Tolbert v. Jamison
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trust. Upon remand, the court may also consider an award
of costs and attorney fees under Neb. Rev. Stat. § 30-3893
(Reissue 2008).
Affirmed in part, and in part reversed
and remanded with directions.
Wright, J., not participating.
Alice Tolbert et al., appellants, v. Mr. Jamison
and M rs. Jamison, doing business as
Jamison R ealty, appellees.
___ N.W.2d ___
Filed March 11, 2011. No. S-09-687.
1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing 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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
4. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
5. ____. Whether a duty exists is a policy determination. Duty rules are meant to
serve as broadly applicable guidelines for public behavior, i.e., rules of law applicable to a category of cases.
6. Landlord and Tenant: Statutes: Ordinances. A statute or ordinance may
impose a duty on a landlord.
7. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
8. ____: ____. A prima facie case for summary judgment is shown by producing
enough evidence to demonstrate that the movant is entitled to a judgment in its
favor if the evidence were uncontroverted at trial.
9. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
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10.
11.
12.
13.
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burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
Appeal and Error. Appellate courts do not consider arguments and theories
raised for the first time on appeal.
Landlord and Tenant: Liability. As a general rule, in the absence of statute,
covenant, fraud, or concealment, a landlord who gives a tenant full control and
possession of the leased property will not be liable for personal injuries sustained
by the tenant or other persons lawfully upon the leased property.
____: ____. To hold an owner of leased premises liable for injuries suffered as a
result of the condition of the leased premises, it must appear that the landlord had
a right to present possession or present control or dominion thereover.
Landlord and Tenant: Contracts. In the absence of an express agreement to the
contrary, a lessor does not warrant the fitness or safety of the premises and the
lessee takes them as he or she finds them.
Petition for further review from the Court of Appeals, Irwin,
Carlson, and Moore, Judges, on appeal thereto from the
District Court for Douglas County, W. Russell Bowie III,
Judge. Judgment of Court of Appeals affirmed.
Sheri E. Long Cotton for appellants.
Daniel P. Chesire, Cathy S. Trent-Vilim, and Maria T.
Lighthall, of Lamson, Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan,
McCormack, and Miller-Lerman, JJ.
Miller-Lerman, J.
NATURE OF CASE
The plaintiffs-appellants in this case are Alice Tolbert and
Chaz Tolbert, individually and as personal representatives of
the estates of Victoria Lynn Tolbert Burgess (Victoria) and
Tisha Cassandra Tolbert (Tisha), and John Tolbert, as guardian
ad litem on behalf of Rictavianna Tolbert, a minor child who is
the daughter of Tisha. They are referred to collectively as “the
Tolberts” herein. The Tolberts were all related to Victoria and
Tisha, a mother and daughter who were both killed in a house
fire. Clarence and Phyllis Jamison, doing business as Jamison
Realty (the Jamisons), owned the house in which Victoria and
Tisha were tenants.
The Tolberts filed an action against the Jamisons and the
Omaha Housing Authority (OHA), asserting, inter alia, that
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the Jamisons were negligent for failing to provide adequate
fire safety features, including adequate escape routes from the
rental house in the event of a fire. The district court for Douglas
County granted summary judgment in favor of the Jamisons
and dismissed the action after determining that because the
Jamisons did not violate any regulations or codes, they met
their duty, and that, even if the Jamisons were negligent, the
actions of an arsonist who started the fire were not foreseeable
and were an intervening cause of the fire and of Victoria’s and
Tisha’s deaths. The Tolberts appealed, claiming that the district
court erred when it failed to apply “notice pleading” principles
and the law regarding premises liability. They also complained
of certain evidentiary rulings. The Nebraska Court of Appeals
affirmed the decision of the district court, based on the intervening cause aspect of the ruling. We granted the Tolberts’
petition for further review. Albeit for reasons other than those
articulated by the Court of Appeals, we affirm.
STATEMENT OF FACTS
Victoria and Tisha lived in “Section 8” federally subsidized
housing owned by the Jamisons. The property at issue is a twostory, single-family dwelling. Victoria and Tisha died in April
2003 as the result of a house fire that was intentionally set by
Decabooter Williams. See State v. Williams, 269 Neb. 917, 697
N.W.2d 273 (2005). Another occupant of the house escaped
through a window. See id.
The Tolberts filed this negligence action against the Jamisons,
alleging that they were negligent in failing to provide appropriate ingress and egress, working fire alarms, and fire extinguishers or other extinguishing equipment “as required by the
laws of the State of Nebraska, the U.S. Department of Housing
governing participants in the Section 8 program and the City
of Omaha Minimum Dwelling Codes.” The Tolberts alleged,
inter alia, that the house had one door for ingress and egress
and that the fire started by Williams blocked access to the
one door.
The Tolberts also named OHA as a defendant. In 2006, the
district court sustained OHA’s motion to dismiss the suit against
OHA. The court found two reasons to dismiss the suit against
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OHA: (1) Federal law bars a private right of action against a
public housing authority administering Section 8 housing for
failure to enforce housing quality standards, and (2) the actions
of the arsonist, Williams, were an efficient intervening cause
which precluded a finding that any negligence on the part of
OHA proximately caused Victoria’s and Tisha’s deaths. The
court certified the order sustaining OHA’s motion to dismiss as
a final judgment as to all claims against OHA, pursuant to Neb.
Rev. Stat. § 25-1315 (Reissue 2008). The Tolberts appealed
the dismissal of OHA to the Court of Appeals. The Court of
Appeals affirmed the dismissal on the basis that federal law
barred the action. Because such conclusion resolved the appeal,
the Court of Appeals did not consider other rationale upon
which dismissal of OHA had been based. Tolbert v. Omaha
Housing Authority, 16 Neb. App. 618, 747 N.W.2d 452 (2008).
We denied the Tolberts’ petition for further review.
After the cause resumed in the district court, the Jamisons
moved for summary judgment. The district court conducted
an evidentiary hearing. The Jamisons contended they were not
negligent. The Jamisons relied in part on various regulations
and codes regarding fire safety requirements with which they
had complied and which they asserted demonstrated they had
met their duty and the standard of care. The district court made
certain evidentiary rulings not relevant to our resolution of
this case.
In an order filed on April 15, 2009, the court found that
there was no evidence that the Jamisons failed to comply
with federal Section 8 housing requirements, state law, or city
of Omaha building codes with regard to ingress and egress
and other fire safety issues. The court further found that
Williams’ actions in starting the fire “were not foreseeable to
the Jamisons and presented an intervening cause which breaks
the causal chain of any negligence which may be attributable to
the Jamisons” and that Williams’ actions were “the proximate
cause of the injuries to the Tolberts.” The law generally defines
“efficient intervening cause” as new and independent conduct
of a third person, which itself is a proximate cause of the injury
in question and breaks the casual connection between the original conduct and the injury. Wilke v. Woodhouse Ford, 278 Neb.
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800, 774 N.W.2d 370 (2009). The court sustained the Jamisons’
motion for summary judgment.
The Tolberts appealed to the Court of Appeals. In a memorandum opinion filed March 30, 2010, the Court of Appeals
summarized the Tolberts’ assignments of error as follows: The
trial court erred in (1) determining that Williams’ actions constituted an efficient intervening cause, cutting off the Jamisons’
liability for any negligence; (2) failing to apply notice pleading
principles to the Tolberts’ complaint and failing to consider
premises liability theory; and (3) sustaining the Jamisons’ objections to the Tolberts’ exhibits and in overruling the Tolberts’
objections to the Jamisons’ exhibits. In their brief filed in the
Court of Appeals, the Tolberts claimed for the first time that
the essence of their negligence action was that the Jamisons
were liable under the common law regarding premises liability
and specifically as such law applied to conditions on the land.
The focus of the Tolberts’ claim on appeal is that the Jamisons
violated their duty to the Tolberts when the Jamisons failed to
provide a second door for egress in the event of a fire.
The Court of Appeals affirmed the district court’s grant of
summary judgment in favor of the Jamisons. The Court of
Appeals concluded that “the trial court did not err in finding
that Williams’ actions were an efficient, intervening cause, and
that Williams’ actions were not foreseeable to the Jamisons.”
Given its resolution of such issue, the Court of Appeals determined that it did not need to address the Tolberts’ other assignments of error.
We granted the Tolberts’ petition for further review.
ASSIGNMENTS OF ERROR
The Tolberts assert that the Court of Appeals erred by failing to properly analyze their claim under Nebraska law as a
premises liability claim regarding “conditions on the land.” The
Tolberts make other assignments of error which we need not
discuss, because this assignment of error resolves the appeal.
STANDARD OF REVIEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
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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. A.W.
v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d
907 (2010). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted, giving that
party the benefit of all reasonable inferences deducible from
the evidence. Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d
707 (2010).
ANALYSIS
In this negligence action as pleaded, the Tolberts alleged that
the Jamisons were liable because, as owners of a single-family
dwelling with only one door, they failed to comport with various regulations and codes relevant to Section 8 housing. The
evidence at the summary judgment hearing was designed to
meet these allegations. Because none of the regulations and
codes required a second door, the Jamisons met their duty in
this regard. The district court granted summary judgment in
favor of the Jamisons based on their demonstrated compliance
with such regulations and codes. This basis for the grant of
summary judgment was correct.
The Jamisons established that they met their duty and that
they were not negligent. As explained below, as the case was
pleaded and tried, there was no negligence, and therefore, there
was no basis for application of a theory of intervening causal
negligence. The intervening cause rationale explained by the
district court and endorsed by the Court of Appeals was not a
correct application of the law and does not support entry of the
summary judgment. Nevertheless, because summary judgment
was properly entered based on the Jamisons’ compliance with
regulations and codes, we affirm the decision of the Court of
Appeals which affirmed the district court’s grant of summary
judgment in favor of the Jamisons.
On further review, the Tolberts contend that the proper
analysis of their negligence action is under premises liability
theory, specifically as it relates to conditions on the land, and
that their complaint put the Jamisons on notice that this theory
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was at issue. They contend that the Court of Appeals erred by
not reviewing the appeal as a “conditions on the land” case.
The Jamisons respond that the complaint as pleaded was a
claim of negligence based on purported violations of duties
established by regulations and codes, that premises liability
was not pleaded or argued at the trial level, and that the entry
and affirmance of summary judgment in their favor was proper.
We agree with the Jamisons in each regard.
In their complaint, the Tolberts alleged that the Jamisons
were negligent because they failed to provide safety features
in violation of various regulations and codes. Throughout the
proceedings, the Tolberts have focused on the fact that the
s
ingle-family dwelling of which they were tenants had one
door, although there is no dispute that there were windows
capable of being used for egress and that one occupant of the
house exited through a window. See State v. Williams, 269 Neb.
917, 697 N.W.2d 273 (2005).
[3-6] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff, a
breach of such duty, causation, and damages. A.W. v. Lancaster
Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010).
The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular
situation. Id. Whether a duty exists is a policy determination.
See id. Duty rules are meant to serve as broadly applicable
guidelines for public behavior, i.e., rules of law applicable to
a category of cases. Id. Courts have recognized that a statute
or ordinance may impose a duty on a landlord. See Hodge v.
Nor-Cen, Inc., 527 N.E.2d 1157 (Ind. App. 1988) (in apartment
house fire, city ordinance requiring second means of egress
imposed duty on landlord).
In view of the allegations in the complaint, the Jamisons
moved for summary judgment on the basis that they had met
their duty by complying with relevant housing regulations and
codes. The record supported the Jamisons’ position. The district court concluded they were entitled to judgment as a matter
of law on this basis. We determine that the district court did not
err in this regard.
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[7-9] The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. Hofferber
v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008). A
prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled
to a judgment in its favor if the evidence were uncontroverted
at trial. Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909
(2010). After the movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate that
the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the
existence of a material issue of fact that prevents judgment as
a matter of law shifts to the party opposing the motion. Id.
In reviewing a summary judgment, we give the party against
whom the judgment was entered all reasonable inferences
deducible from the evidence. See Wilson v. Fieldgrove, 280
Neb. 548, 787 N.W.2d 707 (2010).
The Tolberts do not dispute that the Jamisons met relevant
regulations and codes. They contend, however, that their reference to “the laws of the State of Nebraska” in the complaint
encompasses the common law of Nebraska and, in particular,
concepts of premises liability which the Tolberts assert imposed
additional duties on the Jamisons. The Tolberts suggest that
they attempted to meet the Jamisons’ summary judgment case
by proffering various affidavits from witnesses in the inspection and construction fields which would have shown that it
is customary to have more than one door in a single-family
dwelling and, therefore, that conditions on the land failed to
meet common standards, thus giving rise to premises liability.
However, because premises liability theory imposes duties on
possessors of land and the Jamisons were not possessors of the
land, the Tolberts’ reliance on their affiants and the premises
liability theory they support is misplaced.
On further review, the Tolberts refer us to Richards v.
Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004), in which we
set forth the framework for premises liability under Nebraska
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law which we apply to this case. In Meeske, we stated that
there are generally three categories of duties that a possessor
of land owes to those lawfully on the premises. We described
those duties as follows:
First, the possessor must take reasonable steps to protect the lawful entrant from conditions on the land. . . .
Second, the possessor must take reasonable steps to protect the lawful entrant from the possessor’s dangerous
activities. . . . Finally, the possessor must take reasonable
steps to protect the lawful entrant from accidental, negligent, and intentional harmful acts of third parties if those
acts are foreseeable.
Id. at 907, 689 N.W.2d 343 (citations omitted).
The duties of a possessor of land described in Meeske are
taken from the Restatement (Second) of Torts § 341A (1965).
The term “possessor” is defined by the Restatement, supra,
§ 328E at 170, as
(a) a person who is in occupation of the land with
intent to control it or
(b) a person who has been in occupation of land with
intent to control it, if no other person has subsequently
occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of
the land, if no other person is in possession under Clauses
(a) and (b).
This Restatement definition of “possessor” is applicable
to premises liability, and referring to this definition of “possessor,” there is nothing in the record from which we can
infer that the Jamisons are “possessors” of the land at issue.
Because the Jamisons are not possessors of the land, they are
not bound by the premises liability duties described in Meeske.
Thus, neither the first duty in Meeske regarding conditions on
the land, upon which the Tolberts rely in general, nor the third
duty in Meeske regarding protecting against intentional harmful acts of third parties, upon which the lower courts relied in
their intervening cause analysis, is relevant to establishing the
Jamisons’ duties.
[10] On further review, the Tolberts seem to suggest that
there are other sources of law from which additional duties
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may be placed on the Jamisons. In response, the Jamisons
correctly note that appellate courts do not consider arguments and theories raised for the first time on appeal. See
Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d
47 (2010). The Tolberts did not advance alternative theories
which would create additional duties on the Jamisons in the
lower courts, and their general reference to “the laws of the
State of Nebraska” does not suggest a compelling alternative
source of duty.
In their brief in support of their petition for further review,
the Tolberts suggest that the Jamisons, as landlords, had a
c
ommon-law duty to reasonably guard against the risk of fire.
The cases upon which the Tolberts rely, such as Collins v.
Scenic Homes, Inc., 38 So. 3d 28 (Ala. 2009), and Mozer v.
Semenza, 177 So. 2d 880 (Fla. App. 1965), are distinguishable
because they involved apartment buildings or hotels where the
owner retained control over the premises or common areas.
In contrast to the cases referred to by the Tolberts, this case
involves owners of a single-family dwelling who were sued
by occupants.
[11,12] With reference to a single-family unit, the law may
be summarized as follows: “‘As a general rule, in the absence
of statute, covenant, fraud or concealment, a landlord who
gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the
tenant or other persons lawfully upon the leased property.’”
Olds v. Noel, 857 N.E.2d 1041, 1044 (Ind. App. 2006). It is
well settled in Nebraska common law that to hold an owner
of leased premises liable for injuries suffered as a result of
the condition of the leased premises, it must appear that the
landlord had a right to present possession or present control or
dominion thereover. Tighe v. Cedar Lawn, Inc., 11 Neb. App.
250, 649 N.W.2d 520 (2002). See, Weiss v. Autumn Hills Inv.
Co., 223 Neb. 885, 395 N.W.2d 481 (1986); Hiatt v. Tallmage,
219 Neb. 635, 365 N.W.2d 448 (1985). See, also, 52A C.J.S.
Landlord & Tenant § 893 (2003).
[13] We recognize that a landlord may be bound to use
reasonable care in the maintenance of common areas of which
he or she retains control and have not been demised to the
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tenants. See Tighe, supra. However, we cannot infer from the
record that there was a “common area” in this single-family
dwelling. See Olds v. Noel, supra (common area more likely to
be found in apartment complex or other multi-unit properties
rather than single-family dwelling). See, generally, 52A C.J.S.,
supra. In the absence of an express agreement to the contrary,
a lessor does not warrant the fitness or safety of the premises
and the lessee takes them as he or she finds them. Roan v.
Bruckner, 180 Neb. 399, 143 N.W.2d 108 (1966); Tighe, supra.
In this case, the Tolberts did not rely on a lease or plead a
contractual basis for the Jamisons’ alleged duty. Finally, the
Uniform Residential Landlord and Tenant Act, as adopted in
Nebraska, did not change the common law. Neb. Rev. Stat.
§ 76-1419(1)(f) (Reissue 2009) (providing that obligations
imposed by this section are not intended to change existing
tort law in this state). We reject the Tolberts’ idea that other
sources of duty giving rise to negligence by the Jamisons can
be inferred from the complaint.
CONCLUSION
The Jamisons overcame the allegations in the complaint to
the effect that they had violated various regulations and codes
and demonstrated that they were entitled to judgment as a
matter of law. They were not obligated to advance alternative
theories upon which duty and liability could be potentially
based. The Tolberts did not produce evidence which showed a
material fact in dispute that would prevent judgment as a matter of law. The Tolberts’ appellate arguments on further review
and references to excluded evidence all grounded in conditions on the land under the theory of premises liability are not
persuasive; because the Jamisons were not possessors of the
land, they had no duty under premises liability theory. Albeit
for reasons which differ from those of the Court of Appeals,
we affirm the decision of the Court of Appeals which affirmed
the district court’s entry of summary judgment in favor of
the Jamisons.
Affirmed.
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