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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

Beti Wichman, appellant, 

v. Hy-Vee, Inc., appellee.

___ N.W.2d ___

Filed December 7, 2021. No. A-21-130.

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. 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. Negligence: Liability: Proximate Cause. In premises liability cases, 

an owner or occupier is subject to liability for injury to a lawful visitor resulting from a condition on the owner or occupier’s premises if 

the lawful visitor proves (1) that the owner or occupier either created 

the condition, knew of the condition, or by exercise of reasonable care 

would have discovered the condition; (2) that the owner or occupier 

should have realized the condition involved an unreasonable risk of 

harm to the lawful visitor; (3) that the owner or occupier should have 

expected that the visitor either would not discover or realize the danger 

or would fail to protect himself or herself against the danger; (4) that 

the owner or occupier failed to use reasonable care to protect the visitor 

against the danger; and (5) that the condition was a proximate cause of 

damage to the visitor.

3. Negligence: Words and Phrases. Constructive knowledge is generally defined as knowledge that one using reasonable care or diligence 

should have.

4. Negligence: Liability: Invitor-Invitee: Notice. In order for a defendant 

to have constructive notice of a condition, the condition must be visible 

and apparent and it must exist for a sufficient length of time prior to an 

Nebraska Supreme Court Online Library

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

12/07/2021 08:09 AM CST
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

accident to permit a defendant or the defendant’s employees to discover 

and remedy it.

5. Negligence: Evidence: Liability: Jurors. In the absence of evidence to 

support an inference of the possessor’s actual or constructive knowledge 

of a hazardous condition, the Nebraska Supreme Court has refused to 

allow the jury to speculate as to the possessor’s negligence.

6. Summary Judgment. Inferences based upon guess or speculation do 

not create material issues of fact for purposes of a summary judgment.

7. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

Appeal from the District Court for Madison County: James 

G. Kube, Judge. Affirmed.

George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.

Torrey J. Gerdes and Christopher M. Schmidt, of Baylor 

Evnen, L.L.P., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge.

INTRODUCTION

Beti Wichman appeals the order of the district court for 

Madison County, which granted the motion for summary judgment of Hy-Vee, Inc., in this premises liability action. Finding 

no error in the court’s decision, we affirm.

BACKGROUND

This case arises out of a slip-and-fall incident that occurred 

on August 10, 2015, at a Hy-Vee grocery store located in 

Norfolk, Nebraska. The facts are generally undisputed. 

Wichman and her 12-year-old granddaughter were shopping 

at Hy-Vee around 9 p.m. on August 10. As they came around 

the end of an aisle, a Hy-Vee employee was stocking chicken 

in an endcap freezer. Wichman engaged the Hy-Vee stocker 

in brief conversation before walking away from her granddaughter and their shopping cart to look at the items on sale in 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

a chest freezer. As Wichman was standing in front of the chest 

freezer, Wichman’s granddaughter yelled, “Grandma, you’re 

standing in milk.” Wichman looked down and saw that she 

was standing in a puddle of milk. She attempted to walk out 

of it, but slipped and fell, sustaining injuries to her right elbow 

and wrist.

Thereafter, Wichman filed this action against Hy-Vee. 

Hy-Vee moved for summary judgment, offering in support of 

its motion several depositions, including that of the stocker 

taken July 12, 2018. According to the evidence presented 

at the summary judgment hearing, the stocker with whom 

Wichman conversed had been in the area for approximately 

20 minutes prior to Wichman’s fall. He was stocking frozen 

chicken in an endcap freezer and had a cart loaded with large 

boxes of chicken positioned behind him. His back was to the 

chest freezer where Wichman fell. He testified at his deposition 

that he did not hear anything, because the doors to the endcap 

freezer were open, so it was a “little loud” because the freezer 

fan was running. Thus, he did not see or hear Wichman fall. It 

was not until he turned around to grab another item from the 

cart that he saw Wichman on the floor.

The stocker also testified that he did not recall if he saw 

milk on the floor, but if he would have seen it, he would have 

cleaned it up. He returned to the store’s back freezer to restock 

his cart approximately three or four times before the slip and 

fall, and while doing so, he did not walk past the chest freezer 

where Wichman fell. He was asked why, if he made several 

trips to and from the back freezer while stocking the chicken, 

he would not have seen the milk on the floor, and he replied 

that he was not paying attention to “it” and that the floor is 

white so it would be hard to see spilled milk on the floor if 

he was not specifically looking for it. He explained that he 

was not looking in the area of the chest freezer; he was just 

going back and forth. He was not stocking the chest freezer 

or working at the chest freezer, he did not walk past it on his 

path, and he did not see any milk by the chest freezer. He later 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

clarified that when he said he was not paying attention to “it,” 

he meant that he was paying attention to doing his job and was 

not particularly focused on the area of the chest freezer.

The stocker explained that according to his training from the 

store, if he saw a foreign substance on the floor, he was to put 

out a yellow caution sign and then either clean it up or find 

another employee to do so. He also explained that store managers walk around the store while on duty and would be more 

actively looking for spills.

The retail store director for the Hy-Vee at the time of the 

incident also testified that the store’s training and operating procedure dictates that if an employee sees a puddle on 

the floor, he or she is to clean it right away. The area where 

Wichman fell would have been behind where the stocker was 

stocking frozen chicken. The store director was asked if the 

stocker should have been able to see the puddle of milk on the 

floor, and he replied, “No, not necessarily,” because, according 

to his 30 years of experience, observing spilled milk on a white 

floor from approximately 20 feet away would “probably [be] 

pretty hard to see.”

The store manager who was on duty at the time Wichman 

fell testified that he began working at 2 p.m. that day. Part 

of his management duties included walking the store to look 

for things like spills. He walked the store when he came in at 

2 p.m. and did not see any spills on the floor. He would generally walk through the store two or three times per night, in 

part looking for spills or debris on the floor. Hy-Vee’s policy 

dictates that if an employee finds a spill, he or she is to clean it 

up immediately. The store also does a “sweep schedule” where 

a manager will send an employee around the store with a 

broom to clean up loose debris and other things from the floor, 

pick up signs, and clean up anything that needs attention. This 

is done periodically throughout the day, at least two to three 

times per day or more frequently depending on the number of 

staff on duty at the time. The manager did not recall the last 

time that was done prior to Wichman’s fall.
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

Wichman testified at her deposition that she did not see 

the milk on the floor until her granddaughter brought it to 

her attention. She specified that she did not initially see the 

milk because it was the same color as the floor. She did not 

know where the milk came from or how long it had been on 

the floor before she stepped in it. Wichman’s granddaughter 

testified similarly, describing the Hy-Vee floor as “white with 

light blue specks.” She explained that she looked at Wichman 

while Wichman was standing in front of the chest freezer and 

then looked down at the floor and thought, “[W]hat the heck 

is that?” She noticed the substance on the floor was white and 

wondered if it was milk. She also described seeing a milk 

jug and its red top on the floor near the chest freezer and the 

puddle of milk.

The district court granted summary judgment in favor of 

Hy-Vee. The court observed that the question in this case was 

whether Hy-Vee, by the exercise of reasonable care, should 

have discovered the spilled milk prior to Wichman’s fall or, 

in other words, whether Hy-Vee had constructive knowledge 

of the existence and location of the milk. The court found 

that the evidence was insufficient to support an inference that 

Hy-Vee had constructive knowledge of the spilled milk prior 

to Wichman’s fall because Wichman failed to submit evidence 

concerning how long the milk had been on the floor or whether 

any employee knew of the condition of the floor at the time of 

her fall. Ultimately, because there was no evidence or reasonable inference that Hy-Vee knew or should have known of the 

spilled milk on the floor, the district court found that Hy-Vee 

was entitled to judgment as a matter of law.

Wichman filed motions for a new trial and to alter or amend. 

The district court denied Wichman’s motions but granted 

Hy-Vee’s motion to alter or amend to tax costs to Wichman. 

Wichman appeals.

ASSIGNMENTS OF ERROR

Wichman assigns that the district court erred in (1) granting the motion for summary judgment, (2) concluding that 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

there were no issues of material fact and that Hy-Vee was 

entitled to judgment as a matter of law, and (3) denying her 

motion for new trial.

STANDARD OF REVIEW

[1] 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. 

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

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

[2] In premises liability cases, an owner or occupier is subject to liability for injury to a lawful visitor resulting from a 

condition on the owner or occupier’s premises if the lawful 

visitor proves (1) that the owner or occupier either created the 

condition, knew of the condition, or by exercise of reasonable 

care would have discovered the condition; (2) that the owner or 

occupier should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) that the owner or 

occupier should have expected that the visitor either would not 

discover or realize the danger or would fail to protect himself 

or herself against the danger; (4) that the owner or occupier 

failed to use reasonable care to protect the visitor against the 

danger; and (5) that the condition was a proximate cause of 

damage to the visitor. Edwards v. Hy-Vee, 294 Neb. 237, 883 

N.W.2d 40 (2016).

The parties agree that this case revolves around the first 

element and that it is undisputed Hy-Vee did not create the 

condition or have actual knowledge of the condition. Thus, 

as the district court recognized, the question here is whether 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

a genuine issue of material fact exists as to whether Hy-Vee, 

by the exercise of reasonable care, should have discovered the 

condition of the spilled milk prior to the slip and fall or, in 

other words, whether Hy-Vee had constructive knowledge of 

the existence and location of the spilled milk.

[3-6] Constructive knowledge is generally defined as knowledge that one using reasonable care or diligence should have. 

Id. In order for a defendant to have constructive notice of a 

condition, the condition must be visible and apparent and it 

must exist for a sufficient length of time prior to an accident 

to permit a defendant or the defendant’s employees to discover 

and remedy it. Id. In the absence of evidence to support an 

inference of the possessor’s actual or constructive knowledge 

of the hazardous condition, the Nebraska Supreme Court has 

refused to allow the jury to speculate as to the possessor’s 

negligence. Id. Inferences based upon guess or speculation do 

not create material issues of fact for purposes of a summary 

judgment. Id.

Wichman argues that summary judgment was improper in 

this case because there is a genuine issue of material fact as to 

whether Hy-Vee acted with reasonable care when the stocker 

was in the area of Wichman’s fall for approximately 20 minutes prior to the fall and testified that he was not paying attention to his surroundings. We disagree.

As outlined in Edwards v. Hy-Vee, supra, the dangerous 

condition must be visible and apparent and it must exist for a 

sufficient length of time to permit the defendant or its employees to discover and remedy it. In Edwards v. Hy-Vee, supra, 

the plaintiff slipped on what was presumed to be a piece of 

watermelon approximately 6 feet from where a person was 

passing out watermelon samples. On appeal, the Supreme 

Court upheld a grant of summary judgment in favor of the 

defendant, finding that there was no evidence to support an 

inference that the defendant had constructive knowledge of the 

watermelon on the floor, despite the fact that the watermelon 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

was being passed out approximately 6 feet from where the 

plaintiff fell. The Supreme Court stated simply, “[The plaintiff] did not know how long the watermelon was on the floor, 

and there was no evidence that [the defendant’s] employees 

observed any watermelon on the floor.” Id. at 243, 883 N.W.2d 

at 45.

Similarly, in Herrera v. Fleming Cos., 265 Neb. 118, 655 

N.W.2d 378 (2003), the plaintiff slipped on water and fell in a 

grocery store restroom. The trial court entered summary judgment for the defendant. In affirming that decision on appeal, 

the Supreme Court determined that the plaintiff failed to produce any evidence from which a reasonable inference could be 

drawn that the defendant knew or by the exercise of reasonable care should have known of the water on the floor when 

the plaintiff testified in her deposition she did not know how 

long the water had been on the floor and when the defendant’s 

store director stated that no one had reported water on the floor 

and that he did not know how long the water had been there. 

The evidence further indicated that the defendant had a policy 

of keeping the floors clean and that the floors were regularly 

inspected for spills.

Likewise here, Wichman did not know how long the milk 

had been on the floor, and there was no evidence that Hy-Vee 

employees observed it or knew how long it had been on 

the floor either. The fact that the stocker was in the area of 

Wichman’s fall for approximately 20 minutes prior to the fall 

is insufficient evidence to support an inference that Hy-Vee 

had constructive knowledge of the milk on the floor. Hy-Vee 

employees and managers regularly walked around the store 

looking for spills or debris on the floor, and the manager did 

so on the day Wichman fell. None of the Hy-Vee employees 

reported seeing any milk on the floor before Wichman fell. 

In the absence of evidence to support an inference of the possessor’s actual or constructive knowledge of the hazardous 

condition, it is improper to allow the jury to speculate as to the 

possessor’s negligence. See Edwards v. Hy-Vee, 294 Neb. 237, 
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WICHMAN v. HY-VEE

Cite as 30 Neb. App. 415

883 N.W.2d 40 (2016). We therefore conclude that Wichman 

failed to adduce any evidence which would permit a fact finder 

to infer that Hy-Vee should have discovered the spilled milk 

on the floor and remedied the condition prior to her fall. The 

district court therefore did not err in granting summary judgment in favor of Hy-Vee.

Wichman also briefly argues that summary judgment was 

inappropriate because a fact question existed as to whether 

Hy-Vee employees would realize that a customer would have 

been distracted from seeing the spilled milk on the floor. She 

refers to this as the “momentary distraction” rule.

We outlined the five elements that a plaintiff must prove to 

establish a premises liability claim above. Of those five elements, the first three clarify the scope of the land possessor’s 

duty to lawful entrants. See Sundermann v. Hy-Vee, 306 Neb. 

749, 947 N.W.2d 492 (2020). The Supreme Court has described 

this duty as a specialized standard of care that includes three 

elements in addition to the ordinary duty of reasonable care. 

See id. More precisely, the first three elements identify those 

conditions on the land regarding which a land possessor owes 

a duty of reasonable care to protect lawful entrants from physical harm. Id.

Wichman’s argument regarding the momentary distraction 

rule relates to the third of the five elements, which requires 

Wichman to prove that Hy-Vee should have expected that 

she either would not discover or realize the danger or would 

fail to protect herself against the danger. See id. See, also, 

Edwards v. Hy-Vee, supra. Because we have concluded that 

Wichman failed as a matter of law to produce evidence 

of the first element, we need not address whether Hy-Vee 

should have expected that Wichman would not discover the 

spilled milk.

[7] Wichman also assigns that the district court erred in 

denying her motion for new trial. She does not argue this 

issue in her brief. An alleged error must be both specifically 

assigned and specifically argued in the brief of the party 
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asserting the error to be considered by an appellate court. AVG 

Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 

212 (2020). Because Wichman has not done so, we do not 

address this issue.

CONCLUSION

We conclude that the district court did not err in granting 

Hy-Vee’s motion for summary judgment. Its decision is therefore affirmed.

Affirmed.