Edwards v. Hy-Vee
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/22/2016 09:07 AM CDT
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EDWARDS v. HY-VEE
Cite as 294 Neb. 237
Susan L. Edwards, appellant, v. Hy-Vee, Inc.,
a foreign corporation, doing business
as Hy-Vee, appellee.
___ N.W.2d ___
Filed July 22, 2016. No. S-15-682.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Negligence: Liability: Proximate Cause. In premises liability cases,
an owner or occupier is subject to liability for injury to a lawful visi-
tor resulting from a condition on the owner or occupier’s premises if
the lawful visitor proves (1) that the owner or occupier either created
the condition, knew of the condition, or by exercise of reasonable care
would have discovered the condition; (2) that the owner or occupier
should have realized the condition involved an unreasonable risk of
harm to the lawful visitor; (3) that the owner or occupier should have
expected that the visitor either would not discover or realize the danger
or would fail to protect himself or herself against the danger; (4) that
the owner or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate cause of
damage to the visitor.
3. Negligence: Words and Phrases. Constructive knowledge is gener-
ally defined as knowledge that one using reasonable care or diligence
should have.
4. Negligence: Liability: Invitor-Invitee: Notice. In order for a defendant
to have constructive notice of a condition, the condition must be visible
and apparent and it must exist for a sufficient length of time prior to an
accident to permit a defendant or the defendant’s employees to discover
and remedy it.
5. Negligence: Evidence: Liability: Juries. In the absence of evidence to
support an inference of the possessor’s actual or constructive knowledge
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EDWARDS v. HY-VEE
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of a hazardous condition, the Nebraska Supreme Court has refused to
allow the jury to speculate as to the possessor’s negligence.
6. Summary Judgment. Inferences based upon guess or speculation do
not create material issues of fact for purposes of a summary judgment.
7. Liability: Invitor-Invitee. The owner of a business is not an insurer of
a patron’s safety.
8. Courts: Public Policy. The doctrine of stare decisis is grounded on pub-
lic policy and, as such, is entitled to great weight and must be adhered
to unless the reasons therefor have ceased to exist, are clearly erroneous,
or are manifestly wrong and mischievous or unless more harm than good
will result from doing so.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
James R. Welsh and Christopher P. Welsh, of Welsh &
Welsh, P.C., L.L.O., for appellant.
Daniel J. Welch, Catherine Dunn Whittinghill, and Damien
J. Wright, of Welch Law Firm, P.C., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Cassel, J.
INTRODUCTION
After a grocery store’s customer slipped on a piece of water-
melon and fell, she sued the store for her injuries. A man was
handing out watermelon samples to customers approximately 6
feet from where the customer fell, but there was no evidence
that the watermelon was on the floor at the location of the fall
for any period of time. The district court entered summary
judgment in favor of the store. Because there is no genuine
issue of material fact as to whether the store created or had
actual or constructive knowledge of the condition, we affirm
the summary judgment. In doing so, we decline the customer’s
invitation to adopt a “mode-of-operation” approach to deter-
mine premises liability.
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EDWARDS v. HY-VEE
Cite as 294 Neb. 237
BACKGROUND
Susan L. Edwards slipped and fell as she was leaving a gro-
cery store operated by Hy-Vee, Inc., doing business as Hy-Vee.
She sued Hy-Vee, alleging that it was negligent in a number of
ways and that it knew or should have known that the floor was
wet and that the wet area was a hazard to its customers.
Hy-Vee moved for summary judgment. Evidence adduced
at the hearing established that as Edwards was leaving the
store, she slipped on what looked like a piece of watermelon.
Edwards’ daughter picked a watermelon seed off the bottom
of Edwards’ shoe. Approximately 6 feet from where Edwards
fell, a man was handing out watermelon samples to custom-
ers. Edwards did not know how long the watermelon was on
the floor.
The district court granted summary judgment in favor of
Hy-Vee. The court determined that the distribution of water-
melon samples in a high traffic location was not enough to
support a claim that Hy-Vee created the dangerous condition.
The court also found that there was no genuine issue of mate-
rial fact that Hy-Vee did not have actual or constructive notice
of the dangerous condition.
Edwards timely appealed, and because of the novel approach
she advocated, we moved the case to our docket.1
ASSIGNMENTS OF ERROR
Edwards assigns that the district court erred in granting
Hy-Vee’s motion for summary judgment and in finding that
Hy-Vee did not create the hazardous condition or have con-
structive knowledge of the watermelon on the floor.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
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facts and that the moving party is entitled to judgment as a
matter of law.2
ANALYSIS
[2] In premises liability cases, an owner or occupier is sub-
ject to liability for injury to a lawful visitor resulting from a
condition on the owner or occupier’s premises if the lawful
visitor proves (1) that the owner or occupier either created the
condition, knew of the condition, or by exercise of reasonable
care would have discovered the condition; (2) that the owner
or occupier should have realized the condition involved an
unreasonable risk of harm to the lawful visitor; (3) that the
owner or occupier should have expected that the visitor either
would not discover or realize the danger or would fail to pro-
tect himself or herself against the danger; (4) that the owner
or occupier failed to use reasonable care to protect the visitor
against the danger; and (5) that the condition was a proximate
cause of damage to the visitor.3 We address Edwards’ claims
that there was a genuine issue of material fact as to whether
Hy-Vee created the condition or had constructive knowledge
of the condition.
Creation of H azardous Condition
We first consider whether the district court erred in finding
as a matter of law that Hy-Vee did not create the hazardous
condition. Edwards contends that Hy-Vee created the hazard
by permitting samples of watermelon to be handed out to cus-
tomers in the store. We analyze the two cases discussed by the
district court and the parties.
Edwards directs our attention to Chelberg v. Guitars &
Cadillacs.4 In that case, a patron at a nightclub slipped and
fell in clear liquid located 4 or 5 feet from a trough that was
filled with ice and bottles of beer. Evidence established that
2
Sulu v. Magana, 293 Neb. 148,879 N.W.2d 674
(2016).
3
Hodson v. Taylor, 290 Neb. 348,860 N.W.2d 162
(2015).
4
Chelberg v. Guitars & Cadillacs, 253 Neb. 830,572 N.W.2d 356
(1998).
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generally, a bartender would pull out a bottle and dry it with a
towel before handing it to a customer, but sometimes custom-
ers pulled out bottles themselves. Then, when the beer trough
closed, the bartender loaded the remaining beer bottles into
cardboard cases and placed them on a dolly. After the beer
trough closed on the day in question, the patron fell in the area
where the dolly was loaded. We concluded that a question of
fact existed as to whether the nightclub created the dangerous
condition. We stated that a fact finder could determine that the
bottles pulled out of the trough could drip on the floor. Further,
a fact finder could find that employees allowed customers
to remove bottles without wiping them and that employees
removed bottles without wiping them when the beer trough
closed. Thus, a fact finder could reasonably infer that the
nightclub created the dangerous condition through the partici-
pation of its employees.
On the other hand, Hy-Vee argues that this case is more
analogous to Derr v. Columbus Convention Ctr.5 There, a hotel
guest slipped on ice on the last step of a stairway. An ice
machine was located 3 or 4 feet to the right of the stairway.
We stated that in contrast to the situation in Chelberg, there
was no evidence to suggest that hotel employees were actively
involved in spilling the ice. We reasoned that the ice was
spilled on the stair most likely from an ice bucket of another
guest and that there was no evidence that any hotel employee
created or was aware of the ice spill. Thus, we determined that
a fact finder could not reasonably infer that the hotel created
the hazard.
Chelberg is distinguishable from the instant case. The key
to potential liability in that case was the active involvement of
the nightclub’s employees in creating the dangerous condition.
There is no such evidence in this case. A fact finder could not
reasonably infer that the man handing out samples dropped the
watermelon, particularly when Edwards slipped approximately
6 feet away from the “sample stand.” The only reasonable
5
Derr v. Columbus Convention Ctr., 258 Neb. 537,604 N.W.2d 414
(2000).
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inference from the watermelon’s distance from the stand is that
it was dropped by a customer, and not a Hy-Vee employee.
One cannot reasonably infer that Hy-Vee created the hazard-
ous condition based on a customer’s dropping of the water-
melon. Edwards contends that Hy-Vee is not relieved of liabil-
ity merely because the watermelon was likely dropped by a
customer. She argues that the customer’s actions were reason-
ably foreseeable and cites to a case6 for the proposition that
an owner is liable for the intervening acts of third parties if
the intervening act is reasonably foreseeable. But to say that
Hy-Vee created the condition through the actions of a third
party would expand the definition of “created” well beyond its
plain and ordinary meaning.
Because there was no evidence from which a fact finder
could reasonably infer that Hy-Vee created the dangerous con-
dition through the participation of its employees, the district
court did not err in finding as a matter of law that Hy-Vee did
not create the hazard.
Constructive K nowledge of Condition
[3] Edwards next argues that the district court erred in
finding as a matter of law that Hy-Vee did not have con-
structive knowledge of the dropped watermelon. Constructive
knowledge is generally defined as knowledge that one using
reasonable care or diligence should have.7 Edwards suggests
that a genuine issue of material fact exists as to whether the
man handing out watermelon samples reasonably should have
known that pieces of watermelon were being dropped on the
floor. We disagree.
[4-6] There is no evidence to support an inference that
Hy-Vee had constructive knowledge of the watermelon on the
floor. In order for a defendant to have constructive notice of
a condition, the condition must be visible and apparent and it
must exist for a sufficient length of time prior to an accident
6
See Wilke v. Woodhouse Ford, 278 Neb. 800,774 N.W.2d 370
(2009).
7
Gaytan v. Wal-Mart, 289 Neb. 49,853 N.W.2d 181
(2014).
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to permit a defendant or the defendant’s employees to discover
and remedy it.8 In the absence of evidence to support an infer-
ence of the possessor’s actual or constructive knowledge of
the hazardous condition, this court has refused to allow the
jury to speculate as to the possessor’s negligence.9 Edwards
did not know how long the watermelon was on the floor, and
there was no evidence that Hy-Vee employees observed any
watermelon on the floor. Edwards points to evidence that the
man handing out samples had a cane, but this evidence simply
does not raise an inference that the man put the watermelon
on the floor or that he knew of its presence. Inferences based
upon guess or speculation do not create material issues of fact
for purposes of a summary judgment.10 Because there is no
evidence or reasonable inference that Hy-Vee knew or should
have known of the watermelon on the floor, Hy-Vee was enti-
tled to judgment as a matter of law.
Mode- of-Operation Rule
[7] Finally, we address Edwards’ argument that Nebraska
should adopt the mode-of-operation rule. This rule or approach
to premises liability is a departure from the traditional prem-
ises liability approach. We have repeatedly stated that the
owner of a business is not an insurer of a patron’s safety.11 But
the mode-of-operation rule tends to make the owner just that.
We decline to adopt the approach.
The mode-of-operation rule alters what a plaintiff must
prove to make a prima facie case. “The ‘mode-of-operation’
rule looks to a business’s choice of a particular mode of opera-
tion and not events surrounding the plaintiff’s accident. Under
the rule, the plaintiff is not required to prove notice if the pro-
prietor could reasonably anticipate that hazardous conditions
8
Range v. Abbott Sports Complex, 269 Neb. 281,691 N.W.2d 525
(2005).
9
Id.
10
Id.
11
See Sacco v. Carothers, 257 Neb. 672,601 N.W.2d 493
(1999).
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would regularly arise.”12 In other words, “[a] plaintiff’s proof
of a particular mode-of-operation simply substitutes for the
traditional elements of a prima facie case—the existence of a
dangerous condition and notice of a dangerous condition.”13
One reason given for the rule is that it is “‘unjust to saddle the
plaintiff with the burden of isolating the precise failure’ that
caused an injury, particularly where a plaintiff’s injury results
from a foreseeable risk of harm stemming from an owner’s
mode of operation.”14
The mode-of-operation rule has not been adopted by a
majority of states. It appears that the traditional approach has
been consistently followed by at least 21 states, including
Nebraska.15 Two other states have returned to the traditional
12
Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 400,733 P.2d 283, 285
(1987).
13
Id.
14
Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788,863 N.E.2d 1276
, 1284 (2007).
15
See Herrera v. Fleming Cos., 265 Neb. 118,655 N.W.2d 378
(2003). See,
also, S. H. Kress & Company v. Thompson, 267 Ala. 566,103 So. 2d 171
(1957); Kremer v. Carr’s Food Center, Inc., 462 P.2d 747 (Alaska 1969);
Ortega v. Kmart Corp., 26 Cal. 4th 1200,114 Cal. Rptr. 2d 470
,36 P.3d 11
(2001); Howard vs. Food Fair, New Castle,57 Del. 471
,201 A.2d 638
(1964); Richardson v. Commodore, Inc., 599 N.W.2d 693 (Iowa 1999),
abrogated on other grounds, Koenig v. Koenig, 766 N.W.2d 635 (Iowa
2009); Maans v. Giant, 161 Md. App. 620,871 A.2d 627
(2005); Clark
v Kmart Corporation, 465 Mich. 416,634 N.W.2d 347
(2001); Norman
v. Tradehome Shoe Stores, Inc., 270 Minn. 101,132 N.W.2d 745
(1965);
Sullivan v. Skate Zone, Inc., 946 So. 2d 828 (Miss. App. 2007); Rallis v.
Demoulas Super Markets, Inc., 159 N.H. 95,977 A.2d 527
(2009); Nourse
v. Food Lion, Inc., 127 N.C. App. 235,488 S.E.2d 608
(1997); Johanson v.
Nash Finch Company, 216 N.W.2d 271(N.D. 1974); Anaple v. Oil Co.,162 Ohio St. 537
,124 N.E.2d 128
(1955); Van Den Bron v. Fred Meyer, Inc.,86 Or. App. 329
,738 P.2d 1011
(1987); Martino, Aplnt. v. Great A. & P. Tea
Co., 419 Pa. 229,213 A.2d 608
(1965); Habershaw v. Michaels Stores, Inc.,
42 A.3d 1273(R.I. 2012); Wintersteen v. Food Lion, Inc.,344 S.C. 32
,542 S.E.2d 728
(2001); Janis v. Nash Finch Co.,780 N.W.2d 497
(S.D. 2010);
Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180,396 S.E.2d 649
(1990);
McDonald v. University of W.Va., 191 W. Va. 179,444 S.E.2d 57
(1994).
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approach after court decisions were legislatively overruled.16
We have identified 17 states that have adopted and retain the
mode-of-operation rule.17 Several states apply a “recurring
condition rule,” where a recurring potential hazard—in contrast
with one arising from a particular mode of operation—may
subject a store to liability.18 Several states appear to have a
hybrid approach.19 And several other states apparently follow a
burden-shifting approach.20 Such divergence among the states
16
See, Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. App. 2001)
(superseded by statute as stated in Pembroke Lakes Mall Ltd. v. McGruder,
137 So. 3d 418 (Fla. App. 2014)); Gonzales v. Winn-Dixie Louisiana, Inc.,
326 So. 2d 486 (La. 1976) (superseded by statute as stated in Holden v.
State Univ. Med. Center, 690 So. 2d 958 (La. App. 1997)).
17
See, Chiara v. Fry’s Food Stores of Arizona, Inc., supra note 12; Kelly v.
Stop and Shop, Inc., 281 Conn. 768,918 A.2d 249
(2007); Gump v. Walmart
Stores, Inc., 93 Hawaii 428,5 P.3d 418
(1999), affirmed in part and in part
reversed on other grounds 93 Hawaii 417,5 P.3d 407
(2000); McDonald v.
Safeway Stores, Inc., 109 Idaho 305,707 P.2d 416
(1985); Golba v. Kohl’s
Dept. Store, Inc., 585 N.E.2d 14 (Ind. App. 1992); Jackson v. K-Mart Corp.,
251 Kan. 700,840 P.2d 463
(1992); Sheehan v. Roche Bros. Supermarkets,
Inc., supra note 14; Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo.
1989); FGA, Inc. v. Giglio, 278 P.3d 490 (Nev. 2012); Nisivoccia v. Glass
Gardens, Inc., 175 N.J. 559,818 A.2d 314
(2003); Lingerfelt v. Winn-Dixie
Texas, Inc., 645 P.2d 485(Okla. 1982); Corbin v. Safeway Stores, Inc.,648 S.W.2d 292
(Tex. 1983); Canfield v. Albertsons, Inc.,841 P.2d 1224
(Utah
App. 1992); Malaney v. Hannaford Bros. Co., 177 Vt. 123,861 A.2d 1069
(2004); Pimentel v. Roundup Company, 100 Wash. 2d 39,666 P.2d 888
(1983); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679,180 N.W.2d 525
(1970); Buttrey Food Stores Division v. Coulson, 620 P.2d 549 (Wyo. 1980).
18
See, Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203,29 S.W.3d 742
(2000); Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846 (Me. 1995);
Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004).
19
See, Dunlap v. Marshall Field & Co., 27 Ill. App. 3d 628,327 N.E.2d 16
(1975); Donoho v. O’Connell’s, Inc.,13 Ill. 2d 113
,148 N.E.2d 434
(1958); Mahoney v. J. C. Penney Company, 71 N.M. 244,377 P.2d 663
(1962); Zerilli v. Western Beef Retail, Inc., 72 A.D.3d 681,898 N.Y.S.2d 614
(2010).
20
See, Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo. 1983); Robinson v.
Kroger, 268 Ga. 735,493 S.E.2d 403
(1997); Lanier v. Wal-Mart Stores,
Inc., 99 S.W.3d 431 (Ky. 2003).
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demonstrates that the mode-of-operation rule has not demon-
strated the degree of superiority necessary to depart from long-
settled law.
The traditional approach to premises liability balances two
competing policies—requiring stores to exercise reasonable
care to maintain the premises in a safe condition and pro-
tecting stores from becoming the insurers of their patrons’
safety. Although virtually every court adopting the mode-
of-operation rule declares that it is not making the store an
insurer of its patrons’ safety,21 as early as 1994 a commentator
recognized that in mode-of-operation rule cases, courts have
created results approaching strict liability.22 At oral argument,
Edwards forthrightly acknowledged that she preferred a strict-
liability approach. And the commentator noted that at least
one scholar has directly advocated for strict liability—empha-
sizing the goal of accident reduction, i.e., deterrence.23 But
the commentator recognized that there is a practical limit to
what a storekeeper can do to prevent accidents, concluding
that “a rule of strict liability would impose a financial burden
on storekeepers far in excess of that necessary to provide an
adequate incentive.”24
Moreover, the rule’s adoption for self-service supermar-
kets would inevitably lead to pressure to expand the rule.
Indeed, building upon a decision of Massachusetts’ high
court,25 a recent case note expressly advocated extending
the Massachusetts rule beyond the context of a self-service
21
See, e.g., Jackson v. K-Mart Corp., supra note 17.
22
See Steven D. Winegar, Reapportioning the Burden of Uncertainty:
Storekeeper Liability in the Self-Service Slip-and-Fall Case, 41 UCLA L.
Rev. 861 (1994).
23
See id. (citing Edmund Ursin, Strict Liability for Defective Business
Premises—One Step Beyond Rowland and Greenman, 22 UCLA L. Rev.
820 (1975)).
24
Id. at 896.
25
Sheehan v. Roche Bros. Supermarkets, Inc., supra note 14.
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supermarket.26 The policy issues involved require thoughtful
analysis of costs and benefits, which can be best addressed in
the legislative arena.
[8] The traditional approach is the product of the common
law’s long experience and refinement. The doctrine of stare
decisis is grounded on public policy and, as such, is entitled to
great weight and must be adhered to unless the reasons therefor
have ceased to exist, are clearly erroneous, or are manifestly
wrong and mischievous or unless more harm than good will
result from doing so.27 The argument for the mode-of-operation
rule fails this test. No matter which approach courts adopt, they
universally declare that they are not making stores the insur-
ers of their patrons. But common sense, confirmed by legal
scholarship, teaches that adoption of the mode-of-operation
rule effectively leads to strict liability. Thus, departure from
the traditional approach leads to the very result the depart-
ing courts disclaim. And the experience of two states—which
adopted the rule by court decisions only to be overruled legis-
latively—counsels that we exercise caution. In the light of this
experience, we decline to adopt the mode-of-operation rule.
CONCLUSION
Because there was no evidence from which a reasonable
finder of fact could infer that Hy-Vee created the dangerous
condition or had constructive knowledge of the watermelon
on the floor, the district court did not err in granting summary
judgment in favor of Hy-Vee.
A ffirmed.
26
William Brekka, Extending the Mode-of-Operation Approach Beyond the
Self-Service Supermarket Context, 48 New Eng. L. Rev. 747 (2014)
(advocating extension including, but not limited to, nightclub that permits
patrons to bring drinks onto crowded dance floor, fast-food restaurant that
permits customers to carry food to and from tables, racetrack that sells
bottled drinks but does not provide trash receptacles, pizza counter that
does not provide tables for customers, or movie theater that sells snacks
and allows patrons to bring them into dark theater).
27
Bronsen v. Dawes County, 272 Neb. 320,722 N.W.2d 17
(2006).
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