Hodson v. Taylor ( 2015 )

Nebraska Advance Sheets
348 290 NEBRASKA REPORTS
Cole Hodson, appellant, v.
Bradley Taylor et al.,
appellees.
___ N.W.2d ___
Filed March 13, 2015. No. S-13-1131.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing demonstrate that there is no genuine issue as to any mate-
rial 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. ____: ____. In reviewing a summary judgment, an appellate court views the sum-
mary judgment evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of all reasonable infer-
ences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appel-
late court has an obligation to resolve the questions independently of the lower
court’s conclusions.
4. Negligence: Liability: Proximate Cause. In premises liability cases, an owner
or occupier is subject to liability for injury to a lawful visitor resulting from a
condition on the owner or occupier’s premises if the lawful visitor proves (1)
that the owner or occupier either created the condition, knew of the condition, or
by exercise of reasonable care would have discovered the condition; (2) that the
owner or occupier should have realized the condition involved an unreasonable
risk of harm to the lawful visitor; (3) that the owner or occupier should have
expected that the visitor either would not discover or realize the danger or would
fail to protect himself or herself against the danger; (4) that the owner or occupier
failed to use reasonable care to protect the visitor against the danger; and (5) that
the condition was a proximate cause of damage to the visitor.
5. Recreation Liability Act. Nebraska’s Recreation Liability Act applies only to
premises liability actions.
6. Negligence. Premises liability causes of action cannot be taken against one who
is not an owner or occupant of the property.
7. ____. Not every negligence action involving an injury suffered on someone’s
land is properly considered a premises liability case.
8. ____. Under a premises liability theory, a court is generally concerned with either
a condition on the land or the use of the land by a possessor.
9. ____. 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.
10. Negligence: Proof. Foreseeability is analyzed in the context of breach and is
used as a factor in determining whether there was a breach of the duty of reason-
able care.
11. Negligence. A person acts negligently if the person does not exercise reasonable
care under all the circumstances.
Nebraska Advance Sheets
HODSON v. TAYLOR 349
Cite as 290 Neb. 348
12. ____. Primary factors to consider in ascertaining whether a person’s conduct
lacks reasonable care include the foreseeable likelihood that the person’s conduct
will result in harm, the foreseeable severity of any harm that may ensue, and the
burden of precautions to eliminate or reduce the risk of harm.
13. ____. Foreseeability is analyzed as a fact-specific inquiry into the circumstances
that might have placed the defendant on notice of the possibility of injury.
14. ____. Small changes in the facts may make dramatic change in how much risk
is foreseeable.
15. ____. The law does not require precision in foreseeing the exact hazard or con-
sequence which happens; it is sufficient if what occurs is one of the kinds of
consequences which might reasonably be foreseen.
16. ____. Though questions of foreseeable risk are ordinarily proper for a trier of
fact, courts may reserve the right to determine that the defendant did not breach
its duty of reasonable care if reasonable people could not disagree about the
unforeseeability of the injury.
17. Negligence: Invitor-Invitee: Liability. Owners or occupiers have breached their
duty if they know, or by exercise of reasonable care should have realized, that
a condition on their land would create a risk from which visitors would fail to
protect themselves.
18. ____: ____: ____. A land possessor is not liable to a lawful entrant on the land
unless the land possessor had or should have had superior knowledge of the dan-
gerous condition on the land.
19. ____: ____: ____. Land possessors have a duty to attend to the foreseeable
risks in light of the then-extant environment, including foreseeable precautions
by others.
20. Negligence: Waters. A duty to provide for a water’s passage through the land-
owner’s property is owed to adjoining landowners, and not to guests of adjoin-
ing landowners.
21. Negligence. All people owe a basic duty to conform to the legal standard of rea-
sonable conduct in light of the apparent risk.
22. Negligence: Waters: Invitor-Invitee. A lake association owes to the lawful guest
or visitor a duty to protect the visitor against those parts of the land which it has
reason to know of, with reasonable care would have discovered, or should have
realized involved an unreasonable risk of harm to the visitor.
23. Negligence. Generally, when a dangerous condition is open and obvious, the
owner or occupier is not liable in negligence for harm caused by the condition.
24. ____. Under the open and obvious doctrine, a possessor of land is not liable to his
or her invitees for physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless the possessor should
anticipate the harm despite such knowledge or obviousness.
25. ____. A condition is considered obvious when the risk is apparent to and of
the type that would be recognized by a reasonable person in the position of
the invitee.
26. Negligence: Waters. A body of water is not a concealed, dangerous condition,
because the public recognizes that bodies of water vary in depth and that sharp
changes in the bottom may be expected.
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27. Negligence. If an owner or occupier should have anticipated that persons using
the premises would fail to protect themselves, despite the open and obvious risk,
then the open and obvious doctrine does not apply.
Appeal from the District Court for Washington County:
James G. Kube, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
E. Terry Sibbernsen and Andrew D. Sibbernsen, of
Sibbernsen, Strigenz & Sibbernsen, P.C., and Jeffrey B.
Farnham and Andrew W. Simpson, of Farnham & Simpson,
P.C., L.L.O., for appellant.
David M. Woodke and Earl G. Green III, of Woodke &
Gibbons, P.C., L.L.O., for appellees Bradley Taylor, Laura
Taylor, and Whitney Taylor.
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for
appellee Willers Cove Owners Association.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellees Ronald D. Willers and
Marilyn M. Willers.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
McCormack, J.
I. NATURE OF CASE
Cole Hodson suffered a catastrophic injury when he dove
into the Willers Cove lake near Pilger, Nebraska. Cole brings
a tort action against Bradley Taylor and Laura Taylor (collec-
tively the Taylors) and their daughter, Whitney Taylor, as his
hosts at the lake; the Willers Cove Owners Association (the
WCOA), claiming the lake association should have known of
dangerous conditions in the lake; and Ronald D. Willers and
Marilyn M. Willers (collectively the Willers), for negligently
constructing a culvert which led to the dangerous condition
that caused Cole’s injury. The district court dismissed all of
Cole’s claims in summary judgment. Cole now appeals.
Nebraska Advance Sheets
HODSON v. TAYLOR 351
Cite as 290 Neb. 348
II. BACKGROUND
1. Accident
On the date of the accident, the Taylors were residents of
and owned a home located at the Willers Cove lake community
in Stanton County, Nebraska.
On June 26, 2010, Cole and three other friends—Adam
Hodson, Caitlin Hoer (Caitlin), and Johnny Forsen (Johnny)—
were invited by Whitney to the residence of the Taylors for
the purpose of swimming and boating. Adam was Whitney’s
boyfriend, Cole was Adam’s cousin, Johnny was Cole’s child-
hood friend, and Caitlin was a friend of Whitney. Each member
of the group was around 18 years old at the time. Shortly after
arrival, the group boarded the Taylors’ pontoon boat and pro-
ceeded on the Willers Cove lake. Deposition testimony among
the people on the boat differs, but either Whitney or Adam
operated the boat. The pontoon boat stopped twice at different
locations. While stopped, Cole and Johnny jumped off the pon-
toon boat and swam in the lake.
Cole recalls that he had at least two beers since arriving at
Willers Cove and before his final dive into the water. Johnny
recalls that each member of the group had three beers before
Cole was injured.
The last stop was made on the west side of the lake, some-
where between 50 and 200 feet from the north shoreline.
Whitney stated that she chose this place for jumping and swim-
ming because she had stopped there in the past.
Cole stated he could not see below the surface of the lake
and jumped into the lake without testing the depth. Johnny also
stated that the water was “pretty muddy.” Further, in Cole’s
deposition, counsel asked:
Q[:] Okay. Now, did you know when you first dove
into the lake that if you couldn’t see below the surface on
a lake that there was a possibility that there could be an
object or shallow depth?
....
A[:] Possibly.
Q[:] Okay. And how is it that you knew that could be
the case?
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A[:] That’s the case in any situation like that.
Cole also admitted that the depth of lake bottoms can be differ-
ent at different places in a lake or pond.
After stopping at other locations in the lake, the boat came
to a stop in its final place before Cole’s injury. Cole is unsure
how far this was from the shoreline. Both Cole and Johnny
dove, jumped, or flipped “several” or “five or more” times
into the water at this location, and they swam around in the
water. Cole says that during each of those dives, and during his
time swimming at this location, he did not touch the bottom
of the lake. Deposition testimony of all the people on the boat
indicates that no one formally tested the depth of the lake at
this location.
After “several” successful dives at the last location, Cole
dove and abruptly came into contact with something in the
water, which he assumes to be the bottom of the Willers Cove
lake. Cole stated in his deposition that he does not know for
certain that he hit the bottom of the lake, because he does not
remember anything after his final dive into the lake. As a result
of the dive, Cole suffered a “C5 complete spinal cord injury.”
The C5 spinal cord injury has left Cole paralyzed and without
feeling from the chest down. He has function in his shoulders,
but only limited flexion in his hands and wrists.
Johnny left the boat to retrieve Cole after the accident.
Johnny testified that when he jumped off the boat this final
time, he could walk for a few feet because the water in that
location was only about “knee high.” But, before he could get
to Cole, the depth dropped off again and he had to swim. This
conflicts with Johnny’s original statement in which he said that
he had to swim to Cole after exiting the boat. Adam also testi-
fied that Johnny had to swim to get to Cole.
2. Willers Cove
The Willers once owned and operated a sand and gravel
company. The Willers Cove lake was created where they dug
sand and gravel from the earth that was later filled in with
ground water. The Willers were the initial owners of Willers
Cove before deeding the lake to the WCOA.
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HODSON v. TAYLOR 353
Cite as 290 Neb. 348
On July 20, 2005, the Willers executed a quitclaim deed
conveying ownership of the lake to the WCOA. When the
lake was transferred to the WCOA in 2005, it was a completed
project. The Willers did nothing more to the lake itself after the
transfer. The WCOA now owns, operates, maintains, and man-
ages the Willers Cove Lake.
The WCOA passes rules and regulations for the Willers
Cove lake. Prior to 2007, the WCOA had a rule that there
would be no swimming more than 50 feet from the shore of
the Willers Cove lake. However, such rule was not readopted
in 2007. One of the directors of the WCOA stated that this
regulation was either unintentionally omitted or purposefully
left out. He stated that the rule seemed meaningless and would
be difficult to enforce, though he does not recall exactly why
the rule was omitted from adoption in 2007.
Willers Cove is a private lake. All people with residences
abutting the lake must be a member of the WCOA. One must
be a member or guest of a member of the WCOA to be able to
use the lake.
3. Potentially Dangerous Conditions
at Willers Cove
Cole argues that the sand along the north shoreline was
known to sometimes cause potentially dangerous conditions in
the lake, because the sand was unstable. The evidence shows
that members of the WCOA and the Willers discussed this
unstable sand condition at a meeting in 2004.
Members of the lake community were not positive as to the
depth of the lake, but Bradley testified that he had knowledge
of the depth of the lake based on the depth finder installed on
his boat. He stated that the deepest part of the lake is 50 feet
and that it tapers off in depth closer to the shore. He estimated
that right next to the shore, the depth was about 4 feet deep.
Bradley stated that he never noticed especially varying depths
of the lake, or a sandbar in the lake. After the accident, the
WCOA was compelled to have a survey done of the depth of
the entire lake.
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Cole retained an expert witness, Charles R. Dutill II, to
opine as to potentially dangerous conditions in the Willers
Cove lake. Dutill stated that the water levels rose in the year
of the accident due to rainfall and some flooding. The rising
water levels actually caused conditions in the lake to become
shallower, because the water level caused the shoreline of the
lake to move outward about 2 feet. Thus, the depth of the water
at the shoreline would be significantly less than when lake
elevation is lower overall. Specifically, Dutill stated that, typi-
cally, 100 feet from shore would have a depth of 18.75 feet,
but that on the day of the accident, due to more water being in
the lake, the conditions would be “significantly” shallower at
100 feet.
Dutill opined that the WCOA members should have known
that the lake levels were rising. However, he specifically stated
that he did not have the opinion that the WCOA members
should have known that the rising lake levels would cause a
dangerous, hazardous, or shallow condition in the lake.
4. The Willers’ Property
The Willers own property at Willers Cove on the east end
of the lake. On the Willers’ property, there is a creek. This
creek did not flow into Willers Cove prior to 2010. Sometime
in 2009, Ronald replaced a small culvert on his own land
with a larger culvert so that he could drive through the area
on his property containing the creek. Later, Ronald removed
the culvert altogether after heavy rains and flooding occurred
in 2010.
However, in 2010, due to flooding in the area, the creek that
ran on the Willers’ property breached its banks and allegedly
caused the shores of the Willers Cove lake to erode, caus-
ing additional material and water to flow into the lake. Dutill
opined as to the culvert. His opinion was that the culvert was
substantially undersized and insufficient to handle the appro-
priate flow of water in the stream. Dutill further stated the
opinion that Ronald was negligent in failing to consult with
or hire an engineer or other similar professional in regard to
installing the culvert. However, nowhere in his opinion did
Dutill state that this culvert caused the levels in the lake to rise.
Nebraska Advance Sheets
HODSON v. TAYLOR 355
Cite as 290 Neb. 348
He stated only that it was apparent the waterflow of the creek
had changed over time. Dutill also could not connect that to the
installation of the culvert.
Dutill stated in his deposition:
There are two aspects to the breakout that are significant.
One is that again, with it being my opinion that a sub-
stantial amount of sediment moved into the lake, some
of that sediment would have reached the location of the
accident. And so that would make the depth more shallow
there than would otherwise be the case. A much more sig-
nificant factor is that the breakout allowed a substantial
amount of water that would not normally flow into the
lake to flow into the lake.
Dutill commented, “[T]here are several factors that result
in more water in the lake. . . . [T]he net effect of those factors
would be that . . . the edge of the lake moved more than two
feet” from where it usually meets. Dutill could point to no one
factor that caused the water levels in the Willers Cove lake
to rise.
5. Allegations Against Defendants
(a) Allegations Against the Taylors
Cole alleges that his injuries were the direct and proxi-
mate result of negligence by the Taylors. Cole asserts that
the Taylors were negligent in failing to warn users of Willers
Cove, such as Cole, of the dangerous and shallow condition
of the lake; in allowing Whitney, their daughter, and her
guests to use the pontoon boat without supervision; and in
permitting Whitney or one of her guests to drive the pontoon
boat when the Taylors knew, or in the exercise of reasonable
care should have known, that she was inexperienced and
incompetent to operate this pontoon boat on the Willers Cove
lake on the date of the accident, given the condition of the
lake and the depth.
(b) Allegations Against the Willers
Cole alleges that his injuries were the direct and proxi-
mate result of negligence by the Willers. Cole asserts that the
Willers failed to ascertain and maintain sufficient and safe
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water depth in the lake, failed to warn users of the dangerous
and shallow condition of the lake, failed to enforce safety rules
and regulations relating to the use of the lake, failed to publish
rules and regulations concerning jumping off pontoon boats
into the lake, failed to warn users of the dangers of recent
lake flooding, and failed to design and construct the lake and
surrounding area in a manner that would prevent surface and/
or floor waters from cutting through and breaching the land
adjacent to the lake, thereby enabling such waters to enter the
lake and deposit sand or silt on the lake bottom.
In particular, Cole argued that Ronald negligently installed a
culvert on his land, which had the effect of creating a danger-
ous condition in the lake, and that Ronald should have known
such dangerous condition was created.
(c) Allegations Against the WCOA
Cole alleges that his injuries were the direct and proximate
result of negligence by the WCOA. Cole asserts that the
WCOA failed to ascertain and maintain sufficient and safe
water depth in the lake; failed to warn users, such as Cole,
of the dangerous and shallow condition of the lake; failed
to enforce reasonably safe rules and regulations relating to
the use of the lake; failed to publish rules and regulations
concerning jumping off a pontoon boat or a boat; failed to
warn users of the lake of the shallow depth of the lake due
to the recent flooding; and failed to post signs and warnings
prohibiting individuals from using and swimming in the lake
due to the recent flooding and resulting unsafe condition of
the lake.
6. District Court Ruling
All of the defendants moved for summary judgment. As
to the Taylors, the district court found that, as a matter of
law, Nebraska’s Recreation Liability Act (the Act)1 barred
liability in this case. In so finding, the district court found
1
Neb. Rev. Stat. §§ 37-729 through 37-736 (Reissue 2008).
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Cite as 290 Neb. 348
that the Taylors were “owners” of the lake, as defined in the
Act. The district court also followed our holding in Holden v.
Schwer,2 which states that in order for the Act to apply, the
landowner does not need to fully dedicate his or her property
to the public in order to be covered by the Act, but instead,
a landowner need only allow some members of the public,
on a casual basis, to enter and use the land for recreational
purposes in order to be protected from liability under the Act.
Because the court determined that the Act applied, the court
did not need to decide whether Cole’s negligence claims had
any merit.
As to the Willers, the court noted that the Willers had not
owned or been responsible for maintaining the lake for more
than 4 years prior to the date of the accident and that thus,
most negligence claims were time barred by Neb. Rev. Stat.
§ 25-207 (Reissue 2008). As to the culvert installed by Ronald,
the court noted the duty to provide for passage of water is only
to adjoining landowners, and not to guests on adjoining prop-
erty, like Cole. Further, although foreseeability is normally a
matter for a trier of fact to determine, the court found that in
this case, as a matter of law,
[no] reasonable person could determine that it was fore-
seeable that inserting a culvert in a waterway would,
under extreme precipitation, cause excess water and silt
to enter into Willers Cove and in turn cause an area in
the lake to become excessively shallow such that some-
one would dive into the lake and suffer the type of injury
experienced by [Cole].
As to the WCOA, the court found that the lake was an
open and obvious condition that Cole should have realized
presented a risk of death or serious harm. In order to apply
the open and obvious doctrine, a court must also find that the
WCOA could not have anticipated that such harm would come
to someone like Cole.3 The court stated that this proposition
2
Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).
3
See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
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“is directly related to” the issue of foreseeability and that
the WCOA could not have foreseen that such harm would
come to someone in the position of Cole. Finding that the
WCOA could not have foreseen this condition in the lake,
the court found that the open and obvious doctrine barred the
WCOA’s liability.
III. ASSIGNMENTS OF ERROR
Cole assigns, consolidated and restated, that the district
court erred in granting summary judgment (1) for the Taylors
on the basis that the Taylors were protected from liability by
the Act; (2) for the Willers on the basis that there was no duty
or breach of such duty to Cole to adequately provide for pas-
sage of water from their property, because the events causing
injury were unforeseeable; and (3) for the WCOA, because it
was not negligent in failing to enforce regulations restricting
swimming to within 50 feet from the shore and because the
dangerous condition in the lake was unforeseeable.
IV. STANDARD OF REVIEW
[1,2] We will affirm a lower court’s grant of summary judg-
ment if the pleadings and admissible evidence offered at the
hearing demonstrate 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.4 In reviewing a summary judg-
ment, an appellate court views the summary judgment evidence
in the light most favorable to the party against whom the judg-
ment was granted, and gives that party the benefit of all rea-
sonable inferences deducible from the evidence.5
[3] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
lower court’s conclusions.6
4
Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825
N.W.2d 204 (2013).
5
Id.
6
Id.
Nebraska Advance Sheets
HODSON v. TAYLOR 359
Cite as 290 Neb. 348
V. ANALYSIS
1. R ecreational Liability Act
and the Taylors
In reviewing the complaint in this case, we find that the
Taylors did not own or occupy the property on which the
injury occurred. Therefore, we do not view this as a premises
liability action. The Act applies only to premises liability
actions, and therefore, the Act does not apply to this case. We
reverse, and remand the cause to the district court for a deter-
mination on the remaining questions of the Taylors’ alleged
negligence.
An owner is someone “who has the right to possess, use, and
convey something; a person in whom one or more interests are
vested.”7 An occupant is “[o]ne who has possessory rights in,
or control over, certain property or premises” or “[o]ne who
acquires title by occupancy.”8
[4] In premises liability cases, an owner or occupier is sub-
ject to liability for injury to a lawful visitor resulting from a
condition on the owner or occupier’s premises if the lawful
visitor proves (1) that the owner or occupier either created the
condition, knew of the condition, or by exercise of reasonable
care would have discovered the condition; (2) that the owner or
occupier should have realized the condition involved an unrea-
sonable risk of harm to the lawful visitor; (3) that the owner or
occupier should have expected that the visitor either would not
discover or realize the danger or would fail to protect himself
or herself against the danger; (4) that the owner or occupier
failed to use reasonable care to protect the visitor against the
danger; and (5) that the condition was a proximate cause of
damage to the visitor.9
[5] The Act applies only to premises liability actions. Under
the Act, “an owner of land owes no duty of care to keep
the premises safe for entry or use by others for recreational
7
Black’s Law Dictionary 1214 (9th ed. 2009).
8
Id. at 1184.
 9
Aguallo v. City of Scottsbluff, supra note 3.
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purposes or to give any warning of a dangerous condition, use,
structure, or activity on such premises to persons entering for
such purposes.”10 Therefore, when the Act applies, we read the
Act only to bar liability for premises liability actions.
In this case, Cole has alleged premises liability actions
against the Taylors for his injury, which occurred on the
Willers Cove lake. Cole’s complaint alleges that the Taylors
were negligent:
(a) In failing to warn users of Willers Cove, such
as [Cole], of the dangerous and shallow condition of
the lake;
....
(d) In failing to warn or prohibit swimming in the
area of the sandpit lake known as Willers Cove when the
defendants knew, or in the exercise of reasonable care
should have known, of the shallow and unstable condition
of the lake at the area where the accident occurred;
(e) In failing to warn users of the lake, such as the
plaintiff, Cole . . . , of the unreasonably dangerous and
unsafe condition of the lake on June 26, 2010.
[6] However, premises liability causes of action cannot be
taken against one who is not an owner or occupant of the prop-
erty. The Taylors were not owners or occupants of the Willers
Cove lake. The record is undisputed that the Taylors are not
legal owners of the lake. The WCOA is the legal owner of
the lake.
Neither do the Taylors qualify as occupants of the Willers
Cove lake. Under the legal definition of occupant, one may
be an occupant by having control over the land in question.
Though the lower court found that the Taylors were “in con-
trol” of the lake by virtue of their membership in the WCOA,
we disagree. Membership in the WCOA does not give those
members control of the lake that the WCOA owns. The people
truly in control of the WCOA’s property are those in positions
of control of the WCOA itself—for example, the WCOA offi-
cers. Just because the Taylors are adjoining landowners, can
10
§ 37-731. See, also, Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d
17 (2006).
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invite guests to use the lake, and can otherwise use the lake as
they wish does not make them in control of the property, nor
does premises liability attach to the Taylors for what happens
on that lake.
[7,8] Not every negligence action involving an injury suf-
fered on someone’s land is properly considered a premises
liability case.11 Under a premises liability theory, a court is
generally concerned with either a condition on the land or
the use of the land by a possessor.12 The complaint against
the Taylors does include causes of action not associated with
premises liability.
We reverse the district court’s determination that the Act
applies, because the Act applies only to premises liability
actions, and the Taylors do not have premises liability for
injuries that occur due to dangerous conditions in the lake. We
remand the cause for a determination of the remaining negli-
gence allegations against the Taylors.
2. Alleged Negligence of the
Willers and the WCOA
We agree with the district court and affirm its finding
that, even with all reasonable inferences in favor of Cole,
the Willers were not negligent, because the Willers owed no
special duty to Cole and because the injury of Cole was not
reasonably foreseeable to the ordinary person. However, we do
find material issues of fact remaining as to the WCOA’s abil-
ity to foresee the dangerous condition in the lake. We reverse,
and remand the district court’s summary judgment ruling as to
the WCOA.
[9-12] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plain-
tiff, a breach of such duty, causation, and damages.13 Our
case law has placed foreseeability in the context of breach
and as a factor in determining whether there was a breach
11
Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011); Semler v. Sears,
Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004).
12
Id.
13
Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
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of the duty of reasonable care.14 A person acts negligently
if the person does not exercise reasonable care under all the
circumstances. “‘Primary factors to consider in ascertaining
whether the person’s conduct lacks reasonable care [include]
the foreseeable likelihood that the person’s conduct will result
in harm, the foreseeable severity of any harm that may ensue,
and the burden of precautions to eliminate or reduce the risk
of harm.’”15
[13-15] Under the Restatement (Third) of Torts, which
Nebraska has adopted, foreseeability is analyzed as a fact-
specific inquiry into the circumstances that might have placed
the defendant on notice of the possibility of injury.16 Stated
another way, the foreseeability analysis requires us to ask
what the defendants knew, “when they knew it, and whether a
reasonable person would infer from those facts that there was
a danger.”17 Small changes in the facts may make a dramatic
change in how much risk is foreseeable.18 The law does not
require precision in foreseeing the exact hazard or consequence
which happens; it is sufficient if what occurs is one of the kinds
of consequences which might reasonably be foreseen.19
[16] Though questions of foreseeable risk are ordinarily
proper for a trier of fact, courts may reserve the right to deter-
mine that the defendant did not breach its duty of reasonable
care, as a matter of law, if reasonable people could not disagree
about the unforeseeability of the injury.20 Therefore, although
foreseeability is a question of fact, there remain cases where
14
See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
15
Id. at 218, 784 N.W.2d at 918 (emphasis supplied). See, also, 1 Restatement
(Third) of Torts: Liability for Physical and Emotional Harm, § 3 (2010).
16
See, A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14; 1 Restatement
(Third) of Torts, supra note 15, § 7.
17
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14, 280 Neb. at 217,
784 N.W.2d at 917.
18
Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786 N.W.2d 902 (2010).
19
Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).
20
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14. See Wilke v.
Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
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foreseeability can be determined as a matter of law, such as by
summary judgment.21
[17] More specifically, in premises liability cases, an owner
or occupier is subject to liability for injury to a lawful visitor
resulting from a condition on the owner or occupier’s premises
if the lawful visitor proves (1) that the owner or occupier either
created the condition, knew of the condition, or by exercise
of reasonable care would have discovered the condition; (2)
that the owner or occupier should have realized the condition
involved an unreasonable risk of harm to the lawful visitor; (3)
that the owner or occupier should have expected that the visitor
either would not discover or realize the danger or would fail to
protect himself or herself against the danger; (4) that the owner
or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate
cause of damage to the visitor.22 It follows that owners or occu-
piers have breached their duty if they know, or by exercise of
reasonable care should have realized, that a condition on their
land would create a risk from which visitors would fail to pro-
tect themselves.
[18,19] Though Nebraska has abolished the distinction
between invitee and licensee, “it remains true that a land pos-
sessor is not liable to a lawful entrant on the land unless the
land possessor had or should have had superior knowledge
of the dangerous condition on the land.”23 Land possessors
have a duty to attend “to the foreseeable risks in light of the
then-extant environment, including foreseeable precautions by
others.”24 This is true regarding all dangerous conditions on
the land, but “‘[k]nown or obvious dangers pose less of a risk
than comparable latent dangers because those exposed can take
precautions to protect themselves.’”25
21
Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).
22
Aguallo v. City of Scottsbluff, supra note 3.
23
Warner v. Simmons, 288 Neb. 472, 478, 849 N.W.2d 475, 480 (2014).
24
2 Restatement (Third) of Torts: Liability for Physical and Emotional
Harm, § 51, comment a. at 243 (2012) (emphasis supplied).
25
Warner v. Simmons, supra note 23, 288 Neb. at 479, 849 N.W.2d at 480.
See, also, 2 Restatement (Third) of Torts, supra note 24, § 51, comment k.
Nebraska Advance Sheets
364 290 NEBRASKA REPORTS
(a) The Willers
We find that, even giving all reasonable inferences in favor
of Cole, the Willers owed no duty to protect Cole from the type
of injury that occurred. Without any duty, there is no breach
that could have occurred. This finding is based on our conclu-
sion that no reasonable person could find that the injury suf-
fered by Cold was foreseeable from the installation of a culvert
on adjoining property.
[20] Cole asserts that the Willers owe adjoining landown-
ers a duty to provide for the passage of water from their
land, and that the Willers breached that duty.26 If a landowner
builds a structure in a natural watercourse to provide for the
water’s passage through the landowner’s property, that land-
owner does owe a duty to adjoining landowners to maintain
the construction so that water will not be collected or dam-
age another’s property.27 However, our law states that this
duty is owed only to other landowners, and is used only to
refer to damages caused to another’s property.28 Cole is not
an adjoining landowner, and therefore, the duty articulated in
Bristol v. Rasmussen29 does not apply to Cole. We have not
recognized, and do not now recognize, a duty to guests of an
adjoining landowner to properly dispose of water from one’s
own land.
[21] Although the Willers owed no special duty to Cole,
they still owed the most basic duty to conform to the legal
standard of reasonable conduct in light of the apparent risk.30
The expert witness could not state that the culvert was the
cause of the rising levels in the Willers Cove lake, or of the
overflow of the creek. Even assuming that Ronald could see
that the installation of the culvert was causing some water to
overflow from the creek, Ronald, in the position of an ordinary
26
See Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996).
27
See id.
28
See id. See, also, LaPuzza v. Sedlacek, 218 Neb. 285, 353 N.W.2d 17
(1984); Leaders v. Sarpy County, 134 Neb. 817, 279 N.W. 809 (1938).
29
Bristol v. Rasmussen, supra note 26.
30
Desel v. City of Wood River, 259 Neb. 1040, 614 N.W.2d 313 (2000).
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person, would not foresee that an overflow from the creek
would cause a dangerous condition in a separate body of water
that would then cause a guest of that property to receive seri-
ous bodily injury.
We find that, giving all factual inferences in favor of Cole,
the Willers could not have reasonably foreseen that by install-
ing a culvert on their property, such culvert would cause flood-
ing that would then cause sand in the bottom of the Willers
Cove lake to move, which a visiting guest of another land-
owner would then proceed to dive into and receive life-altering
injuries. Therefore, we affirm the district court’s granting of
summary judgment.
(b) The WCOA
In contrast, we do find material issues of fact as to whether
the WCOA knew of the condition, by exercise of reasonable
care should have discovered the condition, or should have real-
ized that a condition involved an unreasonable risk of harm to
the lawful visitor.
[22] The WCOA owes to the lawful guest or visitor a duty
to protect the visitor against those parts of the land which it
has reason to know of, with reasonable care would have dis-
covered, or should have realized involved an unreasonable risk
of harm to the visitor.31 In particular, since the WCOA would
have, and should have, superior knowledge of lake condi-
tions, there is some duty to use that knowledge to protect law-
ful visitors.32
The factual question then becomes whether or not this
condition should have been foreseeable to the WCOA. Many
material issues of fact are left undetermined when viewed
in the light most favorable to Cole, and weigh into the
foreseeability of Cole’s injury. First, Cole claims the WCOA
knew that the west side of the lake was unstable and that sand
fell into the water. There is some evidence that this was dis-
cussed at meetings of the WCOA; however, we do not know if
the WCOA recognized it as a dangerous condition for guests
31
See Aguallo v. City of Scottsbluff, supra note 3.
32
See Warner v. Simmons, supra note 23.
Nebraska Advance Sheets
366 290 NEBRASKA REPORTS
using the lake for swimming. This presents a material issue of
fact, because if the WCOA knew the sand could create a dan-
gerously shallow and unexpected condition in the lake, then
it had a responsibility to implement safety precautions for its
members and guests.
Cole also claims that the WCOA had a regulation keep-
ing swimming to within 50 feet of the shore. However, the
WCOA claims that this rule was abrogated by the time of the
accident. Even if the rule were in effect, it is not clear whether
its enforcement would have prevented Cole’s accident. This
presents a material issue of fact that is proper for the trier of
fact, because if there was a rule in effect, but being improp-
erly enforced by the WCOA, and that improper enforcement
caused the injury to Cole, then the WCOA may be liable
for negligence.
Finally, no witness can definitively state where the boat was
in the lake when the accident occurred. Most witnesses think it
was on the west part of the lake, but no witnesses know how
far the boat was from shore. These are issues of material fact,
because the distance of the boat from the shore would impact
the foreseeability of the dangerously shallow condition in
the lake.
3. Open and Obvious Doctrine
The district court found that the open and obvious doctrine
applied to bar recovery from the WCOA, because the lake con-
stituted an open and obvious condition and the WCOA could
not have foreseen that such harm would come to someone in
the position of Cole. We reverse this application of the open
and obvious doctrine and remand the cause for a determination
of the WCOA’s negligence.
[23] Generally, when a dangerous condition is open and
obvious, the owner or occupier is not liable in negligence for
harm caused by the condition.33 The rationale behind this rule
is that the open and obvious nature of the condition gives
caution and that therefore, the risk of harm is considered
33
Aguallo v. City of Scottsbluff, supra note 3.
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slight since reasonable people will avoid open and obvi-
ous risks.34
[24] Under the open and obvious doctrine, a possessor
of land is not liable to his or her invitees for physical harm
caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the pos-
sessor should anticipate the harm despite such knowledge
or obviousness.35
[25,26] A condition is considered obvious when the risk
is apparent to and of the type that would be recognized by a
reasonable person in the position of the invitee.36 In Nebraska,
we have repeatedly held that a body of water is not a con-
cealed, dangerous condition.37 We have said: “It can be stated
as a matter of fact that the public recognizes that bodies of
water vary in depth and that sharp changes in the bottom may
be expected.”38
Here, Cole did not protect himself from the open and obvi-
ous condition—a lake of unknown depth. He admits in his
deposition that he has knowledge of natural bodies of water
and that their depth can vary greatly. Invitees must take avail-
able precautions to protect themselves from open and obvious
dangers. Further, it is accepted as a fact by this court that
members of the public know that natural bodies of water can
vary in depth and that sharp changes in the bottom should be
expected.39 This hazard of a lake associated with risk of death
and serious injury has been held to be appreciated even by
children.40 We agree with the lower court in its finding that the
34
Restatement (Second) of Torts § 343A (1965).
35
Id.
36
4 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability and Litigation
§ 39:7 (2d ed. 2014).
37
See, Haden v. Hockenberger & Chambers Co., 193 Neb. 713, 228 N.W.2d
883 (1975); Cortes v. State, 191 Neb. 795, 218 N.W.2d 214 (1974);
Lindelow v. Peter Kiewit Sons’, Inc., 174 Neb. 1, 115 N.W.2d 776 (1962).
38
Cortes v. State, supra note 37, 191 Neb. at 799, 218 N.W.2d at 216-17.
39
Cortes v. State, supra note 37.
40
Id.
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368 290 NEBRASKA REPORTS
lake, as a body of water, “natural or artificial, . . . poses a well-
known and clear risk of being dangerous.”
[27] However, a determination that a danger is “open and
obvious” does not end the analysis; a court must also deter-
mine whether the owner/occupier should have anticipated that
persons using the premises would fail to protect themselves,
despite the open and obvious risk.41 As we have stated:
Reason to anticipate harm from an open and obvious
danger “may arise, for example, where the possessor has
reason to expect that the invitee’s attention may be dis-
tracted, so that he will not discover what is obvious, or
will forget what he has discovered, or fail to protect him-
self against it. Such reason may also arise where the pos-
sessor has reason to expect that the invitee will proceed
to encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so
would outweigh the apparent risk.”42
In Connelly v. City of Omaha,43 we found that the open and
obvious doctrine did not apply to bar the City of Omaha’s lia-
bility to the plaintiff. In Connelly, a young girl was paralyzed
when she sledded down a hill in a city park into a tree on the
right side of the hill. The City of Omaha argued that the tree
was open and obvious and did not present an unreasonable risk
of harm to sledders, who they assumed would have discov-
ered the tree, realized the danger, and gone elsewhere to sled.
However, we found that as an “entity operating a park that was
open to the public and commonly used for sledding, the City
should have expected the public to encounter some dangers
which were not unduly extreme, rather than forgo the right to
use the park for sledding.”44
Similarly, in this case, the lake presented a danger which
was not “unduly extreme,” and since the lake was open for
41
Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
42
Id. at 142, 816 N.W.2d at 754. See, also, Tichenor v. Lohaus, 212 Neb.
218, 322 N.W.2d 629 (1982).
43
Connelly v. City of Omaha, supra note 41.
44
Id. at 143-44, 816 N.W.2d at 755.
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guests and members to swim, the WCOA should have expected
the public to encounter some of the dangers associated with the
open body of water. The lake is an inviting scene for people to
use for swimming in the summer months. Swimming in itself
is not a highly dangerous activity. And in order to swim, one
must first get into the body of water. A common method of
getting into bodies of water is jumping or diving. Especially
where a person has already jumped and dove into the lake and
assumes to know its depth, that person would not be expected
to realize that there was an undue danger associated with div-
ing into the water another time. Viewing these inferences in the
light most favorable to Cole, we conclude that the district court
erred in finding that the open and obvious doctrine applied,
because the WCOA should have anticipated its guests to come
into contact with the lake.
We reverse the lower court’s finding that the open and obvi-
ous doctrine applied to bar the WCOA’s liability and remand
the cause to determine the negligence of the WCOA consistent
with the instructions in this opinion.
VI. CONCLUSION
We affirm the lower court’s ruling as to the Willers, and
reverse, and remand for further proceedings as to the Taylors
and the WCOA.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Stephan, J., not participating.
State of Nebraska, appellee, v.
Tiuana L. Johnson, appellant.
___ N.W.2d ___
Filed March 13, 2015. No. S-14-245.
1. Indictments and Informations. A ruling on whether to allow a criminal informa-
tion to be amended is made by the trial court in its discretion.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.