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SUSMAN v. KEARNEY TOWING & REPAIR CTR.

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Rysta Leona Susman et al., appellants, v. 

Kearney Towing & Repair Center, Inc., 

a Nebraska corporation, appellee.

___ N.W.2d ___

Filed February 11, 2022. No. S-21-277.

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.

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. Limitations of Actions: Statutes. Limitations are created by statute and 

derive their authority therefrom.

4. Limitations of Actions. The essential attribute of a statute of limitations 

is that it accords and limits a reasonable time within which a suit may 

be brought upon causes of action which it affects.

5. Limitations of Actions: Presumptions. The statute of limitations is 

enacted upon the presumption that one having a well-founded claim will 

not delay enforcing it beyond a reasonable time if that person has the 

right to proceed.

6. ____. The mischief which statutes of limitations are intended to remedy 

is the general inconvenience resulting from delay in the assertion of a 

legal right which is practicable to assert.

7. Limitations of Actions: Torts. Neb. Rev. Stat. § 25-207 (Reissue 2016) 

provides that a tort action, described as an action for an injury to the 

rights of the plaintiff, not arising on contract, can only be brought within 

4 years.

Nebraska Supreme Court Online Library

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

03/18/2022 08:07 AM CDT
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8. Limitations of Actions. A cause of action accrues and the statute of 

limitations begins to run when the aggrieved party has the right to institute and maintain a suit.

9. ____. Until the plaintiff has a right of action, the statute of limitations 

does not run and the plaintiff will have the full statutory period once the 

right of action comes into being.

10. Actions. A cause of action cannot accrue before the occurrence of all the 

elements that constitute a defendant’s violation of a plaintiff’s judicially 

protected right.

11. Torts: Liability: Warranty. Tort liability is not based upon representations or warranties.

12. Torts: Liability: Negligence. Tort liability is based on a duty imposed 

by the law to exercise that degree of care as would be exercised by a 

reasonable person under the circumstances.

13. Torts: Liability: Negligence: Probable Cause. It suffices to charge a 

person with liability for a negligent act if some injury to another ought 

reasonably to have been foreseen as the probable result thereof by the 

ordinarily intelligent and prudent person under the same circumstances.

14. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary 

negligence must prove all four essential elements of the claim: the 

defendant’s duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

15. Negligence: Proof. A cause of action for negligence depends not only 

upon the defendant’s breach of duty to exercise care to avoid injury to 

the plaintiff, but also depends upon a showing that the injury suffered 

by the plaintiff was caused by the alleged wrongful act or omission of 

the defendant.

16. Negligence. A cause of action for negligence does not consist simply of 

negligence or duty or injury standing alone.

17. Justiciable Issues. A party is not aggrieved and cannot institute and 

maintain suit if any element of that party’s claim depends upon abstract 

questions or issues that might arise in a hypothetical or fictitious situation or setting and may never come to pass.

18. ____. The alleged injury to the plaintiff cannot be merely hypothetical; 

there must be an injury in fact in both a qualitative and temporal sense.

19. ____. To be an aggrieved party, the party must be able to allege an 

injury to itself that is distinct and palpable, as opposed to merely 

abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.

20. Actions: Proof. The litigant must show that the injury can be fairly 

traced to the challenged action and is likely to be redressed by a favorable decision.
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21. Limitations of Actions: Negligence. A plaintiff is not required to anticipate an injury from the probable negligence of someone else. The statute 

of limitations does not run until the injury has been actually received.

22. Negligence. Plaintiffs in an ordinary negligence action generally cannot 

rest their claims on the legal rights or interests of third parties.

Appeal from the District Court for Buffalo County: 

John H. Marsh, Judge. Reversed and remanded for further 

proceedings.

Michael F. Coyle and Karson S. Kampfe, of Fraser Stryker, 

P.C., L.L.O., for appellants.

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

Ketcham, Olson & Keith, P.C., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

A vehicle owned by a construction company was involved 

in an accident that occurred when a rear tire of the vehicle 

suffered a tread separation. Employees of the construction 

company that were passengers of the vehicle at the time of the 

accident were injured. The employees brought a suit against 

the tire repair company that mounted the tire for the construction company, alleging ordinary negligence. Their action was 

brought more than 4 years after the installation of the tire but 

within 4 years of the accident. The tire repair company filed 

a motion for summary judgment based on the 4-year statute 

of limitations, which was initially denied but was ultimately 

granted upon a motion to reconsider. Plaintiffs appeal.

BACKGROUND

Rysta Leona Susman, both individually and as natural 

mother of Shane Allen Loveland, a protected person; Loveland, 

by and through his temporary guardian and conservator, John 

Sauder; and Jacob Summers (individually and collectively 
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Loveland and Summers), filed a complaint against Kearney 

Towing & Repair Center, Inc. (Kearney Towing), on April 

12, 2019, for negligence and breach of contract regarding a 

single-vehicle accident of a pickup truck, in which Loveland 

and Summers were passengers, occurring on May 1, 2015. The 

pickup was owned by Loveland’s and Summers’ employer, 

Dandee Concrete Construction, Inc. (Dandee Concrete).

The complaint alleged that the accident occurred when the 

right rear tire of the pickup truck suffered a tread separation 

which caused the driver to lose control, resulting in a rollover. The complaint alleged that Kearney Towing “inspected, 

mounted, installed and balanced the used tires,” which were on 

the pickup truck involved in the accident, and that at the time 

the used tires were installed, “the tires were 20 years of age in 

that they were manufactured in 1994.”

The complaint alleged that Kearney Towing was negligent 

in that Kearney Towing holds itself out to the public as experts 

in “tire inspections, auto inspections and automobile maintenance”; owes a duty to all customers and all individuals, 

including but not limited to Loveland and Summers; and is 

obligated to perform its work in a reasonably skilled and safe 

manner. Loveland and Summers alleged that Kearney Towing 

breached this duty and was negligent in the manner in which it 

inspected the used tires and installed them on the pickup truck. 

The complaint alleged that the negligence of Kearney Towing 

was the direct and proximate cause of both Loveland’s and 

Summers’ “catastrophic injuries.”

In its answer, Kearney Towing affirmatively alleged, among 

other things, that Loveland and Summers’ claim was barred by 

the applicable statute of limitations. Kearney Towing filed a 

motion for summary judgment on the basis that the matter was 

barred by the 4-year statute of limitations “provided for oral 

contracts and as set forth in Neb. Rev. Stat. § 25-206.”

As part of this motion, Kearney Towing filed a statement 

of undisputed facts. The undisputed facts stated that the case 

revolved around a single-vehicle accident that occurred on 
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May 1, 2015. Loveland and Summers alleged in the complaint 

that Kearney “‘inspected, mounted, installed and balanced the 

used tires that were on the subject 2003 Chevrolet Silverado 

SC1 truck occupied by . . . Loveland and . . . Summers at the 

time of the accident.’” Forming the basis of the complaint was 

an invoice by Kearney Towing, dated June 10, 2014, which 

was issued to Loveland’s and Summers’ employer, Dandee 

Concrete. This invoice stated that Kearney Towing performed 

“SCRAP TIRE 13-17 INCH TIRE” and “MOUNT AND 

BALANCE TIRE.” The pickup truck involved in this incident 

was owned by Dandee Concrete. Loveland and Summers conceded that for the purposes of the motion for summary judgment, the court could assume Kearney Towing mounted the 

tire on a Dandee Construction pickup truck on June 10, 2014; 

that the tire failed on May 1, 2015, injuring Loveland and 

Summers; and that Loveland and Summers brought suit against 

Kearney Towing on April 12, 2019.

Kearney Towing argued at the hearing that the statute of 

limitations on Loveland and Summers’ complaint is 4 years, 

whether it is based on the tort statute or the contract statute, 

and that the statute begins to run on the date of the act or the 

omission which gives rise to the claim. Ultimately, Kearney 

Towing argued that the cause of action was based upon an 

invoice from June 10, 2014; Loveland and Summers did not 

file their action until April 2019; and thus, it was outside the 

4-year statute of limitations that expired in June 2018, so their 

claim was barred.

Loveland and Summers argued at the hearing that a cause of 

action accrues and the statute of limitations begins to run when 

the aggrieved party has a right to institute and maintain a suit. 

They asserted that no case in Nebraska has ever found that the 

statute of limitations starts before the injury occurs or before 

the existence of causation and damages. Thus, they asserted 

their causes of action accrued and the statute of limitations 

began when the injury occurred on the date of the accident. 

They claimed they gained the right to institute a lawsuit on 
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May 1, 2015, and timely filed their action within 4 years of 

that date.

The district court’s original order on Kearney Towing’s 

motion for summary judgment found that Loveland and 

Summers’ negligence claim was governed by a 4-year statute 

of limitations under Neb. Rev. Stat. § 25-207 (Reissue 2016) 

and that the breach of contract claim was governed by Neb. 

Rev. Stat. § 25-206 (Reissue 2016) upon an oral contract. The 

court found that the negligence cause of action accrued on the 

date of the injury, which was May 1, 2015, and that thus, it was 

not barred by the 4-year statute of limitations under § 25-207. 

And the court found that “[t]here is at least a question of fact 

as to whether [Loveland and Summers’] contract claim is 

barred by the statute of limitations under [§] 25-206.”

Kearney Towing filed a motion to reconsider, asserting, as 

relevant to this appeal, that the court erred in concluding that 

the statute of limitations for negligence actions, as set forth 

in § 25-207, begins to run on the date of a plaintiff’s injury. 

Meanwhile, Loveland and Summers expressed their intention 

to dismiss their breach of contract claim with prejudice. In the 

court’s order on Kearney Towing’s motion to reconsider, the 

court acknowledged Loveland and Summers’ stated intent to 

dismiss their breach of contract claim. The court then determined that, upon reconsideration, Loveland and Summers’ 

cause of action for negligence accrued at the time the tire was 

installed, which was June 10, 2014, even though this date of 

the act or omission occurred before any injury to Loveland 

and Summers. The court accordingly found the negligence 

action was barred by the statute of limitations under § 25-207. 

The court reversed its original order and sustained Kearney 

Towing’s motion for summary judgment, dismissed the negligence action, and found all other pending motions moot 

or overruled.

Still pending was a third-party complaint by Kearney 

Towing and Loveland and Summers’ breach of contract action. 

On March 8, 2021, Loveland and Summers filed a motion 
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asking the court to dismiss their breach of contract cause 

of action with prejudice and either (1) reverse its March 2 

order granting Kearney Towing’s motion for summary judgment and entering judgment against Loveland and Summers 

on their negligence claim or (2) amend its March 2 order to 

also dismiss for lack of jurisdiction a third-party complaint by 

Kearney Towing. Alternatively, Loveland and Summers asked 

the court, in the event it overruled their motion to reconsider, 

to dismiss Kearney Towing’s third-party complaint in order to 

“render all claim and controversy resolved and the [c]ourt’s 

[o]rder final.”

After a hearing was held, the court dismissed Loveland and 

Summers’ breach of contract claim with prejudice as requested. 

The court also agreed that Kearney Towing’s third-party claim 

was a derivative claim and dismissed it with prejudice for lack 

of jurisdiction. But, the court stated, it “remains convinced 

that a negligence cause of action accrues as soon as the act 

or omission occurs” and, while that rule results in [Loveland 

and Summers’] having fewer than 4 years after the accident 

to file their action, “a contrary rule would subject [Kearney 

Towing] to suit more than four years after it had any involvement with the tire in question.” Loveland and Summers appeal 

the dismissal of their negligence claim on summary judgment 

as barred by the statute of limitations.

ASSIGNMENTS OF ERROR

Loveland and Summers generally assign that the district 

court erred in sustaining Kearney Towing’s motion to reconsider and, thereafter, granting summary judgment in favor of 

Kearney Towing. More specifically, Loveland and Summers 

assign that the district court erred in (1) ruling all tort claims 

accrue when the wrongful act or omission occurs, rather than 

when the plaintiff has the right to institute and maintain suit, 

disregarding the requirements of Neb. Rev. Stat. § 25-201 

(Reissue 2016); (2) ruling negligence claims governed by 

§ 25-207(3) accrue when the wrongful act or omission occurs, 
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rather than when a plaintiff suffers a direct injury to his or 

her rights resulting in actual damage; (3) ruling Loveland and 

Summers’ negligence claim accrued, under § 25-207(3), on 

the date Kearney Towing’s acts or omissions occurred, June 

10, 2014, rather than the date their rights were directly injured 

and they sustained actual damage, May 1, 2015; and (4) ruling 

Loveland and Summers’ negligence claim was time barred, 

under § 25-207(3), despite admitting they only had the right to 

institute and maintain suit for about 3 years, from May 1, 2015, 

to June 10, 2018.

STANDARD OF REVIEW

[1,2] 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. 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 party 

the benefit of all reasonable inferences deducible from the 

evidence. 2

ANALYSIS

The only issue presented in this appeal is the question of 

law of whether Loveland and Summers’ cause of action for 

ordinary negligence accrued at the time of the accident or, 

instead, when Kearney Towing installed the tire on the pickup 

truck of Loveland and Summers’ employer. Loveland and 

Summers do not claim that a discovery exception or estoppel applies to their action. If Loveland and Summers’ cause 

of action accrued at the time of the accident, the statute of 

limitations did not begin to run until that time and the district 

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

2 Id.
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court erred in granting Kearney Towing’s motion for summary 

judgment that was based on the statute of limitations. If, on the 

other hand, Loveland and Summers’ cause of action accrued 

when Kearney Towing installed the tire, their action is time 

barred and the court did not err in granting the motion.

[3-6] Limitations are created by statute and derive their 

authority therefrom. 3 The essential attribute of a statute of 

limitations is that it accords and limits a reasonable time within 

which a suit may be brought upon causes of action which it 

affects. 4 The statute of limitations is enacted upon the presumption that one having a well-founded claim will not delay 

enforcing it beyond a reasonable time if that person has the 

right to proceed. 5 The mischief which statutes of limitations 

are intended to remedy is the general inconvenience resulting 

from delay in the assertion of a legal right which is practicable 

to assert. 6

Three statutes govern the limitations period in this case. 

First, § 25-201 provides, in relevant part, that “[a] civil action 

shall be commenced only within the time prescribed in this 

chapter, after the cause of action has accrued.” Neb. Rev. Stat. 

§ 25-204 (Reissue 2016) then states that “[c]ivil actions, other 

than for the recovery of real property, can only be brought 

within the following periods, after the cause of action shall 

have accrued.”

[7] A series of statutes thereafter set forth the limitation 

periods for the specified civil actions. Of those, § 25-207 

3 State ex rel. Labedz v. Beermann, 229 Neb. 657, 428 N.W.2d 608 (1988); 

Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821 (1939).

4 Id.

5 Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984). See, 

also, Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 

(2007); Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).

6 See Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001). See, also, 

Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018); Shlien v. Board of 

Regents, supra note 5; Condon v. A. H. Robins Co., supra note 5.
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directly pertains to the present case. It provides, “The following actions can only be brought within four years: . . . (3) an 

action for an injury to the rights of the plaintiff, not arising 

on contract, and not hereinafter enumerated . . . .” We have 

explained that “[s]ection 25-207 provides that a tort action, 

described as ‘an action for an injury to the rights of the 

plaintiff, not arising on contract,’ ‘can only be brought within 

four years.’” 7

[8,9] The controlling statutes of limitations for ordinary 

negligence have not changed in substance since this State’s 

inception. It has long been recognized in Nebraska that a 

cause of action accrues and the statute of limitations begins 

to run when the aggrieved party has the right to institute and 

maintain a suit. 8 We have said that until the plaintiff has a 

right of action, the statute of limitations does not run and the 

plaintiff will have the full statutory period once the right of 

action comes into being: “The universal rule of law is that the 

statute of limitations does not begin to run against a right of 

action until that right exists. The party who has the right of 

action has the full period of the statute in which to enforce 

it.” 9 This is consistent with the standard rule that a claim 

7 Alston v. Hormel Foods Corp., supra note 5, 273 Neb. at 425, 730 N.W.2d 

at 381.

8 Condon v. A. H. Robins Co., supra note 5. See, also, Andersen v. A.M.W., 

Inc., 266 Neb. 238, 665 N.W.2d 1 (2003); Egan v. Stoler, 265 Neb. 1, 

653 N.W.2d 855 (2002); Cavanaugh v. City of Omaha, 254 Neb. 897, 580 

N.W.2d 541 (1998); Association of Commonwealth Claimants v. Moylan, 

246 Neb. 88, 517 N.W.2d 94 (1994); Central States Resources v. First Nat. 

Bank, 243 Neb. 538, 501 N.W.2d 271 (1993); Hoffman v. Reinke Mfg. Co., 

227 Neb. 66, 416 N.W.2d 216 (1987); Lake v. Piper, Jaffray & Hopwood 

Inc., 219 Neb. 731, 365 N.W.2d 838 (1985); Kearney Clinic Bldg. Corp. 

v. Weaver, 211 Neb. 499, 319 N.W.2d 95 (1982); T. S. McShane Co., Inc. 

v. Dominion Constr. Co., 203 Neb. 318, 278 N.W.2d 596 (1979); Barney v. 

City of Lincoln, 144 Neb. 537, 13 N.W.2d 870 (1944).

9 Bohrer v. Davis, 94 Neb. 367, 370, 143 N.W. 209, 210 (1913), overruled 

on other grounds, Criswell v. Criswell, 101 Neb. 349, 163 N.W. 302 

(1917).
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accrues when the plaintiff has a complete and present cause 

of action. 10

[10] It is the combination of all the elements of a claim that 

gives rise to a cause of action. 11 Thus, we have long held that 

a cause of action cannot accrue before the occurrence of all the 

elements that constitute a defendant’s violation of a plaintiff’s 

judicially protected right. 12

[11-13] Tort liability is not based upon representations or 

warranties. 13 Rather, it is based on a duty imposed by the 

law to exercise that degree of care as would be exercised by 

a reasonable person under the circumstances. 14 A person acts 

negligently if the person does not exercise reasonable care 

under all the circumstances. 15 It suffices to charge a person 

with liability for a negligent act if some injury to another ought 

reasonably to have been foreseen as the probable result thereof 

by the ordinarily intelligent and prudent person under the same 

circumstances. 16

[14-16] A plaintiff in ordinary negligence must prove all 

four essential elements of the claim: the defendant’s duty not 

10 See, Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 166 L. Ed. 2d 

973 (2007); 1 Am. Jur. 2d Actions § 63 (2016). See, also, Anthony K. v. 

Nebraska Dept. of Health & Human Servs., 289 Neb. 540, 855 N.W.2d 

788 (2014).

11 See Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685 (1928).

12 See, Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992); 

Condon v. A. H. Robins Co., supra note 5; Westover v. Hoover, 94 Neb. 

596, 143 N.W. 946 (1913). See, also, Ward v. City of Alliance, 227 Neb. 

306, 417 N.W.2d 327 (1988).

13 Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).

14 See, Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017);

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

(2010).

15 Hodson v. Taylor, 290 Neb. 348, 860 N.W.2d 162 (2015).

16 McClelland v. Interstate Transit Lines, 142 Neb. 439, 6 N.W.2d 384 

(1942). See, also, Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 

99 (1984); Gillotte v. Omaha Public Power Dist., 185 Neb. 296, 176 

N.W.2d 24 (1970).
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to injure the plaintiff, a breach of that duty, proximate causation, and damages. 17 A cause of action for negligence depends 

not only upon the defendant’s breach of duty to exercise care 

to avoid injury to the plaintiff, but also depends upon a showing that the injury suffered by the plaintiff was caused by the 

alleged wrongful act or omission of the defendant. 18 In one of 

our earliest cases on this subject, we explained: “‘The cause 

of action in any case embraces not only the injury which the 

complaining party has received, but it includes more. All the 

facts which, taken together, are necessary to fix the responsibility are parts of the cause of action.’” 19 A “cause of action,” 

we said, “has never consisted simply of negligence or duty or 

injury standing alone.” 20

[17] And, under longstanding principles of justiciability, a 

party is not aggrieved and cannot institute and maintain suit if 

any element of that party’s claim depends upon abstract questions or issues that might arise in a hypothetical or fictitious 

situation or setting and may never come to pass. 21 This fails to 

present a present case or controversy for the court. 22

[18-21] More specifically, we have explained that the 

alleged injury to the plaintiff cannot be merely hypothetical; there must be an injury in fact in both a qualitative and 

temporal sense. 23 To be an aggrieved party, the party must be 

able to allege an injury to itself that is distinct and palpable, 

as opposed to merely abstract, and the alleged harm must be 

17 See Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988). 

See, also, Talbot v. Douglas County, 249 Neb. 620, 544 N.W.2d 839 (1996).

18 See Condon v. A. H. Robins Co., supra note 5.

19 Westover v. Hoover, supra note 12, 94 Neb. at 601, 143 N.W. at 948.

20 Id. See, also, e.g., Emel v. Standard Oil Co., supra note 11.

21 See State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993). See, also, 

Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994).

22 See Ryder Truck Rental v. Rollins, supra note 21.

23 See City of Springfield v. City of Papillion, 294 Neb. 604, 883 N.W.2d 647 

(2016).
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actual or imminent, not conjectural or hypothetical. 24 Further, 

the litigant must show that the injury can be fairly traced to the 

challenged action and is likely to be redressed by a favorable 

decision. 25 In summary, we have plainly held, “A [plaintiff] is 

not required to anticipate an injury from the probable negligence of some one else. The statute of limitations does not run 

until the injury has been actually received.” 26

[22] Before the accident, Loveland and Summers were not 

aggrieved parties with a right to institute and maintain a suit 

against Kearney Towing for ordinary negligence. While the 

manner in which Kearney Towing installed the tire could 

arguably have given rise at that time to an action against it 

by Loveland’s and Summers’ employer as the aggrieved party, 

plaintiffs in an ordinary negligence action generally cannot rest 

their claims on the legal rights or interests of third parties. 27 It 

is undisputed that Loveland and Summers had no professional 

or contractual relationship with Kearney Towing.

When Kearney Towing allegedly negligently installed the 

tire, any future accident and resultant harm to Loveland and 

Summers, as the proximate result of the allegedly negligent 

tire installation, would have been purely speculative. Kearney 

Towing argues that at the time of its alleged misconduct in 

installing the tire, it breached its duty to all persons and entities Kearney Towing reasonably should have foreseen might 

be injured as the probable result of its actions. We express no 

opinion regarding the duty, if any, owed by Kearney Towing 

to anyone as a result of mounting the tire. But it is obvious 

that Loveland and Summers could not have brought and maintained suit at the time of the tire installation based merely 

24 See Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 

788 N.W.2d 252 (2010).

25 See id.

26 Morse v. Chicago, B. & Q. R. Co., 81 Neb. 745, 747, 116 N.W. 859, 860 

(1908). Accord, Shavlik v. Walla, 86 Neb. 768, 126 N.W. 376 (1910); 

Chicago, R. I. & P. R. Co. v. Andreesen, 62 Neb. 456, 87 N.W. 167 (1901).

27 See State v. Baltimore, supra note 21.
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upon being within a broad group of persons who might suffer some harm in the future. This would allow the plaintiff to 

anticipate the injury before it was actually received.

Accordingly, Loveland and Summers had no right at the 

time of the tire installation to institute and maintain an ordinary 

negligence action against Kearney Towing. Indeed, Kearney 

Towing does not assert otherwise. Instead, Kearney Towing 

suggests the Legislature has determined as a policy matter that 

the statute of limitations shall begin to run upon the occurrence 

of the misconduct against all parties who then or thereafter 

might be harmed by the misconduct, whether or not they had 

a right to institute and maintain suit when the misconduct 

occurred. That this could lead in some circumstances to the 

statute of limitations running against a right of action before 

that right exists, depriving the party of the full period of the 

statute to enforce it, or of any period at all, is of no consequence. Kearney Towing argues the Legislature has determined 

that the moment of the misconduct is easily identifiable and 

that ordinary tort-feasor liability is thereby reasonably limited 

in time.

We disagree that the statutes controlling the limitations 

period for ordinary negligence reflect any such determinations. We find no merit to Kearney Towing’s argument that 

the Legislature has adopted, for ordinary negligence actions, 

an “occurrence rule” under which the cause of action accrues 

and the statute of limitations begins to run against all possible 

future, hypothetically aggrieved parties upon the occurrence 

of the defendant’s misconduct standing alone. Nor has the 

Legislature enacted a “discovery” rule to govern the accrual of 

ordinary negligence claims.

Specifically, we do not agree with Kearney Towing’s argument that § 25-207 delimits to the sole element of “injury” when 

the “cause of action” for ordinary negligence has “accrued,” 

as stated in §§ 25-201 and 25-204. Leaving aside for the 

moment that this injury is “to the rights of the plaintiff,” and 

not to hypothetical rights that might foreseeably be affected 
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in the future, § 25-207 is, similar to many other statutes after 

§ 25-204, simply setting forth the period of years of limitation 

in bringing the specified cause of action once it has accrued. 

For example, § 25-206 simply sets forth that “[a]n action upon 

a contract, not in writing,” can only be brought within 4 years. 

We cannot conceive how this provision describes which of the 

traditional elements of an action upon a contract, not in writing, must exist before such “cause of action” has “accrued.”

While we have said that Neb. Rev. Stat. § 25-222 (Reissue 

2016) adopts an occurrence rule for professional negligence 

actions, it is not applicable here, and its language is notably 

different from § 25-207. Section 25-222 sets forth the occurrence rule by stating that an action to recover damages based 

on alleged professional negligence shall be commenced within 

2 years “after the alleged act or omission,” and the occurrence 

rule is, in that same statute, “tempered or ameliorated by a provision for discovery.” 28

We disagree with Kearney Towing’s argument that if 

§ 25-222 modifies when a “cause of action” has “accrued,” 

then all the statutes following § 25-204 must likewise be delineating what elements are required for the respective causes of 

action to accrue. As we have said, § 25-207 provides that a tort 

action, described as “an action for an injury to the rights of the 

plaintiff, not arising on contract,” can only be brought within 

4 years. 29 It does not do more.

In any event, we do not agree with Kearney Towing’s suggestion that the term “injury” in § 25-207 would equate to the 

defendant’s general act of misconduct, abstracted from any 

harm the plaintiff may or may not have suffered. We have 

concluded that a cause of action for professional negligence 

accrues upon the dereliction of duty, even when the breach 

may have produced a recovery of only nominal damages. 30

28 Rosnick v. Marks, 218 Neb. 499, 506, 357 N.W.2d 186, 191 (1984).

29 Alston v. Hormel Foods Corp., supra note 5.

30 See Rosnick v. Marks, supra note 28. See, also, Williams v. Elias, 140 Neb. 

656, 1 N.W.2d 121 (1941).
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We have relatedly discussed, principally in the context of 

professional negligence, that “injury, in its legal sense, is misconduct” or “the invasion of any legally protected interest of 

another,” while “damage is the legal term applied to the loss 

resulting from misconduct,” 31 stating that the “tort accrues as 

soon as the act or omission occurs.” 32

But we have not thereby simply equated the element of the 

defendant’s breach of a duty with the plaintiff’s “injury” or 

held that the statute of limitations begins to run against persons 

who are not yet aggrieved and would, therefore, be unable 

to present a justiciable action. The discussed invasion of the 

plaintiff’s legally protected right has never been solely based 

on being a member of the public who could foreseeably be 

harmed in the future. Instead, we have reiterated in this context 

that the statute of limitations begins to run when the aggrieved 

party has the right to institute and maintain suit. 33 We simply 

clarified that such right exists even when the full nature and 

extent of damages may not be known. 34

Finally, in support of its contention that the statute of 

limitations started running upon the installation of the tire, 

31 Rosnick v. Marks, supra note 28, 218 Neb. at 504, 357 N.W.2d at 190 

(internal quotation marks omitted).

32 Guinn v. Murray, 286 Neb. 584, 596, 837 N.W.2d 805, 816 (2013). Accord

Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006); Alston v. Hormel 

Foods Corp., supra note 5; Berntsen v. Coopers & Lybrand, 249 Neb. 

904, 546 N.W.2d 310 (1996); St. Paul Fire & Marine Ins. Co. v. Touche 

Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). See, also, In re Estate 

of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020); Shlien v. Board of 

Regents, supra note 5; Teater v. State, 252 Neb. 20, 559 N.W.2d 758 

(1997).

33 Rosnick v. Marks, supra note 28.

34 Id. See, also, Wallace v. Kato, supra note 10; Weyh v. Gottsch, 303 Neb. 

280, 929 N.W.2d 40 (2019); Irving F. Jensen Co. v. State, 272 Neb. 162, 

719 N.W.2d 716 (2006); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 

275, 481 N.W.2d 422 (1992); Broekemeier Ford v. Clatanoff, 240 Neb. 

265, 481 N.W.2d 416 (1992); L.J. Vontz Constr. Co. v. Department of 

Roads, 232 Neb. 241, 440 N.W.2d 664 (1989); Witherspoon v. Sides 

Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).
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Kearney Towing relies heavily on one paragraph in Grand 

Island School Dist. #2 v. Celotex Corp. 35 In that paragraph, this 

court stated the proposition that statutes of limitations begin to 

run upon accrual of a cause of action and that a cause of action 

accrues when the aggrieved party has the right to institute and 

maintain a suit. It then went on to say that “[i]n a contract 

action[,] this means as soon as breach occurs, and in tort, as 

soon as the act or omission occurs.” 36 This language was dicta, 

as the issue in Celotex Corp. was whether a discovery rule 

could apply to save the plaintiff’s claims. To the extent the 

statement in Celotex Corp. could be interpreted as saying that 

the statute of limitations for claims covered by § 25-207(3) 

will begin to run upon the act or omission of the defendant, 

regardless of whether the plaintiff has yet been aggrieved by 

that misconduct, we find it inconsistent with other precedent 

and the controlling statutes and it is disapproved.

Until the accident, Loveland and Summers were not 

aggrieved parties and their ordinary negligence action had not 

yet accrued. Accordingly, the 4-year statute of limitations did 

not begin to run against Loveland and Summers when the tire 

was installed, and the court erred in granting summary judgment in favor of Kearney Towing on the grounds that it was 

barred by the statute of limitations.

CONCLUSION

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

order of summary judgment and remand the cause for further 

proceedings.

Reversed and remanded for 

further proceedings.

Miller-Lerman, J., not participating.

35 Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 

603 (1979).

36 Id. at 562-63, 279 N.W.2d at 606.