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BENARD v. McDOWALL, LL

Cite as 298 Neb. 398

Danielle Benard, appellant

McDowall, LLC, appe

___ N.W.2d ___

Filed December 15, 2017. No. S-16-946.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence 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. ____: ____. 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 and gives 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. 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.

6. ____: ____. 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.

7. 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/19/2018 08:13 AM CST
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BENARD v. McDOWALL, LL

Cite as 298 Neb. 398

8. Landlord and Tenant: Liability. In Nebraska, the obligation of a landlord to warn of a dangerous condition on leased premises is based on the 

Restatement (Second) of Torts § 358 (1965).

9. ____: ____. 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.

10. 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.

11. Landlord and Tenant: Liability: Contracts. A lessor of land is subject to liability for physical harm caused to his lessee and others upon 

the land with the consent of the lessee or his sublessee by a condition 

of disrepair existing before or arising after the lessee has taken possession if (1) the lessor, as such, has contracted by a covenant in the 

lease or otherwise to keep the land in repair, (2) the disrepair creates an 

unreasonable risk to persons upon the land which the performance of 

the lessor’s agreement would have prevented; and (3) the lessor fails to 

exercise reasonable care to perform his contract.

12. Negligence: Liability: Contracts. Liability in negligence based on contract is dependent on the terms of the agreement.

13. Landlord and Tenant: Words and Phrases. The word “repair” means 

to restore to a sound or good state after decay, injury, dilapidation, or 

partial destruction.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirmed in part, and in part reversed an

remanded for further proceedings.

Eric R. Chandler, of Law Office of Eric R. Chandler, P.C., 

L.L.O., for appellant.

Michael T. Gibbons, Aimee C. Bataillon, and Raymond E. 

Walden, of Woodke & Gibbons, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke, 

Miller-Lerman,

NATURE OF CASE

Danielle Benard sustained injuries when she fell on the 

entry step of the single-family home (Property) she rented. She 
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BENARD v. McDOWALL, LL

Cite as 298 Neb. 398

brought a negligence action against her landlord, McDowall, 

LLC. The district court for Douglas County granted summary judgment in favor of McDowall, and Benard appeals. 

Although the district court did not err in the portion of the 

ruling in the summary judgment order with regard to Benard’s 

theory that McDowall was obligated to warn her of a dangerous condition on the Property, due to genuine issues of 

material fact, the district court erred with respect to Benard’s 

allegation that McDowall failed to repair and maintain the 

Property as required by the November 1, 2011, lease (Lease). 

We affirm in part, and in part reverse and remand for further proceedings.

STATEMENT OF FACTS

Benard seeks damages for injuries she suffered after falling on the steps leading to the front entryway of the Property, 

which she leased from McDowall. The Property was located in 

Omaha, Nebraska.

Benard’s complaint alleged that on September 23, 2012, she 

fell on the front concrete step of the Property and seriously 

injured her ankle and sustained damages. In her deposition, 

she testified that shortly before midnight, she was standing 

on the front step, concluding a telephone call, and when she 

stepped off the step, the heel of her shoe became stuck in a 

crack or gap between the front stoop and the front step and she 

lost her balance and fell to the ground. She gathered her cell 

phone and keys and reentered the Property. Her fall resulted 

in torn ligaments in her ankle, for which she ultimately underwent surgery.

Benard presented evidence of ongoing disrepair of the front 

entryway despite orders from a city housing code inspector to make repairs. Seven months prior to the execution of 

the Lease, in March 2011, a housing code inspector for the 

city of Omaha’s planning department (Planning Department) 

had inspected the Property and, on April 5, 2011, notified 

McDowall that occupancy of the Property was prohibited until 
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Cite as 298 Neb. 398

repairs were made, because numerous violations made the 

dwelling “unfit for human occupancy.” These violations for 

“unsafe structure[s]” included the sinking front step, which 

needed to be “mud jacked,” or lifted, leveled, and stabilized. Benard claims that McDowall never notified her of the 

safety code violations or completed the repairs ordered by the 

Planning Department.

The record also contains a “Section 8” Omaha Housing 

Authority inspection checklist completed prior to Benard’s fall, 

dated July 31, 2012. The checklist indicates that the property 

passed the Section 8 inspection for “Condition of Stairs, Rails, 

and Porches.”

McDowall’s designated representative testified in his deposition that prior to renting the house to Benard, he completed 

all repairs required by the April 2011 Planning Department’s 

list of violations. He testified that he jacked up the step using 

a pry bar and some boards, reached underneath, and packed in 

dirt and gravel to bolster the step.

In 2013, subsequent to Benard’s injury, the Planning 

Department again inspected the Property and concluded that 

no repairs had been made to the front steps and found that 

the front steps were still in an unsafe condition. The Planning 

Department housing inspector who conducted both the 2011 

and 2013 inspections stated in an affidavit that “[d]uring 

my inspection on April 5, 2013, I found that the previous 

violations noted in the March 2011 inspection, including 

the sunken front steps, had not been remedied, and that the 

property had been unlawfully occupied.” On April 8, 2013, 

the housing inspector issued an “Order to Vacate” regarding 

the Property.

Benard testified at her deposition that she viewed the 

Property once or twice prior to entering into the residential 

Lease with McDowall. During her walk throughs, a McDowall 

representative named “Chris” informed her that he “still had 

to fix stuff on the house” and that he “was still working on 

the house.” Benard could not recall whether “Chris” informed 
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her of particular repairs. However, she denied seeing any “big, 

glaring, red flags” at that time and she wanted to “hurry up 

and move.”

The Lease contained provisions pertaining to safety and 

maintenance, excerpted below:

9. Condition of Premises. Lessee stipulates that he has 

examined the demised premises, including the grounds 

and all buildings and improvements, and that they are, 

at the time of the lease, in good order, repair, and a safe, 

clean, and tenantable condition.

. . . .

20. Maintenance and Repair. Lessee will, at his sole 

expense, keep and maintain the leased premises and 

appurtenances in good and sanitary condition and repair 

during the term of this lease and any renewal thereof. 

In particular, Lessee shall keep the fixtures in the house 

or on or about the leased premises in good order and 

repair; keep the furnace clean; keep the electric bills in 

order; keep the walks free from dirt and debris; and, at 

his sole expense, shall make all requested repairs to the 

plumbing, range, heating[] apparatus, and electric and 

gas fixtures whenever damage thereto shall have resulted 

from Lessee’s misuse, waste, or neglect or that of his 

employee, family, agent, or visitor. Major maintenance 

and repair of the leased premises, not due to Lessee’s 

misuse, waste, or neglect or that of his employee, family, 

agent, or visitor, shall be the responsibility of Lessor or 

his assigns.

(Emphasis supplied.)

Benard testified that at some point after she moved in, 

she noticed that the front steps of the Property were sinking 

in and shifting. Because of the condition of the steps, she 

began to turn to the side and descend hip first. Benard testified that during the year she resided at the Property before she 

was injured, several other friends and family members either 

tripped on or expressed difficulty navigating the steps. During 
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the year between her move-in date and her injury, Benard’s 

niece and twin nephews had tripped on the step, and her niece 

advised her that the step needed to be fixed. She testified that 

when a representative of McDowall would come to collect 

her rent, she would step outside her house and he would see 

her navigate the steps sideways, inferring that McDowall was 

on notice. Benard stated, however, that she did not explicitly 

notify McDowall of her ongoing issues with the step and landing or of any worsening of the condition.

On February 17, 2014, Benard filed this negligence action 

to recover damages for the injuries she sustained in her fall. 

She alleged that McDowall was negligent in failing to properly maintain and repair the front steps of the Property and for 

failing to notify Benard of the defect in the front steps. In its 

answer, McDowall alleged, inter alia, that Benard was negligent to a degree sufficient to bar or reduce her recovery.

After the parties exchanged written discovery and took depositions, McDowall moved for summary judgment. Following a 

hearing, the district court took the matter under advisement. In 

its written order, filed July 13, 2016, the district court determined that there was no evidence that McDowall concealed or 

failed to disclose the condition of the steps and that the condition was open and obvious. The court further found that the 

undisputed evidence showed that Benard was aware of the condition of the steps at the time she fell. Based on these reasons, 

the court granted summary judgment in favor of McDowall 

and dismissed the complaint.

This appeal followed.

ASSIGNMENT OF ERROR

On appeal, restated, Benard claims generally that the 

district court erred when it granted summary judgment in 

McDowall’s favor.

STANDARDS OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 
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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. Midland Properties v. Wells Fargo, 296 Neb. 

407, 893 N.W.2d 460 (2017). 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 

and gives that party the benefit of all reasonable inferences 

deducible from the evidence. Id.

ANALYSIS

In this negligence action, Benard alleged that McDowall 

was liable because, as landlord of her rental home, McDowall 

failed to maintain and repair the front steps and failed to notify 

her of the defect in the front steps. McDowall denied the substantive allegations and alleged that Benard was contributorily 

negligent. At the summary judgment hearing, McDowall presented evidence that Benard was aware of the condition of the 

steps and the district court granted summary judgment in favor 

of McDowall generally based on its reasoning that McDowall 

had not concealed the danger.

Although the district court did not err in the portion of 

the ruling in the summary judgment order with regard to 

Benard’s theory that McDowall was obligated to warn her of 

a dangerous condition, due to genuine issues of material fact, 

the district court erred with respect to Benard’s allegation 

that McDowall failed to repair and maintain the property as 

required by the Lease. We affirm in part, and in part reverse 

and remand for further proceedings.

Applicable 

[3,4] 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 
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negligence is a question of law dependent on the facts in a 

particular situation. Id.

[5-7] 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. 

Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877 (2011). 

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. Id. 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. Id. 

(citing Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 

707 (2010)).

This case involves a dangerous condition on the Property 

governed by the Lease. The parties argue many theories not 

repeated here which are not dispositive. The centerpiece of our 

analysis are the long-established obligations between a landlord and a tenant with regard to (1) warning and (2) repairing 

dangerous conditions on leased premises.

Landlord’s Alleged Failure to No

Tenant of Dangerous C

[8] In Nebraska, the obligation of a landlord to warn of 

a dangerous condition on leased premises is based on the 

Restatement (Second) of Torts § 358 (1965). The district 

court’s analysis was guided by a summary of the law reflected 

in a jury instruction, NJI2d Civ. 8.31, which, adjusted to this 

case, provides as follows:
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Before [Benard] can recover against [McDowall on 

her claim of failure to warn of the dangerous condition, 

Benard] must prove, by the greater weight of the evidence, each and all of the following:

1. That there was a condition on the [Property] that 

involved an unreasonable risk of harm to [Benard];

2. That [Benard] was the lessee . . . ;

3. That [McDowall] knew or had reason to know of 

this condition and realized or should have realized the 

risk involved;

4. That [McDowall] concealed or failed to disclose the 

condition to [Benard];

5. That [Benard] did not know or have reason to know 

of the condition or the risk involved;

6. That [McDowall] had reason to expect that [Benard] 

would not discover the condition or realize the risk;

7. That the condition was a proximate cause of some 

damage to [Benard after she had taken possession of the 

Property]; and

8. The nature and extent of that damage.

At the hearing on summary judgment, McDowall produced 

evidence to show that it had no reason to expect that Benard 

would not discover the condition or realize the risk. In this 

regard, Benard’s testimony reflected that the condition of the 

step and landing were known to her family and friends, including young children; that she took precautionary measures due 

to the settling of the entryway; and that she understood that 

McDowall observed the worsening of the condition based 

on the viewing of the property’s exterior by representatives 

of McDowall.

Benard argues on appeal that McDowall did not have reason 

to expect that she would realize the risk created by the steps. 

However, Benard is unable to point to any material fact in 

the record which shows the risk was concealed or difficult to 

appreciate that would prevent summary judgment in favor of 

McDowall on this theory. The district court did not err when 
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it ruled in favor of McDowall on this theory, and we turn to 

Benard’s remaining theory that McDowall breached its obligation to exercise reasonable care in repairing and maintaining 

the leased Property.

Landlord’s Failure to Repair and M

Property: Lease Provis

[9,10] Regarding 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.”’” Tolbert v. 

Jamison, 281 Neb. 206, 215, 794 N.W.2d 877, 885 (2011). This 

proposition is consistent with the Restatement, supra, § 356. 

We have also stated that “[i]n 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.” Tolbert v. Jamison, 281 Neb. at 216, 794 N.W.2d 

at 885. See Roan v. Bruckner, 180 Neb. 399, 143 N.W.2d 108 

(1966), abrogated, Heins v. Webster County, 250 Neb. 750, 552 

N.W.2d 51 (1996).

[11] Section 356 of the Restatement notes that there are 

several exceptions to the nonobligation of the landlord. One 

exception is contained in the Restatement (Second) of Torts 

§ 357 at 241 (1965), which provides:

A lessor of land is subject to liability for physical harm 

caused to his lessee and others upon the land with the 

consent of the lessee or his sublessee by a condition of 

disrepair existing before or arising after the lessee has 

taken possession if

(a) the lessor, as such, has contracted by a covenant in 

the lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s 

agreement would have prevented; and
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(c) the lessor fails to exercise reasonable care to perform his contract.

The landlord’s duty under a contract to make repairs as reflected 

in § 357 of the Restatement has been adopted in Nebraska. 

Zuroski v. Estate of Strickland, 176 Neb. 633, 126 N.W.2d 888 

(1964). See, also, Gehrke v. General Theatre Corp., 207 Neb. 

301, 298 N.W.2d 773 (1980); Reicheneker v. Seward, 203 Neb. 

68, 277 N.W.2d 539 (1979); Quist v. Duda, 159 Neb. 393, 67 

N.W.2d 481 (1954).

[12] Liability in negligence based on contract is dependent 

on the terms of the agreement. The Restatement, supra, § 357, 

comment d. at 242-43, provides:

Since the duty arises out of the existence of the contract 

to repair, the contract defines the extent of the duty. 

Unless it provides that the lessor shall inspect the land to 

ascertain the need of repairs, a contract to keep the premises in safe condition subjects the lessor to liability only 

if he does not exercise reasonable care after he has had 

notice of the need of repairs. In any case his obligation is 

only one of reasonable care.

See, also, Gehrke v. General Theatre Corp., supra; Reicheneker 

v. Seward, supra; Zuroski v. Estate of Strickland, supra; Quist 

v. Duda, supra.

As noted above, paragraph 20 of the Lease between the 

parties provided that “[m]ajor maintenance and repair of the 

leased premises, not due to Lessee’s misuse, waste, or neglect 

or that of his employee, family, agent, or visitor, shall be 

the responsibility of Lessor or his assigns.” Thus, McDowall 

contracted to make major repairs under the Lease. Further, 

the record contains some evidence that McDowall made additional oral promises to Benard regarding future repairs on 

the Property. According to Benard’s testimony, during her 

visits with a McDowall representative to tour the Property, 

the representative indicated that he “was still working on the 

house” and “still had to fix stuff on the house,” from which 
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we infer McDowall’s intention to make repairs consistent with 

the Lease.

[13] “The word ‘repair’ means to restore to a sound or good 

state after decay, injury, dilapidation, or partial destruction.” 

Zuroski v. Estate of Strickland, 176 Neb. at 634, 126 N.W.2d at 

890. McDowall does not contest that the work required to lift 

and support the exterior concrete step and landing is a major 

repair to the property and that major repairs are covered in 

paragraph 20 of the Lease.

In the underlying complaint, Bernard pled, inter alia, theories of negligence based on McDowall’s alleged failure to 

repair and maintain the steps. We consider the evidence regarding initial repairs first. Through the Planning Department’s 

2011 notice, Benard’s evidence showed that the step was in 

need of repair at that time. And the affidavit from the housing code inspector from the Planning Department stated that 

in 2013, he “found that the previous violations noted in the 

March 2011 inspection, including the sunken front steps, had 

not been remedied, and that the property had been unlawfully 

occupied.” Benard also testified that the step was problematic 

throughout her tenancy.

But the record is disputed regarding whether the steps were 

repaired, and if so, whether the repairs were made before 

or during Benard’s occupancy. Paragraph 9 of the Lease 

provides that the tenant has “examined the demised premises, including the grounds and all buildings and improvements, and that they are, at the time of the lease, in good 

order, repair, and a safe, clean, and tenantable condition.” 

The deposition testimony by a representative of McDowall 

claimed that he repaired the step by raising it up and packing 

additional dirt and sand underneath prior to Benard’s tenancy, 

which he claims was done to remedy the housing code violation in 2011. As noted, the Section 8 inspection approved of 

the condition of the steps. In contrast, Benard’s testimony 

indicated that repairs, if made, were not effective during 

her tenancy.
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In addition to the issue of whether McDowall exercised reasonable care after it had notice of the initial need of repairs, 

there is the further issue of whether McDowall had notice of 

any worsening of the step or landing triggering its obligation 

under the Lease to maintain the steps. Even if McDowall 

performed repairs to the steps at some point, the record 

contains additional issues of fact as to whether the repairs 

were initially effective at eliminating unreasonable danger and 

whether McDowall was aware thereafter of the worsening of 

the condition. To this question, Benard testified that a representative of McDowall routinely observed her negotiating the 

steps in a cautious way when she met the representative in 

front of the Property to pay her rent. Thus, if McDowall was 

aware of the worsening or further settling, there is a question 

of whether it exercised reasonable care after it had such notice 

of the need of additional repairs. In sum, there are material 

questions of fact regarding whether McDowall breached its 

obligations to Benard. As such, McDowall failed to carry its 

burden to show it was entitled to judgment as a matter of law. 

The district court erred when it granted summary judgment 

in favor of McDowall on the theory of McDowall’s failure 

to repair.

Contributory Neglige

For completeness, we note that Benard seems to contend on 

appeal that the district court erred by basing its decision on 

her alleged contributory negligence. Because we do not read 

the district court’s order as suggested by Benard, we reject 

this argument.

Heins v. Webster County

On appeal, Benard claims that the district court erred 

because it neglected to decide whether there was a material 

issue of fact as to whether McDowall’s conduct was willful or 

wanton. Benard cites our decision in Heins v. Webster County, 

250 Neb. 750, 552 N.W.2d 51 (1996). Even reading Benard’s 

complaint liberally, she alleges only negligence and the issue 
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of willful and wanton conduct was not properly before the 

district court on summary judgment. Further, Benard’s reliance on Heins is not appropriate, because our holding did 

not abolish the relationship between a landlord and tenant; 

in Heins, we abolished the distinction between invitees and 

licensees. See Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 

475 (2014). Benard’s argument is without merit. We reject 

this argument.

CONCLUSION

Because the undisputed evidence shows that Benard knew 

or had reason to know of the dangerous condition of the steps 

and the risk involved, it was not unreasonable for McDowall 

not to warn Benard of the defective steps. McDowall was entitled to judgment on Benard’s theory based on failure to warn. 

However, genuine issues of material fact preclude an award 

of summary judgment in favor of McDowall on Benard’s 

theory that McDowall failed to exercise reasonable care to 

maintain and repair the Property where McDowall had contracted to perform major repairs under the Lease. Accordingly, 

the district court’s order of July 13, 2017, is affirmed in 

part and in part reversed, and the cause is remanded for further proceedings.

 Affirmed in part, and in part reve

remanded for further proceed

Wright, J., not participating in the decision