Fuller v. Burrito Builders Lincoln 102 ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
FULLER V. BURRITO BUILDERS LINCOLN 102
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RENAE C. FULLER, APPELLANT,
V.
BURRITO BUILDERS LINCOLN 102, L.L.C., DOING BUSINESS AS
PANCHEROS MEXICAN GRILL, ET AL., APPELLEES.
Filed May 16, 2023. No. A-22-683.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
Staci Hartman-Nelson for appellant.
Leslie S. Stryker Viehman, of Nolan, Olson & Stryker, P.C., L.L.O., for appellees.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Renae C. Fuller filed an action in the district court for Lancaster County, as a result of her
falling on a sidewalk outside of a restaurant in Lincoln, Nebraska. The defendants named in
Fuller’s suit jointly filed a motion for summary judgment, which the district court sustained. Fuller
appeals from the district court’s decision to sustain the motion for summary judgment. Upon our
review of the record, we conclude that there is no genuine issue of material fact as to whether a
dangerous condition on the sidewalk outside of the restaurant was the proximate cause of Fuller’s
fall because there is no evidence that any such dangerous condition existed at the time of the fall.
As such, we affirm the district court’s granting of summary judgment in favor of the defendants.
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BACKGROUND
On January 22, 2016, between 2:30 and 3 in the afternoon, Fuller fell on the sidewalk
outside of Pancheros Mexican Grill (Pancheros), a restaurant located on North 66th Street in
Lincoln. As a result of the fall, Fuller broke her hip and had to undergo surgery and rehabilitation.
Fuller subsequently filed a complaint against the following defendants: Burrito Builders
Lincoln 102, LLC and Burrito Builders, Inc. (both doing business as Pancheros); Dan Hiserote,
President of Burrito Builders Lincoln 102, LLC and Burrito Builders, Inc.; Panchero’s Franchise
Corporation; Rodney Anderson, President of Panchero’s Franchise Corporation; 200 Lincoln
Retail, LLC, owners of the building where Pancheros was located in Lincoln; and Pacific Realty
Commercial, LLC (doing business as Colliers International), the property managers for the
building where Pancheros was located in Lincoln.
In Fuller’s complaint, she alleged that on January 22, 2016, “she tripped over an area of
raised concrete at the entrance of [Pancheros] and fell to the ground, fracturing her left hip.” Fuller
further alleged that each of the defendants had a duty to maintain the area in front of the restaurant
in a reasonably safe condition and to warn and protect customers from any dangerous conditions.
Fuller contended that the defendants had breached their duties and/or were negligent in that they
either created the defect on the sidewalk, knew of the defect, or should have discovered the defect
and fixed it or warned customers of its existence. Fuller sought a judgment against the defendants
for special damages, medical expenses, and general damages.
The defendants moved collectively for summary judgment. In their motion, the defendants
denied that they were in any way negligent in their control of the sidewalk outside of the restaurant:
“nothing in the record or produced by [Fuller] has shown that Defendants created the condition,
knew of the condition, or by the exercise of reasonable care should have discovered or known of
the condition. Furthermore, the facts of the matter show that no dangerous condition existed.” At
a hearing on the defendants’ motion for summary judgment, they offered into evidence Fuller’s
deposition testimony; their answers to some of Fuller’s interrogatories; and affidavits from
representatives for 200 Lincoln Realty, LLC and Pacific Realty Commercial, LLC and from Dan
Hiserote. In opposition to the motion for summary judgment, Fuller offered, among other evidence,
her own affidavit and the defendants’ answers to her interrogatories and to her requests for
production of documents.
In her deposition, Fuller testified that on the morning of January 22, 2016, she traveled to
Lincoln from her home in Deshler for work. Fuller described the weather that day as very cold,
but with no falling precipitation. After arriving in Lincoln and completing some work, Fuller
decided to go get something to eat and then go to her hotel. She stopped at Pancheros, which was
near to her hotel. When Fuller arrived at Pancheros, it was still light outside and she did not notice
anything irregular about either the parking lot or the sidewalk on her walk from her vehicle to the
doors of the restaurant. Fuller ended up not staying inside of the restaurant very long because she
decided she did not want to eat there after viewing the menu.
Fuller exited Pancheros from the same door she entered. She testified that after opening
the door to leave, “my boot got caught, and there was raised concrete, and then I went tumbling
forward.” Initially, Fuller “guestimat[ed]” that the location of the raised concrete was “probably
right underneath [the] door area.” However, when Fuller was shown a picture which depicts a
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slight depression in a portion of concrete that is further from the restaurant’s door, she testified
that she must have been further away from the door than she thought because she must have tripped
over this flaw in the concrete. Fuller admitted that she did not see any flaw in the concrete at the
time of the fall. She also did not know when the picture of the concrete shown to her was taken or
whether the plates of concrete shifted, causing the depression, prior to her fall or between the time
of her fall and when the pictures were taken.
During her deposition, Fuller was also unable to recall approximately how many steps she
had taken from the door prior to her fall. She was unable to recall how her feet were positioned at
the time of the fall or whether it was her left or right foot which got caught on the concrete.
Essentially, Fuller testified that she believed that there must have been a flaw in the concrete at the
time of her fall because otherwise her boot would not have gotten caught on the concrete and she
would not have fallen.
Other evidence presented by the defendants at the summary judgment hearing
demonstrated that none of the defendants had knowledge of any defects in the sidewalk outside of
Pancheros at the time of Fuller’s fall. Pacific Realty Commercial indicated that as the property
manager for the building, it was tasked with regularly inspecting the sidewalks for defects. It did
so in April 2016 after learning of Fuller’s fall. During this inspection, it was noted “that the alleged
incident occurred in the middle of winter when concrete heaving is very typical.” Burrito Builders
indicated that employees of Pancheros would routinely inspect the area in front of the restaurant
for trash or clutter. No other complaints were received regarding Pancheros’ sidewalks either
before or after Fuller’s fall.
Fuller presented her own sworn affidavit in opposition to the motion for summary
judgment. This affidavit was dated December 2021, approximately 8 months after Fuller gave her
deposition. In the affidavit, Fuller alleged, “As I was exiting the restaurant my boot got caught on
raised concrete and caused me to fall.” She further alleged, “There were no warning signs or notice
placed on the sidewalk at the entrance of the restaurant.” Attached as an exhibit to Fuller’s affidavit
was a written statement she claimed was made on January 28, 2016, six days after the fall. The
district court granted the defendants’ motion to not consider this statement.
Other evidence presented by Fuller included Pacific Realty Commercial’s indication in its
response to Fuller’s request for production of documents, that in November 2016, ten months after
Fuller’s fall, it completed routine inspections of the sidewalk outside of Pancheros and routine
caulking of the building. Attached to Pacific Realty’s responses was the picture shown to Fuller
during her deposition which depicted the sidewalk outside of Pancheros with a slight depression
in a part of the concrete. This photograph is not dated. While it is not apparent in our electronic
version of this photograph, testimony in the record from Fuller indicates that a coin exists in the
photograph indicating that the depression was less than the full length of the coin. Additionally,
Fuller offered into evidence Burrito Builders’ franchise agreement with Pancheros dated in July
2012. Part of this agreement indicates that Burrito Builders agreed to ensure that a patio would be
added to the south side of the building and “sidewalk repaired and extended from front west
entrance to patio consistent with applicable codes.”
After the hearing, the district court entered a lengthy and detailed order granting summary
judgment in favor of the defendants. The court found:
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In sum, the Defendants produced evidence that they did not create, know of, or have notice
of uneven sections of concrete in front of the restaurant’s entrance. [Fuller] failed to
produce any evidence to create a genuine factual dispute on the first element of her
premises liability claim. Further, because there is no non-speculative basis to conclude that
the concrete sections were uneven when [Fuller] fell, it would also be speculative to
conclude that uneven sections of concrete proximately caused [Fuller] to fall. The
Defendants are therefore entitled to judgment as a matter of law because there is no factual
dispute on the first and fifth elements of [Fuller]’s premises liability claim.
Fuller appeals from the district court’s order granting summary judgment in favor of the
defendants.
ASSIGNMENT OF ERROR
Fuller assigns that the district court erred in granting the defendants’ motion for summary
judgment after concluding that there was no issue of material fact as to whether the defendants had
constructive knowledge of the uneven condition of the concrete that Fuller alleges caused her to
trip and fall.
STANDARD OF REVIEW
An appellate court will affirm 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 those facts and that the moving party is entitled to
judgment as a matter of law. Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (2016).
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. White v. White, 31 Neb. App. 691, 988
N.W.2d 207 (2023).
ANALYSIS
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. Edwards v. Hy-Vee, supra. Here, the district court
found that Fuller failed to produce any evidence which demonstrated that a dangerous condition
existed on the sidewalk outside of Pancheros at the time of her fall and that, as such, Fuller could
not demonstrate that any such dangerous condition was the proximate cause of her fall and
subsequent injuries. Upon our review of the record, we agree with the district court’s findings in
this regard.
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The evidence presented at the summary judgment hearing demonstrates that on January 22,
2016, Fuller fell, injuring her hip, upon leaving Pancheros. However, there was no evidence
presented to establish why Fuller tripped and fell. Fuller testified during her deposition and stated
in her affidavit that her boot got caught on a section of raised concrete causing her to fall forward
onto the sidewalk. However, Fuller did not observe any area of raised concrete on her walk into
the restaurant, when she left the restaurant, or after the fall. In her deposition, she was unable to
describe with any certainty exactly where she fell on the sidewalk until she was shown a picture
of uneven concrete. Then, she believed that she must have fallen in that location because there was
raised concrete. Such picture was not taken contemporaneously with the fall, though. It was,
apparently, taken months later. And, because Fuller did not observe the uneven concrete at the
time of the fall, she was unable to confirm whether the picture shown to her accurately depicted
the condition of the concrete in January 2016.
Fuller’s assertion that the concrete was uneven at the time of her fall is based on mere
speculation. At the summary judgment hearing, she offered into evidence documentation to
indicate that some part of the sidewalk outside of Pancheros was to be repaired in 2012 as part of
Burrito Builders’ franchise agreement with Pancheros Franchise Corporation. She also offered
evidence that in November 2016, 10 months after her fall, Pacific Realty Commercial LLC
conducted a routine inspection of the sidewalk outside of the restaurant. This evidence does not
prove anything about the condition of the sidewalk on January 22, 2016, when Fuller fell.
Moreover, other evidence presented at the summary judgment hearing revealed that no one,
besides Fuller, had ever complained about the sidewalk outside of the restaurant.
Essentially, we agree with the district court that Fuller’s contention that she tripped on an
uneven section of concrete is supported entirely by circular logic, rather than by any actual
evidence. Fuller believes that she would not have tripped if the walking surface on the sidewalk
was even. She tripped. Thus, the surface was uneven on the day that she tripped. In slip-and-fall
cases, however, the mere fact that a fall occurred is not evidence of negligence, nor does it raise a
presumption of negligence. Clark v. Scheels All Sports, 314 Neb. 49, ___ N.W.2d ___ (2023). See
also Herrera v. Fleming Cos., 265 Neb. 118, 123, 655 N.W.2d 378, 383 (2003). A plaintiff in a
premises liability case is required to adduce evidence showing that there was a negligent act on
the part of the defendant and that such act was the cause of the plaintiff’s injury. Id. An allegation
of negligence is insufficient where the finder of fact must guess at the cause of the accident. Id.In her brief on appeal, Fuller argues that the existence of uneven concrete on the sidewalk
outside of Pancheros would have been visible and apparent to the defendants had they properly
inspected the area. She also asserts that uneven concrete “creating a trip hazard requires a period
of time to form” and that, as a result, the defendants should have discovered the defect prior to her
fall. Brief for appellant at 15-16. However, in her brief, Fuller fails to address the absence of
evidence proving that there was uneven concrete on the sidewalk outside of Pancheros on the day
of her fall. Whether the defendants knew or should have known of a dangerous condition is
immaterial if there was no such dangerous condition. Failure of proof concerning an essential
element of the nonmoving party’s case renders all other facts immaterial. Estate of Block v. Estate
of Becker, 313 Neb. 818, 986 N.W.2d 726 (2023).
Simply stated, Fuller failed to present any evidence to affirmatively demonstrate that there
was a defect in the sidewalk outside of Pancheros on the day of her fall and that any such defect
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was the proximate cause of her fall. Given the absence of this evidence, the district court did not
err in granting summary judgment in favor of the defendants.
CONCLUSION
Because there was no evidence from which a reasonable finder of fact could infer the
existence of a dangerous condition on the sidewalk outside of Pancheros at the time of Fuller’s
fall, Fuller failed to meet her burden to prove that any such dangerous condition was the proximate
cause of her fall and subsequent injuries. The district court did not err in granting summary
judgment in favor of the defendants.
AFFIRMED.
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