Swoboda v. MERCER MANAGEMENT CO.

557 N.W.2d 629, 251 Neb. 347, 1997 Neb. LEXIS 5
CourtNebraska Supreme Court
DecidedJanuary 3, 1997
DocketS-94-756
StatusPublished
Cited by43 cases

This text of 557 N.W.2d 629 (Swoboda v. MERCER MANAGEMENT CO.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swoboda v. MERCER MANAGEMENT CO., 557 N.W.2d 629, 251 Neb. 347, 1997 Neb. LEXIS 5 (Neb. 1997).

Opinions

Wright, J.

Marie Swoboda brought a negligence action against the defendants, Mercer Management Company and First National Bank of Omaha, seeking damages for personal injuries sustained when Swoboda fell while ascending a flight of stairs in a building then owned by First National and managed by Mercer Management. The district court granted summary judgment in favor of the defendants, and Swoboda appealed. The Nebraska Court of Appeals reversed the district court’s judgment and remanded the cause. We granted further review.

SCOPE OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Young v. Eriksen Constr. Co., 250 Neb. 798, 553 N.W.2d 143 (1996).

FACTS

On February 2, 1992, Swoboda fell as she reached the top of a flight of stairs inside the Howard Street entrance to the Old Market Passageway in Omaha. At the time of the accident, Swoboda, who was 95 years of age, was accompanied by her granddaughter, Mary Stitt. The accident occurred as Swoboda and Stitt ascended a stairway leading from the lower level of the building to a set of large double doors at the Howard Street entrance. There were handrails on both sides of the stairway, but the handrail on the right side was inaccessible because five [349]*349large potted plants had been placed on the steps along the right edge of the stairway. As a result, Swoboda ascended the stairs using the left handrail, and Stitt assisted Swoboda by holding on to Swoboda’s right arm.

The stairway and the landing inside the Howard Street entrance were made of the same type of red brick. The double doors leading out to Howard Street were 4 to 5 feet across the landing from the top of the stairway. The brick wall along the left side of the stairway extended 17 inches onto the landing and then gave way to an open corridor with a wooden floor. The wooden floor was elevated a few inches higher than the landing, and a brick ramp extended from the wooden floor down to the landing. This ramp protruded from the edge of the wall onto the landing at an angle perpendicular to the stairway. At the point closest to the stairs, the edge of the ramp began 17 inches from the leading edge of the landing. The ramp was 272 inches high at the point where the edge of the ramp closest to the stairway began to protrude from the wall. The ramp sloped down until it became flush with the landing at a point 14 inches from the edge of the wall, and the ramp was constructed of the same brick as the landing and the stairway. There were no markings or other safety devices to differentiate the ramp from the landing.

As Swoboda and Stitt approached the last step before arriving at the landing, Stitt left Swoboda to cross the landing and open the door. When Stitt reached the door and looked back, she saw Swoboda sitting on the floor in a position perpendicular to the stairway. Swoboda was sitting on the wooden floor, and her legs extended down the ramp. Swoboda’s left leg was broken. Swoboda does not remember the circumstances surrounding the fall, and there were no eyewitnesses. Stitt testified by deposition that prior to the fall, Swoboda appeared to be in relatively good physical health, she had no trouble walking, and she negotiated each step of the staircase without any sign of weakness.

Swoboda sued the defendants, alleging that the ramp extending onto the landing created a dangerous condition and was an unreasonable risk to Swoboda, a business invitee. Swoboda contended that the ramp created a change in floor level on the landing which caused her to trip and fall.

[350]*350The affidavit of an architectural engineer stated that the ramp which extended onto the landing was in violation of the 1967 National Building Code requirement that the width of a landing shall be no less than the width of the stairs in which they occur. In addition, the stairway violated the code because it did not have an intermediate handrail, which was required for a stairway of that width.

The district court granted summary judgment because it found no nexus between the defendants’ possible negligence and Swoboda’s fall. The court found that the allegation that the defective ramp was the proximate cause of Swoboda’s injuries was based solely on speculation and conjecture and that, therefore, no genuine issue of material fact existed.

The Court of Appeals reversed the district court’s judgment, finding that while it was possible that Swoboda tripped over the top step, her path, her physical condition, and the position in which she was seen immediately after the fall supported a reasonable inference that the ramp was the proximate cause of Swoboda’s fall. Swoboda v. Mercer Mgmt. Co., 96 NCA No. 10, case No. A-94-756 (not designated for permanent publication). The Court of Appeals concluded that because Swoboda introduced evidence which presented a question of fact concerning the defendants’ negligence and a reasonable inference that this negligence was the proximate cause of her injuries, the district court erred in granting summary judgment. Id.

ASSIGNMENT OF ERROR

In their petition for further review, the defendants allege that the Court of Appeals erred by reversing the district court’s judgment.

ANALYSIS

Summary judgment is proper only when the pleadings, depositions, 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. Zion Wheel Baptist Church v. Herzog, 249 Neb. 352, 543 N.W.2d 445 (1996); John Markel Ford v. Auto-Owners Ins. Co., [351]*351249 Neb. 286, 543 N.W.2d 173 (1996). After the party moving for summary judgment has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party. Zion Wheel Baptist Church v. Herzog, supra. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Young v. Eriksen Constr. Co., 250 Neb. 798, 553 N.W.2d 143 (1996).

The question is whether Swoboda has introduced evidence which presents a question of fact as to whether the defendants’ negligence was the proximate cause of her injuries. While circumstantial evidence may be used to prove causation, the evidence must be sufficient to fairly and reasonably justify the conclusion that the defendants’ negligence was the proximate cause of Swoboda’s injury. See Hahn v. Weber & Sons Co., 223 Neb. 426, 390 N.W.2d 503 (1986).

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Swoboda v. MERCER MANAGEMENT CO.
557 N.W.2d 629 (Nebraska Supreme Court, 1997)

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Bluebook (online)
557 N.W.2d 629, 251 Neb. 347, 1997 Neb. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swoboda-v-mercer-management-co-neb-1997.