Wright v. Preston Resources, Inc.

639 N.W.2d 149

10 Neb. App. 856

Patty L. WRIGHT, Personal Representative of the Estate of Raquel S. Woodruff, Appellant, v. PRESTON RESOURCES, INC., et al., Appellees.

No. A-00-1056.

Court of Appeals of Nebraska.

February 5, 2002.

Vincent M. Powers, of Vincent M. Powers & Associates, Lincoln, for appellant.

Daniel P. Chesire and Raymond E. Walden, of Lamson, Dugan & Murray, Omaha, for appellees.

IRWIN, Chief Judge, and INBODY and CARLSON, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

Patty L. Wright, personal representative of the estate of Raquel S. Woodruff, appeals from an order of the district court for Douglas County granting summary judgment to Preston Resources, Inc., Preston Investments, Inc., William Preston, and Linda Preston (hereinafter collectively referred to as "Preston"), in this premises liability action arising out of the murder of Woodruff in the basement of an apartment building owned and managed by Preston. Because we agree with the district court that there exists no genuine issue of material fact, we affirm.

II. BACKGROUND

On August 22, 1997, Wright filed an amended petition in the district court for Douglas County, Nebraska. Wright alleged that Preston was the owner and manager of certain real property located in Omaha, Nebraska. Wright alleged that Woodruff was "killed by a person or persons" while on the premises owned and managed by Preston on or about June 16, 1995. Wright alleged negligence on the part of Preston and sought recovery in tort for damages arising out of Woodruff's death.

On September 3, 1997, Preston filed an answer to the amended petition. Preston alleged that Woodruff was a trespasser and that she was killed by another trespasser on the premises. Preston denied any allegations of negligence, affirmatively alleged Woodruff was guilty of contributory negligence or assumption of the risk, and alleged that Wright failed to state sufficient facts to constitute a cause of action.

On February 29, 2000, Preston filed a motion for summary judgment. Preston alleged that there existed no genuine issue of material fact concerning Woodruff's status, the duty owed to her, or the circumstances of her killer's entry onto the premises and that Preston was entitled to judgment as a matter of law.

On April 24, 2000, Preston's motion for summary judgment was heard by the court. The court received various exhibits, including pleadings, answers to interrogatories, police reports, and a transcription of trial testimony in the criminal trial of Woodruff's killer. On September 18, the district court found, based on the exhibits offered at the hearing, that Woodruff was a trespasser at the time she was killed. The court found that Preston had not acted with willful or wanton negligence. As such, the court granted Preston's motion for summary judgment and dismissed the amended petition. This timely appeal followed.

III. ASSIGNMENT OF ERROR

On appeal, Wright has assigned three errors, which we consolidate for discussion to one: The district court erred in granting Preston's motion for summary judgment.

IV. ANALYSIS

1. STANDARD OF REVIEW

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. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998); Kouma v. Blue Valley Co-op., 6 Neb.App. 714, 576 N.W.2d 854 (1998). In reviewing a motion for summary judgment, the question is not how a factual issue is to be decided, but, rather, whether any issue of material fact exists. Id. In reviewing a motion for 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. Olson v. SID No. 177, 251 Neb. 380, 557 N.W.2d 651 (1997); Kouma v. Blue Valley Co-op, supra. However, conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment. Darrah v. Bryan Memorial Hosp., supra; Kouma v. Blue Valley Co-op, supra.

Summary judgment is properly granted only when the movant satisfactorily shows that no genuine issue of material fact appears from the pleadings, admissions, depositions, affidavits, and stipulations in the record or from the reasonable inferences deducible from that evidence and that the movant is entitled to judgment as a matter of law. Terry v. Metzger, 241 Neb. 795, 491 N.W.2d 50 (1992). Once the movant has met this burden, the nonmoving party has the burden of showing that an issue of material fact exists that prevents judgment as a matter of law. Id.

The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. Olson v. SID No. 177, supra. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Id.

2. PREMISES LIABILITY

(a) General Propositions

In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate cause, and damages. Olson v. SID No. 177, supra. In premises liability actions, the duty owed by a landowner to another person depends on the person's status. To ascertain the duty owed by landowners to entrants upon their land, courts traditionally have classified entrants as either invitees, licensees, or trespassers. See Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

In Heins v. Webster County, supra, the Nebraska Supreme Court abrogated the distinction between invitees and licensees. However, the Supreme Court did so only prospectively, holding that the abrogation of the distinction between the two statuses would be applied only to causes of action arising after the date of the Heins opinion, August 23, 1996. The present action is based upon allegations that Preston acted negligently on or about June 16, 1995. Therefore, this case is governed by the premise existing in Nebraska cases prior to the Heins v. Webster County decision, that a landowner's duty of care depends upon whether the plaintiff (or in our case the decedent, Woodruff) is classified as an invitee, a licensee, or a trespasser. See, Olson v. SID No. 177, supra; Heins v. Webster County, supra. As such, we proceed as if the traditional distinctions which existed prior to the Heins v. Webster County decision are still in full force and effect.

An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Heins v. Webster County, supra. Landowners owe invitees the duty of reasonable care to keep the premises safe for the use of the invitee. Id. A business visitor is considered an invitee, and thereby receives this higher degree of care, reasonable care, ostensibly because he or she conveys some benefit upon the landowner. Id.

A licensee has been defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor. Id. Courts have limited the duty that a landowner owes to a licensee. Id. An owner or occupant of premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn him or her of a hidden danger or peril known to the owner or occupant but unknown to or unobservable by the licensee, who is required to exercise ordinary care. Id.

A trespasser is legally defined as a person who enters or remains upon the premises of another without a privilege to do so created by the possessor's consent, either express or implied. Terry v. Metzger, 241 Neb. 795, 491 N.W.2d 50 (1992). An owner of premises owes only a very limited duty to refrain from willfully or wantonly injuring a trespasser. See id.

(b) Woodruff's Status

The first issue we must resolve is whether the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is a genuine issue as to Woodruff's status on Preston's property when she was killed. The district court found that the record would only support the inference that Woodruff was a trespasser. On appeal, Wright alleges that the district court erred in reaching this conclusion and in not affording Wright the benefit of reasonable inferences deducible from the evidence concerning Woodruff's status on the property. Our review of the record discloses no genuine issue concerning Woodruff's status, and we agree with the district court that the only reasonable inference deducible from the record is that Woodruff was a trespasser.

In support of the motion for summary judgment, Preston introduced various exhibits, including answers to interrogatories, affidavits, depositions, and a transcription of the testimony given in the criminal trial of the man convicted of killing Woodruff. These documents satisfied Preston's burden to establish that no genuine issue existed concerning Woodruff's status.

Attached to the affidavit of Linda Preston were Preston's tenant payment records between February and June 1995. These payment records, in addition to the amended petition, established that Woodruff was not at any time a tenant of Preston. In interrogatories, Preston requested that Wright disclose whom Woodruff might have visited on the premises, and Wright repeatedly answered that she "[did] not know." The closest Wright was able to come in this regard was to indicate that Woodruff "had a friend by the name of Carolyn Carson" who had resided on the premises. However, the tenant payment...