Clark v. Scheels All Sports , 314 Neb. 49 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/21/2023 08:05 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49Kristine Clark, appellant, v. Scheels
All Sports, Inc., appellee.
___ N.W.2d ___
Filed April 21, 2023. No. S-21-624.
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. 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. Summary Judgment. One of the primary purposes of summary judg-
ment is to pierce the allegations in the pleadings and show conclusively
that the controlling facts are other than as pled.
3. ____. Summary judgment is proper only when the pleadings, deposi-
tions, admissions, stipulations, and affidavits in the record disclose that
there is no genuine issue as to any material fact 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. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
the movant would be entitled to judgment if the evidence were uncon-
troverted at trial. If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law. But
in the absence of a prima facie showing by the movant that he or she
is entitled to summary judgment, the opposing party is not required to
reveal evidence which he or she expects to produce at trial.
5. ____: ____. If the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judgment may satisfy
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49its prima facie burden either by citing to materials in the record that
affirmatively negate an essential element of the nonmoving party’s claim
or by citing to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
6. Negligence: Words and Phrases. There is no fixed rule for determining
when a condition presents an unreasonable risk of harm, but the plain
meaning of the term suggests a uniquely or unacceptably high risk of
harm—something more than the usual risks commonly encountered.
7. Negligence: Liability: Words and Phrases. In the context of premises
liability cases, an unreasonable risk of harm generally means a risk that
a reasonable person, under all the circumstances of the case, would not
allow to continue.
8. Summary Judgment. When the summary judgment standard is prop-
erly, carefully, and cautiously applied to enter judgment as a matter of
law on a claim or defense that is shown to be undisputed, it is not an
extreme remedy; it is simply another procedural tool by which undis-
puted claims or defenses can be isolated and prevented from going to
trial with the attendant unwarranted consumption of public and pri-
vate resources.
9. Negligence: Presumptions. The mere fact that a fall occurred is not
evidence of negligence, nor does it raise a presumption of negligence.
10. Summary Judgment: Evidence. Conclusions based on guess, specula-
tion, conjecture, or a choice of possibilities do not create material issues
of fact for the purposes of summary judgment; the evidence must be
sufficient to support an inference in the nonmovant’s favor without the
fact finder engaging in guesswork.
11. Evidence: Proof. The failure of proof on an essential element of the
nonmoving party’s claim necessarily renders all other facts immaterial.
12. Summary Judgment: Pleadings. The pleadings frame the issues to be
considered on a motion for summary judgment.
13. ____: ____. Courts may not enter summary judgment on an issue not
presented by the pleadings.
14. Summary Judgment. In the summary judgment context, a disputed fact
is material only if it would affect the outcome of the case.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Cathy S. Trent-Vilim, Brian J. Brislen, and Maria T.
Lighthall, of Lamson, Dugan & Murray, L.L.P., and Tyler K.
Spahn, Assistant Lincoln City Attorney, for appellant.
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49Michael L. Moran, of Engles, Ketcham, Olson & Keith,
P.C., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Per Curiam.
I. INTRODUCTION
Kristine Clark filed a premises liability action against
Scheels All Sports, Inc. (Scheels), alleging she tripped and fell
due to a dangerous condition on the premises. Scheels suc-
cessfully moved for summary judgment, and Clark appeals.
One of Clark’s primary arguments on appeal is that Scheels, as
the moving party on summary judgment, could not satisfy its
initial burden merely by citing to discovery showing that Clark
did not have evidence to prove a material element of her claim.
According to Clark, the only way Scheels could meet its initial
burden was to offer evidence affirmatively negating Clark’s
claim that Scheels was negligent.
We analyze the 2017 amendments to Neb. Rev. Stat.
§ 25-1332(2) (Cum. Supp. 2022) and conclude they expressly
allow a moving party to show the absence of a genuine dis-
pute as to any material fact by showing that “an adverse party
cannot produce admissible evidence to support the fact.” 1 We
also conclude that Scheels satisfied its prima facie burden by
showing that Clark could not produce admissible evidence
to support a material element of her premises liability claim,
and we further conclude that Clark did not thereafter show a
genuine dispute of material fact sufficient to preclude sum-
mary judgment. We therefore affirm the judgment of the dis-
trict court.
II. BACKGROUND
In February 2019, Clark filed a complaint against Scheels
in the district court for Douglas County. As relevant to the
1
See § 25-1332(2)(b).
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49issues on appeal, Clark’s complaint alleged that on April 18,
2016, while entering a Scheels store in Omaha, Nebraska,
her “shoelace got caught in the foot grate in the store foyer
between the outside and inside doors [and the] entanglement
caused her to trip on the grate and fall.” The complaint identi-
fied two conditions in the foyer that Clark alleged caused her
fall: (1) an unsafe or poorly maintained “foot grate” and (2) a
strong “wind tunnel effect” that increased the falling hazard.
Scheels’ answer denied these allegations and alleged several
affirmative defenses.
1. Discovery
Both parties conducted discovery focused on whether Clark’s
fall was caused by an unreasonably dangerous condition in
Scheels’ foyer. Because the information learned from discovery
is central to the parties’ arguments on summary judgment, we
review it in some detail.
Before suit was filed, Clark requested, and Scheels pro-
vided, a copy of its surveillance video of the foyer area at the
time of Clark’s fall. That video was recorded by a motion-
activated camera mounted inside the store near the checkout
area. The camera was aimed at a panel of eight glass doors
leading directly into the foyer area where Clark fell. The foyer
area is visible through the glass doors, but several display man-
nequins inside the store partially obstructed the camera’s view
of the area beyond several doors near the center of the panel.
The motion-activated camera did not record continuously, but
it did capture approximately 13 minutes of video that showed
Clark as she walked through the exterior doors into the foyer
area and approached the doors near the center of the panel.
The video did not capture the precise moment or mechanism of
Clark’s fall, and the mannequins blocked the camera’s view of
the area where Clark landed. But the video did capture some
of the activity in the foyer after Clark’s fall as store employees
and emergency personnel came to Clark’s aid.
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Cite as 314 Neb. 49Scheels also produced a “Guest Injury Accident Report” pre-
pared by its employees at or near the time of the fall. According
to the report, Clark told store employees she “fell because her
shoelace got caught in the grate.” The report states that Clark’s
shoelaces were “very long” and that one set of shoelaces was
untied when store employees arrived in the foyer, but the shoe-
laces were not stuck in the grate.
Clark deposed several of the Scheels employees on duty
at the time of her fall. None recalled seeing any substance,
obstacle, or defect in the foyer area, none had knowledge of
any problem with the grate in the foyer, and none recalled any
other customer tripping on the grate. The employees were not
asked about a wind tunnel effect in the foyer.
Before deposing Clark, Scheels served interrogatories and
requests for production. This discovery asked Clark to iden-
tify all witnesses with information bearing on any of the
allegations of the complaint and to identify any expert wit-
ness expected to be called at trial and state the substance of
and grounds for the expert’s opinion. It also asked Clark to
produce any exhibits she intended to introduce at trial and to
produce copies of any expert reports. Clark’s initial and sup-
plemental discovery responses did not identify any exhibits,
other than Scheels’ surveillance video, to support her claim
that the foyer was unreasonably dangerous in any of the ways
alleged in the complaint. Nor did her discovery responses
identify any witness or expert who was expected to testify as
to the existence of an unreasonably dangerous condition in the
foyer area.
When Scheels deposed Clark, she did not testify that she fell
because her shoelaces got caught in the foot grate, although
that was the mechanism of fall alleged in her complaint.
Instead, she testified that she did not think she was wear-
ing shoes with shoelaces at all when she fell. When asked
what she remembered about the cause of her fall, she testi-
fied, “I remember pushing the button for the electric door to
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49open, but after that, I don’t remember anything else.” In
response to followup questions, she testified:
A. I just — I just remember going in, and I — I don’t
remember anything else that happened. I don’t know — I
just — I thought to myself, “Did somebody jump me,” or
“Did the door malfunction,” or [“]somebody push me,”
or . . .
....
Q. So as you — you didn’t — sounds like what you’re
saying is you didn’t know what happened.
Is that accurate?
A. Yeah, I — I don’t really — I mean, I — I don’t
know. I remember walking in, sort of, and then that was
the last I remember.
Later in her deposition testimony, Clark confirmed that she did
not know whether the door malfunctioned, she did not know
whether she tripped on anything in the foyer, she did not know
if anyone pushed her, and she did not inspect the area around
her immediately after her fall. After Clark’s deposition, there
was no request to amend the complaint to allege a different
mechanism of injury, allege a different theory of recovery, or to
identify additional dangerous conditions on the premises.
2. Summary Judgment Evidence
In March 2020, Scheels moved for summary judgment, cit-
ing Clark’s deposition testimony and her discovery responses
to argue that she could not prove material elements of her
premises liability claim. Hearing on the motion was continued
several times to allow Clark to conduct additional discovery
and inspect the premises. The summary judgment motion was
eventually heard in May 2021. Both parties adduced evidence
at the hearing.
Scheels offered the operative pleadings, Clark’s discov-
ery deposition with attached exhibits (including her supple-
mental interrogatory answers), and Clark’s supplemental
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49responses to Scheels’ requests for production. All exhibits
were received. Relying on this evidence, Scheels argued that
even giving Clark the benefit of all reasonable inferences, the
evidence showed only that Clark had fallen in Scheels’ foyer.
Scheels argued that Clark did not know what caused her fall
and that she had no evidence to support the alleged danger-
ous conditions identified in her complaint. Arguing that Clark
could not prove the material elements of her premises liability
claim, Scheels asserted it was entitled to judgment as a mat-
ter of law.
In opposing summary judgment, Clark offered, and the court
received, the affidavit of her attorney. Attached to the attor-
ney’s affidavit were several exhibits, including the surveillance
video of her fall, the “Guest Injury Accident Report” com-
pleted after her fall, and the deposition transcripts of several
Scheels employees. Clark argued that even though she did not
know what caused her fall, this evidence, and the reasonable
inferences from this evidence, showed there was a genuine
factual dispute as to whether her fall was caused by an unsafe
or poorly maintained floor grate.
Clark also argued there was a reasonable inference that her
fall might have been caused by a defective or malfunctioning
door, although that was not one of the allegedly dangerous
conditions identified in her complaint. Regarding the entry
doors, Clark’s attorney averred that during an onsite inspec-
tion of the foyer conducted 2 months before the summary
judgment hearing and nearly 5 years after Clark’s fall, he
learned from the store manager that Scheels had “replaced
the doors of the entryway in January 2021.” Counsel averred
that “Scheels replac[ed] the entryway doors without provid-
ing prior notice to [Clark, so she] is unable to determine
whether there was a defect or unsafe condition of the doors on
April 18, 2016, which caused or contributed to [her] injury.”
Our record contains no requests to continue the summary
judgment hearing to permit discovery on which entry doors
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49were replaced in 2021, or why. Instead, Clark relied on
the attorney’s averment to argue that Scheels had engaged
in the intentional spoliation of evidence, which she argued
entitled her to an adverse inference that the entry doors were
unreasonably dangerous.
3. Summary Judgment Order
After considering the parties’ exhibits and arguments, the
district court granted summary judgment in favor of Scheels.
In doing so, the court did not focus on the evidence that Clark
was unsure about what caused her fall. Instead, after reciting
the material elements that Clark needed to prove at trial to
recover on her premises liability claim, the court focused on
whether there was any evidence in the record to prove that
Clark’s fall was caused by an unreasonably dangerous condi-
tion on Scheels’ premises.
Although Clark’s complaint had identified two allegedly
dangerous conditions (the foot grate and a wind tunnel effect),
when opposing the motion for summary judgment, Clark did
not contend there was evidence to support her allegation of a
wind tunnel effect, and the district court did not address that
allegation. But the court did address Clark’s argument that
there was evidence to support her allegation that the foot grate
presented an unreasonably dangerous condition, and it dis-
agreed, reasoning:
Clark has provided no evidence that the condition which
[she claims] caused her injuries presented an unreason-
able risk of harm. There is no evidence that the grate
was broken, loose, defective, or raised higher than the
floor surrounding it. Nothing has been offered to suggest
that similar floor grates at other retail stores have caused
similar accidents in the past. . . . [T]here is no evidence
there was anything wrong with the floor grates or that
they were in a defective condition. Nor is there evidence
that anyone else ever tripped over the floor grates. In
the absence of such evidence, a finder of fact would
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Cite as 314 Neb. 49have to speculate to conclude that the floor grates pre-
sented an unreasonable risk of harm.
The district court also addressed what it described as “Clark’s
suggestion that her fall might have been caused by a malfunc-
tioning door,” and it concluded this did not present a genuine
issue of material fact. The court did not analyze whether the
spoliation theory Clark advanced on summary judgment enti-
tled her to an inference that the doors were defective. Instead,
it noted that Clark had not alleged the entry doors caused or
contributed to her fall, and it reasoned that “[e]ven if evidence
had been offered to show that the door malfunctioned at the
time or was defective,” there was no supporting allegation that
the door had anything to do with Clark’s fall.
In summary, the district court found there was “simply
nothing before the Court from which it could reasonably be
inferred that Clark’s injuries were caused by an unreasonably
dangerous condition on Scheels’ property.” The court therefore
concluded Scheels was entitled to judgment as a matter of law,
and it dismissed the action with prejudice.
Clark timely appealed. One of the primary issues on appeal
is whether a party who moves for summary judgment can meet
its initial burden of showing the absence of a genuine dispute
of fact by citing materials in the record that show the oppos-
ing party lacks evidence to prove a material fact on which the
opposing party will bear the burden of proof at trial. We moved
the case to our docket to consider that issue, and we requested
supplemental briefing on the impact, if any, of amendments
made in 2017 to the provisions of § 25-1332.
III. ASSIGNMENTS OF ERROR
Clark assigns, restated, that the district court erred in two
respects: (1) prematurely shifting the evidentiary burden to
her as the nonmoving party to show the existence of a genu-
ine factual dispute when Scheels had not met its prima facie
burden as the moving party and (2) concluding Clark had
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Cite as 314 Neb. 49not shown a material factual dispute sufficient to preclude sum-
mary judgment.
IV. STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary 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 mat-
ter 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
V. ANALYSIS
[2] To address Clark’s assignments of error, we begin by
reviewing the statutory framework and the legal standards that
govern summary judgment in Nebraska. Summary judgment
has been statutorily authorized in civil actions in Nebraska
since 1951. 4 Summary judgment motions may be filed by
parties who are asserting, and by parties who are defending
against, a claim, counterclaim, cross-claim, or request for
declaratory judgment. 5 A party may seek summary judgment
as to “all or any part” of such claims. 6 We have long observed
2
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
3
Id.4
See 1951 Neb. Laws, ch. 65, §§ 1 to 7, pp. 199-200.
5
See Neb. Rev. Stat. § 25-1330 (Reissue 2016) (governing summary
judgment by those bringing claims) and Neb. Rev. Stat. § 25-1331(Reissue 2016) (governing summary judgment by those against whom
claims are brought).
6
See §§ 25-1330 and 25-1331. Accord § 25-1332(1) (“summary judgment
. . . may be rendered on the issue of liability alone although there is a
genuine issue as to the amount of damages”).
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CLARK V. SCHEELS ALL SPORTS
Cite as 314 Neb. 49that one of the primary purposes of summary judgment
is to pierce the allegations in the pleadings and show conclu-
sively that the controlling facts are other than as pled. 7
The statutory procedure governing summary judgment
motions is set out in § 25-1332. Section 25-1332 identifies
the type of evidence that may be received on a motion for
summary judgment and the legal standard to be applied when
deciding such motions. Regarding the former, the statute pro-
vides, “The evidence that may be received on a motion for
summary judgment includes depositions, answers to interroga-
tories, admissions, stipulations, and affidavits.” 8 Regarding the
latter, the statute provides that summary judgment “shall be
rendered forthwith if the pleadings and the evidence admitted
at the hearing show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a judg-
ment as a matter of law.” 9
[3,4] Consistent with these statutory provisions, our cases
have long held that summary judgment is proper only when
the pleadings, depositions, admissions, stipulations, and affi-
davits in the record disclose that there is no genuine issue
as to any material fact 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. 10 Likewise, our cases
have long held that the party moving for summary judgment
must make a prima facie case by producing enough evidence
to show the movant would be entitled to judgment if the
7
See, e.g., Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d 104(2022); Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186(2019); Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590(2015); Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004); Rush
v. Wilder, 263 Neb. 910, 644 N.W.2d 151 (2002).
8
§ 25-1332(1).
9
Id.
10
See, e.g., Porter, supra note 7; Wintroub v. Nationstar Mortgage, 303 Neb.
15, 927 N.W.2d 19 (2019).
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Cite as 314 Neb. 49evidence were uncontroverted at trial. 11 If the moving party
makes a prima facie case, the burden shifts to the nonmov-
ant to produce evidence showing the existence of a material
issue of fact that prevents judgment as a matter of law. 12 But
in the absence of a prima facie showing by the movant that
he or she is entitled to summary judgment, the opposing party
is not required to reveal evidence which he or she expects to
produce at trial. 13
One of Clark’s arguments on appeal is that Scheels did not
meet its initial burden as the moving party and that therefore,
the district court erred in shifting the burden to her to show
the existence of a genuine factual dispute. According to Clark,
Scheels could not make out a prima facie case merely by show-
ing that Clark lacked evidence sufficient to prove a material
element of her claim. Instead, Clark contends that Scheels had
to offer evidence affirmatively negating Clark’s allegation that
she fell due to an unreasonably dangerous condition on the
premises. More specifically, Clark contends that Scheels failed
to meet its prima facie burden because it “presented no affirm­
ative evidence proving it acted reasonably, or that the premises
were in a safe condition at the time Clark fell.” 14
To address Clark’s argument, we begin by examining our
precedent on how movants can meet their initial burden to pro-
duce enough evidence to show the movant would be entitled
to judgment if the evidence were uncontroverted at trial. We
then examine U.S. Supreme Court case law addressing the
same issue under Fed. R. Civ. P. 56 (Rule 56). Finally, we
consider the 2017 amendments to the summary judgment pro-
cedure in § 25-1332 and the impact of those amendments on
Clark’s argument.
11
See, e.g., Porter, supra note 7.
12
Id.13
Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).
14
Supplemental brief for appellant at 5.
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Cite as 314 Neb. 491. Making Prima Facie Case
Under § 25-1332
Before the effective date of the 2017 amendments to
§ 25-1332, Nebraska’s summary judgment statute did not spec-
ify how a party must show the presence or absence of a genu-
ine dispute of material fact. And although our cases have been
consistent in describing how and when the burden of produc-
tion shifts between the moving and nonmoving parties on sum-
mary judgment, 15 we have been less consistent when describing
how a movant can meet the initial burden of producing enough
evidence to show the movant would be entitled to judgment
if the evidence were uncontroverted at trial in cases like this,
where the opposing party will have the burden of proof at
trial. As Clark correctly observes, some of our cases suggest
that to meet the initial burden in such a case, movants must
produce evidence that affirmatively refutes or negates the alle-
gations against them, even on an issue with respect to which
the opposing party will have the burden of proof at trial. 16
15
See, e.g., Green, supra note 13; Borrenpohl v. DaBeers Properties, 276
Neb. 426, 755 N.W.2d 39 (2008); Builders Supply Co. v. Czerwinski, 275
Neb. 622, 748 N.W.2d 645 (2008); Pogge v. American Fam. Mut. Ins. Co.,
272 Neb. 554, 723 N.W.2d 334 (2006); Marksmeier v. McGregor Corp.,
272 Neb. 401, 722 N.W.2d 65 (2006); Lovette v. Stonebridge Life Ins. Co.,
272 Neb. 1, 716 N.W.2d 743 (2006); NEBCO, Inc. v. Adams, 270 Neb.
484, 704 N.W.2d 777 (2005); New Tek Mfg. v. Beehner, 270 Neb. 264, 702
N.W.2d 336 (2005); Russell v. Bridgens, 264 Neb. 217, 647 N.W.2d 56(2002); Melick v. Schmidt, 251 Neb. 372, 557 N.W.2d 645 (1997).
16
See, e.g., Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 739
N.W.2d 442 (2007) (to satisfy movant’s initial burden, defendant insurer
had to refute plaintiff’s claim that she was totally disabled); Roubideaux v.
Davenport, 247 Neb. 746, 530 N.W.2d 232 (1995) (defendant physician’s
affidavit did not satisfy movant’s initial burden because it did not negate
plaintiff’s allegation that physician breached standard of care); Hanzlik
v. Paustian, 211 Neb. 322, 328, 318 N.W.2d 712, 716 (1982) (reversing
summary judgment in favor of physician, holding physician “failed to
make a prima facie showing of the absence of negligence on his part,
and therefore no burden of producing evidence shifted to the plaintiff”),
disapproved on other grounds, Anderson v. Service Merch. Co., 240 Neb.
873, 485 N.W.2d 170 (1992).
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Cite as 314 Neb. 49Other cases, however, recognize that movants can satisfy their
initial burden by showing that if the case proceeded to trial,
the opposing party could not prove a material element of the
claim. 17 It does not appear that our prior cases have discussed,
or attempted to reconcile, the tension in these competing lines
of authority. But the U.S. Supreme Court directly addressed the
issue in Celotex Corp. v. Catrett (Celotex). 18
Celotex involved a wrongful death lawsuit brought in fed-
eral district court against an asbestos manufacturer. The com-
plaint alleged the decedent was exposed to the manufacturer’s
asbestos products, which caused his death. The manufacturer
successfully moved for summary judgment, offering discovery
that showed the decedent’s estate was unable to produce evi-
dence to support its allegation that the decedent was exposed
to the manufacturer’s asbestos products. The federal Court of
Appeals reversed, reasoning the asbestos manufacturer had
failed to make a prima facie case because it had not offered
evidence affirmatively negating the estate’s allegation of asbes-
tos exposure. The U.S. Supreme Court granted certiorari to
address whether a moving party could meet its initial bur-
den under Rule 56 without offering evidence to affirmatively
negate the opponent’s claim.
Justice Rehnquist, writing for the majority, explained that
in cases where the nonmoving party would bear the burden of
proof at trial, there was “no express or implied requirement
17
See, e.g., Caguioa v. Fellman, 275 Neb. 455, 460, 747 N.W.2d 623, 628
(2008) (“to be granted summary judgment, a defendant must show that one
of the required elements of a plaintiff’s case cannot be established”); In re
Estate of Nicholson, 211 Neb. 805, 812, 320 N.W.2d 739, 743-44 (1982)
(movant can meet initial burden by “‘showing that if the case proceeded
to trial his opponent could produce no competent evidence to support a
contrary position’”); Miller v. Aitken, 160 Neb. 97, 100, 69 N.W.2d 290,
292 (1955) (movants can meet initial burden by showing they “would be
entitled to a directed verdict” if evidence remained undisputed at trial).
18
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986).
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Cite as 314 Neb. 49in Rule 56 that the moving party support its motions with
affidavits or other similar materials negating the opponent’s
claim.” 19 The majority reasoned:
[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a show-
ing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial. In such a situation, there
can be “no genuine issue as to any material fact,” since
a complete failure of proof concerning an essential ele-
ment of the nonmoving party’s case necessarily renders
all other facts immaterial. The moving party is “entitled
to a judgment as a matter of law” because the nonmoving
party has failed to make a sufficient showing on an essen-
tial element of her case with respect to which she has the
burden of proof. 20
The Celotex majority emphasized that one of the primary
reasons for the summary judgment rule “is to isolate and dis-
pose of factually unsupported claims or defenses,” and it rea-
soned the rule “should be interpreted in a way that allows it to
accomplish this purpose.” 21 Elaborating on the role played by
summary judgment in the current notice pleading regime, the
majority explained:
Summary judgment procedure is properly regarded not
as a disfavored procedural shortcut, but rather as an
integral part of the Federal Rules as a whole . . . .
Before the shift to “notice pleading” accomplished by
the Federal Rules, motions to dismiss a complaint or to
strike a defense were the principal tools by which fac-
tually insufficient claims or defenses could be isolated
19
Id., 477 U.S. at 323 (emphasis in original).
20
Id., 477 U.S. at 322-23.
21
Id., 477 U.S. at 323-24.
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Cite as 314 Neb. 49and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.
But with the advent of “notice pleading,” the motion to
dismiss seldom fulfills this function any more, and its
place has been taken by the motion for summary judg-
ment. Rule 56 must be construed with due regard not only
for the rights of persons asserting claims and defenses
that are adequately based in fact to have those claims and
defenses tried to a jury, but also for the rights of persons
opposing such claims and defenses to demonstrate in
the manner provided by the Rule, prior to trial, that the
claims and defenses have no factual basis. 22
Justice White concurred, but wrote separately to emphasize
that even though a defendant could satisfy its initial burden by
showing the plaintiff could not prove a material element at trial,
this burden could not be met by offering only a “conclusory
assertion that the plaintiff has no evidence to prove his case.” 23
The dissenting justices in Celotex agreed with the majority’s
interpretation of Rule 56, 24 and the dissent authored by Justice
Brennan concisely summarized the governing principles:
Rule 56 requires the moving party to make a prima facie
showing that it is entitled to summary judgment. . . .
The manner in which this showing can be made depends
upon which party will bear the burden of persuasion on
the challenged claim at trial. If the moving party will
bear the burden of persuasion at trial, that party must
support its motion with credible evidence—using any
of the materials specified in Rule 56(c)—that would
entitle it to a directed verdict if not controverted at
22
Id., 477 U.S. at 327.
23
Id., 477 U.S. at 328 (White, J., concurring).
24
See 10A Charles Alan Wright et al., Federal Practice and Procedure
§ 2727.1 at 485-86 (4th ed. 2016) (noting “the [Celotex] majority and
dissent both agreed as to how the summary-judgment burden of proof
operates” under Rule 56).
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Cite as 314 Neb. 49trial. . . . Such an affirmative showing shifts the bur-
den of production to the party opposing the motion and
requires that party either to produce evidentiary materi-
als that demonstrate the existence of a “genuine issue”
for trial or to submit an affidavit requesting additional
time for discovery. . . .
If the burden of persuasion at trial would be on the
nonmoving party, the party moving for summary judg-
ment may satisfy Rule 56’s burden of production in either
of two ways. First, the moving party may submit affirm­
ative evidence that negates an essential element of the
nonmoving party’s claim. Second, the moving party may
demonstrate to the court that the nonmoving party’s evi-
dence is insufficient to establish an essential element of
the nonmoving party’s claim. . . . If the nonmoving party
cannot muster sufficient evidence to make out its claim, a
trial would be useless and the moving party is entitled to
summary judgment as a matter of law. 25
Federal courts and legal commentators generally agree that
after Celotex, federal Rule 56(c) allows a summary judgment
movant to satisfy its initial burden in either of two ways: “it
can produce evidence negating an essential element of the
nonmoving party’s case, or it can show that the nonmoving
party does not have enough evidence of an essential ele-
ment of its claim to carry its ultimate burden of persuasion
at trial.” 26
25
Celotex, supra note 18, 477 U.S. at 331 (Stevens, J., dissenting) (emphasis
in original).
26
Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018). See, also, Grimes v.
District of Columbia, 794 F.3d 83, 93 (D.C. Cir. 2015) (“the burden on
a defendant moving for summary judgment may be discharged without
factual disproof of the plaintiff’s case; the defendant need only identify
the ways in which the plaintiff has failed to come forward with sufficient
evidence to support a reasonable jury to find in her favor on one or more
essential elements of her claim”). Accord 10A Wright et al., supra note 24,
§ 2727.1.
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Cite as 314 Neb. 49In 2010, federal Rule 56(c) was amended to directly address
the procedure for parties to show the presence or absence of
a genuine dispute of material fact, and the amended federal
rule incorporates the rule from Celotex. 27 Currently, Rule 56(c)
provides in pertinent part:
(1) Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to sup-
port the fact.
This court has cited Celotex, 28 but we have not expressly
adopted its reasoning. And post-Celotex, we have not revis-
ited our line of cases that hold movants can only meet their
initial burden by producing evidence that affirmatively refutes
or negates the allegations against them, even on an issue with
respect to which the opposing party will have the burden of
27
See 10A Wright et al., supra note 24 (referring to language in Rule
56(c)(1)(B)). See, also, Rule 56 (advisory committee notes on 2010
amendments explain “a party who does not have the trial burden of
production may rely on a showing that the party who does have the trial
burden cannot produce admissible evidence to carry its burden as to the
fact”).
28
See, Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 168, 871 N.W.2d
776, 793 (2015) (citing Celotex for proposition that “[f]ailure of proof
concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial”), disapproved on other grounds, Weyh
v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019); Anderson, supra note
16 (citing Celotex when discussing proper standard to apply on summary
judgment).
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Cite as 314 Neb. 49proof at trial. But as we explain next, any historical tension in
our cases is merely academic now, because the 2017 legislative
amendments to the summary judgment procedure in § 25-1332
effectively incorporated the provisions of Rule 56(c) and the
Celotex rule into Nebraska law.
2. Legislature Amends § 25-1332
The Nebraska Legislature amended § 25-1332 in 2017 via
2017 Neb. Laws, L.B. 204, and after the amendments became
effective, we enacted uniform court rules to support the new
statutory procedures. 29 These amendments did not materially
change either the summary judgment standard or the evidence
that may be received on summary judgment. 30 But L.B. 204
did add two new subsections to § 25-1332: subsection (2)
addresses how parties must support their assertion of the pres-
ence or absence of a genuine dispute of material fact and sub-
section (3) addresses the court’s various options in addressing
the motion.
As relevant here, subsection (2) of § 25-1332 uses language
nearly identical to federal Rule 56(c) and provides:
(2) A party asserting that a fact cannot be or is genu-
inely disputed must support the assertion by:
(a) Citing to particular parts of materials in the record,
including depositions, answers to interrogatories, admis-
sions, stipulations, affidavits, or other materials; or
(b) Showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to sup-
port the fact.
29
See Neb. Ct. R. § 6-1471 (summary judgment procedure in county court)
and Neb. Ct. R. § 6-1526 (rev. 2022) (summary judgment procedure in
district court). See, also, Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d
855 (2020) (explaining reasons for uniform court rules governing summary
judgment procedure).
30
Compare § 25-1332 (Reissue 2016) with § 25-1332(1) (Cum. Supp. 2022).
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Cite as 314 Neb. 49Scheels argues that the plain text of § 25-1332(2)(b) now
expressly allows moving parties to prove the absence of a
genuine dispute of material fact by citing to materials in the
record showing the adverse party cannot produce admissible
evidence to support the fact. In light of this statutory lan-
guage, Scheels argues there is no merit to Clark’s contention
that the only way it could meet its initial burden was to offer
evidence affirmatively negating her allegations that there was
a dangerous condition on its premises. Additionally, Scheels
argues that by incorporating the language of federal Rule
56(c) into § 25-1332(2), the Legislature effectively adopted
the authoritative reasoning of Celotex. We agree.
As Justice Felix Frankfurter once observed, “[I]f a word
is obviously transplanted from another legal source, whether
the common law or other legislation, it brings the old soil
with it.” 31 Nebraska has long recognized that our summary
judgment statutes are patterned after federal Rule 56, and we
take guidance from federal case law construing Rule 56 when
construing similar provisions in Nebraska’s summary judg-
ment statutes. 32
[5] We now hold, consistent with the plain and unam-
biguous text of § 25-1332(2) and guided by the reasoning
of Celotex, that if the burden of proof at trial would be on
the nonmoving party, then the party moving for summary
31
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.
L. Rev. 527, 537 (1947). Accord In re Guardianship & Conservatorship of
Woltemath, 268 Neb. 33, 39, 680 N.W.2d 142, 148 (2004) (concluding that
when Legislature enacted statute, it was aware of and was adopting U.S.
Supreme Court’s “authoritative explanation of the effect of [substantially
identical federal] rule”).
32
See Dennis v. Berens, 156 Neb. 41, 43, 54 N.W.2d 259, 261 (1952)
(recognizing that Nebraska’s summary judgment statute “is patterned after
Rule 56 of the Federal Rules of Civil Procedure” and “[t]he interpretations
placed upon Rule 56 by the federal courts prior to the passage of
the summary judgment act will have great weight, therefore, in our
interpretation of the act”).
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Cite as 314 Neb. 49judgment may satisfy its prima facie burden either by citing
to materials in the record that affirmatively negate an essential
element of the nonmoving party’s claim or by citing to mate-
rials in the record demonstrating that the nonmoving party’s
evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
Applying that framework here, we note the district court’s
order did not make an express legal finding that Scheels met
its prima facie burden. But given our standard of review, it
is not necessary to remand this cause to the trial court for
such a determination, because 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. 33 And as we explain next, after
viewing the evidence adduced by Scheels in the light most
favorable to Clark and giving her the benefit of all reasonable
inferences deducible from the evidence, 34 we conclude Scheels
met its prima facie burden of producing enough evidence to
show it would be entitled to judgment if the evidence were
uncontroverted at trial.
3. Scheels Met Its Initial Burden
Clark’s complaint alleged the condition that caused her
fall was either an unsafe or poorly maintained foot grate in
the foyer or a wind tunnel effect. To recover at trial under
a premises liability theory, Clark must prove, among other
things, that (1) Scheels either created the condition, knew of
the condition, or by the exercise of reasonable care would
have discovered the condition; (2) Scheels should have real-
ized the condition involved an unreasonable risk of harm to
33
Sundermann, supra note 2.
34
See id.
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Cite as 314 Neb. 49lawful visitors; (3) Scheels should have expected that lawful
visitors such as Clark either (a) would not discover or real-
ize the danger or (b) would fail to protect himself or herself
against the danger; (4) Scheels failed to use reasonable care to
protect Clark against the danger; and (5) the condition was a
proximate cause of damage to Clark. 35 Given these elements,
proof that the alleged condition presented an unreasonable risk
of harm is essential to Clark’s recovery in this case. 36
[6,7] There is no fixed rule for determining when a condi-
tion presents an unreasonable risk of harm, “[b]ut the plain
meaning of the term suggests a uniquely or unacceptably high
risk of harm—something more than the usual risks commonly
encountered.” 37 In the context of premises liability cases, an
unreasonable risk of harm generally means “‘“a risk that a rea-
sonable person, under all the circumstances of the case, would
not allow to continue.”’” 38
In support of summary judgment, Scheels offered discovery
materials showing that Clark either did not know or could
not recall what caused her fall. Scheels argues that this fact
alone showed that Clark could not recover at trial, but we
disagree. Even a plaintiff who cannot recall the fall may be
able to produce sufficient direct or circumstantial evidence
from another source to show the fall was caused by one of
the dangerous conditions alleged in the complaint. 39 But here,
the discovery materials Scheels offered in support of summary
judgment demonstrated more than just Clark’s lack of memory
regarding her fall; the materials also demonstrated a lack of
evidence supporting Clark’s allegations that either the foot
35
See id.36
See, id.; Williamson, supra note 7.
37
Sundermann, supra note 2, 306 Neb. at 768, 947 N.W.2d at 506.
38
Id.
39
See, e.g., Hughes, supra note 7; Kotlarz v. Olson Bros., Inc., 16 Neb. App.
1, 740 N.W.2d 807 (2007).
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Cite as 314 Neb. 49grate or a wind tunnel effect in the foyer created an unreason-
able risk of harm. 40 Absent direct or circumstantial evidence
showing that one of the alleged conditions on Scheels’ prem-
ises presented a uniquely or unacceptably high risk of harm
beyond the ordinary risks encountered by lawful entrants on
the premises, Clark could not prevail at trial on her premises
liability claim. 41
As such, Scheels did more than make a “conclusory asser-
tion that the plaintiff has no evidence to prove [her] case,” 42
and instead, it cited to discovery materials in the record which,
if uncontroverted, showed that Clark had no competent evi-
dence to support one of the essential elements of her prem-
ises liability claim—an unreasonably dangerous condition in
the foyer. Scheels therefore met its prima facie burden as the
movant, 43 and there is no merit to Clark’s assignment that the
district court prematurely, or erroneously, shifted the burden to
Clark to show a genuine issue of material fact precluding sum-
mary judgment.
4. Clark Failed to Show Genuine Dispute of Material
Fact as to Existence of Unreasonably
Dangerous Condition
Once the moving party makes a prima facie case, the
burden shifts to the nonmovant to produce evidence show-
ing the existence of a material issue of fact that prevents
judgment as a matter of law. 44 The statutory requirements in
§ 25-1332(2)(a) apply to this burden and provide in relevant
40
See, e.g., Hodge by and through Farrow v. Walgreens Co., 37 F.4th 461(8th Cir. 2022) (defendant met initial summary judgment burden by
showing plaintiff had no evidence to support claim that fall was caused by
dangerous condition).
41
See, Sundermann, supra note 2; Williamson, supra note 7.
42
Celotex, supra note 18, 477 U.S. at 328 (White, J., concurring).
43
See Hodge by and through Farrow, supra note 40.
44
See Porter, supra note 7.
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Cite as 314 Neb. 49part: “A party asserting that a fact . . . is genuinely disputed
must support that assertion by . . . [c]iting to particular parts
of materials in the record, including depositions, answers to
interrogatories, admissions, stipulations, affidavits, or other
materials.” With this framework in mind, we review the mate-
rials Clark cites to support her argument that there is a genu-
ine dispute of material fact about whether an unreasonably
dangerous condition on Scheels’ premises caused her fall.
In opposing summary judgment, Clark cites to her deposi-
tion transcript, to the “Guest Injury Accident Report,” and to
her counsel’s affidavit stating the entry doors were replaced in
2021. She argues that these exhibits, or the reasonable infer-
ences from these exhibits, show a material factual dispute
regarding the unreasonable dangerousness of two conditions:
the foot grate and the entry doors. We limit our analysis
accordingly; but before we address Clark’s arguments, we
pause to address her reliance on the proposition that summary
judgment is “‘an extreme remedy to be awarded only when an
issue is clear beyond all doubt.’” 45
[8] This court has already expressly disapproved of the
elevated “‘clear beyond all doubt’” standard that used to be a
familiar part of our summary judgment jurisprudence, reasoning
it is “inconsistent with the standard expressed in § 25-1332.” 46
For the same reason, we see no principled reason to continue
describing summary judgment as an “extreme remedy,” 47 at
least where it is shown to have been properly granted. As the
45
Brief for appellant at 9, quoting International Harvester Credit Corp. v.
Lech, 231 Neb. 798, 438 N.W.2d 474 (1989).
46
Anderson, supra note 16, 240 Neb. at 878, 485 N.W.2d at 174.
47
See, e.g., Green, supra note 13, 284 Neb. at 252, 818 N.W.2d at 597
(2012) (“summary judgment is an extreme remedy because a summary
judgment may dispose of a crucial question in litigation, or the litigation
itself, and may thereby deny a trial to the party against whom the motion
for summary judgment is directed”).
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Cite as 314 Neb. 49U.S. Supreme Court recognized in Celotex, summary judgment
should not be viewed as a disfavored procedural shortcut, but,
rather, as an integral part of the procedural rules governing
civil actions after the shift to notice pleading. 48 Summary judg-
ment should never be used to deprive a litigant of a trial when
there is a genuine issue of material fact to be determined. 49
However, when the summary judgment standard is properly,
carefully, and cautiously applied to enter judgment as a matter
of law on a claim or defense that is shown to be undisputed, it
is not an extreme remedy at all; it is simply another procedural
tool by which undisputed “claims or defenses c[an] be isolated
and prevented from going to trial with the attendant unwar-
ranted consumption of public and private resources.” 50
(a) No Evidence to Support Finding That Foot
Grate Was Unreasonably Dangerous
Clark argues that the “Guest Injury Accident Report” indi-
cates that immediately after her fall, while still lying in the
foyer, she told Scheels’ employees that she fell because her
48
See Celotex, supra note 18.
49
See, Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916,
927, 958 N.W.2d 378, 387 (2021) (“[s]ummary judgment should not be
used to deprive a litigant of a formal trial if there is a genuine issue of
material fact”), disapproved on other grounds, Clark v. Sargent Irr. Dist.,
311 Neb. 123, 971 N.W.2d 298 (2022).
50
Celotex, supra note 18, 477 U.S. at 327. See, also, Doe v. Safeway, Inc.,
88 A.3d 131, 133 (D.C. 2014) (“[s]ummary judgment may have once been
considered an extreme remedy, but that is no longer the case”); Curtis v.
Porter, 784 A.2d 18, 21-22 (Maine 2001) (“[s]ummary judgment is no
longer an extreme remedy. It is simply a procedural device for obtaining
judicial resolution of those matters that may be decided without fact-
finding”). Accord 10A Wright et al., supra note 24, § 2712 at 253 (noting
summary judgment must be used with due regard for its purposes but
“cases voicing the sentiment that the courts should be slow to grant a
summary judgment or that the motion should be granted very reluctantly
and only in clear cases must be carefully evaluated in light of their facts”).
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Cite as 314 Neb. 49shoelace got stuck in the foot grate. She argues that the injury
report and her explanation reflected in that report would be
admissible at trial and “constitute[s] evidence that she fell
because her shoelace got caught in the floor grate.” 51 She also
argues that based on this evidence, “[a] jury could reasonably
conclude the floor grate was unreasonably dangerous because
it was capable of catching Clark’s shoelaces and causing a
severe and traumatic fall.” 52
[9] We express no opinion on the admissibility of the acci-
dent report or the reference therein to Clark’s explanation
for her fall, because this evidence describing how Clark fell,
without more, does not show the foot grate was unreasonably
dangerous or support a reasonable inference in that regard.
A condition is unreasonably dangerous only if it presents “a
uniquely or unacceptably high risk of harm—something more
than the usual risks commonly encountered.” 53 And the mere
fact that a fall occurred is not evidence of negligence, nor does
it raise a presumption of negligence. 54
Moreover, the record contains no materials that support a
reasonable inference that the foot grate presented an unrea-
sonably dangerous condition. None of the witnesses deposed
identified any feature of the foot grate specifically, or the foyer
generally, that increased the danger of tripping or falling or
otherwise presented an unreasonable risk of harm. None of the
affidavits, depositions, or discovery responses indicated that
51
Brief for appellant at 11.
52
Id. at 12.
53
Sundermann, supra note 2, 306 Neb. at 768, 947 N.W.2d at 506.
54
See, Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003) (mere
occurrence of accident which causes injury does not create presumption of
negligence or authorize inference of negligence); Porter v. Black, 205
Neb. 699, 289 N.W.2d 760 (1980) (negligence is never presumed and
burden of proving negligence is on party alleging it; merely establishing
that accident happened does not prove negligence).
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Cite as 314 Neb. 49any witness would testify the foot grate presented an unrea-
sonable risk of harm. The record contains no photographs,
diagrams, or physical descriptions of the foot grate that might
be offered as exhibits to support a reasonable inference that
the grate was unreasonably dangerous. Nor was there evidence
that others had fallen on the grate, or similar grates, that might
arguably support a reasonable inference that the grate posed an
unreasonable risk of harm.
[10,11] On this evidentiary record, we agree with the
district court’s observation that a fact finder would have to
speculate to conclude that the foot grate presented an unrea-
sonable risk of harm. And conclusions based on guess, specu-
lation, conjecture, or a choice of possibilities do not create
material issues of fact for the purposes of summary judgment;
the evidence must be sufficient to support an inference in
the nonmovant’s favor without the fact finder engaging in
guesswork. 55 So while it is true that Clark is entitled to all
reasonable inferences from the evidence in the record, we see
nothing that would support a reasonable inference that the
foot grate presented an unreasonably dangerous condition. 56
The failure of proof on this essential element of Clark’s prem-
ises liability claim necessarily renders all other facts immate-
rial 57 and entitles Scheels to summary judgment as a matter
of law. 58
55
Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808 (2019).
See, also, Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d
324 (2022) (conclusions based on guess, speculation, conjecture, or choice
of possibilities do not create material issues for purposes of summary
judgment).
56
See Hodge by and through Farrow, supra note 40 (fact that plaintiff
tripped on sidewalk did not support reasonable inference that dangerous
condition caused fall).
57
See Roskop Dairy, supra note 28. Accord Celotex, supra note 18.
58
See, Sundermann, supra note 2; Williamson, supra note 7.
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Cite as 314 Neb. 49(b) No Material Factual Dispute
Regarding Entry Doors
[12,13] As noted, Clark’s complaint identified only two
unreasonably dangerous conditions in the foyer that allegedly
caused her fall: the foot grate and a wind tunnel effect. She
does not contend the record shows a genuine dispute as to
whether the wind tunnel effect created an unreasonably danger-
ous condition, and we have already explained why this record
shows no genuine dispute as to whether the foot grate created
an unreasonably dangerous condition. Generally, this would
end our analysis, because the pleadings frame the issues to be
considered on a motion for summary judgment, 59 and courts
may not enter summary judgment on an issue not presented by
the pleadings. 60
[14] But one of Clark’s main arguments in opposition to
summary judgment is that there is a genuine factual dispute
about whether a defective or malfunctioning entry door caused
her fall. In the summary judgment context, a disputed fact is
material only if it would affect the outcome of the case. 61 And
since Clark’s complaint did not allege the entry doors were a
dangerous condition or played any role in her fall, it is difficult
to understand how the condition of the entry doors could pos-
sibly affect the outcome of the case, absent significant amend-
ments to the pleadings.
But even if we could read Clark’s complaint to allege the
entry doors somehow contributed to her fall, the materials
in our record fail to show a genuine factual dispute about
whether the doors are unreasonably dangerous. None of the
depositions in the record identify any defect with the doors
or any history of malfunctioning that might arguably support
59
Welsch v. Graves, 255 Neb. 62, 582 N.W.2d 312 (1998).
60
Green, supra note 13; Welsch, supra note 59.
61
Jacob v. Nebraska Bd. of Parole, 313 Neb. 109, 982 N.W.2d 815 (2022).
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Cite as 314 Neb. 49a reasonable inference the doors posed an unreasonable risk
of harm. The affidavit of Clark’s counsel stated only that the
entry doors had been replaced several years after her fall; it
did not aver the doors were defective, dangerous, or had ever
malfunctioned. And none of the written discovery responses
in the record indicate that any witness would testify, or any
exhibit would show, that the entry doors malfunctioned or
otherwise presented an unreasonable risk of harm. Finally, to
the extent Clark argues that Scheels’ “intentional spoliation of
the entryway doors” 62 entitled her to an adverse inference that
the entry doors were defective, the materials in our record do
not contain the evidence of intentional or fraudulent destruc-
tion necessary to support a discovery sanction for the inten-
tional spoliation of evidence. 63
The district court was correct to conclude that nothing in
this record shows a genuine issue of material fact regarding
whether the entry doors were unreasonably dangerous. 64
VI. CONCLUSION
Viewing the evidence in the light most favorable to Clark
and giving her the benefit of all reasonable inferences from
the evidence, we determine the record shows a complete
62
Brief for appellant at 21.
63
See, McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321(2008) (only intentional destruction of relevant evidence will support
inference that evidence would have been unfavorable to spoliator;
inference does not arise where destruction was matter of routine with
no fraudulent intent); Richter v. City of Omaha, 273 Neb. 281, 286, 729
N.W.2d 67, 72 (2007) (“presumption or inference arises, however, only
where the spoliation or destruction was intentional and indicates fraud and
a desire to suppress the truth, and it does not arise where the destruction
was a matter of routine with no fraudulent intent”).
64
See Williamson, supra note 7 (affirming summary judgment in favor
of land possessor because record on summary judgment contained no
evidence from which reasonable fact finder could infer plaintiff established
that fall was caused by unreasonably dangerous condition).
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Cite as 314 Neb. 49absence of proof concerning an essential element of Clark’s
premises liability claim—namely, that an unreasonably dan-
gerous condition on Scheels’ premises caused her fall. The
failure of proof on this essential element of Clark’s premises
liability case necessarily rendered all other facts immaterial
and entitled Scheels to summary judgment in its favor. We
therefore affirm the judgment of the district court.
Affirmed.
Miller-Lerman, J., participating on briefs.
Freudenberg, J., concurs in the result.
Heavican, C.J., dissenting.
I respectfully dissent. I disagree with the majority that by
relying on only Clark’s deposition testimony, Scheels made
its prima facie case on summary judgment and showed its
entitlement to judgment as a matter of law. Because of Scheels’
absence of its prima facie showing, the burden to produce evi-
dence did not shift to Clark and she was not required to reveal
evidence she expected to produce at trial. 1 In my view, the
majority departs from our long-existing precedent and the mat-
ter is not resolved by the recent amendment to Neb. Rev. Stat.
§ 25-1332 (Cum. Supp. 2022). 2
Even assuming that Scheels did satisfy its initial burden of
production, when I view the evidence in the light most favor-
able to Clark, she showed the existence of a genuine dispute
of material fact that prevents summary judgment. Whether
an adverse inference can logically be drawn from the facts of
this case presents an issue of fact properly determined by a
finder of fact. Accordingly, I would reverse the district court’s
grant of Scheels’ motion for summary judgment and remand
the matter for further proceedings.
1
See, Benard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679 (2017);
Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).
2
See 2017 Neb. Laws, L.B. 204, § 3.
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Cite as 314 Neb. 49SCHEELS’ INSUFFICIENT SUMMARY
JUDGMENT SHOWING
To begin, I agree with the majority that Scheels could
have shown its entitlement to judgment as a matter of law by
showing a failure of proof concerning an essential element of
Clark’s case. 3 When there is no question for the jury to decide,
permitting a jury to speculate with the rights of a defendant
is a denial of the defendant’s right of trial by jury. 4 Yet, Clark
also has an inviolate right of trial without unreasonable and
unnecessary delay. 5 That is why we have historically viewed
summary judgment as an extreme remedy. 6 Our interpretation
of the summary judgment statutes and its procedure has been
balanced between these constitutional guarantees. 7
The party moving for summary judgment has the burden
to show that no genuine dispute of material fact exists and
must produce sufficient evidence to demonstrate that it is
entitled to judgment as a matter of law if the evidence were
3
See Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018) (stating that
“if the nonmoving party must prove X to prevail, the moving party at
summary judgment can either produce evidence that X is not so or point
out that the nonmoving party lacks the evidence to prove X ”).
4
See Smith v. Epstein Realty Co., 133 Neb. 842, 277 N.W. 427 (1938). See,
also, Neb. Const. art. I, § 6.
5
See Neb. Const. art. I, §§ 6 and 13. See, also, Sullivan v. Storz, 156 Neb.
177, 55 N.W.2d 499 (1952); Kuhl v. Pierce County, 44 Neb. 584, 62
N.W. 1066 (1895). Cf. Wagener v. Whitmore, 79 Neb. 558, 113 N.W. 238(1907).
6
See Green v. Box Butte General Hosp., supra note 1. See, also, Miller
v. Aitken, 160 Neb. 97, 69 N.W.2d 290 (1955). See, generally, Marcus
Gadson, State Constitutions and Summary Judgment, 68 UCLA L. Rev.
988 (2021).
7
See Green v. Village of Terrytown, 189 Neb. 615, 204 N.W.2d 152 (1973).
See, also, Statement of Purpose, L.B. 144, Judiciary Committee, 62d Sess.
(Feb. 27, 1951) (purpose is to speed up administration of justice). See,
generally, Kenneth P. Keene, Comment, Summary Judgments in Nebraska,
44 Neb. L. Rev. 82 (1965).
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Cite as 314 Neb. 49uncontroverted at trial. 8 The absence of a genuine dispute as
to any material fact and entitlement to judgment as a matter of
law are prerequisites to a summary judgment. 9 It is only where
false allegations have been pierced, and the real facts show that
there is no genuine issue to be determined, that summary judg-
ment may be employed to prevent vexatious delay and permit
the expeditious disposition of cases. 10
I do not read the amendment of § 25-1332 changing “genu-
ine issues” to “genuine disputes” to have made a substan-
tive change to this precedent. 11 Furthermore, subsection (2)
requires that “[a] party asserting that a fact cannot be . . .
disputed must support the assertion by . . . [s]howing . . . that
an adverse party cannot produce admissible evidence to sup-
port the fact.” 12 To satisfy the summary judgment burden, a
movant does not need to affirmatively negate or undermine an
element of the nonmovant’s claim. But a party still must make
an affirmative showing in support of its assertion that a fact
cannot be genuinely disputed. That showing requires a party
to, at a minimum, point the district court to a source reason-
ably expected to contain admissible evidence that would sup-
port the fact in question. Otherwise, the movant has failed to
produce sufficient evidence to demonstrate that it is entitled
8
Estate of Block v. Estate of Becker, 313 Neb. 818, 986 N.W.2d 726 (2023).
See Dennis v. Berens, 156 Neb. 41, 54 N.W.2d 259 (1952).
9
See Stolte v. Blackstone, 213 Neb. 113, 328 N.W.2d 462 (1982). See
§ 25-1332(1).
10
Healy v. Metropolitan Utilities Dist., 158 Neb. 151, 62 N.W.2d 543 (1954).
See Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d 104 (2022).
11
See, Judiciary Committee Hearing, L.B. 204, 105th Leg., 1st Sess. 56
(Feb. 15, 2017) (Senator Mike Hilgers stating that “I think in some
instances tradition should be codified. [It] really doesn’t change the
standard”); Floor Debate, L.B. 204, 105th Leg., 1st Sess. 57 (Apr. 20,
2017) (Senator Hilgers stating that it “helps just clarify and doesn’t really
change the law”).
12
§ 25-1332(2) (emphasis supplied).
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Cite as 314 Neb. 49to judgment as a matter of law if the evidence were uncontro-
verted at trial. In failing to do so, the movant did not pierce
the pleadings, and the real facts do not show that there is no
genuine dispute to be determined.
Although the summary judgment statutes allow Scheels to
assert its right and avoid trial, Scheels still had the burden
to pierce Clark’s pleading and show that no genuine dispute
of material fact existed and that it would be entitled to judg-
ment as a matter of law. I agree with the majority in holding
that Scheels could satisfy its burden on summary judgment
“by citing to materials in the record demonstrating that the
nonmoving party’s evidence is insufficient to establish an
essential element of the nonmoving party’s claim.” 13 As the
majority notes, after the amendment to § 25-1332, we enacted
court rules to support its new statutory procedures. Relevant
here is Neb. Ct. R. § 6-1526 (rev. 2022), which provides
in part:
(A) Moving Party’s Materials in Support of Motion.
When a motion for summary judgment or partial sum-
mary judgment is filed, the moving party must simul-
taneously file with the clerk and serve on all parties
of record:
(1) an Evidence Index in Support listing all evidence
to be offered in support of the motion for summary judg-
ment; and
(2) an Annotated Statement of Undisputed Facts set-
ting forth concise, numbered paragraphs reciting each
proposed material fact as to which the moving party con-
tends there is no genuine dispute, annotated by pinpoint
citation to the supporting evidence in the Evidence Index
in Support.
13
See, generally, Adam N. Steinman, The Irrepressible Myth of Celotex:
Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy,
63 Wash. & Lee L. Rev. 81 (2006).
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Cite as 314 Neb. 49Scheels’ evidence index listed all the evidence it offered in
support of its motion. Scheels offered (1) Clark’s complaint,
(2) Scheels’ answer, (3) Clark’s deposition, (4) Clark’s supple-
mental responses to Scheels’ requests for production of docu-
ments, and all the pleadings on file. In its annotated statement
of undisputed facts, Scheels recited 13 material facts that pur-
ported to entitle it to judgment as a matter of law. They were
as follows:
1. At all relevant times herein, Plaintiff, Kristine Clark
(“Plaintiff”) was a resident of Douglas County, Nebraska.
[Plaintiff’s Complaint 1].
2. Defendant is a North Dakota Corporation doing busi-
ness in Douglas County, Nebraska. [Plaintiff’s Complaint
2; Defendant’s Answer 2].
3. Plaintiff has alleged that on April 18, 2016, she sus-
tained injuries to her hip in a fall while entering Defendant’s
premises [Plaintiff’s Complaint 5; Defendant’s Answer 5].
4. In her Complaint Plaintiff alleged that her shoe-
lace got caught in Defendant’s “foot grate in the store
foyer between the outside and inside doors” [Plaintiff’s
Complaint 5].
5. Plaintiff does not know what shoes she was wear-
ing on the date of the fall [Plaintiff’s Deposition pg. 27:
2-13, pg. 28:1-14; Plaintiff’s Supplemental Response to
Defendant’s Request for Production of Documents ¶22].
6. Plaintiff no longer has the shoes she was wearing
on the date of the incident [Plaintiff’s deposition pg.
27:10-13].
7. Plaintiff generally does not wear shoes with shoe-
strings and does not believe she was wearing shoes with
shoestrings or laces on the date of the incident. [Plaintiff’s
Deposition, pg. 27:4-12; 28:17-29:13].
8. Plaintiff does not know what caused her to fall on
Defendant’s premises [Plaintiff’s deposition pg. 29: 5-8,
30:18-22, 68: 19-25, 69: 1-20, 122: 21-25, 123: 1-9, 123:
6-25, 124: 1-25; 126:2-14].
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Cite as 314 Neb. 499. Plaintiff does not know if she tripped on anything.
[Plaintiff’s deposition pg. 126:5-10].
10. Plaintiff does not know if the door malfunctioned.
[Plaintiff’s deposition pg. 126:2-4]
11. Plaintiff does not know if someone “jumped” her.
[Plaintiff’s deposition pg. 126:11-12].
12. Plaintiff does not know if someone pushed her.
[Plaintiff’s deposition pg. 126:13-14].
13. Plaintiff did not inspect the area where she fell
after the fall. [Plaintiff’s deposition pg. 126:15-23).
Assuming all the facts in Scheels’ statement are true, I fail to
see how Scheels has demonstrated that it is entitled to judg-
ment as a matter of law. Based on its showing, Scheels has
only demonstrated that Clark did not know, or could not recall,
what caused her fall.
It is true that merely establishing that an accident hap-
pened does not prove negligence or raise a presumption of
negligence, 14 but there is also no presumption that an unreason-
able risk of harm did not exist. 15 It is one thing for Scheels to
show an absence of evidence of an unreasonable risk of harm;
it is very different to merely aver that one cannot be proved.
After all, statements as to opinion, belief, or conclusions of law
are of no effect on summary judgment. 16
The essence of Scheels’ contention, which it admitted at
oral argument, is that the evidence of no unreasonable risk
of harm was that there was no evidence of an unreason-
able risk of harm. But Scheels’ logic fails. Scheels’ assertion
is a “negative pregnant,” 17 which we have long rejected as
14
Estate of Block v. Estate of Becker, supra note 8.
15
See, Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020);
Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).
16
Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999); Eden v. Klaas, 165
Neb. 323, 85 N.W.2d 643 (1957).
17
Black’s Law Dictionary 1244 (11th ed. 2019) (“[a] denial implying
its affirmative opposite by seeming to deny only a qualification of the
allegation and not the allegation itself”).
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Cite as 314 Neb. 49insufficient in a court of law. 18 Inherent within Scheels’ argu-
ment is that an unreasonable risk of harm may very well have
been present and caused Clark to fall.
It seems to be overlooked that material issues are not created
on summary judgment; they are created by the pleadings. 19 In
her complaint, Clark alleged that her “diminished memory”
would “preclude [Clark] from presenting credible evidence that
her fall occurred in the manner she claims.” On summary judg-
ment, Scheels contended in its statement of undisputed facts
that it was entitled to summary judgment because Clark did
not know what caused her to fall, if she tripped on anything, if
the door malfunctioned, if someone “jumped” her, or if some-
one pushed her. Scheels cited to Clark’s deposition testimony,
wherein she stated, “I just — I just remember going in, and
I — I don’t remember anything else that happened. I don’t
know — I just — I thought to myself, ‘Did somebody jump
me,’ or ‘Did the door malfunction,’ or somebody push me,’ or
. . . .” And later, she stated:
[Q.] Do you recall telling any doctors that — that the
doors at Scheels made any contact with you?
A. I — like I said to you at the beginning, I thought
somebody jumped me, the door hit me, something made
me black out and crash like that.
....
. . . But if I said something like that to her — if
you have the record on it, then I — I mean, maybe she
18
Harden v. A & N. R. R., 4 Neb. 521, 523 (1876) (“‘[a] defendant must
answer the charges directly, without evasion, and not by way of negative
pregnant’”). See, also, Samuel Maxwell, Chief Justice of the Supreme
Court of Nebraska, Treatise on the Law of Pleading Under the Code
of Civil Procedure, Designed for All the Code States With Forms and
Directions 389 (1892) (denial should be clear and direct, and not in form
of “negative pregnant”).
19
See Neb. Rev. Stat. §§ 25-1101 and 25-1102 (Reissue 2016). See, also,
City State Bank v. Holstine, 260 Neb. 578, 618 N.W.2d 704 (2000);
Sherrets, Smith v. MJ Optical, Inc., 259 Neb. 424, 610 N.W.2d 413 (2000).
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Cite as 314 Neb. 49asked me what I thought happened, and I said, you know
the door hit me. Something hit me.
In response to Scheels’ statement of undisputed facts,
most unsurprisingly, Clark admitted that those facts were
not disputed.
Scheels’ “showing” of its entitlement to judgment consisted
only of proving an allegation in Clark’s complaint. It is an
elementary rule of pleading that matters admitted by the plead-
ings need not be proved. 20 By producing evidence that only
proved that Clark suffered from a diminished memory, Scheels
did not pierce Clark’s pleading. If Scheels was entitled to judg-
ment as a matter of law based on such a showing, there was no
need for the parties to engage in any discovery. The pleadings
showed that Clark was never going to prove her claim through
her own testimony at trial. It is not permissible for a party to
prevail on summary judgment simply by pointing to the other
party’s lack of memory of the alleged event. This is especially
true when the claim alleged includes the essential element that
the plaintiff would not discover or realize the danger, a danger
which may have caused the admitted memory loss. Likewise,
there is no merit to Scheels’ assertion that it is entitled to judg-
ment because Clark did not inspect the vestibule between the
time she fell and when emergency responders carted her away
approximately 15 minutes later.
I agree with the majority that Clark’s lack of memory is not
enough to show that Clark could not recover at trial. But I fail
to see how “the discovery materials Scheels offered in support
of summary judgment demonstrated more than Clark’s lack
of memory regarding her fall.” Despite Scheels’ claims to the
contrary on appeal, the only evidence Scheels produced and
cited to on summary judgment in support of its entitlement
to judgment was Clark’s deposition testimony, and nowhere
in that testimony does Clark admit that she cannot prove
20
Lewison v. Renner, 298 Neb. 654, 664, 905 N.W.2d 540, 548 (2018).
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Cite as 314 Neb. 49her claim. 21 In the absence of such an admission, by only pro-
ducing Clark’s deposition testimony, Scheels failed to show
that Clark could not establish an essential element of her claim.
It is my view that Scheels did not produce sufficient evidence
to demonstrate its entitlement to judgment as a matter of law.
Consequently, its motion for summary judgment should have
been denied.
VIEWING EVIDENCE IN LIGHT MOST
FAVORABLE TO CLARK
Even assuming Scheels’ showing was sufficient to shift the
burden of production to Clark, when I view the evidence in
the light most favorable to Clark, she produced evidence that
prevented summary judgment. Clark was entitled to have all
reasonable inferences drawn in her favor. 22
In her complaint, in addition to alleging that her “shoelace
got caught in the foot grate,” Clark alleged that her injury was
caused by Scheels’ negligence “in one or more of the follow-
ing particulars:”
a. Failing to ensure that Scheels’ patrons had safe
ingress and egress to the store;
b. Failing to install a safe foot grate or maintain its
foot grate in a safe manner when it knew or should have
known that its foot grate created a falling hazard for the
public generally and for the plaintiff in particular;
c. Failing to take precautions against the wind tunnel
effect at the store’s entryway when it knew or should have
known that strong wind at the entryway increased the fall-
ing hazard for the public generally and for the plaintiff in
particular; and
d. Other acts or omissions that are identified during
pre-trial discovery.
21
See § 25-1332(1).
22
See Estate of Block v. Estate of Becker, supra note 8.
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Cite as 314 Neb. 49On summary judgment, Clark’s relevant allegations were
that Scheels’ floor grate or doors presented an unreasonable risk
of harm. Clark produced the “Guest Injury Accident Report,”
which stated that Clark said “she fell because her shoelace got
caught in the grate” and that when an employee arrived on the
scene, one of her shoelaces was untied. Clark’s excited utter-
ance and the employee’s statement documented in Scheels’
accident report are competent evidence. 23 Clark’s testimony as
to what she felt and what she was thinking is also competent
evidence. Lay witness opinion testimony in the form of opin-
ions or inferences is competent evidence when it is rationally
based on the perception of the witness and helpful to a clear
understanding of his or her testimony or the determination of
a fact in issue. 24 The evidence Clark produced raised issues
of credibility and weight for a finder of fact to resolve and
precludes summary judgment. 25 Any focus on what the record
does not contain is a determination of the weight and credibil-
ity of the evidence that is in the record.
The majority’s position is that a reasonable inference of an
unreasonable risk of harm cannot be drawn from a description
of how Clark fell. I disagree. Based on the manner in which the
fall occurred, and the injuries Clark sustained, especially when
considering the absence of evidence produced by Scheels, a
jury could draw a logical inference that an unreasonable risk
of harm existed and caused Clark’s fall. After all, Clark did
not need to overcome a presumption. Even if floor grates and
doors do not ordinarily present unreasonable risks of harm,
shoelaces do not ordinarily get trapped in floor grates, doors
do not ordinarily close with such force as to throw some-
one to the floor, and falls do not ordinarily result in femoral
23
See Neb. Rev. Stat. § 27-803(1) and (4) (Reissue 2016).
24
Neb. Rev. Stat. § 27-701 (Reissue 2016).
25
See, Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892(2016); Ransdell v. Sixth Street Food Store, 174 Neb. 875, 120 N.W.2d 290(1963); Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244 (1952).
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Cite as 314 Neb. 49neck fractures. Clark was entitled to rely on circumstantial evi-
dence to prove her claim and was not required to present direct
evidence of an unreasonable risk of harm.
In light of Scheels’ failure to produce any evidence that an
unreasonable risk of harm was not present and its persistent
efforts to impede discovery, it is also only logical that a fact
finder could draw an inference that an unreasonable risk of
harm existed and caused Clark’s fall. The burden of produc-
tion on summary judgment is not high. Yet, Scheels did not, or
could not, produce an affidavit of any knowledgeable person
to testify to the absence of an unreasonable risk of harm. Still,
Scheels persisted in moving for summary judgment on multiple
occasions with no evidence showing the nonexistence of an
unreasonable risk of harm, evidence that Scheels was uniquely
capable of producing if indeed there was no unreasonable risk
of harm.
In addition, Scheels’ conduct related to the lengthy discov-
ery process, beginning even before the action was filed, cannot
be ignored. Scheels preserved its surveillance video on the
day of Clark’s fall. Yet, it provided the video to Clark only
after she made multiple requests spanning over 14 months.
After taking Clark’s deposition, Scheels objected to various
requests for discovery made by Clark. These requests were
on the topics of repairs and service work of Scheels’ vesti-
bule, the entranceway doors, and the floor grates, including
requests for copies of documentation related to the installa-
tion, manufacture, and model or design type of the doors and
floor grates; any complaints or injuries related to the doors and
floor grates; and any applicable policy, instruction, or proce-
dure for inspection, maintenance, or repair. Scheels objected
to these discovery requests as “overly broad, not reasonably
calculated to the discovery of admissible evidence, and not
proportional to the issues/needs of the case based upon [Clark’s
deposition] testimony.” But it is the pleadings that frame the
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Cite as 314 Neb. 49issues, not deposition testimony. 26 Moreover, Scheels replaced
its vestibule doors either while Clark’s related motion to com-
pel was pending before the district court or shortly after the
motion had been granted.
On that basis, a logical inference can be drawn that Scheels
intentionally destroyed evidence. Further, I am not convinced
that our precedent on spoliation applies, or should apply, in
civil cases when our standard was set forth in the context of
a criminal due process challenge. 27 Even then, our precedent
only holds that routine destruction is not intentional destruc-
tion. 28 There is nothing in the record to suggest that Scheels’
replacement of its doors was routine, particularly when Scheels
did not do so in the years leading up to Clark’s motion to com-
pel. There is no presumption of routine destruction that Clark
needed to overcome. Based on Scheels’ actions, I believe
Clark should have been able to argue her case to a fact finder
and allow the fact finder to draw whatever logical inferences
were warranted in light of the evidence adduced. By extension,
Clark was entitled to have those inferences drawn in her favor
on summary judgment.
The majority reads Clark’s complaint as failing to allege
that the entry doors were a dangerous condition or played
any role in her fall. The rationale for our liberal notice plead-
ing standard in civil actions is that when a party has a valid
claim, he or she should recover on it regardless of a failure
to perceive the true basis of the claim. 29 I read Clark’s com-
plaint to have sufficiently alleged that the doors presented
26
See § 25-1101.
27
See State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002). See, also,
Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999). See, generally,
Annot., 121 A.L.R.5th 157 (2004); Annot., 102 A.L.R.5th 99 (2002).
28
See, Richter v. City of Omaha, 273 Neb. 281, 729 N.W.2d 67 (2007);
Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
29
Burklund v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018).
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Cite as 314 Neb. 49an unreasonable risk of harm by alleging that Scheels failed to
take precautions against a “wind tunnel” effect that increased
the risk of falls. Scheels’ conduct during pretrial discovery
impeded Clark’s ability to identify the true basis of her claim.
CONCLUSION
I agree with my colleagues that Clark’s case is far from
solid. I do not mean to intimate that Scheels might not have
been entitled to a directed verdict at trial. But here, we have a
motion for summary judgment, which requires that the evi-
dence produced be viewed in the light most favorable to Clark
and that she be given the benefit of all reasonable inferences.
It is not the role of the court to weed out unmeritorious cases
from its docket. Clark was not required to show that her case
was likely to ultimately succeed on the merits to survive sum-
mary judgment. Scheels was required to demonstrate that it
was entitled to judgment as a matter of law. Based on the
uncontroverted evidence in the record before us, Clark should
have had the opportunity to present the totality of her evidence
at trial. 30 It is my opinion that the summary judgment standard
was not properly, carefully, and cautiously applied in this case.
Hence, I would reverse the district court’s grant of summary
judgment and remand this matter for further proceedings.
Miller-Lerman, J., joins in this dissent.
30
See Swoboda v. Mercer Mgmt. Co., 251 Neb. 347, 557 N.W.2d 629 (1997)
(Lanphier, J., dissenting; Gerrard, J., joins).