989 N.W.2d 39
Neb.2023Background:
- Clark slipped and fell in Scheels’ store foyer on April 18, 2016; her complaint alleged her shoelace caught in a foyer foot grate and alternatively asserted a "wind tunnel" door effect.
- Discovery produced a motion-activated surveillance clip that did not show the fall mechanism; a Scheels "Guest Injury Accident Report" recorded Clark saying her shoelace got caught, but employees saw no grate defect.
- In deposition Clark largely could not recall the fall and testified she did not know what caused it and did not remember wearing lace-up shoes; she identified no expert or other evidentiary exhibits supporting an unreasonably dangerous condition.
- Scheels moved for summary judgment arguing Clark had no admissible evidence of an essential element (that any condition presented an unreasonable risk of harm); Clark opposed, offering the accident report, video, and counsel’s affidavit (including that entry doors were later replaced) and arguing spoliation warranted an adverse inference.
- The district court granted summary judgment for Scheels; the Nebraska Supreme Court considered whether the 2017 amendment to Neb. Rev. Stat. § 25‑1332(2) allows a movant to meet its prima facie burden by showing the opposing party cannot produce admissible evidence.
- The majority affirmed: under § 25‑1332(2) (consistent with Celotex), a movant may meet its initial burden either by negating an essential element or showing the opponent cannot produce admissible evidence; the court held Clark had no admissible proof that the grate or doors presented an unreasonable risk of harm. A dissent would have reversed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a summary-judgment movant may satisfy its initial burden by showing the nonmovant cannot produce admissible evidence of an essential element | Clark: movant must affirmatively negate plaintiff's claims; pointing only to plaintiff's lack of memory/evidence is insufficient | Scheels: § 25‑1332(2)(b) and Celotex permit showing the adverse party cannot produce admissible evidence to prove the element | Held: Yes — under § 25‑1332(2) (adopting Celotex approach), a movant may either negate an element or show the nonmovant lacks admissible evidence |
| Whether the record creates a genuine dispute that the foot grate was an unreasonably dangerous condition | Clark: accident report, her statements, video and reasonable inferences suffice to create a triable issue | Scheels: no testimony, photos, expert proof, or prior incidents show any grate defect or unusual risk—only speculation would connect grate to fall | Held: No — evidence insufficient to support a reasonable inference the grate presented an objectively unreasonable risk; summary judgment affirmed |
| Whether replacement of entry doors and counsel’s affidavit justify an adverse-spoliation inference | Clark: replacement of doors and discovery delay permit adverse inference that doors were defective | Scheels: no evidence of intentional or fraudulent destruction; replacement was not shown to be deliberate spoliation | Held: No — record lacks proof of intentional spoliation, so no adverse inference warranted |
| Whether the district court prematurely shifted the burden to Clark | Clark: Scheels failed prima facie, so burden shift was improper | Scheels: it met prima facie by showing absence of admissible evidence for essential element | Held: Majority: Scheels met prima facie burden, so burden shift was proper; dissent disagreed |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (movant may meet Rule 56 burden either by negating an essential element or showing opponent lacks admissible evidence)
- Sundermann v. Hy‑Vee, 306 Neb. 749 (Neb. 2020) (defines "unreasonable risk of harm" in premises-liability context)
- Williamson v. Bellevue Med. Ctr., 304 Neb. 312 (Neb. 2019) (premises-liability proof and summary-judgment standards)
- Hodge by & through Farrow v. Walgreens Co., 37 F.4th 461 (8th Cir. 2022) (illustrative federal decision applying Celotex principle where defendant showed plaintiff lacked evidence to support dangerous-condition claim)