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ERMEL v. SMA ENTERS.

Cite as 30 Neb. App. 754

Andrew M. Ermel, appellant, v. SMA 

Enterprises, Inc., doing business as 

Baxter Ford South, appellee.

___ N.W.2d ___

Filed March 22, 2022. No. A-21-080.

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. Generally speaking, 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, (2) those concerning 

the failure to protect lawful entrants from a dangerous activity on the 

land, and (3) those concerning the failure to protect lawful entrants from 

the acts of a third person on the land.

3. 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 an unreasonable risk of harm to the lawful visitor; (3) the 

possessor should have expected that a lawful visitor 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. Of the five 

Nebraska Supreme Court Online Library

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

03/22/2022 08:06 AM CDT
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Cite as 30 Neb. App. 754

elements recited above, the first three clarify the scope of a land possessor’s duty to lawful entrants, as they identify those conditions which 

give rise to a duty of reasonable care to protect lawful entrants from 

physical harm.

4. Negligence: Words and Phrases. While there is no fixed rule for determining when a risk of harm is unreasonable, the plain meaning of the 

term suggests a uniquely or unacceptably high risk of harm.

5. ____: ____. An unreasonable risk of harm means a risk that a reasonable person, under all the circumstances of the case, would not allow 

to continue.

6. 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. 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.

7. ____. 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.

8. ____. 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.

9. ____. 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.

Appeal from the District Court for Sarpy County: Michael A. 

Smith, Judge. Reversed and remanded for further proceedings.

Matthew A. Lathrop, of Law Office of Matthew A. Lathrop, 

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

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

Gibbons, P.C., L.L.O., for appellee.
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ERMEL v. SMA ENTERS.

Cite as 30 Neb. App. 754

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Andrew M. Ermel appeals from an order of the district 

court for Sarpy County granting summary judgment in favor 

of appellee, SMA Enterprises, Inc., doing business as Baxter 

Ford South (Baxter). Ermel was injured after slipping on an 

accumulation of ice while dropping his vehicle off at Baxter 

for a service appointment the following day. The court found 

that under the circumstances of this case, the accumulation of 

ice was an open and obvious risk that did not create an unreasonable risk of harm to Ermel. Accordingly, the court granted 

summary judgment in favor of Baxter under the doctrine of 

premises liability, recently reiterated in Sundermann v. Hy-Vee, 

306 Neb. 749, 947 N.W.2d 492 (2020). For the reasons that 

follow, we reverse, and remand for further proceedings.

BACKGROUND

At approximately 11:45 p.m., on February 24, 2017, Ermel 

and his girlfriend arrived at Baxter in separate vehicles, because 

Ermel intended to leave his vehicle for a service appointment the following morning. Baxter had installed a “key drop 

box” near its service bay doors for customers to use when 

leaving vehicles after hours. Ermel parked to the north of the 

service garage, whereas his girlfriend parked immediately in 

front of the service bay doors, under a large sign which indicated “Service.”

According to a weather report from the day in question, 

the temperature dropped below freezing around 7 a.m. and 

remained below freezing the rest of the day. In addition to 

some light rain in the morning, there were periods of snow 

and light snow ending between 4:15 and 4:35 p.m. In a later 

deposition, Ermel testified that “[i]t was very cold [and] was 

precipitating in different forms, snow, sleet, rain, what have 
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you.” Ermel further testified that the roads were wet as he 

drove to the dealership and that he was aware the conditions 

were favorable for the formation of ice. He testified that upon 

arriving at Baxter, the parking lot appeared “wet and slick,” 

but that when he got out of the vehicle, “[i]t wasn’t as slick as 

I had anticipated” and “I had no issues with traction.” Ermel’s 

girlfriend also testified that she had no problems walking, but 

that she knew it was slick and thus “probably walked more 

carefully.”

Ermel testified that he walked from his vehicle, around 

the back of his girlfriend’s vehicle, and to the west side of the 

building because he believed that is where he would find the 

key drop box. According to Ermel, such was the location of 

the key drop box when he had visited the property a number 

of years prior. However, the record shows that the key drop 

box was actually located on the north side of the building, in 

between the two service bay doors, near where Ermel’s girlfriend had parked her vehicle.

Nevertheless, Ermel walked around to the west side of the 

building and slipped on a patch of “downspout ice,” sustaining 

injury to his right elbow. Ermel testified that he was not aware 

of the downspouts or the accumulation of ice prior to the fall. 

It was only after the fall that he then noticed the downspouts 

and ice accumulation, which he described as being “much 

thicker” and more slippery than the other surfaces he encountered that night. In contrast to the good traction Ermel experienced elsewhere in the parking lot, “[t]here was no traction” on 

the accumulation of ice under the downspout.

Ermel filed a complaint in the district court seeking compensation for injuries caused by the fall. Ermel first alleged that 

Baxter owed him a duty of reasonable care under Nebraska’s 

premises liability doctrine. Ermel alleged that there were parking stalls and “a walkway” located on the west side of the 

building and that there was a pair of rain downspouts located 

on the northwest corner of the building, which “face west 
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and release runoff across the walkway.” In its answer, Baxter 

admitted there were parking stalls on both the west and north 

sides of the service garage. Baxter further admitted there was 

“space between the parking stalls on the west side of the service garage and the west wall of the service garage” but denied 

that it was a “‘walkway.’”

Baxter admitted there was “a pair of downspouts located on 

the west side of the service garage closest to its north end” that 

“release runoff in a westerly direction across the space,” which 

Ermel referred to as a “walkway.” Ermel further alleged in his 

complaint that Baxter breached its duty of reasonable care, to 

wit: Ermel slipped and fell on ice which had “formed because 

of runoff from the roof which is directed to this location by 

the downspouts.” Finally, Ermel alleged that Baxter had proximately caused the fall and the injuries sustained thereby. The 

following images were admitted into evidence to illustrate the 

location at issue:

Image No. 1
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ERMEL v. SMA ENTERS.

Cite as 30 Neb. App. 754

Image No. 2

Image No. 3
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ERMEL v. SMA ENTERS.

Cite as 30 Neb. App. 754

Image No. 1 shows the actual location of the key drop box 

between the service bay doors. Image No. 2 shows Ermel’s 

view of the downspout location as he walked from where he 

parked his vehicle toward the west side of the building. Also 

visible in image No. 2 are the parking spaces on the west side 

of the building and the “walkway” Ermel described. Image 

No. 3 shows the downspouts located on the northwest corner 

of the building.

In its answer, Baxter raised a number of affirmative defenses, 

alleging first that Ermel’s recovery should be barred or reduced 

on account of his own negligence. Baxter alleged that Ermel 

negligently failed to avoid the “open and obvious” patch of ice. 

Baxter further alleged that Ermel assumed the risk of injury, 

that Ermel’s injuries were caused by the negligence of others, 

and that Baxter is entitled to a setoff for medical payments 

made on Ermel’s behalf.

In September 2020, Baxter moved for summary judgment on 

the basis of the pleadings, photographs taken of the scene, and 

excerpts from depositions taken of Ermel, his girlfriend, and 

Tom Kroll, who was a “lender relations manager” employed 

by Baxter.

Aside from the following, the facts of this case were largely 

undisputed at the time the case was submitted on the motion 

for summary judgment. First, Baxter alleged that Ermel consumed “a beer and marijuana” at home prior to driving to 

Baxter. Indeed, Ermel testified that prior to taking his vehicle 

to Baxter, he consumed one beer and “some marijuana.” Ermel 

objected to this allegation, arguing Baxter failed to offer competent evidence and asserting “it is a disputed fact whether 

one beer and a small amount of marijuana would have any 

effect on [Ermel] at the time of the fall.” Second, where Baxter 

alleged that Ermel’s girlfriend left her vehicle running with the 

headlights on, Ermel testified that the vehicle and headlights 

were off. Moreover, Baxter alleged that the parking lot was 

installed with “‘big parking lot bright lights’” that had been 

upgraded within the 2 years prior to the accident. However, 
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Ermel testified that the “lighting conditions were very dim” in 

the parking area.

With regard to ice and snow removal, Kroll testified that 

he was not aware of any written policy or procedure related 

to ice and snow removal at Baxter. However, Kroll was aware 

that Baxter had an unwritten contract with a lawn care company to provide ice and snow removal on an as-needed basis. 

Additionally, Kroll testified that the service manager and general manager are “collective[ly]” responsible for addressing ice 

and snow as it accumulates, noting that they use salt spreaders 

and a “multitude of guys” who address the sidewalks “as best 

they can.”

In January 2021, the court entered an order granting Baxter’s 

motion for summary judgment. In reciting the facts above, the 

court noted that Ermel “mistakenly walked away from the key 

drop box and around the corner of the building . . . . As he 

turned the corner of the building, [Ermel] slipped and fell on 

ice that had accumulated underneath a downspout at that location.” While the order will be discussed in more detail below, 

the court ultimately concluded that “under the facts of this 

case, the presence of ice was an open and obvious risk, and 

did not create an unreasonable risk of harm.” The court further concluded:

In addition, the facts do not support a finding that [Baxter] 

should have anticipated a user of the lock box would fail 

to protect themselves from the acknowledged danger of 

ice, or that a late-arriving customer would walk around 

the building and away from the drop box location.

Ermel now appeals.

ASSIGNMENT OF ERROR

Ermel assigns that the district court erred in granting Baxter’s 

motion for summary judgment.

STANDARD OF REVIEW

[1] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 
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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. 

Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020). 

In reviewing a summary judgment, an appellate court views the 

evidence in the light most favorable to the party against whom 

the judgment was granted, and gives that party the benefit of 

all reasonable inferences deducible from the evidence. Id.

ANALYSIS

[2] Generally speaking, 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, (2) 

those concerning the failure to protect lawful entrants from 

a dangerous activity on the land, and (3) those concerning 

the failure to protect lawful entrants from the acts of a third 

person on the land. Id. The present case, like Sundermann v. 

Hy-Vee, supra, falls squarely in the first category, as Ermel 

argues he was injured by an unreasonably dangerous condition on the property, to wit: the accumulation of ice under 

the downspouts.

[3] 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 

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. Id. Of the five elements recited 

above, the first three clarify the scope of a land possessor’s 

duty to lawful entrants, as they identify those conditions which 

give rise to a duty of reasonable care to protect lawful entrants 

from physical harm. See id.
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ERMEL v. SMA ENTERS.

Cite as 30 Neb. App. 754

In granting Baxter’s motion for summary judgment, the 

court concluded as a matter of law that Baxter had no duty 

to protect Ermel from what it characterized as the “open and 

obvious risk of ice.” The parties agree that the central issue 

in this case is the court’s analysis of the second and third elements of the premises liability doctrine. As to the first element, 

Baxter conceded that the evidence was sufficient to find in 

favor of Ermel for purposes of summary judgment. As to the 

fourth and fifth elements, the court found it unnecessary to 

address them, having concluded that the second and third elements were dispositive.

[4,5] While there is no fixed rule for determining when 

a risk of harm is unreasonable, the plain meaning of the 

term suggests a uniquely or unacceptably high risk of harm. 

Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020). 

The Nebraska Supreme Court has at times defined 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.”’” Id. at 768, 947 N.W.2d at 506. The court 

observed that “the evidence is that [Ermel] slipped on ice that 

had formed underneath a downspout.” The court found that the 

“condition at issue in this case is not the downspout, but the 

formation of ice” and “[m]erely applying [the Sundermann] 

definition, there is an issue of material fact as to whether the 

formation of ice in this location is an unreasonable risk of 

harm.” (Emphasis supplied.) We agree.

Despite apparently acknowledging a genuine dispute of fact 

under the second element, the court concluded its analysis of 

the second element by noting that “the analysis if [sic] the 

second element is also influenced by the third element.” With 

regard to the third element, the court correctly observed that 

“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.” Characterizing the dangerous condition in this case 
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as the “risk of ice” in general, the court ultimately concluded 

that such was an open and obvious risk for which Baxter was 

under no duty to correct.

The court emphasized that the “formation and presence of 

ice was known,” as Ermel admitted that “the risk of ice was 

a risk he perceived as he left his car.” The court observed 

that Ermel described the parking lot as wet and icy, and “he 

expected to find slippery conditions when he left his car.” The 

court further noted that “the facts do not support a finding that 

[Baxter] should have anticipated a user of the lock box would 

fail to protect themselves from the acknowledged danger of 

ice, or that a late-arriving customer would walk around the 

building and away from the drop box location.”

We agree that the risk of ice in general, on an indisputably 

wintery day, was an open and obvious risk to Ermel. However, 

we disagree that the dangerous condition in this case can be 

properly characterized as the risk of ice in general. Rather, 

the record reflects that Ermel slipped and fell on the specific 

accumulation of ice under the downspouts. Ermel described the 

accumulation of ice in that location as thicker and more slippery than the surfaces he encountered elsewhere in the parking lot. Viewing the evidence in Ermel’s favor, we find there 

is a reasonable inference that the accumulation of ice under 

the downspouts created a risk of harm which was different 

in character from the risk of ice in general. Accordingly, we 

conclude that there is a material question of fact as to whether 

the specific accumulation of ice under the downspouts created 

an unreasonable risk of harm under the second element of the 

premises liability doctrine.

[6-8] Furthermore, there is a material question of fact as to 

whether the risk presented by the accumulation of ice under 

the downspouts was open and obvious to Ermel. Generally, 

when a dangerous condition is open and obvious, the owner 

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

condition. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 

492 (2020). The rationale behind this general rule is that the 
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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. Id. 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. Id. 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. Id.

Ermel testified that he did not see the downspouts or the 

accumulation of ice until after he fell. Indeed, image No. 2 

above suggests that the downspouts would not have been visible to Ermel until after he rounded the corner of the building. 

This is especially true given the time of day that Ermel fell and 

his testimony that the area was dimly lit. Accordingly, viewing 

the evidence in Ermel’s favor, there is a material question of 

fact as to whether the accumulation of ice under the downspouts was an open and obvious risk under the third element of 

the premises liability doctrine.

[9] Moreover, even if the risk of harm created by the accumulation of ice under the downspouts was open and obvious, 

there would still be a material question of fact as to whether 

Baxter should have nevertheless anticipated the harm caused 

thereby. A determination that a risk or danger is open and 

obvious does not end the duty analysis in a premises liability 

case. Sundermann v. Hy-Vee, supra. 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. Id. For example, where the possessor has reason 

to expect the invitee’s attention may be distracted, or where 

the possessor has reason to expect the invitee will proceed to 

encounter the known or obvious danger because the advantages 

of doing so would outweigh the apparent risks. See id.
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Cite as 30 Neb. App. 754

The court emphasized that Baxter should not be expected to 

anticipate a customer unnecessarily walking around the building past the key drop box as Ermel did in this case. However, 

the proper question is not what Ermel did in this case, but, 

rather, what Baxter should have anticipated in any case. Ermel 

points out that there were parking stalls located on the west 

side of the building, such that customers could have parked on 

the west side and encountered the ice under the downspouts as 

they walked north to the key drop box. Accordingly, even if 

the risk of ice accumulating under the downspouts was open 

and obvious, a question which we do not need to decide, there 

remains a material question of fact as to whether Baxter should 

have nevertheless anticipated a customer’s encountering and 

slipping on the ice accumulation under the downspouts.

Altogether, the record in this case reveals several material 

questions of fact as to both the second and third elements of 

the premises liability doctrine, such that summary judgment 

was improper. Under the second element, there is a material 

question of fact as to whether the specific accumulation of ice 

under the downspouts created an unreasonable risk of harm. 

Under the third element, there is a material question of fact 

as to whether the risk of harm created by the accumulation 

of ice under the downspouts was open and obvious to Ermel. 

Moreover, even if such was an open and obvious risk, there is 

a material question of fact as to whether Baxter should have 

nevertheless anticipated the harm and taken some action to 

protect customers from it.

CONCLUSION

For the foregoing reasons, we reverse the order of the district court granting Baxter’s motion for summary judgment and 

remand the cause for further proceedings.

Reversed and remanded for

further proceedings.