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WILLIAMSON v. BELLEVUE MED. CTR.

Cite as 304 Neb. 312

Jay Williamson, Personal Representative o

Estate of Peggy Williamson, deceased, appell

v. Bellevue Medical Center, LLC, app

___ N.W.2d ___

Filed October 18, 2019. No. S-18-1069.

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. Summary Judgment. The primary purpose of the summary judgment 

procedure is to pierce the allegations in the pleadings and show conclusively that the controlling facts are other than as pled.

4. Summary Judgment: Proof. The party moving for summary judgment 

must make a prima facie case by producing enough evidence to show 

that the movant is entitled to judgment if the evidence were uncontroverted at trial.

5. ____: ____. If the party moving for summary judgment makes a prima 

facie case, the burden shifts to the nonmovant to produce evidence 

showing the existence of a material issue of fact that prevents judgment 

as a matter of law.

6. Summary Judgment. At the summary judgment stage, the trial court 

determines whether the parties are disputing a material issue of fact. It 

does not resolve the factual issues.

7. 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 exercise of reasonable care would have discovered the 

Nebraska Supreme Court Online Library

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

11/22/2019 09:06 AM CST
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condition; (2) the possessor should have realized the condition involved 

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

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

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

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

condition was a proximate cause of damage to the plaintiff.

Appeal from the District Court for Sarpy County: Nathan B

Cox, Judge. Affirmed.

Michelle D. Epstein, of Ausman Law Firm, P.C., L.L.O., for 

appellant.

Kathryn J. Cheatle, of Cassem, Tierney, Adams, Gotch & 

Douglas, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Miller-Lerman,

NATURE OF CASE

Peggy Williamson sustained injuries when she fell on a curb 

between a driveway and a sidewalk outside the entrance to 

Bellevue Medical Center, LLC (BMC), in Bellevue, Nebraska. 

She brought an action for negligence and premises liability in 

the district court for Sarpy County. Following her death, the 

action was revived in the name of her husband, Jay Williamson, 

as personal representative of Peggy’s estate (Williamson). The 

district court granted summary judgment in favor of BMC, noting that BMC presented evidence that there was no defect in 

the curb, that it did not violate any code or ordinance, and that 

Williamson failed to produce evidence that the curb created an 

unreasonable danger. Williamson appeals, arguing it was error 

to grant summary judgment because a material issue of fact 

remained as to whether BMC should have expected that lawful entrants such as Peggy would not discover or realize the 

danger of an unpainted sidewalk curb or would fail to protect 

themselves against such danger. We affirm.
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STATEMENT OF FACTS

Peggy fell on a curb at BMC’s premises on August 5, 2012. 

Peggy brought a personal injury action alleging BMC was 

negligent with regard to the unpainted curb between the driveway and sidewalk approaching the BMC main entrance. The 

complaint alleged, summarized and restated, that BMC was 

negligent because it (1) created a hazardous condition on its 

premises; (2) knew or should have known the unpainted curb 

posed an unreasonable risk of harm to others, such as Peggy; 

and (3) failed to reasonably warn or protect visitors against the 

danger. Peggy alleged that she suffered significant injuries and 

damages as a result of her fall, including a nasal bone fracture, 

a closed head injury, and a right knee meniscus tear.

BMC’s answer generally denied that it was negligent and 

asserted various affirmative defenses not relevant to this appeal. 

BMC later moved for summary judgment. While the proceedings in the trial court were pending, Peggy died on February 

3, 2018. Williamson was appointed personal representative of 

Peggy’s estate, and the action was revived in his name as personal representative of Peggy’s estate.

At a hearing on the motion for summary judgment, the district court admitted evidence submitted by both parties, including surveillance footage of the fall; photographs; depositions of 

Peggy and Williamson; and affidavits and depositions regarding the construction of the curb, BMC’s ongoing initiatives 

to increase safety throughout the BMC campus, and remedial 

measures taken after Peggy’s fall to mark the elevation change 

of the curb.

The evidence generally showed that on Sunday, August 5, 

2012, at approximately 2 p.m., Peggy and Williamson drove to 

BMC to visit a friend. They attempted to enter the BMC main 

entrance and found the doors locked because it was the weekend. A sign rerouted visitors to entrance doors at the emergency department. They began to walk toward the emergency 

department when a person stepped out from the main entrance 

doors and offered to let them in. At this point, Peggy turned, 
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approached the main entrance again, and fell on an unpainted 

curb area between the driveway to BMC and the sidewalk 

approaching the main entrance. The curb featured a tapered or 

flared edge where the elevation gradually changed from a flat 

curb to a raised curb. The curb was the same color as the surrounding concrete on the sidewalk and driveway.

At her deposition, Peggy described the events leading up 

to and following her fall. She watched the surveillance video 

that showed her walking along the sidewalk; stepping down 

the curb into the driveway; turning around to proceed back 

along the same general area toward the main entrance, ahead 

of Williamson; and tripping on the curb. Peggy denied having 

observed any taper or elevation change in the sidewalk prior 

to her fall and believed that the area was flat without a curb. 

Peggy testified that the sole cause of her tripping was the 

change in elevation between the driveway and the curb. She 

stated in her affidavit that she believed that if the curb cutout 

had been painted bright yellow at the time she fell, as was done 

sometime after the incident, she would have “stepped differently” and not tripped over the change in elevation.

Williamson testified in his disposition that he did not observe 

Peggy actually trip and fall and that he did not know exactly 

where she tripped. He helped Peggy up and into BMC, where 

she was treated in the emergency department.

In her deposition, Paulette Davidson, BMC’s chief executive officer, acknowledged that she visited Peggy when she 

was in the emergency department and apologized for the 

main entrance doors being locked, for staff of the emergency 

department not coming out to help her, and for the fall itself. 

Peggy averred in her affidavit that Davidson stated that the 

curb should have been painted or marked. However, Davidson 

testified that she did not remember making this statement 

and believed she could not have known whether the curb was 

painted at the time she spoke with Peggy because she was 

unfamiliar with the curb when they spoke and did not know 

exactly where Peggy had fallen.
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Brian Hovey, BMC’s acting facilities manager, and Brandon 

Quindt, BMC’s director of support services at the time of the 

fall, were also deposed. Both denied knowing of any complaints, safety concerns, or discussions about issues navigating 

the curbs along the driveway between the emergency room 

doors and the main entrance doors prior to Peggy’s fall. They 

testified that because of their job duties, any incidents of tripping or any concerns related to tripping over the curb in question would have been brought to their attentions. They also 

testified they did not recall that the curb was obstructed from 

view, difficult to view, damaged, in a state of disrepair, or anything other than a standard curb.

A letter (McGill Letter) dated August 2, 2012, to Hovey, 

prior to Peggy’s fall, from Timothy McGill, the president of 

McGill Restoration, discussed a bid to enhance markers on 

the curb in question. Specifically, the McGill Letter stated that 

McGill Restoration could “[m]ark the entire curb between the 

two entrances and in the circle lane near the southeast entrance 

yellow to identify the curb and hopefully eliminate trip and 

fall incidents.” McGill Restoration is a business which specializes in concrete restoration and specialty coating systems with 

a primary focus on the repair, strengthening, and protection 

of parking structures, stadiums, bridges, and other infrastructures. Hovey testified that he did not recall why the bid was 

requested from McGill Restoration, but, as noted above, he 

stated he did not recall any incidents in the area, issues with 

the curb, or complaints about the curb’s visibility prior to 

Peggy’s incident.

McGill acknowledged that he was asked to “submit a bid to 

paint the slope between the street, curb, and handicap accessible ramp . . . to make the change in slope more noticeable 

for drivers and pedestrians.” McGill did not recall whether 

the bid was requested as a result of an incident. McGill stated 

that he inspected the area at issue before making his bid. The 

McGill Restoration bid recommended several markings in the 

area, including re-marking existing crosswalks, marking curbs 
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between the entrances, crosshatching the sidewalk, installing 

signs for employees instructing them to avoid walking in the 

driveway, and touching up faded pavement parking throughout 

the facility.

Quindt testified in his deposition that the McGill Letter was 

consistent with work by a committee at BMC which was painting curbs throughout the BMC campus to “call out” elevation 

points or, in other words, to provide additional notification to 

visitors of elevation changes throughout the campus. Quindt 

testified that the committee’s discussion or identification of 

steps to make an aspect of BMC safer did not indicate it was 

a hazard as it existed, but, rather, that it was part of continuing efforts to try and improve the overall safety of the BMC 

campus. He testified that the committee was not connected to 

specific prior incidents or complaints.

With regard to the curb construction, the court received the 

affidavits of Bruce Carpenter and McGill submitted by BMC. 

Carpenter is a senior vice president at an architectural firm, 

a licensed member of Nebraska’s Board of Engineers and 

Architects, and a member of relevant professional organizations. Both Carpenter and McGill stated that the curb at issue 

complied with all applicable building codes and regulations. 

Carpenter denied the existence of “a building code or requirement that the curb at issue be painted or otherwise marked.” He 

stated that the design contract and planning documents were in 

compliance with the applicable building codes when the city of 

Bellevue issued a building permit to BMC in 2008. He further 

stated that all habitable portions of BMC were inspected by 

Bellevue’s city inspector, who issued temporary and permanent 

occupancy certificates stating the structure was in compliance 

with the ordinances of the city of Bellevue regulating building 

construction and use.

The district court evaluated the evidence presented by both 

parties and granted the motion for summary judgment filed by 

BMC. In its written order granting BMC’s motion, the district 

court noted that there was no unreasonable defect in the curb, it 
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did not violate any code or ordinance, and no expert had identified the construction of the curb as a danger.

Williamson appeals.

ASSIGNMENTS OF ERROR

Williamson claims that the district court erred when it 

granted summary judgment in favor of BMC. Specifically, he 

contends there was evidence which could support an inference 

that the unpainted, tapered curb at the BMC main entrance 

posed an unreasonable risk of harm to lawful entrants such as 

Peggy who would predictably fail to protect themselves against 

the danger.

STANDARDS 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. Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 

N.W.2d 590 (2015). 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

Williamson claims that the district court erred when it 

granted summary judgment in favor of BMC and dismissed his 

claims for negligence and premises liability related to Peggy’s 

fall over an unpainted, tapered curb located between the driveway and the BMC main entrance. He argues that the evidence 

and inferences, viewed in his favor, created genuine disputes 

of material facts as to whether the unpainted curb between 

the driveway and the BMC main entrance created a dangerous condition and whether BMC should have expected that 

Peggy would not discover or realize the danger or would fail to 
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protect herself against the danger. As we discuss below, BMC 

carried its burden to show it was entitled to summary judgment, and even if the curb were deemed a dangerous condition, 

Williamson failed to produce evidence showing a genuine issue 

of material fact as to whether BMC should have expected persons such as Peggy would not discover or realize the danger 

from the unpainted curb and protect themselves against the 

danger. Accordingly, we affirm.

[3-6] We have noted that the primary purpose of the summary judgment procedure is to pierce the allegations in the 

pleadings and show conclusively that the controlling facts are 

other than as pled. Hughes v. School Dist. of Aurora, supra. 

Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2018) provides in part 

that a motion for summary judgment shall be granted “if the 

pleadings and the evidence admitted at the hearing show that 

there is no genuine dispute as to any material fact and that the 

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

The party moving for summary judgment must make a prima 

facie case by producing enough evidence to show that the 

movant is entitled to judgment if the evidence were uncontroverted at trial. Hughes v. School Dist. of Aurora, supra. If 

the party moving for summary judgment makes a prima facie 

case, the burden shifts to the nonmovant to produce evidence 

showing the existence of a material issue of fact that prevents 

judgment as a matter of law. Id. At the summary judgment 

stage, the trial court determines whether the parties are disputing a material issue of fact. It does not resolve the factual 

issues. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 

(2018). Where reasonable minds could draw different conclusions from the facts presented, there is a triable issue of material fact. See id.

[7] We have recognized that 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 exercise of reasonable care would 

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

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

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

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

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

the plaintiff. See Herrera v. Fleming Cos., 265 Neb. 118, 655 

N.W.2d 378 (2003). See, also, Warner v. Simmons, 288 Neb. 

472, 849 N.W.2d 475 (2014); NJI2d Civ. 8.26.

Had the matter proceeded to trial, Williamson, as plaintiff, 

would have had the burden of proving each of the five elements identified above. But because the case was disposed of 

by a ruling on BMC’s motion, it was incumbent on BMC to 

make a showing that even giving the inferences in favor of 

Williamson, Williamson’s case would not be successful and 

it was entitled to judgment. See Hughes v. School Dist. of 

Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).

In the district court and on appeal, BMC contends that no 

reasonable finder of fact could infer from the evidence that 

Williamson could prove all five elements of a premises liability claim. Thus, BMC argued particularly that Williamson 

could not show that the unpainted curb posed an unreasonable 

risk of harm, because although it was unpainted and tapered, 

it was located between a driveway and a sidewalk where one 

ordinarily expects to find a curb. BMC asserts that a curb is 

not a condition which subjects it to liability as summarized 

in NJI2d Civ. 8.26. That is, the curb is merely an ordinary 

risk. See Parker v. Lancaster Cty. Sch. Dist. No. 001, 254 

Neb. 754, 579 N.W.2d 526 (1998). To put our analysis in context, we note that we have held that curbs are not inherently 

dangerous. See id. In the alternative, BMC also submitted 

evidence with regard to the third element identified above, 

because even if the unpainted curb did present an unreasonable risk of harm, its evidence showed that BMC should not 

have expected that a lawful visitor such as the plaintiff would 
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fail to discover and protect himself or herself against that risk. 

See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 

82 (2004).

The evidence BMC adduced showed that the curb was not 

obstructed from view, was in good repair, and met applicable 

building codes. Although BMC had previously elicited bids 

from McGill Restoration that included a bid to paint and mark 

curbs, including the curb where Peggy tripped, the uncontroverted evidence showed that the McGill Letter was not a 

response to an incident or specific safety concern, but instead 

was part of an initiative to improve safety across the BMC 

campus. According to the evidence, BMC had received no prior 

complaints and BMC employees denied there was any reason 

to have safety concerns with the curb where Peggy tripped or 

similar curbs at BMC. Although not the determinative factor, 

BMC also directs our attention to the uncontroverted evidence 

that Peggy had successfully walked down the curb in the same 

area 12 seconds before her fall.

BMC relies on our precedent stating that even where a dangerous condition exists, a premises owner will not be liable 

unless the premises owner should have expected that a lawful 

visitor such as the plaintiff either (a) would not discover or 

realize the danger or (b) would fail to protect himself or herself 

against the danger. E.g., Edwards v. Hy-Vee, 294 Neb. 237, 883 

N.W.2d 40 (2016); Aguallo v. City of Scottsbluff, supra; Heins 

v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996). This 

principle follows the language of the Restatement (Second) 

of Torts § 343 (1965) and is consistent with 2 Restatement 

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

§ 51 (2012).

We agree with the district court that BMC carried its initial 

burden showing it was entitled to judgment as a matter of law. 

Even assuming that a curb could pose a risk of danger, there 

was no evidence that BMC was on notice that a visitor such 

as Peggy either (a) would not discover or realize the danger or 

(b) would fail to protect himself or herself against the danger. 
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To the contrary, the curb was, by all accounts, ordinary and 

obvious, despite its tapered edge, and traversing it is the type 

of action a pedestrian walking between a parking lot and sidewalk would expect to encounter and navigate successfully. 

There was no evidence that the tapered edge made it less visible than a more commonplace step-style curb and no evidence 

of prior falls. Given BMC’s showing, the burden shifted to 

Williamson to produce evidence that the curb posed an unreasonable risk of harm and that BMC should have been aware 

that persons similar to Peggy would fail to protect themselves 

against the danger or peril associated with the unpainted curb 

in this location. Williamson failed to do so.

In its order, the district court stated:

There is no indication from the evidence received that 

there was any defect in the curb. There is no evidence 

that the unpainted curb was in violation of any code or 

ordinance. There is, likewise, no evidence of an expert 

identifying this unpainted curb as a danger. Moreover, 

[Peggy] walked over the exact same spot seconds earlier 

without issue, turned around and when walking back over 

the same spot, she then fell. These facts are undisputed 

and Williamson has failed to offer evidence to contradict 

the same.

Although our reasoning differs somewhat from that of the 

district court, we conclude that the district court did not err 

when it granted summary judgment in favor of BMC.

CONCLUSION

There was no evidence from which a reasonable finder of 

fact could infer that Williamson had established all the elements of his premises liability case, and accordingly, we affirm 

the order of the district court which granted summary judgment 

in favor of BMC.

Affirmed