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court will affirm the lower court’s decision regarding those 

errors.19 Because the appellant has the duty to present a record 

supporting the assigned errors, he or she necessarily bears the 

burden of presenting a record demonstrating that the appellate 

court has jurisdiction.

If the party appealing from a judgment after the denial of 

a motion for new trial is relying upon the savings clause of 

§ 25-1144.01, the party must ensure that the “announcement” 

of decision appears in the record. If the trial court’s record 

does not include it, the party seeking to appeal must make sure 

that it properly becomes part of the record. And the party must 

then make sure that it is included in the record presented to the 

appellate court.

CONCLUSION

The savings clause of § 25-1144.01 is a useful tool to avoid 

losing the right to appeal. But it has no effect when a motion 

is filed before announcement or where the record does not 

show an announcement before entry of judgment. I remind the 

practicing bar that failing to ensure that such an announcement is included in the record might result in an irrevocable 

loss of an appeal, which in turn is likely to lead to unpleasant consequences.

19 Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013).

John Hughes, appellant, v. School District

of Aurora, Nebraska, a Nebraska

political subdivision, appellee.

___ N.W.2d ___

Filed February 6, 2015. No. S-13-1144.

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 
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granted, and gives that party the benefit of all reasonable inferences deducible 

from the evidence.

3. 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.

4. ____: ____. 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.

5. Proximate Cause: Words and Phrases. A proximate cause is one that produces 

a result in a natural and continuous sequence and without which the result would 

not have occurred.

6. Negligence: Proximate Cause: Proof. To establish proximate cause, the plaintiff 

must meet three basic requirements: (1) Without the negligent action, the injury 

would not have occurred, commonly known as the “but for” rule; (2) the injury 

was a natural and probable result of the negligence; and (3) there was no efficient 

intervening cause.

7. Trial: Negligence: Proximate Cause. Causation is ordinarily a matter for the 

trier of fact.

8. Summary Judgment. Key factual propositions may be present for summary 

judgment purposes by reasonable inference.

9. ____. When reasonable minds can differ as to whether an inference can be drawn, 

summary judgment should not be granted.

10. ____. A choice between two equally likely possibilities does not create a material 

issue of fact.

11. Trial: Negligence: Proof. A plaintiff is not bound to exclude the possibility that 

the event might have happened in some other way.

Appeal from the District Court for Hamilton County: 

Michael J. Owens, Judge. Reversed and remanded for further 

proceedings.

Tina M. Marroquin, of Pollack & Ball, L.L.C., for appellant.

Andrea D. Snowden and Robert B. Seybert, of Baylor, 

Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ.

Connolly, J.

SUMMARY

John Hughes tripped and fell while exiting a building owned 

by the School District of Aurora, Nebraska (District). Hughes 

sued the District, alleging that the District failed to maintain 

sufficient lighting, failed to construct a handrail along an exit 
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ramp, allowed a section of concrete to “heave,” and allowed a 

concrete bench to obstruct the path of egress. The court sustained the District’s motion for summary judgment because 

Hughes did not “know” what caused him to fall. Because 

reasonable minds could draw contrary conclusions from the 

evidence, we reverse.

BACKGROUND

Factual Background

The District operates a middle school in Aurora. The north 

side of the building has an “entrance-exit” consisting of a pair 

of exterior doors, a “vestibule area,” and a pair of interior 

doors. The exterior doors open to a landing that transitions into 

a concrete ramp running north and south. “Sloping sides (ramp 

like) flank the ramp on the east and west.” The ramp terminates 

at a driveway, running east and west, that separates the middle 

and high schools. A concrete bench is anchored outside the 

doors. The bench sits to the west of the ramp and about 4 feet 

from the ramp’s edge.

On October 15, 2009, Hughes went to the middle school in 

Aurora to watch his daughter compete in a varsity volleyball 

match. The varsity match started about 7 p.m., but Hughes 

arrived at 5 or 5:30 p.m. to watch the junior varsity match. 

Hughes’ wife drove their vehicle to the game and parked it 

along the driveway between the middle and high schools, at a 

point west of the terminus of the ramp. Hughes testified that 

“[i]t was daylight still” when he arrived. Hughes entered the 

middle school through the north doors.

Hughes estimated that the varsity match ended “a little 

bit after nine o’clock.” After the match ended, Hughes lingered to congratulate the players and talk to other spectators. 

Hughes testified that it was 9:15 or 9:30 p.m. when he exited 

the building.

Walking alone, Hughes exited the middle school through 

the north doors. His wife and father-in-law, who had accompanied him to the match, had already made it back to the 

vehicle. Hughes testified that “[i]t was dark, very dark” when 

he left the building, too dark for him to see the bench. Hughes 

testified that there were some lights inside the vestibule and 
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just outside the doors. An ambulance parked along the driveway also emitted some light.

Hughes testified that after he passed through the north doors, 

his progress was stopped by a crowd of 8 to 15 people standing on the ramp and preventing him from continuing down 

the ramp to the driveway. The bench was southwest of where 

Hughes testified the crowd was located. Hughes explained that 

to avoid the crowd, he “turned around,” “walked back,” and 

“made the right-hand turn.” That is, Hughes testified that he 

walked to the south and west. Hughes stated that as he did so, 

“I was looking ahead of me to make sure I wasn’t going to run 

into anything . . . .”

Hughes testified that after he turned, “[a]ll of a sudden I 

went flying through the air, and I remember putting my hand 

down, because I could see the bench and put one hand down. 

I pushed myself off from the bench. That’s when I came down 

and hit the concrete.” Hughes’ elbow bore the brunt of the 

impact, and he underwent surgery to repair a broken bone in 

his arm.

Asked what “caused [him] to fall,” Hughes initially testified 

that “[t]here was a piece of concrete by the bench that’s sticking up . . . that tripped me.” But Hughes later testified that he 

was not sure what caused him to fall:

I was walking along, and all of a sudden I was flying in 

the air. If I knew exactly how I fell or what caused the 

fall, whether it was the slope or the incline or the edge 

that was protruding, I’d tell you, but I don’t really know. 

I was walking. Next thing I knew I was flying through 

the air.

Hughes testified that he did not believe that he tripped over 

the bench. The bench is about 18 inches tall, and Hughes did 

not have any “serious injuries” on his legs consistent with 

walking into the bench.

Hughes returned about a week after his fall to view the 

layout of the north exit and take photographs. Hughes testified that one of the concrete slabs near the bench had heaved, 

creating a raised “lip” 11⁄2 to 13⁄4 inches high. The heaved section of concrete was to the immediate east of the north edge 

of the bench, so that a person approaching the bench in a 
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southwesterly direction would encounter the lip immediately 

before the bench.

Jim Harper, a licensed engineer, testified about the conditions at the north exit. Harper stated that he formed his 

opinions from site inspections, Hughes’ account of the incident, photographs taken by Hughes, and a review of relevant 

building codes. Harper testified that he visited the site twice. 

On his first visit, Harper arrived “about dusk” and “just kind 

of watched the site . . . as it got dark.” On his second visit, 

Hughes accompanied Harper and Hughes explained the various 

issues that he believed contributed to his fall.

Harper testified that school buildings in Nebraska must 

comply with the National Fire Protection Association’s “Life 

Safety Code.” Based on conversations with Hughes, the photographs taken by Hughes, and his independent observations, 

Harper testified that the lighting as it existed on October 15, 

2009, violated the code. Harper also testified that the absence 

of handrails along the ramp violated the code. Based on the 

“rise of the ramp,” the code required handrails that extended 

the entire length of the ramp. Harper testified that the “flare” 

or “side slope” on either side of the ramp was itself noncompliant in the absence of handrails. Harper opined that the 

presence of the bench itself did not violate the code but that, 

because the District did not establish a clear path of egress, 

the bench could become an obstruction. Generally, Harper 

testified that there was not a “defined means of egress” from 

the north exit: “You left the exit, and you were somewhat on 

your own.”

As to causation, Harper opined the lighting condition “contributed to” Hughes’ fall because Hughes “couldn’t tell how 

to proceed out those doors.” Harper also testified that codecompliant handrails “would have prevented” Hughes from 

leaving the ramp, “[s]hort of him climbing over [the handrail] 

or going under it or going all the way to the street and then 

coming up around it . . . .”

Procedural Background

In his operative complaint, Hughes alleged that he “was 

caused to trip and fall on the public sidewalk of the [District].” 
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Hughes identified four conditions that contributed to his fall: 

(1) The District’s failure to “install and maintain lighting at the 

exit of the gymnasium building”; (2) “the slope of the sidewalk . . . unprotected by a proper guardrail”; (3) an “adjoining 

sidewalk section [that] had heaved leaving dangerous vertical 

differences between adjoining sections of the sidewalk”; and 

(4) the obstruction created by the concrete bench.

The District moved for summary judgment, and the court 

sustained its motion. The court stated that the “one primary 

issue” was whether the allegedly negligent conditions on the 

District’s property proximately caused Hughes’ injuries. More 

specifically, the court framed the issue as whether our opinion 

in Swoboda v. Mercer Mgmt. Co.1 was “controlling in the case 

at bar.” The court concluded that “the holding of Swoboda is 

controlling,” emphasizing that Hughes testified that he did not 

“know” what caused him to fall.

ASSIGNMENT OF ERROR

Hughes assigns that the district court erred by sustaining the 

District’s motion for summary judgment.

STANDARD OF REVIEW

[1,2] We 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 the facts and that the moving party is entitled to judgment as a matter of law.2

 In reviewing a summary judgment, we view the evidence in the light 

most favorable to the party against whom the judgment was 

granted, and give that party the benefit of all reasonable inferences deducible from the evidence.3

ANALYSIS

Hughes argues that the record supports an inference that 

the District’s negligence proximately caused his injuries. His 

1 Swoboda v. Mercer Mgmt. Co., 251 Neb. 347, 557 N.W.2d 629 (1997).

2 deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).

3 Id.
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theory on appeal is that a fact finder could infer that he tripped 

over the concrete lip, which he could not see because of poor 

lighting. Hughes contends that he “has a complete recollection of the events,” including the manner of his exit from the 

building and the mechanics of his fall.4 The District argues that 

Hughes was “unable to recall how he went from walking to 

flying in the air” and has offered “four possibilities” of what 

caused his injury.5 According to the District, “Nebraska law 

does not permit a fact finder to be presented with more than 

one possibility of the cause of a plaintiff’s fall . . . .”6

[3,4] 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.7

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.8 If the moving party 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.9 Summary judgment proceedings do not resolve 

factual issues. Instead, they determine whether there are factual 

issues to be decided.10

[5-7] Here, the court entered summary judgment for the 

District because Hughes failed to produce evidence that his 

injury was proximately caused by the District’s negligence. 

A proximate cause is one that produces a result in a natural 

and continuous sequence and without which the result would 

not have occurred.11 To establish proximate cause, the plaintiff 

must meet three basic requirements: (1) Without the negligent 

4 Brief for appellant at 9.

5 Brief for appellee at 10, 13-14.

6 Id. at 10.

7 Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004).

8 Id.

9 Id.

10 See Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).

11 Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).
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action, the injury would not have occurred, commonly known 

as the “but for” rule; (2) the injury was a natural and probable 

result of the negligence; and (3) there was no efficient intervening cause.12 Causation is ordinarily a matter for the trier 

of fact.13

In reaching its conclusion, the district court reasoned that 

our decision in Swoboda v. Mercer Mgmt. Co.14 was “controlling.” In Swoboda, the plaintiff fell as she reached the top 

of a flight of stairs in a building owned and managed by the 

defendants. The landing at the top of the stairs was made of 

brick before giving way to an elevated wood floor. A brick 

ramp extended from the wood floor to the landing at an angle 

perpendicular to the stairway. The plaintiff, who was 95 years 

old, ascended the stairs using the left handrail while her granddaughter held onto her right arm. As the plaintiff approached 

the last step, her granddaughter left her side to open a door. 

When the granddaughter looked back, she saw the plaintiff sitting on the wood floor with her legs extended down the ramp. 

The plaintiff alleged that she tripped over the side of the ramp, 

and the affidavit of an engineer stated that the ramp violated 

the building code. The trial court sustained the defendants’ 

motion for summary judgment.

We affirmed, stating that an issue of fact cannot be created by “guess, speculation, conjecture, or choice of 

possibilities.”15 The “practical difficulty” with the plaintiff’s 

claim was that no one saw her fall and the plaintiff herself “d[id] not remember the circumstances surrounding the 

fall.”16 The evidence revealed two possible causes of the 

plaintiff’s injury but did not yield an inference that one was 

more likely than the other:

[A] jury presented with the question of why [the plaintiff] fell would be faced with at least two possibilities: 

12 Id.

13 Id.

14 Swoboda v. Mercer Mgmt. Co., supra note 1.

15 Id. at 352, 557 N.W.2d at 632. 

16 Id. at 349, 351, 557 N.W.2d at 631, 632. 
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(1) [The plaintiff] tripped over the top step or (2) [the 

plaintiff] tripped over the ramp. . . . [T]he evidence in 

this case leaves the jury with the prospect of guesswork 

as to which of these possibilities actually caused [the 

plaintiff’s] injuries.17

Because the evidence did not “lead a reasonable mind to one 

conclusion rather than another,”18 the defendants were entitled 

to summary judgment. The plaintiff could not remember if she 

was on the landing or ascending the stairs when she began 

to fall, and the position of her body when her granddaughter 

turned around did not support an inference that her fall began 

at one point rather than the other.

Below and on appeal, Hughes has analogized the facts to 

those in Kotlarz v. Olson Bros., Inc.19 In Kotlarz, the plaintiff 

attended a physical therapy session at a clinic. The property 

was under construction, but no work was being done on the 

day of the plaintiff’s injury because of strong winds. After her 

session ended, the plaintiff walked to her car and placed equipment inside the trunk. As she closed the trunk door, the plaintiff felt a gust of wind followed by a sharp blow to her neck. 

The plaintiff looked up and saw a foam sheet flying through 

the air in front of her. She also noticed several other foam 

sheets in the parking area. The plaintiff brought a negligence 

action against several construction firms. Relying on Swoboda, 

the trial court sustained the defendants’ motions for summary 

judgment because “‘a fact finder would have to guess at the 

possible cause of the accident.’ . . .”20

The Nebraska Court of Appeals reversed, concluding that 

the evidence supported a reasonable inference that one of 

the defendants’ foam sheets caused the plaintiff’s injury. 

Admittedly, the plaintiff “did not know where the object 

came from, she did not see what hit her, and there were no 

17 Id. at 352-53, 557 N.W.2d at 633.

18 Id. at 352, 557 N.W.2d at 632.

19 Kotlarz v. Olson Bros., Inc., 16 Neb. App. 1, 740 N.W.2d 807 (2007).

20 Id. at 5, 740 N.W.2d at 812.
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eyewitnesses.”21 The trial court based its judgment “largely on 

the fact that no one saw an object hit [the plaintiff], and [the 

plaintiff] herself does not ‘know’ what hit her.”22 But the Court 

of Appeals stated that the plaintiff did not have to “‘know’” 

what hit her, and could not have known without “rearview 

vision.”23 As the court noted, “if complete personal knowledge 

or an eyewitness were the legal standard, circumstantial evidence would be of little or no value.”24 The court concluded 

that the circumstantial evidence—particularly evidence of the 

location of the defendants’ foam sheets, wind direction, and 

foam sheets in the parking area—provided a basis to infer that 

a foam sheet from the defendants’ pile struck the plaintiff. 

Whereas the plaintiff in Swoboda could not remember whether 

she was on the landing or still traversing the steps when she 

fell, the plaintiff in Kotlarz was able to “recall[] all of the circumstances of the incident.”25

Recently, the Eighth Circuit distinguished Swoboda, emphasizing that Swoboda involved evidence of two equally likely 

causes of the plaintiff’s injury. In Pohl v. County of Furnas,

26

the plaintiff was driving to a farm on a snowy evening, when 

he turned onto a gravel road. After some distance, the road 

made a 90-degree turn, and the county had posted a warning 

sign about 110 feet from the curve. The plaintiff’s vehicle 

left the road at the curve and collided with an embankment. 

The plaintiff brought a negligence action against the county, 

alleging that the county’s placement of and failure to maintain 

the sign proximately caused his injuries. Because of trauma 

from the crash, the plaintiff “had no memory of that night 

from shortly after turning onto [the road] until he regained 

consciousness after the accident.”27 As a result, “he did not 

21 Id. at 3, 740 N.W.2d at 810.

22 Id. at 8, 740 N.W.2d at 813.

23 Id. at 9, 740 N.W.2d at 814.

24 Id.

25 Id.

26 Pohl v. County of Furnas, 682 F.3d 745 (8th Cir. 2012).

27 Id. at 749.
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remember seeing the sign or braking prior to leaving the 

roadway.”28 A traffic engineer testified that the placement 

and lack of “retroreflectivity” of the sign violated the U.S. 

Department of Transportation’s Manual on Uniform Traffic 

Control Devices.29 Based on data from the vehicle’s “black 

box,” an accident reconstructionist testified that the plaintiff was 

speeding as he approached the curve and started to brake when 

the vehicle was “closely aligned with the sign.”30 The court allocated 60 percent of the negligence to the county after a bench 

trial and awarded the plaintiff damages.

Citing Swoboda, the county argued on appeal that the trial 

court erred in determining that its negligence proximately 

caused the crash:

The county contends that there were several equally 

likely causes of the accident, including that [the plaintiff] 

was not maintaining a proper lookout and thus failed to 

see the sign, that he saw it and failed to heed it, or that 

the falling snow prevented him from seeing it. It urges 

that because [the plaintiff] cannot remember whether or 

not he saw the sign before leaving the road, the district 

court’s proximate cause determination was based on speculation rather than evidence.31

The Eighth Circuit concluded that the facts supported an inference that the illegibility and placement of the sign caused the 

plaintiff’s injury. Although the plaintiff “could not remember 

whether or not he saw the sign prior to the accident,” there 

was circumstantial evidence that he braked near the sign.32

This evidence supported a reasonable inference that the plaintiff braked because he saw the sign and, therefore, might have 

braked sooner if the sign was farther up the road or visible from 

a greater distance. Furthermore, the record did not support the 

county’s alternative theories of causation. For example, there 

28 Id.

29 Id. at 750.

30 Id.

31 Id. at 752-53.

32 Id. at 753.
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was no evidence that the plaintiff was not paying attention to 

the road or that the snow impeded visibility.

[8,9] We conclude that whether the allegedly negligent conditions outside the middle school proximately caused Hughes’ 

injuries is a disputed material issue of fact. Hughes produced 

evidence that, below the ramp unguarded by a handrail, there 

was an elevated concrete lip adjacent to a concrete bench and 

that he could not see these conditions because of weak lighting. Importantly, Hughes testified about the path he took and 

where he was when he fell. Viewed in a light most favorable 

to Hughes, his testimony supports an inference that his path 

of egress intersected the concrete lip. If a person approaching 

from the angle Hughes described tripped on the lip, he would 

have fallen onto the concrete bench. Key factual propositions 

may be present for summary judgment purposes by reasonable inference.33 And when reasonable minds can differ as to 

whether an inference can be drawn, summary judgment should 

not be granted.34 Here, the evidence permits a reasonable inference that Hughes tripped on a concrete lip that he could not see 

because of a lack of lighting.

[10] In contrast, the plaintiff in Swoboda was not only 

unable to produce direct evidence of the cause of her injury, 

she was unable to testify about the circumstances. She could 

not recall, for example, whether she was on the stairs or on 

the landing when she began to fall. Nor could an inference 

be drawn based on where her granddaughter found her sitting. A choice between two equally likely possibilities does 

not create a material issue of fact.35 But like the plaintiff in 

Kotlarz, Hughes was able to recall the circumstances of his 

fall, and these circumstances support a reasonable inference as 

to the cause.

[11] Furthermore, as the Eighth Circuit noted, Swoboda

involved evidence of two equally likely causes of the plaintiff’s 

33 Kotlarz v. Olson Bros., Inc., supra note 19.

34 McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014); Schade v. 

County of Cheyenne, 254 Neb. 228, 575 N.W.2d 622 (1998).

35 See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 

(2012).
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fall. Here, the District, the movant, did not produce evidence 

of an alternative cause. It is always possible, of course, that 

Hughes’ feet simply became tangled, even if there is direct 

evidence to the contrary. But a plaintiff is not bound to exclude 

the possibility that the event might have happened in some 

other way.36 Contrary to the District’s argument, Hughes’ case 

is not doomed because there is more than one possible cause. 

It is enough for summary judgment purposes that the evidence 

permits a reasonable inference that negligent conditions on the 

District’s property caused Hughes’ injury.

CONCLUSION

Because reasonable minds could draw contrary conclusions 

from the evidence presented, the District did not show that 

it was entitled to judgment as a matter of law. We therefore 

reverse the court’s summary judgment order and remand the 

cause for further proceedings.

 Reversed and remanded for

further proceedings.

Wright, J., participating on briefs.

36 World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 

(1996). 

State of Nebraska, appellee, v. 

Wa’il M. Muhannad, appellant.

___ N.W.2d ___

Filed February 6, 2015. No. S-14-129.

1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions 

of law.

2. Judgments: Appeal and Error. On a question of law, an appellate court reaches 

a conclusion independent of the court below.

3. Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent: Appeal and 

Error. While the denial of a plea in bar generally involves a question of law, an 

appellate court reviews under a clearly erroneous standard a finding concerning 

the presence or absence of prosecutorial intent to provoke the defendant into 

moving for a mistrial.