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LARSEN v. 401 MAIN STREET

Cite as 302 Neb. 454

Lee Larsen and Amy Larsen, husband and wi

Plattsmouth Chiropractic Center, Inc., a 

corporation, appellants, v. 401 Main Str

a Nebraska corporation, doing busines

Quart House Pub, and H. & C.,

a Nebraska corporation, appell

___ N.W.2d ___

Filed March 8, 2019. No. S-18-168.

1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews 

de novo whether the trial court applied the correct legal standards for 

admitting an expert’s testimony.

2. ____: ____: ____. An appellate court reviews for abuse of discretion 

how the trial court applied the appropriate standards in deciding whether 

to admit or exclude an expert’s testimony.

3. 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.

4. ____: ____. 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.

5. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 

(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 

862 (2001), framework, the trial court acts as a gatekeeper to ensure the 

evidentiary relevance and reliability of an expert’s opinion.

6. Trial: Expert Witnesses. Under the framework established by Daubert 

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 

125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 

215, 631 N.W.2d 862 (2001), if an expert’s opinion involves scientific or 

Nebraska Supreme Court Online Library

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

03/22/2019 08:06 AM CDT
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specialized knowledge, a trial court must determine whether the reasoning or methodology underlying the testimony is valid (reliable). It must 

also determine whether that reasoning or methodology can be properly 

applied to the facts in issue.

Appeal from the District Court for Cass County: Michael

Smith, Judge. Affirmed

Thomas A. Grennan, and Adam J. Wachal, of Gross & 

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

Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz, 

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

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

Papik, and Freudenberg, 

Papik, J

A fire broke out in the basement of the Quart House Pub, 

a bar in Plattsmouth, Nebraska. The fire spread and damaged 

nearby real and personal property belonging to Lee Larsen and 

Amy Larsen and Plattsmouth Chiropractic Center, Inc. (collectively Plattsmouth Chiropractic). Plattsmouth Chiropractic 

sued the entities that owned the bar and its premises (collectively Quart House), alleging that equipment located in 

the basement of the bar had been negligently maintained. 

The district court did not allow testimony from Plattsmouth 

Chiropractic’s expert on the cause of the fire and sustained 

Quart House’s motion for summary judgment. Plattsmouth 

Chiropractic now appeals those rulings.

We find that the district court did not abuse its discretion in striking the testimony of Plattsmouth Chiropractic’s 

expert as to the cause of the fire. And without that testimony, Plattsmouth Chiropractic could not present evidence 

that would allow a finder of fact to reasonably conclude that 

Quart House’s negligence caused the fire and resulting damage. For this reason, summary judgment was proper. Finding 

no error, we affirm.
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Cite as 302 Neb. 454

BACKGROUND

Pleadings, Motions to Strike, and 

Motion for Summary Judgment.

On January 2, 2014, a fire broke out in the basement of the 

Quart House Pub. The fire spread to Plattsmouth Chiropractic’s 

neighboring office, resulting in property damage. Plattsmouth 

Chiropractic sued Quart House, alleging negligent maintenance of the property. More specifically, it claimed that Quart 

House failed to adequately service and maintain the mechanical equipment in the basement, including but not limited to the 

boiler and water heater. Plattsmouth Chiropractic alleged that 

this failure proximately caused damages to its property. Quart 

House’s answer denied the allegations in the petition pertaining to the origin and cause of the fire.

Plattsmouth Chiropractic designated Duane Wolf as an 

expert witness concerning the origin and cause of the fire. 

Quart House moved to strike and exclude Wolf’s testimony. 

Quart House asserted that Wolf’s testimony did not provide 

an admissible causation opinion, was based solely on unreliable assumptions and/or methodology, and failed to meet the 

requirements of Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 

(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 

N.W.2d 862 (2001). Plattsmouth Chiropractic filed its own 

motion to strike and exclude the opinion testimony of Quart 

House’s expert.

Quart House also moved for summary judgment. The parties subsequently addressed the motions to exclude expert 

testimony and the motion for summary judgment at the same 

hearing.

Hearing on Motions to Strike 

and for Summary Judgment.

At the hearing, the district court received evidence that on 

the date of the fire, the bartender on the main floor observed 

smoke emanating from some cabinets. The bartender called 
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Cite as 302 Neb. 454

the 911 emergency dispatch service and left the building. 

Within minutes, volunteer fire department personnel arrived 

and observed flames in the cabinets, apparently coming from 

the basement. Despite the efforts of the volunteer firefighters and firefighters from other area fire departments, the fire 

eventually overtook the building. Due to the unsafe conditions that resulted from extensive damage, fire investigators were not allowed to inspect the scene and the building 

was demolished.

Both parties agree that the fire originated in the basement 

of the bar. The basement housed a walk-in cooler, several air 

compressors used for coolers, an old natural gas boiler, and a 

water heater. The parties presented evidence concerning the 

condition, inspection, and maintenance of the boiler, which 

was at least 50 years old. From approximately 1980 to 2010, 

the boiler was inspected annually by service professionals, who 

performed maintenance as needed. In the 3 to 4 years prior to 

the fire, however, no maintenance or inspection of the boiler 

had occurred. Neither the cooler nor the water heater ever 

received regular inspections.

Plattsmouth Chiropractic presented the opinions and testimony of Wolf concerning the origin and cause of the fire. 

Wolf, a mechanical engineer with a background in fire and 

explosion investigation, based his opinion upon a reasonable 

degree of “engineering certainty” after reviewing 27 documents related to the fire at the bar. Wolf admitted in his deposition that he was unable to determine a “root cause” of the fire, 

but testified that it was his belief that the fire originated “in 

the vicinity of the boiler.” Wolf believed the fire most likely 

originated in the boiler, but he could not eliminate the possibility that the fire started in the nearby water heater. Additionally, 

Wolf acknowledged a possibility that the fire originated in one 

of several compressors. When Wolf was asked if he was able to 

rule out electrical wiring as the cause of the fire, he responded 

that the building’s electrical service was “outside my area 

of expertise.”
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Wolf believed that the fire originated from a failure of one 

of the items of mechanical equipment in the area of the boiler. 

Wolf opined that, because the fire most likely originated due to 

the failure of mechanical equipment in the basement, the fire 

most likely would not have occurred if the mechanical equipment “had been regularly serviced and replaced as needed.”

Wolf was critical of Quart House’s maintenance of the 

boiler. He stated that boilers require annual maintenance by 

qualified service technicians. Wolf testified that because the 

boiler lacked certain modern safety features, more monitoring and maintenance were required, but he did not specify 

what those measures entailed. In opposition to the opinions 

expressed by Wolf, Quart House presented evidence that yearly 

inspections were not warranted for such a boiler unless problems developed and that the bar’s owner had not observed any 

problems since leasing the property in 2010.

While Wolf testified to his beliefs that the fire originated 

in the vicinity of the boiler and that the fire most likely originated in the boiler itself, he admitted that he could not with 

reasonable certainty identify a specific way in which the boiler 

caused the fire. He did testify that the boiler lacked a “low 

water cutoff” and that the absence of this feature posed the risk 

of a “dry fire.” Even so, he could not offer an opinion that the 

fire was caused by a dry fire. He testified that if he could have 

inspected the boiler, he would have looked for evidence of a 

dry fire. He also conceded that a dry fire could result from a 

progressive loss of water or a sudden one, the latter of which 

could not have been prevented by an inspection the month 

before the fire.

As for the water heater, Wolf testified that he did not know 

the maintenance requirements for that piece of equipment. 

When asked to assume the fire started in the water heater, 

Wolf could not identify the most likely failure mode of the 

water heater.

Wolf conceded that his report was not consistent with the 

National Fire Protection Association’s publication No. 921 
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(NFPA 921), which requires ruling out other possible causes 

of a fire before adopting a particular hypothesis, and he testified that a postfire forensic inspection was typically required 

to rule out possible causes of a fire. Wolf testified that his 

analysis did not determine the root cause of the fire, because 

the information available limited his investigation.

Quart House retained Kenneth Ward, a fire investigator, 

as an expert in the area of fire origin and cause. In Ward’s 

opinion, because no fire investigators or experts were allowed 

inside the building before it was demolished, no adequate 

scientific or professional basis existed for any fire investigator or expert to render an opinion as to the cause or origin of 

the fire.

According to Ward, NFPA 921 was the generally accepted 

guideline for proper scientific methodology in “origin and 

cause” fire investigations. He stated that Wolf’s methodology 

did not comply with NFPA 921 methodology. Ward explained 

that NFPA 921 does not allow an investigator to determine the 

cause of a fire without first pinpointing the origin of the fire, 

and in this instance, Ward named 26 possibilities that could 

not be eliminated. Furthermore, Ward testified that Wolf’s 

opinion that the fire originated in a particular part of the basement was not based upon acceptable scientific methodology, 

because it was based on observations rather than interpretation of burn patterns and area mapping procedures. Ward was 

not aware of guidelines or standards for fire investigation that 

would support Wolf’s methodology.

District Court’s Rulings.

The district court overruled the motion to strike Ward’s 

testimony and sustained the motion to strike Wolf’s testimony. 

The district court reasoned that although Wolf was well qualified as an expert in mechanical engineering, his testimony 

regarding causation did not meet the Daubert/Schafersman

threshold, because the methodology could not be properly 

applied to the facts at issue. See Daubert v. Merrell Dow 
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Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 

L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 

Neb. 215, 631 N.W.2d 862 (2001). The district court pointed 

to the fact that Wolf could not offer an opinion as to the cause 

of the fire. The district court emphasized that, at best, Wolf 

could testify only that the cause of the fire was consistent 

with boiler failure, but he could not testify that a failure of 

the boiler caused the fire. The district court also noted that 

Wolf could not determine whether the boiler ignited due to a 

progressive loss of water or a sudden one and that, by Wolf’s 

own admission, a recent inspection would not have prevented 

a sudden loss of water in the boiler. Given these concessions 

by Wolf, the district court stated that it was mere speculation 

that the fire could have been prevented by regular inspections 

and maintenance of the mechanical equipment.

The district court also sustained Quart House’s motion for 

summary judgment. It found that Plattsmouth Chiropractic 

could not show that, but for the alleged failure to maintain and 

inspect the boiler, the fire and resulting damages would not 

have occurred. According to the court, there was a gap between 

the alleged acts of negligence and the cause of the fire. The 

district court reiterated that the evidence did not support a 

reasonable inference as to the cause of the fire, only impermissible speculation.

Plattsmouth Chiropractic now challenges these rulings on 

appeal.

ASSIGNMENTS OF ERROR

Plattsmouth Chiropractic assigns, condensed and restated, 

that the district court erred in (1) sustaining the motion to 

strike the testimony of its expert and (2) granting summary 

judgment.

STANDARD OF REVIEW

[1,2] We review de novo whether the trial court applied the 

correct legal standards for admitting an expert’s testimony. 

Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 
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776 (2015). We review for abuse of discretion how the trial 

court applied the appropriate standards in deciding whether to 

admit or exclude an expert’s testimony. Id.

[3,4] 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. Sparks v. M&D Trucking, 301 Neb. 977, 921 

N.W.2d 110 (2018). 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

Exclusion of Wolf’s Testimony.

We first address the contention that the district court erred 

in excluding the testimony of Plattsmouth Chiropractic’s 

expert, Wolf.

[5,6] The Nebraska Evidence Rules provide: “If scientific, 

technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, 

a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of 

an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat. 

§ 27-702 (Reissue 2016). Under the Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. 

Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 

215, 631 N.W.2d 862 (2001), framework, the trial court acts as 

a gatekeeper to ensure the evidentiary relevance and reliability 

of an expert’s opinion. Hemsley v. Langdon, 299 Neb. 464, 909 

N.W.2d 59 (2018). Therefore, if an expert’s opinion involves 

scientific or specialized knowledge, a trial court must determine whether the reasoning or methodology underlying the 

testimony is valid (reliable). Freeman v. Hoffman-La Roche, 
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Inc., 300 Neb. 47, 911 N.W.2d 591 (2018). It must also determine whether that reasoning or methodology can be properly 

applied to the facts in issue. Id.

In this case, the district court did not permit Wolf to testify 

to his conclusion that the fire and resulting damages were 

caused by negligent maintenance of mechanical equipment on 

the part of Quart House. It found that Wolf could reach that 

conclusion only by engaging in speculation. We have recognized that an expert’s opinion cannot be based on “‘unsupported speculation.’” See King v. Burlington Northern Sante Fe 

Ry. Co., 277 Neb. 203, 227, 762 N.W.2d 24, 43 (2009). Here, 

we find that the district court did not abuse its discretion in 

excluding Wolf’s causation testimony on this basis.

While Wolf expressed opinions as to the general vicinity 

where the fire originated and that the fire was caused by a 

mechanical issue, he did not have an opinion about what that 

mechanical issue was. In fact, he could not even form an opinion as to the specific piece of equipment in which a mechanical failure occurred. Wolf did testify that he believed the fire 

most likely originated in the boiler, but he could not say that a 

particular condition in the boiler caused the fire. He mentioned 

one scenario involving the boiler—a dry fire caused by a low 

water level—as a possible cause, but he could not testify that 

scenario was actually the cause of the fire, because he did not 

have the opportunity to inspect the boiler. And, in any event, 

he admitted that even if the fire was caused by a dry fire in the 

boiler, that condition could have developed suddenly; in which 

case, by Wolf’s own admission, periodic inspections would not 

have prevented the fire.

If Wolf had opined that the fire was caused by a particular mechanical failure, we understand how he might have 

been able to conclude that proper inspections and maintenance 

would have prevented that failure and thus prevented the fire. 

But, as we have explained, Wolf did not have an opinion as to 

the specific cause of the fire. And, as the “dry fire” scenario 

raised by Wolf illustrates, the fire might have been caused by 
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some condition that would have arisen even if Quart House had 

performed all the inspections and maintenance Wolf claims it 

should have. In the absence of an explanation from Wolf as 

to how he could conclude that proper inspections and maintenance would have prevented the fire without forming an opinion as to its specific cause, we do not believe the district court 

abused its discretion by finding that Wolf’s opinion was based 

on unsupported speculation.

Summary Judgment.

Plattsmouth Chiropractic also argues that the district court 

erred in granting summary judgment in favor of Quart House. 

Plattsmouth Chiropractic contends that there is a genuine 

issue of material fact as to the cause of the fire and maintains 

that this is the case even if Wolf’s causation testimony is 

excluded.

As we stated above, and as we have often said, 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. Sparks v. M&D 

Trucking, 301 Neb. 977, 921 N.W.2d 110 (2018). Here, as in 

any negligence action, Plattsmouth Chiropractic was required 

to adduce evidence showing that there was a negligent act or 

omission by Quart House and that such act or omission was the 

proximate cause of its injury or was a cause which proximately 

contributed to it. See Stones v. Sears, Roebuck & Co., 251 

Neb. 560, 558 N.W.2d 540 (1997). But without Wolf’s expert 

opinion as to causation, only Ward’s opinion remained, and he 

unequivocally stated that the condition of the site precluded an 

adequate scientific basis for fire experts to render an opinion 

as to the cause or origin of the fire. Thus, no admissible expert 

opinion established the key element of causation.

Plattsmouth Chiropractic would have us conclude that summary judgment was improper even without an expert opinion 
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that negligence on the part of Quart House proximately caused 

the fire. Plattsmouth Chiropractic points to evidence that on 

the night of the fire, smoke first emerged from the area above 

the boiler and water heater. It also points to testimony from the 

bartender that it was cold inside the bar on the night of the fire 

and suggests the cold temperature is consistent with a failure 

of the boiler. Plattsmouth Chiropractic argues this is sufficient 

circumstantial evidence to create a genuine issue of fact as to 

the cause of the fire.

To avoid summary judgment, however, Plattsmouth 

Chiropractic had to adduce evidence from which a finder of 

fact could conclude, without engaging in guess, speculation, 

conjecture, or choice of possibilities, that a negligent failure 

to adequately maintain equipment caused the fire and resulting 

damage. See Swoboda v. Mercer Mgmt. Co., 251 Neb. 347, 

557 N.W.2d 629 (1997). The evidence summarized above suggests, at most, that the fire originated near or in the boiler. It 

does not constitute a basis for the finder of fact to conclude 

that negligent maintenance on the part of Quart House caused 

the fire. Since the record did not contain evidence that would 

allow a finder of fact to find that negligent maintenance caused 

the fire, without engaging in guess, speculation, conjecture, or 

a choice of possibilities, we find that the district court did not 

err in granting summary judgment.

CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court that excluded Wolf as an expert witness and granted summary judgment in favor of Quart House.

Affirmed