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PITTMAN v. RIVERA

Cite as 293 Neb. 569

Joseph Pittman, appellant and cross-appellee, 

v. Matthew Rivera and Teresa Erpelding, 

appellees, and 2nd Street Slammer, Inc., 

et al., appellees and cross-appellants.

___ N.W.2d ___

Filed May 20, 2016. No. S-15-159.

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

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

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

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

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Negligence: Proof. In order to recover in a negligence action, a plaintiff 

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

of such duty, causation, and damages.

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

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

5. Innkeepers: Alcoholic Liquors: Liability. Businesses that are open to 

the public are subject to a duty of reasonable care, regardless of whether 

they serve alcoholic liquor.

6. Negligence. 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.

7. ____. 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.

Nebraska Supreme Court Online Library

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

05/20/2016 11:06 AM CDT
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PITTMAN v. RIVERA

Cite as 293 Neb. 569

8. ____. In order to make a risk of attack foreseeable, the circumstances to 

be considered must have a direct relationship to the harm incurred.

Appeal from the District Court for Adams County: Terri S. 

Harder, Judge. Affirmed.

Siegfried H. Brauer, of Brauer Law Office, for appellant.

Stephen G. Olson and Kristina J. Kamler, of Engles, Ketcham, 

Olson & Keith, P.C., for appellees 2nd Street Slammer, Inc., 

et al.

Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.

Wright, J.

NATURE OF CASE

Joseph Pittman filed a negligence action against 2nd 

Street Slammer, Inc. (2nd Street), and its owners, Walter C. 

Bienkowski and Diana C. Bienkowski (collectively the appellees); Matthew Rivera; Nellie Snyder; and Teresa Erpelding 

for injuries he sustained when he was struck by a vehicle 

while standing in or near a parking lot owned and maintained 

by 2nd Street. The driver of the vehicle was Rivera, another 

patron who had been forcibly removed from 2nd Street earlier 

that evening by an employee of 2nd Street. The district court 

granted summary judgment in favor of the appellees, finding 

that Rivera’s conduct in striking Pittman with his vehicle was 

not reasonably foreseeable and that therefore, 2nd Street did 

not breach its duty of reasonable care. Pittman appeals, and the 

appellees cross-appeal.

BACKGROUND

The Bienkowskis own 2nd Street, a drinking establishment 

in Hastings, Nebraska, that serves alcohol. In the early morning hours of December 2, 2007, while at 2nd Street, Rivera 

got into a physical altercation with his girlfriend, Snyder. An 

employee of 2nd Street, Craig Hubbard, intervened in the 
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PITTMAN v. RIVERA

Cite as 293 Neb. 569

altercation and forcibly removed Rivera from the premises. 

As he was being escorted out, Rivera was aggressive and 

assaultive toward Hubbard, but ultimately got into a vehicle 

with friends and was driven away by a designated driver. 

Hubbard considered the incident “‘handled’” and did not contact police.

About an hour later and just as the bar was closing, Rivera 

returned to 2nd Street looking for Snyder. Hubbard confronted 

Rivera at the door and told him he was not allowed to come 

inside. Rivera became aggressive, and Hubbard escorted him 

outside to the parking lot once again. Rivera got into his 

vehicle and sped out of the parking lot, away from 2nd Street. 

He abruptly performed a U-turn and traveled toward and then 

past 2nd Street. He abruptly performed another U-turn, revved 

his engine, and raced toward a crowd of patrons who were 

standing on or near the property line between 2nd Street’s 

parking lot and an adjacent roadway. At this moment, Pittman 

and some of his friends had recently left 2nd Street and were 

standing outside talking.

An employee of 2nd Street saw the vehicle approaching and 

yelled for Pittman to get out of the way. Pittman did not react 

in time and was struck by Rivera’s vehicle. Rivera’s assault 

with his vehicle happened quite rapidly. Approximately 60 

seconds lapsed from the time Rivera entered his vehicle to the 

time Pittman was struck. Pittman sustained serious injuries as 

a result of the impact. Hubbard immediately called the 911 

emergency dispatch service after Pittman was struck. Rivera 

was later convicted of and sentenced to prison for first degree 

assault and leaving the scene of an accident.

Pittman filed this action in the district court for Adams 

County, Nebraska, alleging that 2nd Street breached its duty 

to protect him from Rivera’s actions. The appellees moved for 

summary judgment, asserting that they did not owe Pittman a 

duty of care and that even if they did, there was no breach of 

any duty because Rivera’s conduct in running down Pittman 

with his vehicle was not reasonably foreseeable. The district 
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PITTMAN v. RIVERA

Cite as 293 Neb. 569

court found that 2nd Street owed Pittman a duty of reasonable care but held that the material and undisputed evidence 

confirmed that Rivera’s conduct in striking Pittman with his 

vehicle was not a foreseeable risk. It therefore concluded as a 

matter of law that 2nd Street did not breach its duty to Pittman. 

It granted summary judgment in favor of the appellees. Pittman 

appeals, and the appellees cross-appeal. In previous proceedings, Snyder had been dismissed from the action. In a separate court order, Rivera and Erpelding, Rivera’s mother and 

cosigner of the loan for the vehicle which struck Pittman, were 

found liable for negligence and assessed damages. They are not 

involved in this appeal.

ASSIGNMENTS OF ERROR

On appeal, Pittman assigns seven errors, which we combine and restated as follows: The district court erred in granting summary judgment in favor of the appellees, because 

foreseeability was a factual question upon which reasonable 

minds could differ and, therefore, such determination should 

have been left to the jury.

On cross-appeal, the appellees assign that the district court 

erred in finding that 2nd Street owed a duty of reasonable care 

to Pittman, because Nebraska’s public policies warrant a noduty determination in this case.

STANDARD OF REVIEW

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

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

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

matter of law.1 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 

1 Sulu v. Magana, ante p. 148, ___ N.W.2d ___ (2016).
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PITTMAN v. RIVERA

Cite as 293 Neb. 569

party the benefit of all reasonable inferences deducible from 

the evidence.2

ANALYSIS

[3] In order to recover in a negligence action, a plaintiff 

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

a breach of such duty, causation, and damages.3 To warrant 

summary judgment in their favor, the appellees had to submit 

evidence showing the absence of at least one of these elements. 

Here, the appellees moved for summary judgment on the bases 

that 2nd Street did not owe Pittman a duty of care and that 

even if it did, no reasonable person would find that it breached 

such duty, because Rivera’s conduct in running down Pittman 

with his vehicle was not reasonably foreseeable.

On appeal, Pittman argues that 2nd Street had a duty to take 

reasonable steps to prevent danger or injury to its patrons if it 

knew or had reason to know of circumstances that presented 

a threat of injury by a third party. Pittman asserts that 2nd 

Street had knowledge of Rivera’s assaultive and threatening 

behavior in its place of business and failed to take meaningful 

action to prevent Rivera from causing harm to other patrons. 

He argues that 2nd Street should have called law enforcement 

to remove Rivera, or at least should have warned its patrons 

that a violent and drunken person had been turned loose on 

the city streets, especially when Rivera got behind the wheel 

of a vehicle and 2nd Street knew its patrons were or soon 

would be leaving the bar. Pittman argues that summary judgment was improper, because foreseeability was a question of 

fact for the jury unless no reasonable person could differ on 

the question.

On cross-appeal, the appellees assert that the district court 

erred in finding 2nd Street owed Pittman a duty of reasonable 

care. They argue that Nebraska’s premises liability is limited, 

2 Id.

3 Phillips v. Liberty Mutual Ins. Co., ante p. 123, 876 N.W.2d 361 (2016).
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Cite as 293 Neb. 569

as a matter of public policy, to the boundaries of the premises and for the protection of individuals on the premises for 

business purposes. They also assert that the Nebraska Liquor 

Control Act, adopted in 1935, repealed the former dram shop 

acts which imposed civil liability upon drinking establishments 

for the intoxicated acts of its patrons. Thus, they argue that 

the public policy against imposing dram shop liability overrides any duty based upon premises liability and requires a 

no-duty determination.

Duty

[4] We begin our analysis by addressing whether 2nd Street 

owed Pittman a duty of care. The question whether a legal duty 

exists for actionable negligence is a question of law dependent 

on the facts in a particular situation.4 We have articulated the 

duty a business proprietor owes to protect its patrons from 

third parties as follows:

“The modern general rule, summarized in its simplest 

terms, is that the proprietor of a place of business who 

holds it out to the public for entry for his business purposes, is subject to liability to members of the public 

while upon the premises for such a purpose for bodily 

harm caused to them by the accidental, negligent, or 

intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have 

discovered that such acts were being done or were about 

to be done, and could have protected the members of 

the public by controlling the conduct of the third persons or by giving a warning adequate to enable them to 

avoid harm.”5

[5] Businesses that are open to the public are subject to 

a duty of reasonable care, regardless of whether they serve 

4 Peterson v. Kings Gate Partners, 290 Neb. 658, 861 N.W.2d 444 (2015).

5 Schroer v. Synowiecki, 231 Neb. 168, 173-74, 435 N.W.2d 875, 879 (1989) 

(emphasis omitted).
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Cite as 293 Neb. 569

alcoholic liquor.6 Thus, we agree with the district court’s finding that 2nd Street owed a general duty based on premises 

liability, and we find no merit to the appellees’ argument on 

cross-appeal that such duty is overridden by the public policy 

against dram shop liability.

Breach

Having determined that 2nd Street owed a duty of reasonable care to its patrons, we examine if there was a material 

issue of fact whether 2nd Street breached its duty of reasonable care.

[6,7] 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.7 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.8 Thus, courts should leave such determinations to 

the trier of fact unless no reasonable person could differ on the 

matter.9 Here, we agree with the district court’s determination 

that Rivera’s conduct in running down Pittman with his vehicle 

was not a foreseeable risk, and we conclude that summary 

judgment was proper because no reasonable person could differ 

on this matter.

[8] In order to make a risk of attack foreseeable, the circumstances to be considered must have a direct relationship 

to the harm incurred.10 Rivera’s prior conduct at the bar that 

night (i.e., assaultive and threatening behavior toward Snyder 

and Hubbard) was completely different in nature from his 

6 See id.

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

(2010).

8 See id.

9 See id.

10 Id.
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later actions that harmed Pittman. There was no evidence 

that Rivera knew Pittman, that he had any reason to assault 

Pittman, or that he would intentionally try to run over a person 

outside the bar. Hubbard, as an employee of 2nd Street, had 

promptly removed Rivera from the premises upon observing 

his assaultive behavior and had observed him leaving the scene 

with a designated driver.

When Rivera returned to the premises and Hubbard discovered that he was driving a vehicle, it was not reasonably foreseeable that Rivera would use his vehicle to assault Pittman.

Even when viewed in the light most favorable to Pittman, 

he has not established there is a genuine issue of material fact 

whether 2nd Street breached its duty of reasonable care to 

Pittman. We conclude as a matter of law that no reasonable 

person would find that 2nd Street breached its duty of reasonable care regarding Pittman. Summary judgment in favor of 

2nd Street was proper.

CONCLUSION

For the reasons set forth above, we affirm the judgment of 

the district court.

Affirmed.

Miller-Lerman, J., participating on briefs.