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306 Nebraska Reports

SUNDERMANN v. HY-VEE

Cite as 306 Neb. 749

Rita Sundermann, appellant, v. Hy-Vee, Inc., 

and Sweetbriar II, LLC, appellees.

___ N.W.2d ___

Filed August 14, 2020. No. S-18-250.

1. Summary Judgment: Appeal and Error. An appellate court affirms 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 the facts and that 

the moving party is entitled to judgment as a matter of law. 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.

2. Negligence. The question whether a legal duty exists for actionable 

negligence is a question of law dependent on the facts in a particular situation.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

4. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect 

the plaintiff from injury, a failure to discharge that duty, and damages 

proximately caused by the failure to discharge that duty. As such, the 

threshold issue in any negligence action is whether the defendant owes 

a legal duty to the plaintiff.

5. Negligence. Not every negligence action involving an injury suffered on 

someone’s land is properly considered a premises liability case.

6. Negligence: Liability: Proximate Cause. A possessor of land is subject 

to liability for injury caused to a lawful visitor by a condition on the 

land if (1) the possessor either created the condition, knew of the condition, or by the existence of reasonable care would have discovered the 

condition; (2) the possessor should have realized the condition involved 

Nebraska Supreme Court Online Library

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

09/04/2020 09:08 AM CDT
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an unreasonable risk of harm to the lawful visitor; (3) the possessor 

should have expected that a lawful visitor such as the plaintiff either 

(a) would not discover or realize the danger or (b) would fail to protect 

himself or herself against the danger; (4) the possessor failed to use reasonable care to protect the lawful visitor against the danger; and (5) the 

condition was a proximate cause of damage to the plaintiff.

7. Negligence: Liability: Proof. The first element of the premises liability 

test may be met by proving any one of its three subparts, namely, that 

the defendant created the condition, knew of the condition, or would 

have discovered the condition by the exercise of reasonable care.

8. Negligence: Words and Phrases. An unreasonable risk of harm means 

a risk that a reasonable person, under all the circumstances of the case, 

would not allow to continue.

9. Negligence: Liability. A land possessor is not liable to a lawful entrant 

on the land unless the possessor has or should have had superior knowledge of the dangerous condition.

10. ____: ____. Even where a dangerous condition exists, a premises 

owner will not be liable unless the premises owner should have 

expected that a lawful visitor such as the plaintiff either would not discover or realize the danger or would fail to protect himself or herself 

against the danger.

11. Negligence. Generally, when a dangerous condition is open and obvious, 

the owner or occupier is not liable in negligence for harm caused by 

the condition.

12. ____. Under the open and obvious doctrine, a possessor of land is not 

liable to invitees for physical harm caused by any activity or condition 

on the land whose danger is known or obvious to the invitee, unless 

the possessor should anticipate the harm despite such knowledge or 

obviousness.

13. ____. A condition on the land is considered open and obvious when the 

risk is apparent to and of the type that would be recognized by a reasonable person in the position of the invitee exercising ordinary perception, 

intelligence, and judgment.

14. ____. A determination that a risk or danger is open and obvious does 

not end the duty analysis in a premises liability case. A court must also 

determine whether the possessor should have anticipated that lawful 

entrants would fail to protect themselves despite the open and obvious risk.

15. Judgments: Appeal and Error. Where the record demonstrates that the 

decision of the trial court is ultimately correct, although such correctness 

is based on a ground or reason different from that assigned by the trial 

court, an appellate court will affirm.
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SUNDERMANN v. HY-VEE

Cite as 306 Neb. 749

Petition for further review from the Court of Appeals, Pirtle, 

Riedmann, and Arterburn, Judges, on appeal thereto from 

the District Court for Douglas County, Horacio J. Wheelock, 

Judge. Judgment of Court of Appeals reversed and remanded 

with directions.

Matthew A. Lathrop, of Law Offices of Matthew A. Lathrop, 

P.C., L.L.O., and Kathy Pate Knickrehm for appellant.

Raymond E. Walden and Michael T. Gibbons, of Woodke & 

Gibbons, P.C., L.L.O., for appellees.

Jason Ausman, of Ausman Law Firm, P.C., L.L.O., and 

Benjamin I. Siminou, of Siminou Appeals, Inc., for amicus 

curiae Nebraska Association of Trial Attorneys.

Brian J. Fahey and Robert W. Futhey, of Fraser Stryker, and 

Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for 

amicus curiae The Nebraska Defense Counsel Association.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Stacy, J.

This is a personal injury action arising from an accident 

between a pickup truck and a pedestrian in a convenience store 

parking lot. The pedestrian sued the convenience store, alleging the accident was caused by a dangerous condition on the 

land. The district court granted summary judgment in favor 

of the convenience store, finding the driver’s negligence was 

not reasonably foreseeable. The Nebraska Court of Appeals 

reversed, and remanded for further proceedings. 1 We granted 

further review, and although our reasoning differs from that 

relied upon by the district court, we reverse the decision of 

the Court of Appeals and remand the cause with directions to 

affirm the judgment of the district court.

1 Sundermann v. Hy-Vee, 27 Neb. App. 287, 929 N.W.2d 919 (2019).
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I. BACKGROUND

On March 2, 2012, as it was becoming dusk, Rita Sundermann 

was struck by a pickup truck while she was inflating her car’s 

tires at a Hy-Vee, Inc., gas station and convenience store 

in Omaha, Nebraska. Because the layout of the property is 

central to the issues on appeal, we include an aerial photograph received as an exhibit, and we describe the property in 

some detail.

1. Property

The relevant design features of the property are not disputed. 

The front of the convenience store faces east, and there are 

marked parking stalls along the entire store front. There are 

two access drives into and out of the property, but the one at 

issue in this case is located just north of the convenience store. 

That access drive is 24 feet wide and has two lanes which 

the parties’ experts referred to as “drive aisles.” One drive 

aisle accommodates eastbound traffic entering the convenience 

store, and the other accommodates westbound traffic leaving 

the property. Perpendicular to the westbound drive aisle are six 

marked parking stalls. Convenience store employees are asked 

to park in the stalls along the drive aisle rather than the stalls 

in front of the store.
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At the time of the accident, a tire inflation station was 

located along the sidewalk on the northeast corner of the 

convenience store. It consisted of a free standing air compressor cabinet on a pole with a coiling air hose that, when fully 

extended, reached to the northernmost parking stalls in front 

of the store and to portions of the eastbound drive aisle. There 

were no signs or curb markings directing patrons where to 

park, or not to park, when using the air compressor. The front 

of the air compressor faced east and had a large “START” button and a decal reading “FREE AIR.”

Prior to the accident, Hy-Vee was aware that patrons parked 

both in front of the store and in the eastbound drive aisle to use 

the air compressor. But there was no evidence of prior accidents involving vehicles and patrons using the air compressor, 

nor was there evidence that Hy-Vee had received safety complaints involving the location of the air compressor.

2. Accident

After fueling her car at one of the Hy-Vee fuel pumps, 

Sundermann parked her car along the curb facing westbound 

in the eastbound drive aisle, near the air compressor, to 

inflate her tires. She stood curbside and used the air compressor to fill both tires on the driver’s side of the car. Then, she 

draped the air hose over the hood and walked around the car 

to inflate the tires on the passenger side. As she was walking, she looked around for approaching traffic and backing 

vehicles. Seeing none, she crouched down in the drive aisle to 

inflate the car’s front right tire. While doing so, she was facing 

her car, but still watching the traffic around her. Sundermann 

was not sure how long she was crouched inflating the tire, but 

she recalled one car pulling into the lot and driving slowly 

around her. As she remained crouched, she heard a loud 

engine start behind her and she stood up. Sundermann did 

not recall if she stood up as soon as she heard the engine, but 

she was not able to turn around or get out of the way before 

she was struck by a pickup truck being operated by Robert 

Swanson. Sundermann was seriously injured in the collision 
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and required significant medical treatment, including placement of a metal rod in her left leg.

Sundermann had used the Hy-Vee air compressor on prior 

occasions, and when doing so, she had parked her car in a 

similar manner in the eastbound drive aisle. She also had seen 

other cars park in the drive aisle to use the air compressor. 

Sundermann was aware of the dangers posed by parking in the 

drive aisle, and on the day of the accident, she knew she “was 

in a dangerous position.” She was “very aware” of the vehicles 

around her, and while she filled her tires, she was looking and 

listening for vehicles.

Sundermann testified she knew there were marked parking 

stalls along the front of the store where she could have parked 

to use the air compressor, but she explained that on the evening 

of the accident, those stalls were occupied. She also testified 

that in her opinion, parking in the marked stalls was no safer 

than parking in the drive aisle, because crouching in the stalls 

still presented the danger of getting hit by a car pulling into or 

out of an adjacent stall. Sundermann testified that even after 

the accident, she parked her car in the drive aisle to use the 

Hy-Vee air compressor, but she positioned her car so she could 

remain curbside while inflating her tires.

Swanson, the driver of the pickup truck that struck 

Sundermann, had worked at the convenience store since 2009. 

He had seen patrons using the air compressor both while parked 

in the drive aisle and while parked in the first stall along the 

front of the convenience store. But before the accident with 

Sundermann, Swanson had not heard of anyone being injured 

while using the air compressor in the drive aisle.

Swanson testified the Hy-Vee access drive was “very, very 

busy.” On prior occasions, while he was backing from the 

parking stalls along the access drive, he had encountered a 

car parked in the eastbound drive aisle using the air compressor. In those instances, he felt he had sufficient room to back 

out so long as he “cut [the] tires real hard,” but his usual 

practice was to stop and wait for the car to leave before he 

finished backing.
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SUNDERMANN v. HY-VEE

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On the day of the accident, Swanson left work around 6 

p.m. and walked to his pickup truck, which was parked in one 

of the marked stalls adjacent to the westbound drive aisle. 

As he walked past the air compressor, he did not see a car 

parked in the eastbound drive aisle. After Swanson got into his 

pickup truck and started the motor, he remained parked with 

the engine running while several vehicles passed behind him 

in the drive aisle. He then put the pickup truck in reverse and 

started backing out of the stall. After moving about a foot, he 

noticed Sundermann’s car parked behind him in the eastbound 

drive aisle. He “went to hit the brake,” intending to stop and 

wait for the car to move out of the way, but his foot slipped 

onto the gas pedal instead, causing his pickup truck to accelerate backward and strike Sundermann. Swanson’s rear tires left 

acceleration marks on the pavement. Swanson testified that but 

for his pedal error, he would have had plenty of room to stop 

and would not have hit Sundermann.

After the accident, Swanson admitted his negligence. He 

reached a settlement agreement with Sundermann and is no 

longer a party to this action.

3. Sundermann’s Complaint 

Against Hy-Vee

Sundermann sued Hy-Vee and Sweetbriar II, LLC 

(Sweetbriar), for negligence. Her amended complaint alleged 

that Hy-Vee owned and operated the gas station and convenience store and that Sweetbriar owned the real property on 

which it was situated. Sundermann alleged, summarized, that 

the location of the air compressor was a dangerous condition 

on the land because it was placed in an area of high vehicular 

and pedestrian conflict, there were no barriers or signs to prevent patrons from stopping in the access drive to use the air 

compressor, and there were no posted warnings.

Hy-Vee and Sweetbriar filed an answer in which they denied 

negligence, alleged Sundermann was contributorily negligent, 

and alleged the accident was proximately caused by the actions 

of others over whom Hy-Vee had no control.
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4. Motion for Summary Judgment 

and Expert Testimony

Hy-Vee and Sweetbriar moved for summary judgment on 

Sundermann’s amended complaint. At the hearing, 17 exhibits 

were received, including the depositions of Sundermann and 

Swanson, a deposition of Hy-Vee’s director of site planning, 

and reports and depositions from expert witnesses retained by 

Sundermann and Hy-Vee and Sweetbriar. The deposition testimony of Sundermann and Swanson was consistent with the 

facts recited above. As pertinent to the issues on appeal, we 

summarize the opinions of the parties’ experts.

(a) Sundermann’s Expert

Sundermann’s expert, Daniel Robison, was a licensed architect. Over the course of his 40-year career, he had designed 

approximately 15 gas station and convenience stores, generally 

in Illinois and Wisconsin. He admitted there was nothing in 

any Omaha or Nebraska code that specifically related to the 

placement of tire inflation stations at convenience stores. He 

also admitted that no national codes specifically addressed the 

matter. But he opined that more general national architectural 

standards applied, and he testified that according to such standards, it was not proper to “block drive aisles or encourage 

people to block drive aisles.”

Robison explained that an access drive with perpendicular parking was required by national standards to be 24 to 

25 feet wide, and he agreed that Hy-Vee’s access drive met 

that width standard. He estimated the width of Sundermann’s 

vehicle was 6 feet, and he explained that when she was parked 

along the curb of the eastbound drive aisle, vehicles parked 

in the perpendicular stalls, where Swanson was, had only 19 

feet to maneuver, instead of the standard 25 feet. He admitted it was impossible to eliminate all dangers that exist in a 

mixed-use facility such as a convenience store, where cars and 

pedestrians are interacting. But he testified the design goal 

was to eliminate as much vehicular and pedestrian interaction 

as possible.
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Robison’s report stated it was the general practice in the 

industry to separate functions like loading, unloading, and 

delivery from drive aisles because adding functions to drive 

aisles increased hazardous conditions. According to Robison, 

Hy-Vee placed the air compressor in a location where the 

“most obvious” means of using it was to park in the drive aisle, 

which created a dangerous condition due to traffic and pedestrians already using the area and which was “made more dangerous with perpendicular parking across from where tire filling was taking place.” His report stated that “in the design of 

gas station facilities . . . tire filling stations should be located in 

designated parking areas or in the parking lot away from parking and gas pump islands.”

Robison examined Hy-Vee’s site plan and opined that Hy-Vee 

should have created a dedicated parking area for patrons using 

the air compressor. In his opinion, such an area could have 

been created in the grassy area just north of the convenience 

store building.

(b) Hy-Vee’s Experts

Hy-Vee’s expert, Jason Stigge, is a mechanical engineer and 

consultant. Stigge had never designed a convenience store or 

gas station, but in preparing his report and forming his opinions, he worked with a forensic architect licensed in Nebraska. 

Stigge agreed with Robison that there are no local or national 

policies, codes, or standards that directly address the location 

or positioning of a tire inflation station at a convenience store. 

He disagreed that several national standards cited by Robison 

were applicable to the site design of the subject property. 

Instead, he testified that the subject property was designed and 

constructed in compliance with all relevant codes and safety 

standards and that Hy-Vee’s design, including the location of 

the air compressor, was safe. His report also noted that the 

location of Hy-Vee’s air compressor was similar to that found 

in a survey of other local gas stations and convenience stores, 

which showed air compressors were typically located on a 
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driving lane within the parking lot with no physical barriers or 

signage directing use.

Stigge admitted Hy-Vee could anticipate patrons would use 

the air compressor as far as the air hose would reach, which 

could include using it while parked in the drive aisle. But he 

opined that drive aisles in retail parking lots are commonly 

used for both vehicular and pedestrian traffic, as well as for 

loading and unloading goods, and he suggested that physical 

separation of vehicular and pedestrian traffic in such areas is 

not feasible, explaining:

Fueling station and convenience store parking lots consist of mixed use areas where pedestrians and vehicular 

traffic are mixed extensively, to include the area comprising drive aisles. Persons utilizing the services of a fueling 

station, such as vehicle fueling, cleaning windows, filling 

tires, checking fluid levels, or visiting the convenience 

store, will inherently be exposed to vehicle traffic in the 

area. The mixture of pedestrians and vehicles is typical 

in the environment . . . as well as, many other parking 

lot situations which people use every day. It is incumbent 

on both the drivers and pedestrians in a mixed-use area 

to be cautious and aware of the environment and their 

surroundings, to include the positioning of themselves or 

their vehicles.

Finally, based on photographs of the accident scene, Stigge 

estimated that Sundermann’s car was parked 2 feet north of 

the south curb of the eastbound drive aisle, so that only 17 

feet at most separated the rear of Swanson’s pickup truck and 

the passenger side of Sundermann’s car. Based on this distance 

and his calculations as to how Swanson’s pickup truck traveled 

after he hit the accelerator instead of the brake, Stigge opined 

the accident would have happened even if the area had been 

designed with a designated parking area in the manner proposed by Sundermann’s expert.

Jeff Stein, a civil engineer, is Hy-Vee’s director of site planning. Stein was responsible for overseeing site development 
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of new stores, from acquisition of the property to “ribboncutting.” He testified that generally, if the local city approves 

the submitted site plan as compliant with its codes and ordinances, Hy-Vee considers the site plan to be safe.

Stein testified the Hy-Vee drive aisles are used by vehicles 

and pedestrians for many purposes, including for ingress and 

egress and to get from the fuel pumps to the convenience store. 

He admitted that Hy-Vee could expect customers to use the air 

compressor from any place the hose could reach, which would 

include the drive aisle. Stein testified “we see people park in 

all kinds of different locations throughout the site” and he did 

not think it was possible to know for sure where patrons would 

park. But he did not think it was unreasonable for Sundermann 

to park where she did to use the air compressor, because 

there appeared to be plenty of room for others to maneuver 

around her.

5. District Court Order

The district court granted summary judgment in favor 

of Hy-Vee and Sweetbriar. The court began its analysis by 

addressing duty, and it concluded that “Hy-Vee owes a legal 

duty to all patrons, including Sundermann at the gas station 

premises.” The remaining analysis focused on whether Hy-Vee 

had breached its duty of reasonable care.

The court reasoned a breach of duty occurs only when the 

resulting injury to a plaintiff is a reasonably foreseeable consequence of the defendant’s conduct, and it concluded Swanson’s 

negligence in pressing the accelerator rather than the brake 

was not reasonably foreseeable to Hy-Vee or Sweetbriar as a 

matter of law. Specifically, the trial court reasoned:

No reasonable jury could find a breach of duty in 

this case.

First, the complaint about the Hy-Vee station’s site 

design is that it presents risks inherent in any design 

involving people on foot and people in cars. The two 

share the same limited space and have to be careful about 
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the normal hazards, such as inattentive drivers not seeing 

pedestrians, pedestrians not seeing cars, vehicles passing 

one another in already narrow lanes, etc. However, this 

accident involved a driver who saw the plaintiff’s car and 

was responding with safe and appropriate action, but then 

his foot slipped onto the gas and his truck roared backwards before he could realize what had happened.

The district court reasoned that “a slipped foot and uncontrolled 

acceleration from a driver operating a truck parked in a convenience store parking spot” was not reasonably foreseeable.

Alternatively, the district court also concluded there was 

no genuine issue of material fact as to causation, reasoning 

that “Swanson’s admitted negligence in operating his truck in 

reverse was an unforeseeable efficient intervening cause of his 

truck striking Sundermann, which severed the conduct of the 

landowner[] Hy-Vee to Sundermann’s injuries.”

The district court granted the defendants’ motion for summary judgment and dismissed the action with prejudice.

6. Court of Appeals

(a) Foreseeability and Breach

Sundermann appealed, and the Court of Appeals reversed, 

and remanded for further proceedings. In doing so, it did not 

address the source or scope of the duty owed by Hy-Vee and 

Sweetbriar. Instead, considering Hy-Vee and Sweetbriar collectively as one entity—Hy-Vee—the Court of Appeals assumed 

Hy-Vee owed a duty of reasonable care to all patrons. The 

Court of Appeals focused its analysis on whether, viewing the 

evidence in the light most favorable to Sundermann and giving her the benefit of all reasonable inferences deducible from 

the evidence, 2 there was a genuine issue of material fact as to 

whether Hy-Vee breached its duty.

2 See Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 

(2018).
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In that regard, relying on A.W. v. Lancaster Cty. Sch. Dist.

 3

and 1 Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm § 7 (2010), the Court of Appeals explained 

that lack of a foreseeable risk can be a basis for a no-breach 

determination. 4 It further explained, “‘[D]eciding what is reasonably foreseeable involves common sense, common experience, and application of the standards and behavioral norms of 

the community . . . .’” 5

Based on these principles and its review of the record, the 

Court of Appeals found Sundermann had presented evidence 

from which a finder of fact could conclude it was reasonably 

foreseeable that a patron would park in the eastbound drive 

aisle while using Hy-Vee’s air compressor. It continued:

Moreover, finders of fact may—when using their common sense and common experience and applying the standards and behavioral norms of the community—infer from 

the evidence that automobiles could simultaneously be 

parked in the [eastbound drive aisle] and in the right-angle 

parking spots farther to the north. Finders of fact may also 

reasonably infer from the evidence that an automobile 

would back out from one of the right-angle parking spots 

and collide with an automobile parked in the [eastbound 

drive aisle], perhaps owing, in part, to the need for drivers 

to sharply turn their vehicles when backing out of those 

parking spots. We note the district court focused on the 

very narrow fact pattern present in this case, that being the 

foreseeability that a person’s foot would slip off the brake 

pedal and inadvertently hit the gas pedal, resulting in the 

collision. We find that such a fact-specific analysis is not 

necessary in assessing the question at hand and find that a 

reasonable person could conclude that it was foreseeable 

3 A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 

(2010).

4 See Sundermann, supra note 1.

5 Id. at 297, 929 N.W.2d at 926, quoting A.W., supra note 3.
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to Hy-Vee that a vehicle could be operated in such a manner as to fail to observe a person such as Sundermann utilizing the air compressor in the access drive area, resulting 

in a collision and injury. 6

As such, the Court of Appeals concluded that there was a 

genuine issue of material fact as to whether the harm was 

foreseeable and that Hy-Vee was not entitled to a no-breach 

determination as a matter of law.

(b) Proximate Cause

The Court of Appeals also briefly addressed Sundermann’s 

assigned error relating to causation. In doing so, it noted “the 

district court’s order makes only passing reference to causation 

and did not fully evaluate the issue.” 7 The Court of Appeals 

then concluded that, for substantially the same reasons discussed as to foreseeability of the harm, genuine issues of material fact existed with respect to causation as well. The Court of 

Appeals thus reversed the summary judgment and remanded 

the cause for further proceedings.

We granted Hy-Vee and Sweetbriar’s petition for further 

review and requested supplemental briefing on questions 

related to foreseeability and efficient intervening cause. We 

also accepted and considered briefs from several amici curiae 

on these questions.

II. ASSIGNMENTS OF ERROR

On further review, Hy-Vee and Sweetbriar assign that the 

Court of Appeals erred in reversing summary judgment because 

(1) the uncontroverted evidence showed the collision and 

Sundermann’s injuries would have occurred even if Hy-Vee 

had designed the parking lot according to the alternate design 

suggested by Sundermann’s expert and (2) the uncontroverted 

evidence supported the trial court’s conclusion that it was not 

6 Id. at 299, 929 N.W.2d at 927-28.

7 Id. at 300, 929 N.W.2d at 928.
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reasonably foreseeable that a backing driver would hit the 

accelerator instead of the brake.

III. STANDARD OF REVIEW

[1] An appellate court affirms 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 the facts 

and that the moving party is entitled to judgment as a matter of law. 8 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. 9

[2,3] The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in 

a particular situation. 10 When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. 11

IV. ANALYSIS

Before addressing the issues in this case, we note that both 

the district court and the Court of Appeals generally referred 

to the two defendants in this case, Hy-Vee and Sweetbriar, collectively as Hy-Vee. No party has objected to this characterization, and because it is generally consistent with the pleadings 

and the parties’ briefing, we similarly refer to the defendants 

collectively as “Hy-Vee.”

1. Proper Legal Framework

[4] As a general matter, in order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to 

8 DH-1, LLC v. City of Falls City, 305 Neb. 23, 938 N.W.2d 319 (2020).

9 Id.

10 Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).

11 Id.
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protect the plaintiff from injury, a failure to discharge that 

duty, and damages proximately caused by the failure to discharge that duty. 12 The threshold issue in any negligence action 

is whether the defendant owes a legal duty to the plaintiff. 13

The district court began its analysis by discussing the concept of legal duty and ultimately concluded that Hy-Vee owed 

a duty of reasonable care to all of its patrons, including 

Sundermann. Without specifically identifying the source or 

scope of such duty, the court proceeded to analyze the evidence as it related to the elements of breach and proximate 

cause, focusing primarily on the concept of foreseeability. The 

Court of Appeals addressed the issues in a similar fashion. We 

presume the approach taken by both courts was necessarily 

driven by the manner in which the issues were presented by 

the parties.

Given the assignments of error on further review, the parties’ briefing before this court has also focused primarily on the 

foreseeability inquiry as it relates to both breach and proximate 

cause in our tort jurisprudence.

Although we have carefully considered the thoughtful and 

thorough briefing on the issues of foreseeability and efficient 

intervening cause, we find, as explained below, that the dispositive issue in this premises liability case actually involves 

neither concept; it turns instead on the concept of duty.

(a) This Is a Premises 

Liability Case

The parties occasionally refer to this as a “premises liability 

case,” but neither the evidence nor Hy-Vee’s liability was analyzed in that legal framework. Because we agree that Hy-Vee’s 

liability is governed by our premises liability jurisprudence, 

we first set out, and then apply, the proper legal framework 

governing such a case.

12 Id.

13 Id.
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[5] We have cautioned that “[n]ot every negligence action 

involving an injury suffered on someone’s land is properly 

considered a premises liability case.” 14 Generally speaking, 

our premises liability cases fall into one of three categories: 

(1) those concerning the failure to protect lawful entrants from 

a dangerous condition on the land, 15 (2) those concerning the 

failure to protect lawful entrants from a dangerous activity on 

the land, 16 and (3) those concerning the failure to protect lawful entrants from the acts of a third person on the land. 17

This case falls squarely into the first category of premises 

liability cases, because Sundermann has sued the owner and 

possessor of property, claiming she was injured by an unreasonably dangerous condition on the property. As such, whether 

there is a genuine issue of material fact that would preclude the 

trial court’s award of summary judgment in favor of Hy-Vee 

must be evaluated using the premises liability framework.

14 Hodson v. Taylor, 290 Neb. 348, 361, 860 N.W.2d 162, 175 (2015) (claim 

that lake was unreasonably dangerous because it was too shallow was only 

premises liability action as against those who owned or occupied lake). 

See, Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011) (not premises 

liability where claim does not involve alleged dangerous condition or 

activity on property); Semler v. Sears, Roebuck & Co., 268 Neb. 857, 

689 N.W.2d 327 (2004) (not premises liability where claim landowner 

provided defendant defective ladder). See, also, Whalen v. U S West 

Communications, 253 Neb. 334, 570 N.W.2d 531 (1997) (not premises 

liability where claim involves injury caused by misuse of defective equipment), disapproved on other grounds, Gayton v. Wal-Mart, 289 Neb. 49, 

853 N.W.2d 181 (2014).

15 See, e.g., Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (2016) 

(plaintiff slipped and fell on piece of watermelon in grocery store); NJI2d 

Civ. 8.26.

16 See, e.g., Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318 (1999) 

(plaintiff injured during estate auction); NJI2d Civ. 8.27.

17 See, e.g., Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016) (plaintiff 

injured by intentional act of another patron in tavern parking lot); NJI2d 

Civ. 8.28.
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(b) Premises Liability Involving 

Conditions on Land

[6] For more than 30 years we have applied the same fivefactor rule to premises liability actions involving a condition 

on the land. 18 A possessor of land is subject to liability for 

injury caused to a lawful visitor by a condition on the land 

if (1) the possessor either created the condition, knew of the 

condition, or by the existence of reasonable care would have 

discovered the condition; (2) the possessor should have realized the condition involved an unreasonable risk of harm to 

the lawful visitor; (3) the possessor should have expected that 

a lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would fail to protect himself 

or herself against the danger; (4) the possessor failed to use 

reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to 

the plaintiff. 19

Of the five elements recited above, the first three clarify 

the scope of a land possessor’s duty to lawful entrants. 20 We 

have described this duty as a “specialized standard of care that 

include[s] three . . . elements” in addition to “the ordinary duty 

of reasonable care.” 21 More precisely, the first three elements 

identify those conditions on the land regarding which a land 

possessor owes a duty of reasonable care to protect lawful 

entrants from physical harm.

18 See, e.g., Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 

186 (2019); Hodson, supra note 14; Connelly v. City of Omaha, 284 Neb. 

131, 816 N.W.2d 742 (2012); Herrera v. Fleming Cos., 265 Neb. 118, 655 

N.W.2d 378 (2003); Chelberg v. Guitars & Cadillacs, 253 Neb. 830, 572 

N.W.2d 356 (1998); Cloonan v. Food-4-Less, 247 Neb. 677, 529 N.W.2d 

759 (1995); Burns v. Veterans of Foreign Wars, 231 Neb. 844, 438 N.W.2d 

485 (1989).

19 Id.

20 See, Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014); Aguallo 

v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).

21 Aguallo, supra note 20, 267 Neb. at 805-06, 678 N.W.2d at 88.
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Neither the trial court nor the Court of Appeals expressly 

applied the premises liability framework to Sundermann’s 

claim. Consequently, neither court determined the scope of 

Hy-Vee’s duty to Sundermann under the first three elements 

of that framework, and that made consideration of the fourth 

element—whether Hy-Vee breached its duty of reasonable 

care—more difficult than it needed to be.

It is undisputed that Hy-Vee is the possessor/owner of the 

subject property and that Sundermann was a lawful visitor 

on that property. To determine the scope of Hy-Vee’s duty to 

Sundermann under the circumstances, we consider the evidence in light of the first three elements of our established 

premises liability framework.

2. Hy-Vee Created Condition

[7] The first element of the premises liability test may be 

met by proving any one of its three subparts, namely, that the 

defendant created the condition, knew of the condition, or 

would have discovered the condition by the exercise of reasonable care. 22 Here, the condition on the land which Sundermann 

alleges caused her injury is the location of the air compressor. 

Hy-Vee generally admits it designed the parking lot area and 

was responsible for the location of the air compressor. On this 

record, there is no dispute that Hy-Vee created and knew of the 

condition on the land about which Sundermann complains, and 

the first element of premises liability is satisfied as a matter 

of law.

3. Did Condition Involve 

Unreasonable Risk 

of Harm?

Our cases considering conditions on the land have generally 

drawn a distinction between conditions which present ordinary or common risks, and those which present unreasonable 

22 Derr v. Columbus Convention Ctr., 258 Neb. 537, 604 N.W.2d 414 (2000).
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risks. 23 By limiting tort liability to only those conditions which 

pose an unreasonable risk of harm, the traditional premises 

liability test balances two competing policies: requiring businesses to exercise reasonable care to maintain the premises in 

a safe condition and protecting businesses from becoming the 

insurers of their patrons’ safety. 24

[8] There is no fixed rule for determining when a risk of 

harm is unreasonable. But the plain meaning of the term suggests a uniquely or unacceptably high risk of harm—something 

more than the usual risks commonly encountered. 25 In some 

premises liability cases, we have approved of defining the 

phrase “unreasonable risk of harm” to mean “‘a risk that a reasonable person, under all the circumstances of the case, would 

not allow to continue.’” 26 This is an appropriate definition, and 

we apply it here.

Both parties’ experts recognized there is some degree of 

risk present in all convenience store parking lots, due to the 

mix of vehicular and pedestrian traffic. Some of the ordinary 

risks posed by common conditions in parking lots are familiar to drivers and pedestrians alike, including the absence of 

traffic signs, 27 the presence of moving vehicles, 28 concrete 

23 See, Williamson, supra note 18 (finding unpainted, tapered curb outside 

entrance to medical center presents ordinary risk, not unreasonable risk); 

Parker v. Lancaster Cty. Sch. Dist. No. 001, 254 Neb. 754, 579 N.W.2d 

526 (1998) (find as general rule that stairs, steps, and unmarked curbs 

present common risks and are not inherently dangerous).

24 See Edwards, supra note 15.

25 See Richardson v. Rockwood Ctr., 275 Mich. App. 244, 737 N.W.2d 801 

(2007) (common condition is not uniquely dangerous and thus does not 

give rise to unreasonable risk of harm).

26 Danner v. Myott Park, Ltd., 209 Neb. 103, 105-06, 306 N.W.2d 580, 582 

(1981). See Schwab v. Allou Corp., 177 Neb. 342, 128 N.W.2d 835 (1964). 

See, also, NJI2d Civ. 8.83.

27 See Richardson, supra note 25 (lack of signs and traffic controls in 

parking lots is common condition and not uniquely dangerous).

28 See id. (typical hazards posed by cars moving in parking lot are open and 

do not present unreasonable risk of harm).
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wheel stops, 29 and curbs. 30 In the instant case, it is the location 

of the air compressor in the parking area that is alleged to have 

created an unreasonable risk of harm.

Hy-Vee offered, in support of summary judgment, expert 

opinion testimony that both the design of the parking lot and 

the location of the air compressor complied with all building 

and safety codes, was similar to that of other area convenience 

stores, and therefore did not involve an unreasonable risk of 

harm. Left uncontroverted, this evidence would have entitled 

Hy-Vee to summary judgment as a matter of law. 31

But Sundermann offered opinion testimony from her own 

expert, who opined that the location of the air compressor, 

although compliant with codes, still presented a dangerous condition because patrons could access and use the air compressor 

by parking in the eastbound drive aisle, which then blocked 

traffic in the access drive and exposed patrons to “an unreasonable conflict between vehicles and pedestrians,” which he 

opined was “made more dangerous with perpendicular parking 

across from where the tire filling was taking place.”

We question whether the opinion of Sundermann’s expert 

created a genuine issue of material fact about whether the 

location of the air compressor created an unreasonable risk 

of harm—in other words, a risk that was unacceptably high 

and which a reasonable person would not allow to continue. 

The risk of being exposed to moving or backing vehicles in 

a parking lot is a common one, inherent to all parking lots. 

The experts for both parties recognized that a mixture of 

cars and pedestrians is typical of a parking area and requires 

both drivers and pedestrians to be cautious and aware of 

29 See Bellini v. Gypsy Magic Enters., Inc., 978 N.Y.S.2d 73, 112 A.D.3d 867 

(2013) (wheel stop or concrete parking lot divider which is clearly visible 

presents no unreasonable risk of harm).

30 See Williamson, supra note 18 (unpainted curb not inherently dangerous 

and does not present unreasonable risk of harm).

31 See Kaiser v. Union Pacific RR. Co., 303 Neb. 193, 927 N.W.2d 808 

(2019).
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their surroundings. Sundermann and Swanson recognized this 

too, and both testified about the precautions they took to avoid 

such conflict. This is not to say that a parking lot can never 

be designed in a way that increases the typical risk of conflict 

between pedestrians and vehicles to an unacceptably high 

level. But here, it was undisputed that patrons had options 

regarding where to park, and where to stand, while using the 

air compressor. Sundermann’s evidence did not suggest that 

any of those options inhibited sight lines or made it more difficult for drivers and patrons to be cautious and aware of their 

surroundings, or less able to take ordinary precautions to avoid 

conflict with one another.

However, we view the evidence in the light most favorable 

to Sundermann and afford her all reasonable inferences from 

that evidence. Assuming without deciding that the evidence, 

when viewed in that light, created a genuine dispute of material 

fact regarding whether the location of the air compressor created an unreasonable risk of harm, we move on to consider the 

next element in the premises liability analysis, which we find 

is dispositive as a matter of law.

4. Hy-Vee Could Not Have Expected 

Sundermann Either Would Not 

Realize Danger or Would 

Fail to Protect Herself 

From Danger

[9,10] Generally speaking, a land possessor is not liable to 

a lawful entrant on the land unless the possessor has or should 

have had superior knowledge of the dangerous condition. 32

Consequently, even where a dangerous condition exists, a 

premises owner will not be liable unless the premises owner 

should have expected that a lawful visitor such as the plaintiff 

either would not discover or realize the danger or would fail to 

protect himself or herself against the danger. 33

32 See Warner, supra note 20.

33 Williamson, supra note 18.
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[11] Generally, when a dangerous condition is open and 

obvious, the owner or occupier is not liable in negligence 

for harm caused by the condition. 34 The rationale behind this 

general rule is that the open and obvious nature of the condition gives caution so that the risk of harm is considered slight, 

since reasonable people will avoid open and obvious risks. 35

Stated differently, “Known or obvious dangers pose less of a 

risk [of harm] than comparable latent dangers because those 

exposed can take precautions to protect themselves.” 36 Simply 

stated, an open and obvious risk generally will not present an 

unreasonable risk of harm.

[12,13] Under the open and obvious doctrine, a possessor of 

land is not liable to invitees for physical harm caused by any 

activity or condition on the land whose danger is known or 

obvious to the invitee, unless the possessor should anticipate 

the harm despite such knowledge or obviousness. 37 A condition on the land is considered open and obvious when the risk 

is apparent to and of the type that would be recognized by a 

reasonable person in the position of the invitee exercising ordinary perception, intelligence, and judgment. 38

The dangers of parking in the drive aisle to use the air compressor are obvious—they include the risk of being struck by 

another vehicle either backing into or driving through the drive 

aisle. Furthermore, the dangers of kneeling next to a parked 

car in the drive aisle are obvious, as are the dangers of turning 

one’s back to vehicular traffic.

Here, the evidence was undisputed that Sundermann knew 

and appreciated the risks of parking in the drive aisle to use 

34 Hodson, supra note 14.

35 Id.

36 2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm 

§ 51, comment k. at 251 (2012).

37 Hodson, supra note 14, citing Restatement (Second) of Torts § 343A 

(1965).

38 See, Hodson, supra note 14; Burns, supra note 18.
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the air compressor and crouching in the drive aisle to inflate 

her tires. She testified that she was aware it was dangerous and 

that she took precautions to avoid the risks by watching and 

listening for approaching traffic. There is no dispute that the 

risks were open and obvious.

[14] But a determination that a risk or danger is open and 

obvious does not end the duty analysis in a premises liability 

case. 39 A court must also determine whether the possessor 

should have anticipated that lawful entrants would fail to protect themselves despite the open and obvious risk. 40

We have given examples of some circumstances that may 

provide a land possessor with reason to expect invitees will fail 

to protect themselves from an open and obvious danger on the 

land, such as:

“‘[w]here the possessor has reason to expect that the 

invitee’s attention may be distracted, so that he will not 

discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason 

may also arise where the possessor has reason to expect 

that the invitee will proceed to encounter the known 

or obvious danger because to a reasonable man in his 

position the advantages of doing so would outweigh the 

apparent risks.’” 41

Here, there was no evidence that Sundermann was distracted or forgot about the risk. Instead, she testified she was 

aware of the danger and was watching and listening for traffic the entire time she was using the air compressor. In order 

for the distraction exception to apply, we have said the land 

possessor must have reason to expect the attention of invitees 

will be distracted, and there must also be evidence the plaintiff 

39 See, Hodson, supra note 14; Connelly, supra note 18.

40 See id.

41 Hodson, supra note 14, 290 Neb. at 368, 860 N.W.2d at 179. Accord 

Connelly, supra note 18.
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actually became distracted. 42 Because there was no evidence 

that Sundermann failed to protect herself from an obvious 

danger because she was distracted, the distraction rationale 

has no application here.

Nor does the evidence support a reasonable inference that 

Hy-Vee should have expected that patrons choosing to park in 

the drive aisle would thereafter fail to protect themselves from 

the obvious danger of vehicular traffic. It is true that Hy-Vee 

knew its patrons were parking in the drive aisle to use the 

air compressor, and this suggests that at least some patrons 

thought the advantages of doing so outweighed the risks. But 

even when a land possessor is aware lawful visitors are choosing to encounter an obvious risk, it does not necessarily follow 

that the land possessor has reason to expect the lawful visitors 

will fail, or be unable, to protect themselves from that risk.

Here, the undisputed evidence showed that although some 

patrons had been parking in the drive aisle to use the air compressor, Hy-Vee had received no safety complaints about the 

practice and there had been no accidents as a result of the 

practice. Sundermann produced no evidence that before her 

accident, Hy-Vee had any reason to expect patrons who chose 

to park in the drive aisle would be unable to thereafter protect 

themselves from the danger posed by approaching vehicles. 

The sorts of precautions patrons would take to protect against 

that obvious danger include things like watching and listening 

for approaching vehicles, getting out of the drive aisle when a 

vehicle is approaching, or parking in a way that allowed them 

to inflate their tires while remaining on the curb. These are 

typical precautions pedestrians already take every day in parking lots, and they are the same precautions Sundermann said 

she had taken.

Even when the evidence is viewed in the light most favorable to Sundermann, she has failed to produce any evidence 

from which it can be inferred that Hy-Vee should have expected 

42 See Connelly, supra note 18.
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patrons, who decided to park in the drive aisle to inflate their 

tires, would fail or be unable to protect themselves against 

the open and obvious danger posed by moving and backing 

vehicles in the area.

We find, as a matter of law, that to the extent the location of 

the air compressor allowed patrons to park in the drive aisle to 

inflate their tires, it created a risk that was open and obvious. 

We further find, as a matter of law, that Hy-Vee had no reason 

to anticipate that lawful entrants like Sundermann, who chose 

to park in the drive aisle to use the air compressor despite the 

obvious risk, would fail to protect themselves against the danger. Under such circumstances, the third element of the premises liability test cannot be satisfied and Sundermann’s claim 

against Hy-Vee fails as a matter of law.

[15] Where the record demonstrates that the decision of the 

trial court is ultimately correct, although such correctness is 

based on a ground or reason different from that assigned by the 

trial court, an appellate court will affirm. 43 Thus, although our 

rationale differs from that of the trial court, we agree with its 

conclusion that Hy-Vee is entitled to summary judgment as a 

matter of law.

V. CONCLUSION

For the foregoing reasons, we reverse the decision of the 

Court of Appeals and remand the cause with directions to 

affirm the judgment of the district court.

Reversed and remanded with directions.

Heavican, C.J., not participating.

43 Hamilton Cty. EMS Assn. v. Hamilton Cty., 291 Neb. 495, 866 N.W.2d 523 

(2015).