Richards v. Meeske

675 N.W.2d 707, 12 Neb. Ct. App. 406, 2004 Neb. App. LEXIS 46
CourtNebraska Court of Appeals
DecidedMarch 2, 2004
DocketA-02-1184
StatusPublished
Cited by1 cases

This text of 675 N.W.2d 707 (Richards v. Meeske) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richards v. Meeske, 675 N.W.2d 707, 12 Neb. Ct. App. 406, 2004 Neb. App. LEXIS 46 (Neb. Ct. App. 2004).

Opinion

Moore, Judge.

I. INTRODUCTION

Ashley Richards, a minor formerly known as Ashley Meeske, was injured on December 30, 1996, in an accident while riding an all-terrain vehicle (ATV) on property (the Meeske property) owned by Meeske Land & Cattle Co., Inc., and occupied by Lloyd Meeske. Following Ashley’s accident, Wyatt Richards and Joan Richards (collectively the Appellants), in their individual capacities and as the parents and natural guardians of Ashley, brought a personal injury action in the district court for Chase County against Lloyd, Henry Meeske, Pauline Meeske, and Meeske Land & Cattle. On September 20,2002, the district court granted Meeske Land & Cattle’s motion for summary judgment. The Appellants have timely appealed. For the reasons stated below, we affirm.

II. BACKGROUND

We first set forth certain background information that will be helpful in understanding the relationships of the parties involved in this case. Joan and Lloyd were married in 1986 and divorced in 1992. To their marriage were bom Ashley on May 16, 1987, and Chelsea Richards (formerly known as Chelsea Meeske) on April 9, 1990. Joan also has another child, Brittandy Richards (formerly known as Brittandy Meeske), bom January 5, 1985, who was adopted by Lloyd during Joan and Lloyd’s marriage. Joan married her current husband, Wyatt, on April 1, 1993. Wyatt adopted Joan’s three above-mentioned daughters subsequently to Ashley’s December 1996 accident. Lloyd married his current wife, Lynette Meeske, on February 8, 1994, and her two children, Lloyd’s stepdaughters, apparently resided with or visited Lloyd on occasion.

*409 The Meeske property is located near Champion, Nebraska, and is owned by Meeske Land & Cattle. On the date of Ashley’s accident, the shareholders of Meeske Land & Cattle were Henry (Lloyd’s grandfather), Pauline (Lloyd’s great-aunt), and Irene Gestring (also Lloyd’s great-aunt), each of whom we mention further below; Lloyd’s uncle, aunt, and father; and a third great-aunt of Lloyd. At the time of the accident, the officers and directors of Meeske Land & Cattle were Henry, who was the president and treasurer; Pauline, who was the vice president; and Irene, who was the secretary. Henry was 88 years old at the time of the summary judgment hearing and lived in a retirement center. Pauline was approximately 90 years old at the time of the summary judgment hearing and had been living in a nursing home for approximately 2 years. Irene was deceased at the time of the summary judgment hearing.

At the time of the accident, Henry and Pauline resided together in a house located approximately one-quarter of a mile from Lloyd’s house on the Meeske property. Lloyd and Lynette have lived on the Meeske property since August 1994. Lloyd and his brothers rent farm ground from and run a fanning operation for Meeske Land & Cattle. Lloyd performs upkeep and maintenance on the portion of the Meeske property where he lives in exchange for not paying rent to Meeske Land & Cattle for the residence.

The Appellants filed a petition on December 18, 2000. The Appellants alleged that on December 30,1996, Ashley was a guest at a residence occupied by Lloyd and situated on farm ground owned or occupied by Lloyd, Henry, Pauline, and Meeske Land & Cattle (collectively the Defendants). The Appellants further alleged that Ashley was injured in an accident while riding an ATV around the Meeske property on that date. The Appellants alleged that Ashley’s use of the ATV on the Meeske property was done with the knowledge and consent of the Defendants in spite of the Defendants’ knowledge that it was a dangerous activity. The Appellants alleged that the Defendants had had a duty to exercise reasonable care for Ashley’s safety and failed to do so and that this failure was a proximate cause of Ashley’s injuries. The Appellants prayed for both special and general damages.

*410 On March 21, 2001, the Defendants filed answers to the petition, Lloyd’s separate answer being virtually identical to that of his codefendants. The Defendants denied the existence of any negligence on their part and asserted that Ashley was guilty of contributory negligence sufficient to bar recovery. Specifically, the Defendants alleged that Ashley was negligent in failing to maintain a proper lookout, failing to maintain the ATV under reasonable control, and driving the ATV at a rate of speed greater than was reasonable and prudent. Through a subsequent order, the court limited any alleged acts of contributory negligence by Ashley to those acts specifically set forth in the answers filed by the Defendants.

On August 9, 2002, Meeske Land & Cattle filed a motion for summary judgment. Meeske Land & Cattle alleged that there was no genuine issue as to any material fact and that it was entitled to summary judgment as a matter of law. Meeske Land & Cattle indicated that its motion was based on the petition of the Appellants; the answer of Henry, Pauline, and Meeske Land & Cattle; and an affidavit of Lloyd dated August 8, 2002.

The hearing on Meeske Land & Cattle’s motion was held on August 22, 2002, via telephone conference. The Appellants dismissed Henry and Pauline from the suit on that date. At the hearing, Meeske Land & Cattle offered into evidence the petition of the Appellants; the answer of Henry, Pauline, and Meeske Land & Cattle; the affidavit of Lloyd; and a deposition of Ashley. The Appellants did not object to the offer of the pleadings or of Ashley’s deposition. The Appellants did make numerous objections to the offer of Lloyd’s affidavit, which we discuss below as necessary to the resolution of this appeal. The district court received the affidavit into evidence subject to the Appellants’ objections. The record of the August 22 hearing does not reflect a specific ruling by the court admitting the remaining exhibits offered by Meeske Land & Cattle into evidence.

By agreement of the parties, the Appellants were given 15 days from the hearing to submit their evidence in opposition to the motion for summary judgment. The judge’s notes contained in the transcript indicate that on August 30, 2002, the court considered submitted the exhibits it received from the Appellants. Meeske Land & Cattle did not object to the Appellants’ exhibits. *411 Specifically, the Appellants’ exhibits consisted of the Defendants’ answer to the Appellants’ interrogatories (providing the legal description of the Meeske property), a licensed abstractor’s affidavit attached to a warranty deed (both indicating that Meeske Land & Cattle owned the Meeske property at the time of Ashley’s accident), answers and objections of Lloyd to the Appellants’ interrogatories, and depositions of both Lloyd and Joan. Specific details of the various exhibits offered by the parties are set forth below as necessary to our resolution of this appeal.

The district court entered an order on September 20, 2002, granting Meeske Land & Cattle’s motion for summary judgment.

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Related

Richards v. Meeske
689 N.W.2d 337 (Nebraska Supreme Court, 2004)

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Bluebook (online)
675 N.W.2d 707, 12 Neb. Ct. App. 406, 2004 Neb. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-meeske-nebctapp-2004.