Robertson v. U Save Foods, Inc.

ELLEN ROBERTSON AND TIMOTHY ROBERTSON, APPELLANTS, v. U SAVE FOODS, INC., APPELLEE.

No. A-16-397.

NEBRASKA COURT OF APPEALS

May 2, 2017

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 Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed.

Greg Garland, of Greg Garland Law, Tara DeCamp, of DeCamp Law, P.C., L.L.O, and Kathy Pate Knickrehm for appellants.

Robert W. Futhey and David P. Kennison, of Fraser Stryker, P.C., L.L.O., for appellee.

PIRTLE and BISHOP, Judges.

BISHOP, Judge.

INTRODUCTION

Ellen Robertson and Timothy Robertson brought a premises liability action and claim for loss of consortium against U Save Foods, Inc. (U Save), as a result of Ellen breaking her hip when she tripped over a wooden pallet display of watermelons. U Save filed a motion for summary judgment on the basis that the pallet did not present an unreasonable risk of harm. The Robertsons appeal from the Sarpy County District Court's order granting that motion. We affirm.

BACKGROUND

On September 24, 2014, the Robertsons were shopping at the Bag 'N Save grocery store, owned by U Save, on Harrison Street in Bellevue, Nebraska. The store was near the Robertsons' home, and Ellen had shopped at the store one to two times per week for the past 30 years.

The Robertsons were in the store for 20 to 30 minutes before Ellen fell. U Save had set up a watermelon display at the end of one aisle, next to the peaches. The display consisted of a large cardboard box of watermelons resting on a wooden loading pallet. The cardboard watermelon box had black and yellow arrows pointing down with "Watch Step" printed across the arrows. The pallet and cardboard box were both brown in color, in contrast to the white tile of the floor. The watermelon display was narrower than the produce display cases making up the aisle and did not appear to extend into the aisle walkways. Although Ellen stated she did not remember seeing the pallet before she fell, she had seen similar pallets in grocery stores before.

After getting some peaches, Ellen turned and walked towards her husband. While walking from one side of the aisle to the other side, Ellen claimed her foot got stuck in a pallet, causing her to fall to the ground where she landed on her right hip and arm. She remained on the ground until medical personal arrived and transported her to the Nebraska Medical Center, where she was diagnosed with a broken hip. Ellen underwent hip replacement surgery on September 29, 2014.

The Robertsons filed a premises liability claim and loss of consortium claim against U Save on February 18, 2015. U Save filed its answer on March 26 and a motion for summary judgment on December 23.

The district court granted U Save's motion for summary judgment on March 25, 2016. The district court found that "Plaintiff has not presented any evidence that the pallet was broken, deformed, misshapen, unexpectedly jutting into an aisle, or otherwise presented any unreasonable hazard. . . . In fact, the evidence reflects that the only dangerous or defective condition Plaintiff claims is the use of the pallet itself as a display stand." The district court further stated that, assuming the pallet did constitute a dangerous condition, the Robertsons could not recover because the pallet was an open and obvious condition that Ellen failed to recognize. Also, as to Timothy's loss of consortium claim, the district court concluded that since such a claim derives from the harm suffered by the injured spouse, then if the injured spouse's tort claim fails, so does the loss of consortium claim for the uninjured spouse. The district court granted summary judgment in favor of U Save as to all claims. The Robertsons filed a timely appeal.

ASSIGNMENT OF ERROR

The Robertsons assign that the district court erred in granting U Save's motion for summary judgment.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the summary judgment 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. Hodson v. Taylor, 290 Neb. 348, 860 N.W.2d 162 (2015).

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825 N.W.2d 204 (2013). In the summary judgment context, a fact is materialonly if it would affect the outcome of the case. State Farm Fire & Cas. Co. v. Dantzler, 289 Neb. 1, 852 N.W.2d 918 (2014).

ANALYSIS

In premises liability cases, an owner or occupier is subject 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 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. Edwards v. Hy-Vee, Inc., 294 Neb. 237, 883 N.W.2d 40 (2016). 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 protecting stores from becoming the insurers of their patrons' safety. Id.

The Robertsons allege U Save was negligent because it created an unreasonable risk of harm by using a wooden loading pallet as a display stand, and U Save should have expected that "lawful entrants such as [Ellen] would not discover the trip hazard or fail to protect themselves against the trip hazard," and U Save failed to use effective safety measures to protect shoppers from that trip hazard. Brief for appellant at 11-12. U Save contends that the Robertsons failed to present evidence that the pallet presented such an unreasonable risk. The district court determined that the "[p]laintiff has failed to establish that the pallet was unreasonably dangerous. Plaintiff cannot demonstrate how the mere existence of a standard, wooden pallet sitting in plain sight with a large box of produce containing a warning sign thereon presents an unreasonable hazard to entrants." We agree.

An unreasonable risk of harm has been defined as a risk that a reasonably careful person under all circumstances of the case would not allow to continue. Bahrs v. R M B R Wheels, Inc., 6 Neb. App. 354, 574 N.W.2d 524 (1998) (citing NJI2d Civ. 3.02). In a premises liability case, the plaintiff is required to adduce evidence showing that there was a negligent act on the part of the defendant and that such act was the cause of plaintiff's injury. Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003). A person who alleges negligence on the part of another bears the burden to prove such negligence by direct or circumstantial evidence. Id. The mere fact that an injury or accident occurred does not raise a presumption of negligence. Id.

Nebraska has recognized that a storekeeper has a duty to use due care to keep the premises reasonably safe for use of an invitee, but a storekeeper is not an insurer of the safety of customers patronizing the place of business. See Bahe v. Safeway Stores, Inc., 186 Neb. 228, 182 N.W.2d 202 (1970) (16-ounce bottle of "Coca-Cola" fell on plaintiff's foot in store; "pop stand" did not create unreasonable risk of harm, and assuming it did, store could not with reasonable care have discovered it); Williams v. Bedford Market, Inc., 199 Neb. 577, 260 N.W.2d 316 (1977) (summary judgment in favor of grocery store affirmed in case involving regular customer who claimed to slip and fall in grocery store when turning a corner, allegedly because of water on the floor).

Other courts have found that non-defective wooden loading pallets do not present an unreasonable risk of harm. In Upton v. Rouse's Enterprise, LLC, 186 So.3d 1195 (La. Ct. App. 2016), a customer caught her foot underneath a wooden pallet used to display a box of watermelons. When the customer stepped away from the pallet, she fell and was injured. Summary judgment favoring the store was affirmed, with the appellate court noting that the customer failed to introduce evidence that the watermelon display presented an unreasonable risk of harm. The court stated that "a pallet does not inherently pose an unreasonable risk of harm. Certainly, the display in the instant case is a condition any customer would reasonably expect to encounter in the produce department of a grocery store, and it presents no unreasonable risk of harm to a customer exercising reasonable care." Id. at 1202 (internal citations omitted).

In Knox v. Fiesta Mart, Inc., 2011 WL 1587362 (Tex. App. 2011), a customer tripped over a pallet supporting a box of watermelons in a grocery store. The customer filed a premises liability action, and the trial court granted summary judgment for the grocery store. The Texas Court of Appeals concluded that the mere presence of the watermelon display at the entrance to the grocery store was not evidence that the manner of displaying watermelons was unreasonably dangerous.

Like the district court in the present matter, the courts from these other jurisdictions granted summary judgment on...