Borchman v. Burlington Capital Props., LLC

JOY BORCHMAN, APPELLANT, v. BURLINGTON CAPITAL PROPERTIES, LLC, AND6801 LIMITED PARTNERSHIP, APPELLEES.

No. A-20-479.

NEBRASKA COURT OF APPEALS

February 23, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: PATRICIA A. LAMBERTY, Judge. Affirmed.

Zachary Lutz-Priefert and Eric J. Sutton, of Gross & Welch, P.C., L.L.O., for appellant.

Thomas J. Guilfoyle, of Erickson & Sederstrom, P.C., for appellees.

MOORE, BISHOP, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Joy Borchman appeals the order of the Douglas County District Court granting summary judgment in favor of Burlington Capital Properties, LLC, and 6801 Limited Partnership. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

On September 9, 2016, Borchman fell on the steps outside her apartment in Omaha, Nebraska, injuring her legs. As a result of the fall and injury, Borchman brought a lawsuit against 6801 Limited Partnership, owner of the apartment complex, and Burlington Capital Properties, manager of the property (hereinafter referred to collectively as "Appellees"). Borchman's lawsuit alleged that while descending the steps outside of her apartment, her heel became caught on "stripping material" that had peeled away from the steps resulting in Borchman breaking both of her legs. She further alleged that the Appellees were negligent in failing to maintain the steps and in failing to remove faulty and defective steps. Borchman alleged the Appellees knew or should have known the steps were not maintained in an appropriate condition and that Borchman and other tenants had reported defects in the steps and that the steps were in a poor condition.

MOTION FOR SUMMARY JUDGMENT

In March 2020, the Appellees filed a motion for summary judgment asserting that Borchman's own negligence, not the Appellees' negligence, resulted in her falling down the steps. During the summary judgment hearing, the Appellees offered Borchman's July 2019 deposition and accompanying photographic deposition exhibits. The court also received into evidence an affidavit from Tina Wagner, a manager for Burlington Capital.

BORCHMAN'S DEPOSITION

During her deposition, Borchman testified that she fell as she and a friend were leaving Borchman's apartment around 9 p.m., Borchman stated that her friend recalled seeing "a piece of that [nonskid] tape blow up over my foot," but Borchman explained, "I don't recall that. I just remember feeling something sticky under my heel." Later, Borchman stated she never saw any balled-up, nonskid tape on the area of the stair she believed led to her fall because it was dark outside, the light from the building was behind her, and she was looking at the parking lot instead of watching where she was stepping. When asked if she "[knew] for sure what [she] tripped on or fell over," Borchman replied, "Yes. It wasn't a trip, it was a sticky piece of something or other. Something sticky, because I can still feel that feeling. . . . No, I didn't see it. It was dark. . . . I knew the tape was there. . . . That's the only thing that was on the step, was the tapes." Borchman recalled that there were portions of the nonskid tape on most of the steps.

Borchman was also asked, "Was there a portion of a step that had a balled-up or wadded-up portion of this non[skid] material on it," to which Borchman replied, "Not that I recall until -- till I stepped on it. . . . But I didn't see it ahead of time." However, she admitted she did not see it after her fall either. When asked how she knew this information, Borchman explained, "It comes from my reasoning, I think, that there was nothing else blocking the stairs or anything like that to trip on." When asked if she had talked to anyone in her apartment who had reported the nonskid tape as a problem, she replied no, nothing specific about the nonskid tape, but that there were complaints about the condition of the steps and that she had reported the condition of the steps to the manager "more than once." Borchman further acknowledged in her deposition that she did not use the handrail at the time of the accident because the handrail was wet from a rainfall earlier in the day. Borchman also acknowledged in her deposition that although she initially claimed she fell from the second step from the sidewalk, after giving the matter further thought, she now believed she had fallen from the fifth step. During her deposition, Borchman testified that photographs marked as deposition exhibits 9 through 20, 22, and 23, were accurate depictions of the steps as she remembered them. These photographs show that there was no nonskid tape on either step number 2 or step number 5.

WAGNER'S AFFIDAVIT

In Wagner's affidavit, she stated that she has managed Borchman's apartment complex from March 2016 to the date of her May 2020 affidavit. She explained that she had not received complaints about the outside steps for Borchman's apartment building, but upon learning of the accident, Wagner requested that the maintenance department "check and make sure there was nothing wrong with the steps." Tristan Holton, a maintenance technician at Borchman's apartment complex, inspected the steps. Holton's September 12, 2016, investigation report, which was attached to Wagner's affidavit, stated that he observed "nothing wrong with [the] deck or steps." Wagner stated no repairs, modifications, or changes were made to the exterior steps of Borchman's building after Borchman's accident.

DISTRICT COURT ORDER

In the order on the motion for summary judgment, the district court found Borchman had traversed the steps at least twice per day for approximately 2 years, had gone up the steps at 4 p.m. on the day of the accident, and did not see loose nonskid tape which she blames for her fall. The district court noted Borchman first claimed she fell from step number 2, then later concluded she must have fallen from step number 5, and that the photographic exhibits did not show nonskid tape on either step. The district court also relied on Wagner's affidavit, which the court found established that no one complained about the steps and that there was nothing wrong with the steps.

The district court determined the present case was similar to Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003). In Herrera, the Nebraska Supreme Court affirmed the district court's granting of summary judgment against a customer who alleged she slipped on a wet floor in a store noting the customer failed to produce evidence that the store knew or should have known of the wet floor. Similarly, the district court found Borchman did not provide evidence that the Appellees created a condition or knew of the condition.

Additionally, the district court found that Borchman breached her duty to use due care by not using a handrail as she descended the steps. The district court noted Nebraska Supreme Court precedent indicates that a plaintiff breaches his duty to use due care in not using a handrail, citing Schwartz v. Selvage, 203 Neb. 158, 277 N.W.2d 681 (1979), and in failing to watch where he or she is stepping, citing Murphy v. Justus, 214 Neb. 272, 333 N.W.2d 670 (1983). The district court ultimately granted summary judgment in favor of the Appellees dismissing the matter with prejudice. Borchman has timely appealed to this court.

ASSIGNMENTS OF ERROR

Borchman assigns that the district court erred in (1) granting the Appellees' motion for summary judgment because there are multiple disputes of material facts in this case, (2) making findings of disputed facts in considering the Appellees' motion for summary judgment, (3) granting the motion for summary judgment because the Appellees are not entitled to judgment as a matter of law, and (4) finding that Borchman breached her own duty of care when she decided not to use a wet and slick handrail when descending the exterior steps of her apartment.

STANDARD OF REVIEW

An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).

On a motion for summary judgment, failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Freeman v. Hoffman-La Roche, Inc., 300 Neb. 47, 911 N.W.2d 591 (2018).

ANALYSIS

Borchman's first assignment of error is that the district court erred in granting the Appellees' motion for summary judgment because there are multiple disputes of material facts in this case. She argues the district court improperly decided issues of fact and that the court drafted its own statement of facts but failed to indicate if the facts are disputed, not disputed, or not material. Borchman contends this amounts to an improper decision by the district court warranting reversal.

In determining which facts are material here, we note both parties characterize the present action as a premises liability case. The Nebraska Supreme Court recently set forth the appropriate analytical framework for premises liability cases, opining:

We have cautioned that "[n]ot every negligence action involving an injury suffered on someone's land is properly considered a premises liability case." Generally speaking, our premises liability cases fall into one of three categories: (1) those concerning the failure to protect lawful entrants from a dangerous condition on the land, (2) those concerning the failure to protect lawful entrants from a dangerous activity on the land, and (3) those concerning the failure to protect lawful entrants from the acts of a third person on the land.

Sundermann v. Hy-Vee, 306 Neb. 749, 765, 947 N.W.2d 492, 504 (2020). Here, Borchman sued the...