
    assign that the district court erred in (1) ruling all tort claims
    accrue when the wrongful act or omission occurs, rather than
    when the plaintiff has the right to institute and maintain suit,
    disregarding the requirements of 
    Neb. Rev. Stat. § 25-201
    (Reissue 2016); (2) ruling negligence claims governed by
    § 25-207(3) accrue when the wrongful act or omission occurs,
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    SUSMAN v. KEARNEY TOWING & REPAIR CTR.
    Cite as 
    310 Neb. 910
    rather than when a plaintiff suffers a direct injury to his or
    her rights resulting in actual damage; (3) ruling Loveland and
    Summers’ negligence claim accrued, under § 25-207(3), on
    the date Kearney Towing’s acts or omissions occurred, June
    10, 2014, rather than the date their rights were directly injured
    and they sustained actual damage, May 1, 2015; and (4) ruling
    Loveland and Summers’ negligence claim was time barred,
    under § 25-207(3), despite admitting they only had the right to
    institute and maintain suit for about 3 years, from May 1, 2015,
    to June 10, 2018.
    STANDARD OF REVIEW
    [1,2] An appellate court affirms a lower court’s grant of
    summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts
    and that the moving party is entitled to judgment as a matter
    of law. 1 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, and gives that party
    the benefit of all reasonable inferences deducible from the
    evidence. 2
    ANALYSIS
    The only issue presented in this appeal is the question of
    law of whether Loveland and Summers’ cause of action for
    ordinary negligence accrued at the time of the accident or,
    instead, when Kearney Towing installed the tire on the pickup
    truck of Loveland and Summers’ employer. Loveland and
    Summers do not claim that a discovery exception or estop-
    pel applies to their action. If Loveland and Summers’ cause
    of action accrued at the time of the accident, the statute of
    limitations did not begin to run until that time and the district
    1
    Sundermann v. Hy-Vee, 
    306 Neb. 749
    , 
    947 N.W.2d 492
     (2020).
    2
    
    Id.
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    court erred in granting Kearney Towing’s motion for summary
    judgment that was based on the statute of limitations. If, on the
    other hand, Loveland and Summers’ cause of action accrued
    when Kearney Towing installed the tire, their action is time
    barred and the court did not err in granting the motion.
    [3-6] Limitations are created by statute and derive their
    authority therefrom. 3 The essential attribute of a statute of
    limitations is that it accords and limits a reasonable time within
    which a suit may be brought upon causes of action which it
    affects. 4 The statute of limitations is enacted upon the pre-
    sumption that one having a well-founded claim will not delay
    enforcing it beyond a reasonable time if that person has the
    right to proceed. 5 The mischief which statutes of limitations
    are intended to remedy is the general inconvenience resulting
    from delay in the assertion of a legal right which is practicable
    to assert. 6
    Three statutes govern the limitations period in this case.
    First, § 25-201 provides, in relevant part, that “[a] civil action
    shall be commenced only within the time prescribed in this
    chapter, after the cause of action has accrued.” 
    Neb. Rev. Stat. § 25-204
     (Reissue 2016) then states that “[c]ivil actions, other
    than for the recovery of real property, can only be brought
    within the following periods, after the cause of action shall
    have accrued.”
    [7] A series of statutes thereafter set forth the limitation
    periods for the specified civil actions. Of those, § 25-207
    3
    State ex rel. Labedz v. Beermann, 
    229 Neb. 657
    , 
    428 N.W.2d 608
     (1988);
    Markel v. Glassmeyer, 
    137 Neb. 243
    , 
    288 N.W. 821
     (1939).
    4
    
    Id.
    5
    Condon v. A. H. Robins Co., 
    217 Neb. 60
    , 
    349 N.W.2d 622
     (1984). See,
    also, Alston v. Hormel Foods Corp., 
    273 Neb. 422
    , 
    730 N.W.2d 376
    (2007); Shlien v. Board of Regents, 
    263 Neb. 465
    , 
    640 N.W.2d 643
     (2002).
    6
    See Casey v. Levine, 
    261 Neb. 1
    , 
    621 N.W.2d 482
     (2001). See, also,
    Komar v. State, 
    299 Neb. 301
    , 
    908 N.W.2d 610
     (2018); Shlien v. Board of
    Regents, 
    supra note 5
    ; Condon v. A. H. Robins Co., supra note 5.
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    directly pertains to the present case. It provides, “The follow-
    ing actions can only be brought within four years: . . . (3) an
    action for an injury to the rights of the plaintiff, not arising
    on contract, and not hereinafter enumerated . . . .” We have
    explained that “[s]ection 25-207 provides that a tort action,
    described as ‘an action for an injury to the rights of the
    plaintiff, not arising on contract,’ ‘can only be brought within
    four years.’” 7
    [8,9] The controlling statutes of limitations for ordinary
    negligence have not changed in substance since this State’s
    inception. It has long been recognized in Nebraska that a
    cause of action accrues and the statute of limitations begins
    to run when the aggrieved party has the right to institute and
    maintain a suit. 8 We have said that until the plaintiff has a
    right of action, the statute of limitations does not run and the
    plaintiff will have the full statutory period once the right of
    action comes into being: “The universal rule of law is that the
    statute of limitations does not begin to run against a right of
    action until that right exists. The party who has the right of
    action has the full period of the statute in which to enforce
    it.” 9 This is consistent with the standard rule that a claim
    7
    Alston v. Hormel Foods Corp., 
    supra note 5
    , 
    273 Neb. at 425
    , 
    730 N.W.2d at 381
    .
    8
    Condon v. A. H. Robins Co., supra note 5. See, also, Andersen v. A.M.W.,
    Inc., 
    266 Neb. 238
    , 
    665 N.W.2d 1
     (2003); Egan v. Stoler, 
    265 Neb. 1
    ,
    
    653 N.W.2d 855
     (2002); Cavanaugh v. City of Omaha, 
    254 Neb. 897
    , 
    580 N.W.2d 541
     (1998); Association of Commonwealth Claimants v. Moylan,
    
    246 Neb. 88
    , 
    517 N.W.2d 94
     (1994); Central States Resources v. First Nat.
    Bank, 
    243 Neb. 538
    , 
    501 N.W.2d 271
     (1993); Hoffman v. Reinke Mfg. Co.,
    
    227 Neb. 66
    , 
    416 N.W.2d 216
     (1987); Lake v. Piper, Jaffray & Hopwood
    Inc., 
    219 Neb. 731
    , 
    365 N.W.2d 838
     (1985); Kearney Clinic Bldg. Corp.
    v. Weaver, 
    211 Neb. 499
    , 
    319 N.W.2d 95
     (1982); T. S. McShane Co., Inc.
    v. Dominion Constr. Co., 
    203 Neb. 318
    , 
    278 N.W.2d 596
     (1979); Barney v.
    City of Lincoln, 
    144 Neb. 537
    , 
    13 N.W.2d 870
     (1944).
    9
    Bohrer v. Davis, 
    94 Neb. 367
    , 370, 
    143 N.W. 209
    , 210 (1913), overruled
    on other grounds, Criswell v. Criswell, 
    101 Neb. 349
    , 
    163 N.W. 302
    (1917).
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    accrues when the plaintiff has a complete and present cause
    of action. 10
    [10] It is the combination of all the elements of a claim that
    gives rise to a cause of action. 11 Thus, we have long held that
    a cause of action cannot accrue before the occurrence of all the
    elements that constitute a defendant’s violation of a plaintiff’s
    judicially protected right. 12
    [11-13] Tort liability is not based upon representations or
    warranties. 13 Rather, it is based on a duty imposed by the
    law to exercise that degree of care as would be exercised by
    a reasonable person under the circumstances. 14 A person acts
    negligently if the person does not exercise reasonable care
    under all the circumstances. 15 It suffices to charge a person
    with liability for a negligent act if some injury to another ought
    reasonably to have been foreseen as the probable result thereof
    by the ordinarily intelligent and prudent person under the same
    circumstances. 16
    [14-16] A plaintiff in ordinary negligence must prove all
    four essential elements of the claim: the defendant’s duty not
    10
    See, Wallace v. Kato, 
    549 U.S. 384
    , 
    127 S. Ct. 1091
    , 
    166 L. Ed. 2d 973
     (2007); 1 Am. Jur. 2d Actions § 63 (2016). See, also, Anthony K. v.
    Nebraska Dept. of Health & Human Servs., 
    289 Neb. 540
    , 
    855 N.W.2d 788
     (2014).
    11
    See Emel v. Standard Oil Co., 
    117 Neb. 418
    , 
    220 N.W. 685
     (1928).
    12
    See, Henderson v. Forman, 
    240 Neb. 939
    , 
    486 N.W.2d 182
     (1992);
    Condon v. A. H. Robins Co., supra note 5; Westover v. Hoover, 
    94 Neb. 596
    , 
    143 N.W. 946
     (1913). See, also, Ward v. City of Alliance, 
    227 Neb. 306
    , 
    417 N.W.2d 327
     (1988).
    13
    Wilke v. Woodhouse Ford, 
    278 Neb. 800
    , 
    774 N.W.2d 370
     (2009).
    14
    See, Thomas v. Board of Trustees, 
    296 Neb. 726
    , 
    895 N.W.2d 692
     (2017);
    A.W. v. Lancaster Cty. Sch. Dist. 0001, 
    280 Neb. 205
    , 
    784 N.W.2d 907
    (2010).
    15
    Hodson v. Taylor, 
    290 Neb. 348
    , 
    860 N.W.2d 162
     (2015).
    16
    McClelland v. Interstate Transit Lines, 
    142 Neb. 439
    , 
    6 N.W.2d 384
    (1942). See, also, Erickson v. Monarch Indus., 
    216 Neb. 875
    , 
    347 N.W.2d 99
     (1984); Gillotte v. Omaha Public Power Dist., 
    185 Neb. 296
    , 
    176 N.W.2d 24
     (1970).
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    to injure the plaintiff, a breach of that duty, proximate causa-
    tion, and damages. 17 A cause of action for negligence depends
    not only upon the defendant’s breach of duty to exercise care
    to avoid injury to the plaintiff, but also depends upon a show-
    ing that the injury suffered by the plaintiff was caused by the
    alleged wrongful act or omission of the defendant. 18 In one of
    our earliest cases on this subject, we explained: “‘The cause
    of action in any case embraces not only the injury which the
    complaining party has received, but it includes more. All the
    facts which, taken together, are necessary to fix the responsi-
    bility are parts of the cause of action.’” 19 A “cause of action,”
    we said, “has never consisted simply of negligence or duty or
    injury standing alone.” 20
    [17] And, under longstanding principles of justiciability, a
    party is not aggrieved and cannot institute and maintain suit if
    any element of that party’s claim depends upon abstract ques-
    tions or issues that might arise in a hypothetical or fictitious
    situation or setting and may never come to pass. 21 This fails to
    present a present case or controversy for the court. 22
    [18-21] More specifically, we have explained that the
    alleged injury to the plaintiff cannot be merely hypotheti-
    cal; there must be an injury in fact in both a qualitative and
    temporal sense. 23 To be an aggrieved party, the party must be
    able to allege an injury to itself that is distinct and palpable,
    as opposed to merely abstract, and the alleged harm must be
    17
    See Zeller v. County of Howard, 
    227 Neb. 667
    , 
    419 N.W.2d 654
     (1988).
    See, also, Talbot v. Douglas County, 
    249 Neb. 620
    , 
    544 N.W.2d 839
     (1996).
    18
    See Condon v. A. H. Robins Co., supra note 5.
    19
    Westover v. Hoover, supra note 12, 94 Neb. at 601, 143 N.W. at 948.
    20
    Id. See, also, e.g., Emel v. Standard Oil Co., supra note 11.
    21
    See State v. Baltimore, 
    242 Neb. 562
    , 
    495 N.W.2d 921
     (1993). See, also,
    Ryder Truck Rental v. Rollins, 
    246 Neb. 250
    , 
    518 N.W.2d 124
     (1994).
    22
    See Ryder Truck Rental v. Rollins, 
    supra note 21
    .
    23
    See City of Springfield v. City of Papillion, 
    294 Neb. 604
    , 
    883 N.W.2d 647
    (2016).
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    actual or imminent, not conjectural or hypothetical. 24 Further,
    the litigant must show that the injury can be fairly traced to the
    challenged action and is likely to be redressed by a favorable
    decision. 25 In summary, we have plainly held, “A [plaintiff] is
    not required to anticipate an injury from the probable negli-
    gence of some one else. The statute of limitations does not run
    until the injury has been actually received.” 26
    [22] Before the accident, Loveland and Summers were not
    aggrieved parties with a right to institute and maintain a suit
    against Kearney Towing for ordinary negligence. While the
    manner in which Kearney Towing installed the tire could
    arguably have given rise at that time to an action against it
    by Loveland’s and Summers’ employer as the aggrieved party,
    plaintiffs in an ordinary negligence action generally cannot rest
    their claims on the legal rights or interests of third parties. 27 It
    is undisputed that Loveland and Summers had no professional
    or contractual relationship with Kearney Towing.
    When Kearney Towing allegedly negligently installed the
    tire, any future accident and resultant harm to Loveland and
    Summers, as the proximate result of the allegedly negligent
    tire installation, would have been purely speculative. Kearney
    Towing argues that at the time of its alleged misconduct in
    installing the tire, it breached its duty to all persons and enti-
    ties Kearney Towing reasonably should have foreseen might
    be injured as the probable result of its actions. We express no
    opinion regarding the duty, if any, owed by Kearney Towing
    to anyone as a result of mounting the tire. But it is obvious
    that Loveland and Summers could not have brought and main-
    tained suit at the time of the tire installation based merely
    24
    See Central Neb. Pub. Power Dist. v. North Platte NRD, 
    280 Neb. 533
    ,
    
    788 N.W.2d 252
     (2010).
    25
    See 
    id.
    26
    Morse v. Chicago, B. & Q. R. Co., 
    81 Neb. 745
    , 747, 
    116 N.W. 859
    , 860
    (1908). Accord, Shavlik v. Walla, 
    86 Neb. 768
    , 
    126 N.W. 376
     (1910);
    Chicago, R. I. & P. R. Co. v. Andreesen, 
    62 Neb. 456
    , 
    87 N.W. 167
     (1901).
    27
    See State v. Baltimore, 
    supra note 21
    .
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    upon being within a broad group of persons who might suf-
    fer some harm in the future. This would allow the plaintiff to
    anticipate the injury before it was actually received.
    Accordingly, Loveland and Summers had no right at the
    time of the tire installation to institute and maintain an ordinary
    negligence action against Kearney Towing. Indeed, Kearney
    Towing does not assert otherwise. Instead, Kearney Towing
    suggests the Legislature has determined as a policy matter that
    the statute of limitations shall begin to run upon the occurrence
    of the misconduct against all parties who then or thereafter
    might be harmed by the misconduct, whether or not they had
    a right to institute and maintain suit when the misconduct
    occurred. That this could lead in some circumstances to the
    statute of limitations running against a right of action before
    that right exists, depriving the party of the full period of the
    statute to enforce it, or of any period at all, is of no conse-
    quence. Kearney Towing argues the Legislature has determined
    that the moment of the misconduct is easily identifiable and
    that ordinary tort-feasor liability is thereby reasonably limited
    in time.
    We disagree that the statutes controlling the limitations
    period for ordinary negligence reflect any such determina-
    tions. We find no merit to Kearney Towing’s argument that
    the Legislature has adopted, for ordinary negligence actions,
    an “occurrence rule” under which the cause of action accrues
    and the statute of limitations begins to run against all possible
    future, hypothetically aggrieved parties upon the occurrence
    of the defendant’s misconduct standing alone. Nor has the
    Legislature enacted a “discovery” rule to govern the accrual of
    ordinary negligence claims.
    Specifically, we do not agree with Kearney Towing’s argu-
    ment that § 25-207 delimits to the sole element of “injury” when
    the “cause of action” for ordinary negligence has “accrued,”
    as stated in §§ 25-201 and 25-204. Leaving aside for the
    moment that this injury is “to the rights of the plaintiff,” and
    not to hypothetical rights that might foreseeably be affected
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    in the future, § 25-207 is, similar to many other statutes after
    § 25-204, simply setting forth the period of years of limitation
    in bringing the specified cause of action once it has accrued.
    For example, § 25-206 simply sets forth that “[a]n action upon
    a contract, not in writing,” can only be brought within 4 years.
    We cannot conceive how this provision describes which of the
    traditional elements of an action upon a contract, not in writ-
    ing, must exist before such “cause of action” has “accrued.”
    While we have said that 
    Neb. Rev. Stat. § 25-222
     (Reissue
    2016) adopts an occurrence rule for professional negligence
    actions, it is not applicable here, and its language is notably
    different from § 25-207. Section 25-222 sets forth the occur-
    rence rule by stating that an action to recover damages based
    on alleged professional negligence shall be commenced within
    2 years “after the alleged act or omission,” and the occurrence
    rule is, in that same statute, “tempered or ameliorated by a pro-
    vision for discovery.” 28
    We disagree with Kearney Towing’s argument that if
    § 25-222 modifies when a “cause of action” has “accrued,”
    then all the statutes following § 25-204 must likewise be delin-
    eating what elements are required for the respective causes of
    action to accrue. As we have said, § 25-207 provides that a tort
    action, described as “an action for an injury to the rights of the
    plaintiff, not arising on contract,” can only be brought within
    4 years. 29 It does not do more.
    In any event, we do not agree with Kearney Towing’s sug-
    gestion that the term “injury” in § 25-207 would equate to the
    defendant’s general act of misconduct, abstracted from any
    harm the plaintiff may or may not have suffered. We have
    concluded that a cause of action for professional negligence
    accrues upon the dereliction of duty, even when the breach
    may have produced a recovery of only nominal damages. 30
    28
    Rosnick v. Marks, 
    218 Neb. 499
    , 506, 
    357 N.W.2d 186
    , 191 (1984).
    29
    Alston v. Hormel Foods Corp., supra note 5.
    30
    See Rosnick v. Marks, 
    supra note 28
    . See, also, Williams v. Elias, 
    140 Neb. 656
    , 
    1 N.W.2d 121
     (1941).
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    We have relatedly discussed, principally in the context of
    professional negligence, that “injury, in its legal sense, is mis-
    conduct” or “the invasion of any legally protected interest of
    another,” while “damage is the legal term applied to the loss
    resulting from misconduct,” 31 stating that the “tort accrues as
    soon as the act or omission occurs.” 32
    But we have not thereby simply equated the element of the
    defendant’s breach of a duty with the plaintiff’s “injury” or
    held that the statute of limitations begins to run against persons
    who are not yet aggrieved and would, therefore, be unable
    to present a justiciable action. The discussed invasion of the
    plaintiff’s legally protected right has never been solely based
    on being a member of the public who could foreseeably be
    harmed in the future. Instead, we have reiterated in this context
    that the statute of limitations begins to run when the aggrieved
    party has the right to institute and maintain suit. 33 We simply
    clarified that such right exists even when the full nature and
    extent of damages may not be known. 34
    Finally, in support of its contention that the statute of
    limitations started running upon the installation of the tire,
    31
    Rosnick v. Marks, 
    supra note 28
    , 
    218 Neb. at 504
    , 
    357 N.W.2d at 190
    (internal quotation marks omitted).
    32
    Guinn v. Murray, 
    286 Neb. 584
    , 596, 
    837 N.W.2d 805
    , 816 (2013). Accord
    Carruth v. State, 
    271 Neb. 433
    , 
    712 N.W.2d 575
     (2006); Alston v. Hormel
    Foods Corp., supra note 5; Berntsen v. Coopers & Lybrand, 
    249 Neb. 904
    , 
    546 N.W.2d 310
     (1996); St. Paul Fire & Marine Ins. Co. v. Touche
    Ross & Co., 
    244 Neb. 408
    , 
    507 N.W.2d 275
     (1993). See, also, In re Estate
    of Adelung, 
    306 Neb. 646
    , 
    947 N.W.2d 269
     (2020); Shlien v. Board of
    Regents, 
    supra note 5
    ; Teater v. State, 
    252 Neb. 20
    , 
    559 N.W.2d 758
    (1997).
    33
    Rosnick v. Marks, 
    supra note 28
    .
    34
    
    Id.
     See, also, Wallace v. Kato, 
    supra note 10
    ; Weyh v. Gottsch, 
    303 Neb. 280
    , 
    929 N.W.2d 40
     (2019); Irving F. Jensen Co. v. State, 
    272 Neb. 162
    ,
    
    719 N.W.2d 716
     (2006); Murphy v. Spelts-Schultz Lumber Co., 
    240 Neb. 275
    , 
    481 N.W.2d 422
     (1992); Broekemeier Ford v. Clatanoff, 
    240 Neb. 265
    , 
    481 N.W.2d 416
     (1992); L.J. Vontz Constr. Co. v. Department of
    Roads, 
    232 Neb. 241
    , 
    440 N.W.2d 664
     (1989); Witherspoon v. Sides
    Constr. Co., 
    219 Neb. 117
    , 
    362 N.W.2d 35
     (1985).
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    Kearney Towing relies heavily on one paragraph in Grand
    Island School Dist. #2 v. Celotex Corp. 35 In that paragraph, this
    court stated the proposition that statutes of limitations begin to
    run upon accrual of a cause of action and that a cause of action
    accrues when the aggrieved party has the right to institute and
    maintain a suit. It then went on to say that “[i]n a contract
    action[,] this means as soon as breach occurs, and in tort, as
    soon as the act or omission occurs.” 36 This language was dicta,
    as the issue in Celotex Corp. was whether a discovery rule
    could apply to save the plaintiff’s claims. To the extent the
    statement in Celotex Corp. could be interpreted as saying that
    the statute of limitations for claims covered by § 25-207(3)
    will begin to run upon the act or omission of the defendant,
    regardless of whether the plaintiff has yet been aggrieved by
    that misconduct, we find it inconsistent with other precedent
    and the controlling statutes and it is disapproved.
    Until the accident, Loveland and Summers were not
    aggrieved parties and their ordinary negligence action had not
    yet accrued. Accordingly, the 4-year statute of limitations did
    not begin to run against Loveland and Summers when the tire
    was installed, and the court erred in granting summary judg-
    ment in favor of Kearney Towing on the grounds that it was
    barred by the statute of limitations.
    CONCLUSION
    For the foregoing reasons, we reverse the district court’s
    order of summary judgment and remand the cause for further
    proceedings.
    Reversed and remanded for
    further proceedings.
    Miller-Lerman, J., not participating.
    35
    Grand Island School Dist. #2 v. Celotex Corp., 
    203 Neb. 559
    , 
    279 N.W.2d 603
     (1979).
    36
    
    Id. at 562-63
    , 
    279 N.W.2d at 606
    .