little little outnumbered today but hopefully this will be my last day in the case like mr packard's life this case got cut short prematurely the trial co made three decisions granting motions to dismiss and we think those decisions were in error and we think they're in error really fundamentally for two reasons first the pleading don't say what he said they say if decision and to the extent that he came up with that interpretation we had filed the exhibits from the pullin area discovery and as the respondent to the motion to dismiss we think that that should have been dealt with as a motion for summary judgment at that point if he was going to consider an extra on of the location of the accident also since we weren't the filing party in the point in time that we respond to a motion to dismiss and there is evidence that has been developed that supports in this case the plaintiff case that our exhibit book the supplemental documents that were filed according to the local rule should not have been stricken and we'll talk about what those contained and why they were deported the fundamental legal issue related to the facts is whether a landowner who creates a situation on their property has some duty to the traveling public going past on the roadway that is adjoining her adjacent to the property nebraska law happens to be fairly devoid of much instruction on this point and we did a national search cases and we've cited a number of cases where courts in various states have found a duty that when you create an event going on on your property that could potentially be dangerous to the free use of the  paved road ways that are owned by the state that you have a duty to the traveling public not to interfere with their right to freely travel safely across those roadways what was happening on the property that was potentially dangerous to people off the property it was empty for drawing patrons well the methodology that patrons were drawn to the location of this event on the property that it was on located on a state route with a speed limit of sixty miles an hour going past a fabricated entrance into this event that had been over the years built up to draw thousands of people including donations for bleachers lighting and they were expecting the biggest crowd that they ever add there were cars and trucks parked for yards down each side of the road and quite frankly when it's a state route sixty miles an hour you have an expectation that there are a number of people not coming to this event that happened to be traveling from whatever location they started out to whatever destination they're going to and what's important to note is in the previous years they had traffic control at this intersection had the court consider the supplementals exhibits they would have seen that the president of the jays c c in minutes appeared and spoke about the need for traffic control statute that says that the traffic is controlled by officials there would not be a paved road in the brask or anywhere else in the united states if that was an absolute fact as i was s do well exactly what they've done in the past or what they did the day after the accident they put a flashing lights everywhere the day after the accident and that's not a substance subsequent remedial measure because they had traffic control in the previous years this was an anomaly where they did not have traffic control and i want to get back for one second to this idea about the paved road ways and that private individuals don't control traffic when you look at pavers people are out paving roads how many times have you driven up on the condition near the highway or on the highway where private business owners doing work are holding up stop signs slow signs proceed signs to make sure that traffic with their big against the law on the brass can i don't believe so because i think that many states have statutes talk about the a violation of the law i don't believe so because they recognize a duty in this case the j c see the j c because they went and said we need this traffic control they did the next day with the flashing lights there were sheriffs there doing that the point is that just because a primary duty rests with an official doesn't absolve you when you create a situation is your allegation that the defendant should not have been out there personally but they should've gotten the sheriff or of the state patrol to come there and do the or that they should have gotten either an official oftentimes at least in the various places i've been you could hire duty officers to do that function where they are off duty the entire police force in this area was not on official duty that day you could hire duty officers with their police cars in police uniforms to direct traffic it happens all the time that some of nebraska probably doesn't have the thing was plasma force and then the closest town  a lot of extra police officers around that would be available like the city of lincoln for instance and they do hire them for private work generally on shopping centers on private property but they're tightly regulated with what they can do but you're proposing that they should men out on a public road well i think they should have been aired them up somewhere to do i shouldn't i think someone should have at the entrance doing this and quite frankly your honor it's a good point but we never got to the element of discovery to determine whether in exercising that duty of reasonable care it would be reasonable to have duty officers or other reasonable based upon the population of available police officers at the time because the judge made the decision and a distinction between the intersection of this state route and a gravel road vs the entrance and he said the complaint alleges the accident happened at the intersection with the gravel road and not the entrance well that's just not true there are three or four paragraphs that have to be read together i have used g p s coordinates to figure out where the entrance was because this is not a city that's highly populated in this area it is a sixty mile an hour state route with an intersecting gravel road and just off the gravel i'm understanding was it was a left turn off of the highway off of seventy three onto this seven o three loop no on to the entrance to this event which was just just off the gravel intersecting with the judge in the trial court made a stink between he says very clearly i will call the interception the intersection i will call the entrance the entrance that says the accident happened at the intersection therefore i don't have to get to the issues because it didn't happen at their entrance and that's not what the posy entered it was interest on seventy three or was it on the gravel road no it was off of seventy three just off the gravel road when i meet off just outside of the intersection of the gravel road so this is the intersection the entrance is right down here pass the intersection if you have to turn on the gravel road to go into the now so you can turn for the paper i way you turned from the pay highway into the entrance to this field the gravel road just happens to be a landmark to be able to determine where the entrance is if no one's ever been there before and that's why we specifically say it was approximately three and a half miles from a certain effects because this is this isn't somewhere where you've got mile markers you've got a walgreen's you've got a grocery store you have a bar across the street you have a intersecting gravel road and these are all the landmarks that we use to describe it and the defendant it mysen his own iraq and tory number seven that the judge decided t strike that he was turning into the entrance to the event held for the state right away for the hire of the federal right away actually for the highway was the interest in feet yard miles whatever where you where the went into the private property the entrance was right at the right over that right of way ten we feet fifty feet hundred feet i don't know we never got to that level of discovery where anyone was making a claim that that the federal right of way would not be regulated ball and whether it was ten feet five feet or existed in that place whatsoever all of those questions are good questions but this case got cut short on a motion to dismiss by saying number one we don't need to get to the issue of the duty of care because it didn't happen at the entrance even though the evidence in the pleadings would indicate otherwise and secondly i don't believe there's a duty is what the judge said well as i read the your contention is that there was a huge amount of traffic drawn by the tractor pull or whatever it was but isn't it true that that also interstate twenty nine on the other side of the missouri river has was flooded and so us seventy three had a substantial amount of traffic that couldn't be related to the fall city jaycee's project and that put a further burden on duty of care to make sure that their entrance was safe because they knew in advance of the opening of this event that those roads were closed and that there was going to be even a heavier flow of traffic and so maybe you shouldn't joined a bit of an action against some federal officials for some responsibility or two or not it would that would that would that be a duty of the federal government to i concern themselves i didn't i didn't look into the duty of the federal government unfortunately because we didn't play to that when i'm kind of confined to what's going on in this case but it may be a it may be a very good point not one that i'm a blue dress today here your can contention is that i'm hearing here today is that this was done too early you've got to be six motions most of your judgment on the pleadings and you think did you gave enough notice pleading the juvie you ought to be able to go forward and flesh out these facts is that your argument that that is the argument your honor this that we came back with evidence we had just discovered through the preliminary stages of discovery after the amended complaint got amended a number of times because figuring out and ship of the property was through the loop just not true to enter the event any quotes paragraph twenty and twenty two of the third amended compliance so you say that's just a that's a misstatement of the allegations of this amended complying yes it is a misinterpretation of the allegations because you have to start all the way back a paragraph or deed that says the entrance gate to the event was located three miles south of fall city on south seven o three off us seventy three the intersection right so the intersection is not the issue here it's the entrance you go on to say in order to enter the gate to the event you had to cross the traffic on the highway seventy three so what we're trying to do is give notice as to where the accident took place where did it take place it took place at the injured i'm sorry at the entrance which is admitted by mr dark dettori answer number salad where he says that he turned into the entrance to the event entrance as described by the judge and that he got blocked by the traffic so we as argument you have of all three of these today did your bum get the facts wrong here no i think to cut right to the chase if you look at paragraph twenty two of the thirty minute complaint the plaintiff is the one that has pleaded in this case that the accident occurred it is simply adopting as true the plaintiff's own allegation in paragraph twenty two of the complaint may not be in the record but just from my personal information how far off highway seventy three is the on the loop for sure here's what i know about that i my client mr stephen didn't get added to the case until the thirty minute complaint and so we didn't participate in discovery of the case the only thing i've seen on that issue is the police report which i believe  indicates that the entrance was eight hundred feet off of highway seventy three eight hundred eight hundred feet that's minor scene of the police report your honor down down this down the road through yes and i don't even know that the south seventy three moved to be a gravel road it may well be may we take the nation judicial notice of the police report being a public document for our purposes if it was in if it was in the record i think that negligence theory and under nebraska law what's clear is that you don't have a duty to protect third persons from injuries caused by other third parties unless a special relationship exists between the landowner and one of the third parties in this case judge down there was no special relationship between any of the apple lees and either mr garbo or mr packard and if you look today w case it talk about that special relationship issue in in nebraska the type of relationships that i'm aware of that of that of constituted a special relationship or things like an employer employee relationship a situation where school may have a duty to protect students at the school of mr packard had been going to the tractor pull then he may have had a special relationship with the j c s is that right that's that's not correct mr packard was simply passing through  he was but if he had been he would be qualified with this special relationship you know and as judge irvin points out there's no support in the law on the brass could suggest that a mere customer or patron relationship with someone would rise to the level of special relationship otherwise that would give rise to a duty to any time someone is coming on to your property and and one of the judge or runs concerns your you know he really looked at this case from two perspectives i think he was he was faithfully applying the rules of the princip duty determination here is simply a policy determination that doesn't require you to get there the the the allegations in the complaint about these other issues involving a bridge closure flooding things of that nature didn't see it of any of the briefs here or my law clerks bench memo but they ask is there any nebraska law statutory or case law that says that an individual a private citizen can go out and direct traffic or controlled traffic or as i think they're now saying is go to the local authorities or state authorities and request or demand somebody go out there and do the controlled traffic the only thing i could really point you to judge riley would be the nebraska statutes that we've cited in our review and what those do is they  express leave authorize only the state to the department of roads or county boards or local of forty's to conduct those sorts of traffic control activities which includes the use of peace officers or traffic control devices and measures in the roadways private individuals don't receive that same sort of statutory authorization to perform those sorts of activities and so under nebraska law only governmental entities and bodies are are authorized to perform let me give a hypothetical warn drafty yes because it's created the hazard does that does that semi driver have a responsibility to control traffic because heavy traffic on the public highway itself that's that's what highways are are meant to drive traffic from one place to another there's not a dangerous condition that's that's created by any of the apple lees were simply conducting an event required under a w judge or bond commented i think that the fourth factor of this five factor policy analysis was if we were to impose a duty on the apple leaves under these circumstances where you draw the line when when your neighbor this weekend is hosting a garage sale and they put an ad in the paper and they're expecting a lot of people to come and park along the street to come visit their their home their garage sale they have a duty to somehow control the traffic on on smith street in their neighborhood when you're when you have a graduation party of your high school graduate this weekend and have a good duty there as you pointed out judge beam the there are places like fall city that don't have the sort of police presence where they can dispatch officers to every home and every business any time there's a there's a going out of business sale at a garage sale of the outsider jurisdiction anyway but i think what they're talking about would be county sheriffs or state patrol officers and maybe so the point is if you pose a duty in this sort of situation where there's where there's nothing going on on the land other than the event itself and the only the only reason  police presence is needed is because of heavy traffic when you're creating a terrible slippery slope where the liability is potentially limitless and you're not you know determinations are supposed to be made to provide broadly applicable guidelines to the general public about what they're required to do so we have to get to the issue of duty before we can consider causation that what you're saying that's true although i think this case can be decided on either basis and our motion issue if you determine there is not a duty as we believe that you should never reach the proximate cause issue if the court is concerned about the duty issue and determines that there may be a duty here that i think you can still have a firm judge obama's order based upon the proximate cause there's a line of cases in the brassica this is our case but that's where we may have to have some more facts before we can get on to the second phase of your argument there are some situations where factual development past the pleading stage may be required this isn't one of them and this isn't one of them because of the specific allegations that have been made in this case about the negligence of the responsible driver on highway seventy three mr darko and what the court nebraska supreme court has said executor and in the will of case and in the delaware case is that a landowner is not required to anticipate that a driver on a nearby public road is going to violate the rules of the road and turn negligently in front of someone or run through a stop sign or things like that that sort of negligence operates as an official intervening cause sever city council relationship between the landowners conduct and that is the case from a causation perspective as well i think if you look to the thirty minute complaint here the allegations about what mr garbo did wrong are very detailed and i think the court can determine as a matter of law that none of the adelies were required to anticipate that mr garbo was going to approach the south seven zero three loop on highway seventy three and turn negligently in front of an oncoming motorcycle and cause his death that's that's not the sort of thing as a matter of law  that is the sort of thing as a matter of law that operates as an official intervening cause back to duty issue though the the analysis that judge or one hundred took was really twofold number one he undertook a survey of case law from across the country and he cited in his orders about ten or eleven cases from across the country that analyzed very similar facts and they have consistently determined that there is no duty of a landowner to control traffic on a nearby public road but there's  indiana case that the plaintiffs cite that may be contrary to the there's an indiana case that's not contrary to that the indiana case is the holiday rambler case that the plaintiff has cited in some detail i think that the difference with holiday rambler is that there was a special relationship present between the defendant landowner in that case and the person who caused the accident and of course in the in this case a judge or a box of clean out of that had there been a special relationship the duty an may have been different but because there was no such relationship here you can't impose a duty to protect against injuries caused by third parties in the absence of such a relationship that that was used to do that that was a case that had a whole lot of entrances on the road  feet or something like that that's correct the issue of how they remember was the the employer released seven hundred fifty employees at the end of the shift all at three o'clock and they all went through four exits to the property on to a highway that were all with hundred feet of water you know why was that any more a spatial relationship than here because the the employer the employer employee relationship is a special relationship that's been recognized in the brass of law and the person who caused the accident dangerous condition on the land itself there's no allegation in this case of any dangerous condition on the property so i think it's distinguishable but in a did it and the other thing i would point out about the holly rambler cases it's an indiana case there been t supreme court would adopt that i do i think why i think the a w case directs judge or bomb to undertake a policy analysis of the term whether there is a duty here the furries did that and it noted five factors that impacted the policy determination that it was made with respect to duty and i think judge irvine five factors are all applicable in this case they all support his determination that no duty is owed  obviously the the apple lease here had no right or ability to control the instrumentality which caused the injuries here they have no control over mr garbo or mr garbos vehicle they have no control over public roadways such as highway seventy three they don't have the right were ability to control traffic on the roadways and that's a function that's tradition and historically rested with the government and then of course the last factor the judge around considered was the concern about where you draw the pinpoint such an unbelievable accuracy exactly the second minute in place that an accident occurred to be able to get past a motion to dismiss that's number one number two the driver of the vehicle got stuck perpendicular to the traffic because of the condition that was created on the property he couldn't get out of the way of the oncoming motorcycle he got stopped blocking that roadway because of the backup of traffic going into their entrance and lastly i feel like i'm fighting karl rove who just said that i have brain damage when i have no brain damage to put an idea out there and then they make you believe it's true the holiday rambler case is exactly on point it doesn't talk about a special relationship it talks about relationships in general so that case where it was distinguished by two courts at a later time talked about the fact that one of the parties that was accused of being responsible didn't have a relationship to the event that occurred not a special relationship like a business invites he or i when the mental home with ok or you're a time's