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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

Gwen Vargas Porter, Special Administrator 

of the Estate of Curtis W. Blackbird and 

next friend of Nathan Mitchell, a minor 

child, appellant, v. Knife River, Inc., 

a Delaware corporation, 

et al., appellees.

___ N.W.2d ___

Filed February 18, 2022. No. S-20-578.

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. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the 

lower court.

4. 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.

5. 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. 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 

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05/13/2022 08:08 AM CDT
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

does not resolve the factual issues. Where reasonable minds could draw 

different conclusions from the facts presented, there is a triable issue of 

material fact.

7. Negligence: Proof. To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of 

such duty, causation, and resulting damages.

8. Negligence. The question whether a legal duty exists for actionable 

negligence is a question of law dependent on the facts in a particular 

situation.

9. Statutes: Legislature: Intent: Appeal and Error. The fundamental 

objective of statutory interpretation is to ascertain and carry out the 

Legislature’s intent. When construing a statute, an appellate court looks 

to the statute’s purpose and gives to the statute a reasonable construction 

that best achieves that purpose, rather than a construction that would 

defeat it.

10. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

11. Statutes: Appeal and Error. To give effect to all parts of a statute, an 

appellate court will attempt to reconcile different provisions so they are 

consistent, harmonious, and sensible, and will avoid rejecting as superfluous or meaningless any word, clause, or sentence.

12. Highways. Neb. Rev. Stat. § 39-1345 (Reissue 2016) describes 

the authority and responsibilities of the Nebraska Department of 

Transportation regarding temporary closures of state highways.

13. Statutes: Legislature: Negligence: Public Policy. A court may look 

to a statute or regulation as reflecting the standard of care which the 

Legislature has set as a matter of public policy.

14. Highways. Traffic control devices such as barricades placed at the termini of a closed road need not absolutely prevent entrance.

15. Highways: Contractors and Subcontractors: Negligence: Notice. A 

highway contractor is not required in the exercise of reasonable care to 

place signals or flares at intermediate places on a highway under construction in order to give notice that machinery is being used thereon or 

that defects due to construction exist, where warning signals and barricades at the termini thereof give notice that the highway is under construction and the condition of the highway itself shows that it is under 

various stages of completion.

Appeal from the District Court for Thurston County: John 

E. Samson, Judge. Affirmed.
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310 Nebraska Reports

PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

Nicholas R. Glasz, of Glasz Law Firm, for appellant.

Stephen G. Olson II, of Engles, Ketcham, Olson & Keith, 

P.C., for Knife River, Inc.

Patrick R. Guinan, of Erickson | Sederstrom, P.C., for appellee D.P. Sawyer, Inc.

Patrick L. Sealey, of Heidman Law Firm, P.L.L.C., for 

appellee A.M. Cohron & Son, Inc.

Michael L. Storey and Mark E. Novotny, of Lamson, Dugan 

& Murray, L.L.P., for appellee M.E. Collins Contracting 

Company, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Officer Curtis W. Blackbird died on duty responding to 

an emergency domestic violence call when his police cruiser 

crashed into a parked crane on a portion of Highway 94 

that was closed for construction. Blackbird’s widow, Ardetta 

Blackbird, as special administrator of Blackbird’s estate and 

as next friend of Blackbird’s son, Nathan Mitchell, filed this 

negligence action in the district court for Thurston County 

alleging negligent maintenance of a construction site against 

the highway construction contractors and subcontractors (collectively the contractors). The district court granted summary 

judgment in favor of the contractors. Blackbird’s widow, as 

special administrator, appealed. During the pendency of this 

appeal, she passed away, and upon motion, Gwen Vargas 

Porter was substituted as special administrator (Administrator). 

The evidence was undisputed that the contractors met their 

obligations, including those under Neb. Rev. Stat. § 39-1345 

(Reissue 2016) pertaining to the erection of suitable barricades 

and signs to notify motorists that Highway 94 was closed 
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310 Nebraska Reports

PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

for construction. We conclude that there was no triable issue 

of fact and that the contractors were entitled to summary judgment. Accordingly, we affirm the order of the district court 

which granted summary judgment in favor of the contractors.

STATEMENT OF FACTS

Blackbird was on duty with the Omaha Tribal Police when 

his police cruiser tragically collided with a 50-ton “Crawler” 

crane parked on a portion of Highway 94 which was closed for 

construction. In the early hours of March 26, 2017, Blackbird 

received an emergency domestic violence call. In order to 

respond, Blackbird needed to travel from Macy, Nebraska, to 

Walthill, Nebraska. A westbound portion of Highway 94 was 

the fastest route from Macy to Walthill, but was designated by 

the Nebraska Department of Transportation (NDOT) as closed 

for construction. Despite the closure, Blackbird entered the 

closed roadway by maneuvering around barricades and proceeded on Highway 94. In the dark night, Blackbird’s police 

cruiser collided with the crane that was parked on the highway, 

and Blackbird, who was not wearing a seatbelt, died as a result 

of injuries sustained in the collision.

Another officer with the Omaha Tribal Police, Ben Carrillo, 

had responded to the same call. He was driving ahead of 

Blackbird on Highway 94 and successfully navigated around 

the parked crane in the westbound lane. Carrillo had driven 

through the same route from Macy to Walthill earlier in the 

same shift. According to Carrillo, the highway had been closed 

for “quite some time.” Carrillo testified that he and the other 

officers with whom he worked regularly drove around roadclosed signs to respond to emergencies. After Carrillo passed 

the crane, he looked in his rearview mirror and noticed that he 

could no longer see the headlights of Blackbird’s police cruiser. 

He turned his cruiser around and observed that Blackbird had 

collided with the crane.

A Nebraska State Patrol certified accident reconstructionist 

investigated the collision scene. In his report, he concluded 
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

that it was a typical closure for state projects and that the signs 

and barricades required were in place at the proper locations. 

He stated the road closure barricades were “not something that 

you would have missed. . . . You had to take — I had to take 

some sort of evasive maneuver to get around them, meaning I 

had to leave the roadway to get around them.” He contacted 

the site supervisor, who stated that people had driven around 

the barricades when the construction crew was not present.

The contractors, who are the appellees in this case, include 

(1) Knife River, Inc., the general contractor for the Highway 94 

construction project; (2) M.E. Collins Contracting Company, 

Inc., a subcontractor hired by Knife River and responsible 

for the paving project; (3) A.M. Cohron & Son, Inc., a subsubcontractor hired by Collins and responsible for bridge, 

road, and culvert work (and the owner of the crane with which 

Blackbird’s police cruiser collided); and (4) D.P. Sawyer, Inc., 

a subcontractor hired by Knife River and responsible for traffic 

control and barricading.

The NDOT owned the construction project on Highway 

94. A traffic control plan for the Highway 94 project was 

developed and approved by the NDOT using the standard 

and typical plan. It complied with the Manual on Uniform 

Traffic Control Devices (2009) (MUTCD). The MUTCD is the 

“national standard for all traffic control devices installed on 

any street, highway, or bicycle trail open to public travel.” 23 

C.F.R. § 655.603(a) (2021). Section 1A.07 of the MUTCD provides that “[t]he responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices 

shall rest with the public agency or the official having jurisdiction . . . .”

The NDOT contracted with Knife River for the Highway 94 

project. In February 2017, due to cracking in an earth slope 

near a culvert that ran under the highway, a change order was 

negotiated that expanded the original scope of work, and Knife 

River subcontracted with M.E. Collins Contracting Company, 

who subcontracted with A.M. Cohron & Son. A.M. Cohron 
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

& Son took control of the Highway 94 project on March 20. 

The area of the slope repair work was designated a “Work 

Area” and was closed for the duration of the repair. A.M. 

Cohron & Son deployed the crane, which it owned and controlled, into the westbound lane of Highway 94 on March 21. 

The crane could only be operated from the roadway due to the 

conditions at the site. As marked in the traffic control plan, the 

crane was parked in a section of the highway that was a “hard 

closure,” meaning such section was closed to all traffic.

The undisputed evidence indicates that all traffic devices 

required by the traffic control plan were in place and operational in the early hours of March 26, 2017, the day of the collision. The Administrator’s expert offered an observation that 

more robust barricades and signs were available. Blackbird 

proceeded past nine barricades and five signs all indicating the 

highway was closed. Carrillo told the accident reconstructionist that when Carrillo entered the east side of the work area, he 

slowed down to about 5 m.p.h. so he could leave the roadway 

and drive around the barricades.

This action was brought against the contractors, claiming 

that they were jointly and severally liable for negligence—

leaving the crane on the highway without adequate illumination, barricades, or other traffic control—and that such 

negligence was the proximate cause of Blackbird’s death. 

Specific claims of negligence were made against each of the 

contractors.

The district court sustained the contractors’ motions for 

summary judgment. In its order, the court determined that the 

contractors were entitled to summary judgment as a matter 

of law based on several theories in the alternative, including 

the failure of the Administrator’s prima facie case of negligence, and based on several affirmative defenses, including contributory negligence and assumption of risk. The 

court therefore granted the contractors’ motions for summary 

judgment and dismissed the complaint with prejudice. The 

Administrator appeals.
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310 Nebraska Reports

PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

ASSIGNMENT OF ERROR

The Administrator assigns, summarized and restated, that the 

district court erred when it granted summary judgment in favor 

of the contractors.

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. In re Estate of Lakin, ante p. 271, 965 N.W.2d 365 (2021). 

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.

[3] Statutory interpretation presents a question of law which 

an appellate court reviews independently of the lower court. 

In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 

N.W.2d 807 (2021).

ANALYSIS

The Administrator claims that the district court erred when 

it granted summary judgment in favor of the contractors. We 

find no merit to the Administrator’s claim, and we therefore affirm.

[4-6] We note at the outset that summary judgment is proper 

only when the pleadings, depositions, admissions, stipulations, 

and affidavits in the record disclose that there is no genuine 

issue as to any material fact 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. Wintroub v. 

Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). See 

In re Estate of Lakin, supra. 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. Williamson v. Bellevue 
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019). 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. Id. 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. Id. Where reasonable minds could draw different conclusions from the facts presented, there is a triable issue 

of material fact. Id.

[7,8] To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a 

breach of such duty, causation, and resulting damages. Lewison 

v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018). The question 

whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. A.W. 

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

907 (2010).

[9-11] The meaning of § 39-1345, which concerns the closure of state highways by the NDOT, is central to our analysis 

regarding the Administrator’s claim that the contractors working on the closed highway were negligent. The fundamental 

objective of statutory interpretation is to ascertain and carry out 

the Legislature’s intent. In re William R. Zutavern Revocable 

Trust, supra. When construing a statute, an appellate court 

looks to the statute’s purpose and gives to the statute a reasonable construction that best achieves that purpose, rather than a 

construction that would defeat it. Id. In construing a statute, a 

court must determine and give effect to the purpose and intent 

of the Legislature as ascertained from the entire language of 

the statute considered in its plain, ordinary, and popular sense.

Yagodinski v. Sutton, 309 Neb. 179, 959 N.W.2d 541 (2021). 

To give effect to all parts of a statute, an appellate court will 
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

attempt to reconcile different provisions so they are consistent, 

harmonious, and sensible, and will avoid rejecting as superfluous or meaningless any word, clause, or sentence. Id.

[12] With these general rules of statutory construction in 

mind, we turn to § 39-1345, which describes the authority and 

responsibilities of the NDOT regarding temporary closures of 

state highways. Section 39-1345 provides:

The [NDOT] shall have the authority to close temporarily any part or all of a highway. Whenever the [NDOT]

closes such highway or part thereof, the [NDOT] or its 

contractor shall erect, at both ends of the portion of the 

highway so closed, suitable barricades, fences, or other 

enclosures and shall post signs warning the public that 

the highway is closed by authority of law. Such barricades, fences, enclosures, and signs shall serve as notice 

to the public that such highway is unsafe and that anyone 

entering such closed highway, without the permission or 

consent of the [NDOT], does so at his own peril. The 

[NDOT], if it deems it advisable, may permit the public use of a highway undergoing construction, repair, or 

maintenance in lieu of a detour route and is authorized to 

regulate, limit, or control traffic thereon.

(Emphasis supplied.)

This case presents an issue of first impression concerning the meaning of the sentences italicized above. Under 

§ 39-1345, when a highway is closed by the NDOT, the NDOT 

or its contractor “shall erect, at both ends of the portion of the 

highway so closed, suitable barricades, fences, or other enclosures and shall post signs warning the public that the highway 

is closed by authority of law.” This “shall serve as notice to 

the public that such highway is unsafe and that anyone entering such closed highway, without the permission or consent of 

the [NDOT], does so at his own peril.” § 39-1345. Because 

Blackbird did not have permission to enter the highway, he was 

among the class of entrants to which the barricade and notice 

requirements of § 39-1345 apply.
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

[13] Section 39-1345 informs our analysis as to the existence of the contractors’ duty as well as the standard of care. 

With respect to the latter, we have observed that we may look 

to a statute or regulation as reflecting the standard of care 

which the Legislature has set as a matter of public policy. See 

Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 

(2011). Read in context, § 39-1345 describes the scope of the 

duty to warn the public of the existence and dangers of a closed 

highway and is consistent with the evidence presented by the 

parties regarding the standard of care.

Under § 39-1345, warning signs and “suitable” barricades, 

fences, or other enclosures must be placed “at both ends of 

the portion of the highway so closed.” A subsequent phrase, 

“anyone entering . . . does so at his own peril,” is a limitation 

on the scope of the duty of the NDOT and its contractors to 

entrants of a closed highway who proceed without permission 

or consent of the NDOT. By referencing these different portions of § 39-1345, we are faithful to the principles of statutory 

interpretation under which we give meaning to the full statute 

and do not reject as superfluous or meaningless any word, 

clause, or sentence. See Yagodinski v. Sutton, 309 Neb. 179, 

959 N.W.2d 541 (2021).

With the understanding that the contractors were required 

by statute to place “suitable” barricades or other traffic control 

devices, we turn to our record. There is no dispute that the 

entrance to the “hard closure” portion of the highway was barricaded with numerous traffic control devices and warnings. 

And the contractors established through testimony and documents in evidence that the traffic control devices complied with 

the traffic control plan and that the traffic control plan, in turn, 

complied with § 1A.07 of the MUTCD. Compliance with the 

MUTCD is not all that the contractors were required to show; 

they were also required to exercise ordinary care in the selection of devices. See Kirkwood v. State, 16 Neb. App. 459, 748 

N.W.2d 83 (2008). See, also, Tadros v. City of Omaha, 269 

Neb. 528, 694 N.W.2d 180 (2005). In this case, the contractors’ 
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

witnesses referred to the traffic control plan and the MUTCD 

as embodying what a reasonable person in the industry would 

do in general, see Norman v. Ogallala Pub. Sch. Dist., 259 

Neb. 184, 609 N.W.2d 338 (2000), and in particular, the contractors’ witnesses stated that the devices selected in this matter 

were appropriate. The Administrator and her expert agree the 

contractors were required to implement the traffic control plan 

in place at the time of the collision. See Lindsay Mfg. Co. v. 

Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994). 

Moreover, certain testimony showed that had the contractors 

installed different or additional devices, their highway closure 

would have impermissibly deviated from the traffic control 

plan. And although the Administrator’s expert hypothesized 

about the potential of using additional warning devices, he did 

not identify any legally meaningful act or omission by the contractors which would show that the devices actually selected 

were not “suitable” or which would call into question the contractors’ exercise of due care. The evidence presented by the 

Administrator failed to create a genuine issue of material fact 

on the issue of the suitability of the contractors’ traffic control 

devices or the reasonableness of the traffic control plan under 

the circumstances.

[14] With regard to the placement of “suitable” traffic control devices, § 39-1345 requires that such warnings be “at 

both ends” of the highway closure. Carrillo, the officer who 

travelled ahead of Blackbird just prior to the collision, testified 

that to enter the portion of the closed highway, and circumvent the barricades, he reduced his speed, physically exiting 

the road until he could reenter the closed highway. Traffic 

control devices such as barricades placed at the termini of a 

closed road need not absolutely prevent entrance. See Gorges v. 

Dobson Bros. Constr. Co., 187 Neb. 19, 187 N.W.2d 91 (1971). 

Thus, there is no reasonable dispute that in this respect the barricades and other traffic control devices were suitable and thus 

met the requirements set forth by § 39-1345.
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PORTER v. KNIFE RIVER, INC.

Cite as 310 Neb. 946

[15] Although the Administrator introduced testimony that 

further measures could have been taken to mark and illuminate 

individual hazards located within the closed construction zone, 

we have explained:

A highway contractor is not required in the exercise 

of reasonable care to place signals or flares at intermediate places on a highway under construction in order to 

give notice that machinery is being used thereon or that 

defects due to construction exist, where warning signals 

and barricades at the termini thereof give notice that the 

highway is under construction and the condition of the 

highway itself shows that it is under various stages of 

completion.

Lyon v. Paulsen Building & Supply, Inc., 183 Neb. 365, 368, 

160 N.W.2d 191, 194 (1968). In fulfilling their duty, the contractors exercised ordinary care, and the Administrator did not 

introduce evidence to the contrary; there is no triable issue 

of fact.

CONCLUSION

This appeal involves a fatal single-vehicle accident on a 

closed highway. As explained above, by reference to the provisions of § 39-1345, we have concluded that the contractors 

owed a duty to Blackbird, that the statute and evidence inform 

us regarding the standard of care, and that the contractors 

offered evidence that showed they exercised ordinary care. 

Even giving the Administrator the favorable inferences from 

the evidence, there was no triable issue of fact. The district 

court did not err when it entered an order of summary judgment in favor of the contractors, and accordingly, we affirm.

Affirmed.