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RONNFELDT FARMS V. ARP

Cite as 32 Neb. App. 490

Ronnfeldt Farms, Inc., a Nebraska corporation, 

appellant and cross-appellee, v. Jason Arp, Knee 

Deep, LLC, a Nebraska limited liability company, 

Brian Frost, and Frosty’s Dragline, LLC, 

a Nebraska limited liability company, 

appellees and cross-appellants.

___ N.W.2d ___

Filed December 19, 2023. No. A-23-116.

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 those 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. Summary Judgment: Proof. A 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 it is entitled 

to judgment as a matter of law. If the movant meets this burden, then 

the nonmovant must show the existence of a material issue of fact that 

prevents judgment as a matter of law.

3. Trial: Evidence. Where reasonable minds could draw different conclusions from the facts presented, there is a triable issue of material fact.

4. Evidence: Proof. Failure of proof concerning an essential element of the 

nonmoving party’s case necessarily renders all other facts immaterial.

5. Joint Ventures: Partnerships: Contribution. A joint venture is in the 

nature of a partnership and exists when (1) two or more persons contribute cash, labor, or property to a common fund (2) with the intention 

of entering into some business or transaction (3) for the purpose of 

Nebraska Supreme Court Online Library

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

01/02/2024 07:04 AM CST
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making a profit to be shared in proportion to the respective contributions and (4) each of the parties has an equal voice in the manner of its 

performance and control of the agencies used therein, though one may 

entrust performance to the other.

6. Joint Ventures: Proof. The moving party bears the burden to prove a 

joint venture or enterprise exists by clear and convincing evidence.

7. Joint Ventures: Intent. The relationship of joint venturers depends 

largely upon the intent of the alleged parties as manifested from the 

facts and circumstances involved in each particular case.

8. Joint Ventures. A joint venture can exist only by voluntary agreement 

of the parties and cannot arise by operation of law. Even a close relationship between two parties does not create an implied joint venture.

9. Appeal and Error. Generally, an issue not presented to the trial court 

may not be raised on appeal.

10. Pleadings. Pleadings frame the issues upon which the cause is to be 

tried and advise the adversary as to what the adversary must meet.

11. ____. The issues in each case will be limited to those which are pled.

12. Election of Remedies. Parties are permitted to plead alternative theories 

of recovery unless the theories are so inconsistent that a party cannot 

logically choose one without renouncing the other.

13. Negligence: Proof. To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of 

such duty, causation, and resulting damages.

14. Negligence. The threshold inquiry in any negligence action is whether 

the defendant owed the plaintiff a duty.

15. Negligence: Words and Phrases. A “duty” is an obligation, to which 

the law gives recognition and effect, to conform to a particular standard 

of conduct toward another.

16. Negligence. If there is no duty owed, there can be no negligence.

17. ____. An actor ordinarily has a duty to exercise reasonable care when 

the actor’s conduct creates a risk of physical harm.

18. ____. In a negligence action, in order to determine whether appropriate 

care was exercised, the fact finder must assess the foreseeable risk at the 

time of the defendant’s alleged negligence.

19. ____. The extent of foreseeable risk depends on the specific facts of 

the case and cannot be usefully assessed for a category of cases; small 

changes in the facts may make a dramatic change in how much risk is 

foreseeable. Thus, courts should leave such determinations to the trier of 

fact unless no reasonable person could differ on the matter.

20. Trial: Waiver: Appeal and Error. A party may not waive an error, 

gamble on a favorable result, and, upon obtaining an unfavorable result, 

assert the previously waived error.
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RONNFELDT FARMS V. ARP

Cite as 32 Neb. App. 490

Appeal from the District Court for Burt County: Bryan C. 

Meismer, Judge. Affirmed in part, and in part reversed and 

remanded for further proceedings.

Stephen D. Mossman and Andrew R. Spader, of Mattson 

Ricketts Law Firm, for appellant.

Joel D. Nelson and Joel Bacon, of Keating, O’Gara, Nedved 

& Peter, P.C., L.L.O., and David V. Drew, of Drew Law Firm, 

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

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

Ronnfeldt Farms, Inc., filed an action against Brian Frost 

and his company, Frosty’s Dragline, LLC (collectively Frost), 

in the district court for Burt County, Nebraska, asserting that 

Frost was a subcontractor to Jason Arp and his company, Knee 

Deep, LLC (collectively Arp). Following discovery, Ronnfeldt 

Farms adjusted its allegation to claim that Frost was engaged 

in a joint venture with Arp. Ronnfeldt Farms argued that as 

a joint venturer, Frost was liable for Arp’s breach of contract 

and negligence in the manner in which Frost pumped manure 

from a hog confinement facility that, according to Ronnfeldt 

Farms, led to an outbreak of disease. Additionally, Ronnfeldt 

Farms asserted that Frost owed Ronnfeldt Farms an independent duty of care that was also breached during the pumping job.

In September 2022, Frost filed a motion for summary judgment on all of Ronnfeldt Farms’ claims, which was granted by 

the district court. Ronnfeldt Farms appeals from the court’s 

order. On cross-appeal, Frost asserts that the district court 

erred in failing to hold that Ronnfeldt Farms could not prove 

proximate causation as a matter of law. Frost also alleges that 

Ronnfeldt Farms committed spoliation and that thus, Frost is 

entitled to an adverse inference against Ronnfeldt Farms.
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Cite as 32 Neb. App. 490

For the reasons set forth below, we affirm the district court’s 

order granting summary judgment as to Ronnfeldt Farms’ joint 

venture breach of contract and negligence actions but reverse 

the court’s order regarding the independent negligence claim. 

We remand the cause for further proceedings.

II. BACKGROUND

1. Factual Background

(a) 2020 Contract

Ronnfeldt Farms is a Nebraska corporation with its principal place of business in Burt County. As a food producer, 

Ronnfeldt Farms is engaged in commercial activities, including a swine farrow to finish operation and a retail multiplying 

genetics business. Ronnfeldt Farms owns Windy Hill sow facility (Windy Hill), also located in Burt County, which houses the 

Ronnfeldt Farms’ breeding sows and gilts.

In October 2020, Ronnfeldt Farms entered into an oral 

contract with Arp to provide manure pumping services for 

Windy Hill. Generally stated, manure pumping at Windy Hill 

consists of agitating and pumping manure from a pit located 

beneath the swine barn. The manure is pumped through a 

hose to nearby farm fields and injected into the fields for 

fertilizer.

Arp had pumped manure for Ronnfeldt Farms since 2016. 

A written contract was never created for the annual pumping work. In October 2020, Tavis Christiansen, a 50-percent 

owner in and operator of Ronnfeldt Farms, reached out to Arp 

to discuss that year’s manure pumping schedule. Christiansen 

told Arp that he did not want pumping to extend “more than a 

couple days into November.”

To meet the requested early November deadline, Arp 

reached out to Frost to see if Frost could help pump at Windy 

Hill. Frost operated his own manure pumping business. Arp 

and Frost had been friends for roughly 30 years. Both were 

involved with raising and selling hogs. During the pumping 
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season, they were in frequent contact with each other, talking 

3 to 4 days a week. Although the companies are separate entities with their own customers, Arp and Frost have a history of 

assisting each other on large or time-sensitive jobs. No written 

agreements or subcontractor agreements exist between Arp 

and Frost.

Frost agreed to help Arp with pumping at Windy Hill. Frost 

informed Arp that Frost was currently working at a swine 

finishing barn in Colfax County, Nebraska, and asked what 

needed to be done prior to arriving at Windy Hill. Arp told 

Frost that the equipment needed to be cleaned, dried, and disinfected for a specific period of time prior to pumping. Frost 

thought Arp stated the proper period was 24 hours, whereas 

Arp believes he stated the proper period was 48 hours. In any 

event, Frost’s vehicles and equipment were disinfected twice 

before arriving at Windy Hill, which was unusual in Frost’s 

practice. Frost testified he disinfected twice “just because we 

were going to a sow farm. That was the only reason.” He also 

testified that the first occasion of cleaning and disinfecting 

occurred 2 calendar days prior to pumping at Windy Hill.

(b) Biosecurity Protocols at Windy Hill

In accord with the swine industry generally, Ronnfeldt 

Farms monitors biosecurity closely at its various hog barns 

and facilities. Among other concerns, there is a risk of diseases such as porcine reproductive and respiratory syndrome 

(PRRS) transferring from one farm to another. A predominant 

goal of swine producers is to keep PRRS out of every barn, 

as it seriously impacts swine health and overall production. 

PRRS is a foreign animal disease, specifically a virus, that 

causes failure of breeding stock and respiratory tract illness 

in young pigs. PRRS can be transmitted through physical 

contact or airborne exposure. The virus can be carried by 

hogs or other animals, people accessing the farm, vehicles or 

equipment entering the farm, and dust in the air. Even with 
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Cite as 32 Neb. App. 490

reasonable biosecurity measures in place, there is still a risk of 

PRRS exposure in hog farms.

While the swine industry attempts to prevent PRRS outbreaks in all barns, sow barn biosecurity is given the highest 

priority. This is because sows and newborn piglets are more 

affected by PRRS than other pigs.

Biosecurity protocols vary with each farm, and these protocols are ever changing. In his deposition, Christiansen stated 

that Ronnfeldt Farms has two key requirements for outside 

contractors: (1) Pumping personnel should not pump at another 

hog facility directly before coming to Ronnfeldt Farms, but, 

instead, should pump cattle manure from cattle barns, dairy 

barns, or feedlots, and (2) pumping personnel must stay out 

of the barns. Christiansen was less concerned regarding the 

downtime between when the equipment had been cleaned following the last job and when pumping began at Windy Hill. 

His concern was centered on what residue remained inside the 

pumping equipment and hoses. He elaborated that the “solution to pollution is dilution,” meaning that pumping cattle 

manure flushes the equipment and hoses of viruses potentially 

transferable and harmful to hogs. In other words, whatever 

residue left from the prior pumping job involving cattle that 

is released through the hoses on the current job is not likely 

to infect the sows and newborn pigs located at the Windy 

Hill facility.

Christiansen testified he verbally informed Arp of 

Ronnfeldt Farms’ specific biosecurity expectations in 2016 

and reminded Arp of those requirements every year thereafter 

during their scheduling conversations. However, there was no 

evidence that Ronnfeldt Farms ever provided Arp with any 

written biosecurity protocols.

In October 2020, Christiansen texted Arp, asking him 

whether Frost was “aware of the [b]iosecurity expectations 

before, during and on completion” of manure pumping at 

Windy Hill. Christiansen told Arp that if Frost was not aware 

of the expectations, they should have a conference call to 
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Cite as 32 Neb. App. 490

discuss and review biosecurity measures. Arp responded, 

“They are aware of [b]iosecurity . . . [Frost] will do whatever 

I tell him to do.” Based on Arp’s representations, Ronnfeldt 

Farms did not organize or host a biosecurity conference call 

with Arp or Frost.

Unbeknownst to Ronnfeldt Farms, on November 4, 2020, 

Frost pumped manure at a swine finishing barn in Colfax 

County. This was the last job Frost performed before pumping at Windy Hill. Frost informed Arp that his crew was currently pumping manure at a swine finishing barn. However, 

no evidence exists in the record that would indicate that anyone associated with Arp told Frost or his employees of any 

requirement that his crew not pump at Windy Hill unless it had 

pumped at a cattle facility immediately before.

(c) November 2020 Pumping at Windy Hill

Christiansen emailed Arp a schedule and two maps of Windy 

Hill and designed a pumping plan with Arp through phone 

calls and text messages. Before pumping began, there was no 

communication between Ronnfeldt Farms and Frost. The 2020 

Windy Hill manure pumping began on November 6 and concluded on November 9. Frost arrived on November 7, and both 

Arp and Frost had teams pumping throughout the weekend. 

According to the testimony of the manager in charge of Windy 

Hill, he normally would have personally met Frost’s crew at 

the gate and discussed biosecurity protocols. However, in this 

instance, he allowed a member of Arp’s crew to let Frost’s 

group in. As a result, when Frost’s crew arrived, the manager 

conducted no inspection of Frost’s equipment and no review of 

biosecurity protocols; nor did he inquire where Frost had last 

pumped. Any discussion of biosecurity would have involved 

only the crews of Arp and Frost.

When pumping was completed, Arp sent several invoices 

to Ronnfeldt Farms. All but one invoice was paid. Frost never 

sent any invoices or billing materials to Ronnfeldt Farms. 

Instead, Frost told Arp how many gallons Frost pumped, and 
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Arp added that amount into its invoice calculations. The plan 

was that once Ronnfeldt Farms paid Arp, Arp would pay 

Frost. This was consistent with Arp and Frost’s arrangement 

where they met once a year to discuss the jobs they collaborated on and determined how to “settle up for the year.”

Frost was never fully compensated for Frost’s portion of 

the pumping at Windy Hill. At his deposition, Frost testified 

that Arp told him that Ronnfeldt Farms had not fully paid 

Arp for the job. Frost “did not feel it was right . . . to collect 

money when [Arp] did not collect money.” Arp did, however, 

write Frost a check for an undisclosed amount.

(d) PRRS Outbreak

From November 11 to November 13, 2020, Windy Hill 

employees began to observe clinical symptoms of PRRS in 

sows in the farrowing barn. Blood samples taken from symptomatic sows tested positive for PRRS. Ronnfeldt Farms also 

conducted antibody testing on the pigs. The tests revealed that 

the pigs were negative for PRRS antibodies. This narrowed the 

timeline for exposure, as the earliest a pig’s immune system 

makes antibodies is 5 days after exposure.

Ronnfeldt Farms conducted an audit in an attempt to locate 

the origin of the PRRS outbreak. The audit reviewed employee 

illnesses and paid time off, logsheets documenting visitors, 

grounds maintenance records, barn entry protocols, and sanitation measures. External video footage of the pumping teams’ 

activities was reviewed as well.

The specific genetic sequence of PRRS detected in the 

Windy Hill sows was compared to other genetic sequences 

associated with other outbreaks in the area and documented 

in an authoritative database, but no matches were detected. 

Ronnfeldt Farms also took samples from areas and objects 

involved in the pumping operation, such as the pit ports 

where Arp and Frost pumped, but those tests were negative 

for PRRS.
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Cite as 32 Neb. App. 490

The record suggests that during the audit, Ronnfeldt Farms 

learned that Frost had pumped at the Colfax County swine 

finishing barn immediately prior to pumping at Windy Hill. 

Veterinarian Luke Strehle, employed by Ronnfeldt Farms, 

attempted to investigate a possible connection between the 

Windy Hill PRRS outbreak and Frost’s Colfax County job. 

Strehle asked the owner of the Colfax County pigs if he could 

collect samples from the Colfax County farm to test for PRRS 

and, if they tested positive, compare their genetic sequence to 

the Windy Hill sequence. In his deposition, Strehle testified 

that the owner was comfortable with Strehle’s taking samples 

only if Frost was present. Strehle further testified that Frost 

refused to go and that therefore, he did not have an opportunity 

to take or test samples. Frost, however, testified that the owner 

simply did not consent to Strehle’s conducting the test.

Nonetheless, Frost and the owner decided to take a sample 

from the Colfax County farm and test it for PRRS. The sample 

was positive, but the sample was not genetically sequenced. 

Christiansen concluded that the results of the audit demonstrate 

that the pumping teams were responsible for the outbreak.

2. Procedural Background

Ronnfeldt Farms’ complaint named Arp and Frost as 

defendants. Two causes of action were listed: one for breach 

of contract and the other for negligence. In its complaint, 

Ronnfeldt Farms alleges that Frost was a subcontractor to Arp 

and Arp’s contract with Ronnfeldt Farms. Ronnfeldt Farms 

further argues that by violating biosecurity protocols, Arp 

and Frost breached the contract. In addition, Ronnfeldt Farms 

alleges that Arp and Frost owed a duty to Ronnfeldt Farms to 

follow biosecurity protocols and that by failing to do so, they 

were negligent.

The record suggests that sometime during discovery, 

Ronnfeldt Farms abandoned its subcontractor theory in favor 

of a joint venture theory, claiming that Arp and Frost engaged 

in a joint venture when they collaborated on the Windy Hill 
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pumping job. Ronnfeldt Farms did not file an amended pleading to reflect this shift in its theory of the case.

In September 2022, Frost filed a motion for summary judgment. Ronnfeldt Farms opposed the motion and filed a brief 

that detailed its joint venture theory for the first time. Ronnfeldt 

Farms’ subcontractor theory was also briefly mentioned, but 

this was mainly to acknowledge that both Arp and Frost had 

denied that Frost was Arp’s subcontractor.

A hearing on the motion was held in January 2023, and that 

same month, the district court entered an order granting Frost’s 

motion for summary judgment. On the breach of contract 

cause of action, the court first found that there was no contract 

between Ronnfeldt Farms and Frost. The court also found that 

Frost was not a subcontractor and that Arp and Frost were not 

involved in a joint venture. Thus, the court concluded that 

Frost could not be held liable for any breach of contract committed by Arp. On Ronnfeldt Farms’ independent negligence 

claim against Frost, the district court found that while Frost 

had a duty to Arp, that duty did not extend to Ronnfeldt Farms. 

The court concluded there was no genuine issue of material 

fact and granted summary judgment for Frost.

That same month, but prior to the filing of the court’s order 

on summary judgment, Ronnfeldt Farms and Arp filed a stipulation and a joint motion to dismiss Arp from the case with 

prejudice. The district court granted the motion, and thus, from 

that point forward, Frost became the sole defendant remaining 

in the case.

Ronnfeldt Farms appeals, and Frost cross-appeals.

III. ASSIGNMENTS OF ERROR

In its brief, Ronnfeldt Farms makes 12 assignments of 

error, which consolidated and restated assert that the district 

court erred in (1) misidentifying undisputed facts and applying 

the wrong standard of review for summary judgment, (2) finding that no joint venture existed between Arp and Frost, (3) 

not granting Ronnfeldt Farms leave to amend its complaint, 
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and (4) determining that Frost did not owe an independent 

legal duty to Ronnfeldt Farms.

On cross-appeal, Frost assigns that the district court erred 

in failing to conclude that (1) Ronnfeldt Farms cannot demonstrate Frost proximately caused the damages as a matter of 

law and (2) Ronnfeldt Farms’ failure to preserve certain evidence warrants an inference against Ronnfeldt Farms.

IV. 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 those facts 

and that the moving party is entitled to judgment as a matter 

of law. Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 

39 (2023). 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.

V. ANALYSIS

[2-4] A 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 it is entitled 

to judgment as a matter of law. Wynne v. Menard, Inc., 299 

Neb. 710, 910 N.W.2d 96 (2018). If the movant meets this 

burden, then the nonmovant must show the existence of a 

material issue of fact that prevents judgment as a matter of 

law. Id. Where reasonable minds could draw different conclusions from the facts presented, there is a triable issue of material fact. Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 

N.W.2d 186 (2019). Failure of proof concerning an essential 

element of the nonmoving party’s case necessarily renders all 

other facts immaterial. Freeman v. Hoffman-La Roche, Inc., 

300 Neb. 47, 911 N.W.2d 591 (2018).
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1. Undisputed Facts and Summary 

Judgment Standard

Ronnfeldt Farms argues that the district court misidentified 

undisputed facts and applied the wrong standard of review for 

summary judgment. We find these arguments unpersuasive.

Ronnfeldt Farms asserts that the following two facts, which 

were deemed undisputed by the district court, are disputed: 

“At some point in the days leading up to the Windy Hill 

pumping in 2020, [Arp] asked [Frost if he] would help pump 

at Windy Hill,” and “[Frost] had no customer-contractor relationship or agreement with [Ronnfeldt Farms].” Ronnfeldt 

Farms argues that these facts are disputed because Arp and 

Frost were engaged in a joint venture. Our analysis below 

addresses and rejects Ronnfeldt Farms’ joint venture theory. 

Further, after reviewing the record, we find that these facts are 

undisputed. Both Arp and Frost testified that Arp asked Frost 

to help pump at Windy Hill. No one testified or alleged otherwise. In fact, Christiansen admitted that he approved of Arp’s 

request to ask Frost for help. The evidence also demonstrates 

that Frost did not form a contractual relationship or agreement with Ronnfeldt Farms. Frost did not communicate with 

Ronnfeldt Farms until pumping had begun. Thus, because 

the evidence showed these facts were undisputed, this argument fails.

Additionally, Ronnfeldt Farms argues that the district court 

applied the wrong standard of review for summary judgment. Specifically, Ronnfeldt Farms alleges that the court 

only reviewed the undisputed facts in a light most favorable to Ronnfeldt Farms. To support its argument, Ronnfeldt 

Farms points to the following sentence in the court’s summary 

judgment order: “But in reviewing the undisputed facts in 

a light most favorable to [Ronnfeldt Farms] here, the Court 

does not agree that . . . Arp and Frost were involved in a 

Joint Venture with regard to the work done at Windy Hill.” 

(Emphasis supplied.)
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The record indicates that the district court’s use of the 

phrase “undisputed facts” was inadvertent. Clerical errors “are 

defined as errors which result ‘from a minor mistake or 

inadvertence’ especially in ‘writing or copying something.’” 

Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 473, 

748 N.W.2d 1, 11-12 (2008) (quoting Black’s Law Dictionary 

582 (8th ed. 2004)). The district court correctly stated the summary judgment standard of review earlier in its order:

Summary judgment is justified when there is no genuine issue as to any material fact and the moving party is 

entitled to judgment as a matter of law. . . . On a motion 

for summary judgment, the evidence is to be viewed most 

favorably to the nonmoving party. . . . The question at 

that stage “is not how a factual issue is to be decided, but 

whether any real issue of material fact exists.”

(Citations omitted.) The court reviewed both disputed and 

undisputed facts in its order. Other than the offending phrase 

Ronnfeldt Farms has pointed out, there is nothing to suggest 

that the district court declined to review all of the evidence in 

a light most favorable to Ronnfeldt Farms. We, therefore, find 

that the district court applied the correct standard of review.

2. Ronnfeldt Farms’ Joint Venture Claim

(a) Arp and Frost Were Not Engaged 

in a Joint Venture

[5-8] Ronnfeldt Farms next argues that there is a genuine 

dispute of material fact as to whether Arp and Frost were 

engaged in a joint venture. A joint venture is in the nature of 

a partnership and exists when (1) two or more persons contribute cash, labor, or property to a common fund (2) with the 

intention of entering into some business or transaction (3) for 

the purpose of making a profit to be shared in proportion to 

the respective contributions and (4) each of the parties has an 

equal voice in the manner of its performance and control of 

the agencies used therein, though one may entrust performance to the other. Kohout v. Bennett Constr., 296 Neb. 608, 
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894 N.W.2d 821 (2017). The moving party bears the burden 

to prove a joint venture or enterprise exists by clear and 

convincing evidence. Id. The relationship of joint venturers depends largely upon the intent of the alleged parties as 

manifested from the facts and circumstances involved in each 

particular case. Id. A joint venture can exist only by voluntary 

agreement of the parties and cannot arise by operation of law. 

Even a close relationship between two parties does not create 

an implied joint venture. Id.

The district court found that Arp and Frost both contributed 

labor and entered into a business transaction for the purpose 

of making a profit. However, the court held that Frost did not 

have an equal voice or equal right to control the performance 

at Windy Hill. As such, the court determined that Arp and Frost 

were not engaged in a joint venture.

We begin our analysis by noting that the joint venture claim 

was not raised by Ronnfeldt Farms in its complaint or in any 

amended pleadings. The joint venture argument is first raised 

in Ronnfeldt Farms’ brief in opposition to Frost’s motion for 

summary judgment.

[9] Generally, an issue not presented to the trial court may 

not be raised on appeal. See Eletech, Inc. v. Conveyance 

Consulting Group, 308 Neb. 733, 956 N.W.2d 692 (2021).

We question whether Ronnfeldt Farms should have made a 

motion for leave to amend its complaint and plead the joint 

venture theory formally. However, the Nebraska Supreme 

Court has recognized that even when claims are not clearly 

articulated by an appellant in his or her pleadings or at trial, 

the claims may still be considered by an appellate court if the 

district court evaluated them. See V.C. v. Casady, 262 Neb. 

714, 634 N.W.2d 798 (2001). Therefore, because the district 

court evaluated the joint venture theory, we, too, consider 

this argument.

Viewing the evidence in a light most favorable to Ronnfeldt 

Farms, we find that the first three joint venture elements are 

met. The evidence clearly shows that both Arp and Frost 
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contributed labor and property to the Windy Hill pumping 

job. Arp and Frost brought their own teams and their own 

pumping equipment to Windy Hill. In addition, both Arp and 

Frost had an intention of entering into a mutually beneficial 

transaction. Arp asked Frost for assistance to meet Ronnfeldt 

Farms’ early November 2020 deadline, and in return, Frost 

expected compensation. Further, for Arp and Frost, the purpose of the Windy Hill transaction was to share profits in 

proportion to their respective contributions. When the Windy 

Hill pumping was completed, Frost provided Arp with a 

statement of the total amount of gallons Frost had pumped, 

and Arp added that amount to the invoices sent to Ronnfeldt 

Farms. Once Ronnfeldt Farms paid Arp in full, Arp intended 

to pay Frost a portion respective to the amount of gallons 

Frost pumped.

However, even when viewing the evidence in a light most 

favorable to Ronnfeldt Farms, we find that Ronnfeldt Farms 

failed to demonstrate the existence of a material issue of 

fact regarding the equal voice element. Arp was the dominant voice in the performance of and control over the Windy 

Hill pumping job because of its longstanding business relationship with Ronnfeldt Farms. Ronnfeldt Farms was Arp’s 

customer and had been since 2016. Before assisting with 

pumping at Windy Hill in 2020, Frost had never pumped for 

Ronnfeldt Farms.

Arp and Ronnfeldt Farms planned the 2020 pumping job 

together through emails, phone calls, and text messages. 

Frost was not a part of these conversations and did not communicate with Ronnfeldt Farms in any manner until the 2020 

pumping job commenced. Arp also told Ronnfeldt Farms, 

“[Frost] will do whatever I tell him to do.” One of Arp’s team 

members met Frost’s team members at the Windy Hill gates 

to let them in and instruct them on biosecurity protocols. 

Further, Arp, not Frost, controlled the payment plan for the 

job. Once pumping was completed, Frost informed Arp of the 

total gallons Frost pumped. Arp then independently calculated 
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a total charge for Ronnfeldt Farms and sent invoices to be 

paid directly to Arp. It was expected that once Ronnfeldt 

Farms paid Arp, Arp would then pay Frost.

Ronnfeldt Farms asserts that Frost had an equal voice 

because Frost had the freedom to decide whether to assist 

Arp and because Frost disinfected their equipment more times 

than Arp instructed. We disagree. These facts do not speak to 

Frost’s control over the Windy Hill pumping job. They speak 

merely to Frost’s control over its own schedule and equipment. 

Ronnfeldt Farms also asserts that Frost had an equal voice 

because Frost spoke with Ronnfeldt Farms’ veterinarian and 

declined to assist in the postoutbreak audit. Assuming without 

deciding that this allegation is true, this postpumping event 

does not indicate that Frost exercised control over the actual 

pumping job at Windy Hill.

Arp and Frost’s history of assisting each other on jobs from 

time to time appears to reflect an informal, friendly relationship between similar businesses rather than a joint venture, at 

least as it relates to the facts of this case. There is no evidence 

that either party defendant intended to form a joint venture. 

Arp and Frost own two distinct and separate manure pumping 

companies. They each have their own incorporated names and 

their own customers. They do not jointly own equipment or 

employ the same team members. Significantly, Frost did not 

have an equal voice on the Windy Hill pumping job. For all 

these reasons, we find that the district court did not err in finding there was no joint venture here.

In so holding, we also reject Ronnfeldt Farms’ argument that this case requires a holding similar to the one in 

Fangmeyer v. Reinwald, 200 Neb. 120, 263 N.W.2d 428 

(1978). In Fangmeyer, the Supreme Court held that because 

it could not be said as a matter of law that the informal business relationship at issue did not constitute a joint venture, 

it was not error to submit the issue to a jury. Here, although 

Arp and Frost’s relationship is informal, the evidence is 

clear that their relationship does not meet all of the elements 
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required to constitute a joint venture as it relates to the Windy 

Hill pumping job. Thus, this argument fails. Consequently, 

since no joint venture existed, Frost cannot be held liable for 

any breach of contract or negligence committed by Arp. The 

district court did not err by granting summary judgment on 

these claims.

Additionally, because we have found that no joint venture 

existed, we need not reach Frost’s contention that the dismissal 

of one joint venturer releases all joint venturers.

(b) District Court Not Required to Define 

Arp and Frost’s Relationship Outside 

of Theories Asserted in Pleadings

[10-12] Ronnfeldt Farms also argues that without defining 

the legal relationship between Arp and Frost, the district court 

could not make a finding as to whether any legal duties existed 

between Arp and Frost and therefore erred in granting summary judgment. We disagree. Pleadings frame the issues upon 

which the cause is to be tried and advise the adversary as to 

what the adversary must meet. Spanish Oaks v. Hy-Vee, 265 

Neb. 133, 655 N.W.2d 390 (2003). The issues in each case will 

be limited to those which are pled. Id. Additionally, parties are 

permitted to plead alternative theories of recovery unless the 

theories are so inconsistent that a party cannot logically choose 

one without renouncing the other. See Thurston v. Nelson, 21 

Neb. App. 740, 842 N.W.2d 631 (2014).

Applying those propositions of law here, Ronnfeldt Farms 

had the responsibility to plead what contractual or legal relationship existed between Arp and Frost. Ronnfeldt Farms could 

have pled alternative theories of recovery beyond subcontracting and joint venture, but failed to do so. Therefore, the district 

court did not err by declining to address issues that were not 

pled by the parties or presented to it for disposition.

Based on this finding, we need not address Frost’s theoretical argument that if Arp and Frost were in a principal-agent 

relationship, Arp’s dismissal bars Ronnfeldt Farms from any 

recovery against Frost.
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3. Amending Complaint

Ronnfeldt Farms also argues that the district court should 

have granted Ronnfeldt Farms leave to amend its complaint 

and erred in limiting its review of the joint venture theory. We 

disagree on both fronts. First, the record provided on appeal 

does not contain a motion to amend or reform the pleadings as 

argued by Ronnfeldt Farms during oral argument. Moreover, 

our review of the hearing on the motion for summary judgment also reveals no oral motion to amend. Instead, Ronnfeldt 

Farms acknowledged that a contractor-subcontractor relationship between Arp and Frost did not exist, then argued that 

they were involved in a joint venture. The court need not 

grant leave to amend or reform the pleadings without receiving a motion asking it to do so. In any event, the district court 

did not limit its review of the joint venture theory. The court 

directly addressed this issue in its order, stating: “In [its] brief, 

[Ronnfeldt Farms] argues that . . . Frost, if not a subcontractor, 

must have been involved in a joint venture. Though this cause 

of action is not pled in the Complaint, the Court will address 

that argument as well.” The court then proceeded to evaluate 

the joint venture argument in full, as outlined above. These 

assignments are without merit.

4. Ronnfeldt Farms’ Independent 

Negligence Claim Against Frost

(a) Frost Owed Ronnfeldt Farms 

Duty of Reasonable Care

[13-16] Ronnfeldt Farms also argues that the district court 

erred in holding that Frost did not owe an independent legal 

duty to Ronnfeldt Farms. To prevail in any negligence action, 

a plaintiff must show a legal duty owed by the defendant to 

the plaintiff, a breach of such duty, causation, and resulting 

damages. Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 

(2018). The threshold inquiry in any negligence action is 

whether the defendant owed the plaintiff a duty. McReynolds 

v. RIU Resorts & Hotels, 293 Neb. 345, 880 N.W.2d 43 
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(2016). A “duty” is an obligation, to which the law gives 

recognition and effect, to conform to a particular standard of 

conduct toward another. If there is no duty owed, there can be 

no negligence. Id.

[17-19] The Supreme Court has explained that an actor ordinarily has a duty to exercise reasonable care when the actor’s 

conduct creates a risk of physical harm. A.W. v. Lancaster Cty. 

Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). In a 

negligence action, in order to determine whether appropriate 

care was exercised, the fact finder must assess the foreseeable risk at the time of the defendant’s alleged negligence. 

Perry v. Buchanan, 31 Neb. App. 715, 988 N.W.2d 537 (2023) 

(petition for further review denied May 23, 2023). The extent 

of foreseeable risk depends on the specific facts of the case 

and cannot be usefully assessed for a category of cases; small 

changes in the facts may make a dramatic change in how 

much risk is foreseeable. Id. Thus, courts should leave such 

determinations to the trier of fact unless no reasonable person 

could differ on the matter. Id.

The district court found that Frost had a duty to Arp and 

that Arp had a duty to Ronnfeldt Farms. Specifically, the 

court found that Frost’s duty to Arp was to meet the expectations Arp provided regarding pumping at Windy Hill. It was 

deemed unreasonable to expect Frost to go beyond Arp and 

coordinate directly with Ronnfeldt Farms. Thus, the court concluded that “it is not reasonable to carry Frost’s duty to Arp 

beyond Arp and to [Ronnfeldt Farms] here.”

In its brief on appeal, Ronnfeldt Farms argues Frost owed 

a duty of reasonable care to Ronnfeldt Farms. We agree. The 

standard of care owed by a manure pumping company to the 

owner of a facility being pumped and whether the pumper’s 

actions satisfied that standard are issues of fact for the jury 

to resolve. As an actor at Ronnfeldt Farms’ facility, Frost 

had a general duty to exercise reasonable care when its conduct created a risk of physical harm. See A.W. v. Lancaster 

Cty. Sch. Dist. 0001, supra. We note that in Frost’s answer, 
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Frost admits that there was a general duty to exercise reasonable care in the performance of manure pumping operations. 

Thus, even though no specific contractual relationship was 

identified between Ronnfeldt Farms and Frost, the district 

court erred in ruling Frost owed no duty to Ronnfeldt Farms.

However, we agree with the district court’s findings to the 

extent that the court found that Frost did not necessarily have 

a duty to inquire of Ronnfeldt Farms as to its biosecurity 

protocols. Relying on Arp alone for that information was sufficient unless the general standard of care would demonstrate 

that Frost knew or should have known that additional steps 

should have been taken as part of a general standard of care 

in the industry as it relates to the pumping of manure at a 

sow barn.

Frost’s contention that this negligence claim is truly a 

breach of contract claim is without merit. Ronnfeldt Farms 

does not premise this claim on a failure to meet contractual 

obligations. This claim is based on the general duty of reasonable care. Ronnfeldt Farms alleges that Frost breached their 

duty of care when pumping at Windy Hill immediately after 

pumping at a different hog farm, due to the risk of physical 

harm this practice posed based on the possibility that diseases 

such as PRRS could have been carried within Frost’s equipment. There is no implication of contractual duties or obligations here.

In addition, to the extent that Frost argues that public policy 

surrounding principal-agent relationships requires us to resist 

imposing a duty here, we reject that argument as well. Here, 

Frost alludes to the idea that Frost was an agent to Arp, but 

elsewhere, Frost refuses to explicitly adopt that relationship 

in their brief. In their answer, Frost admits that they have “a 

general duty to exercise reasonable care in the performance 

of manure pumping operations being performed for a third 

party.” Determining that Frost owed Ronnfeldt Farms a duty 

of reasonable care does not conflict with public policy. This 

is not a duty affecting a principal-agent relationship. It does 
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not, as Frost argues, require agents to assume everything the 

principal communicates is wrong or require agents to communicate directly with the principal’s customer.

Frost also argues that even if they owed Ronnfeldt Farms 

a duty, no breach of the standard of care occurred. But in 

order to determine whether appropriate care was exercised, 

the fact finder must assess the foreseeable risk at the time of 

the defendant’s alleged negligence. See Perry v. Buchanan, 31 

Neb. App. 715, 988 N.W.2d 537 (2023) (petition for further 

review denied May 23, 2023). Courts should leave such determinations to the trier of fact unless no reasonable person could 

differ on the matter. Id. We find that reasonable minds could 

differ on whether Frost exercised appropriate care, and as such, 

we leave this issue to be resolved by a fact finder.

Having found a general duty of reasonable care exists, we 

do not reach Ronnfeldt Farms’ argument that a no-duty determination must be based upon certain legislative facts.

(b) Ronnfeldt Farms Cannot Revive or 

Revisit Its Subcontractor Theory

In arguing its independent negligence claim, Ronnfeldt 

Farms proposes that if Frost was a subcontractor, they would 

have owed Ronnfeldt Farms a modified duty to disregard obviously dangerous instructions with respect to biosecurity practices. However, the record clearly demonstrates that Ronnfeldt 

Farms abandoned its former position that Frost was a subcontractor to Ronnfeldt Farms. At the hearing on the motion 

for summary judgment, counsel for Ronnfeldt Farms stated: 

“When we originally filed this complaint in this matter, I 

believe that there was . . . an allegation that [Frost] was a 

subcontractor to . . . Arp. As we have gone through discovery 

in this case, it’s apparent that that’s not the case.” Ronnfeldt 

Farms then proceeded on its joint venture theory.

[20] As stated above, parties are permitted to plead alternative theories of recovery unless the theories are so inconsistent 

that a party cannot logically choose one without renouncing 
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the other. See Thurston v. Nelson, 21 Neb. App. 740, 842 

N.W.2d 631 (2014). However, a party may not waive an error, 

gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. Eletech, Inc. 

v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d 

692 (2021).

When Ronnfeldt Farms abandoned its theory that Frost 

was a subcontractor, it essentially retracted this issue from its 

pleadings and our purview. Further, arguing that Frost is not a 

subcontractor for one theory and then arguing Frost is a subcontractor for another is inconsistent to the point that Ronnfeldt 

Farms cannot logically choose one theory without renouncing 

the other. Thus, we do not consider the subcontractor theory 

or any negligence-based duties Ronnfeldt Farms asserts would 

arise from a subcontractor relationship.

In conclusion, we find that Frost owed Ronnfeldt Farms a 

general duty of care. Summary judgment was, therefore, inappropriate on Ronnfeldt Farms’ limited claim of independent 

negligence against Frost. What standard of care was required 

of Frost and whether Frost’s actions or inactions constituted a 

breach of that standard are questions for the finder of fact.

5. Frost’s Cross-Appeal

On cross-appeal, Frost assigns and argues that the district 

court erred when it declined to find that as a matter of law, 

Ronnfeldt Farms cannot show proximate causation. Frost also 

assigns and argues that Ronnfeldt Farms’ failure to preserve 

certain evidence warrants an inference that Ronnfeldt Farms 

cannot demonstrate causation.

The district court did not reach the issue of causation or 

the issue of evidence preservation in its order granting summary judgment. Based on the conclusions the court made, it 

was not necessary for the court to consider these issues. We 

decline to consider these issues that were not addressed by the 

district court. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court. Hinson v. 

Forehead, 30 Neb. App. 55, 965 N.W.2d 793 (2021).
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Cite as 32 Neb. App. 490

VI. CONCLUSION

For the foregoing reasons, we affirm the district court’s 

order granting summary judgment as to Ronnfeldt Farms’ 

breach of contract and negligence claims based on a theory 

that Frost was engaged in a joint venture with Arp. Frost 

cannot be held liable for Arp’s alleged breach of contract or 

alleged negligent behavior. However, we find that the district 

court erred by finding that Frost did not have a general duty 

of care with respect to the work they performed at Ronnfeldt 

Farms and in granting summary judgment to Frost based on 

that finding. Therefore, we reverse the portion of the court’s 

order granting summary judgment on Ronnfeldt Farms’ independent negligence claim against Frost and remand the cause 

for further consideration of the remaining issues raised in the 

motion for summary judgment related to Ronnfeldt Farms’ 

independent negligence claim.

Affirmed in part, and in part reversed and

remanded for further proceedings.