Durre v. Wilkinson Development
285 Neb. 880
| Neb. | 2013Background
- Durre sustained personal injury and his wife died when a restaurant sign collapsed in North Platte; the incident occurred on Wilkinson’s property.
- Tri-City designed, built, and installed the sign; permit allowed 65 feet, completed May 1999; height exceeded by 9–10 feet according to later measurements.
- Love Signs, contracted in 2008 to replace lamps/ballasts; no duty to inspect the height or latent defects of the pole and sign.
- Durre filed suit in November 2009; Tri-City was joined in 2011; Wilkinson claims were dismissed without prejudice and Love Signs moved for summary judgment.
- Nebraska’s ten-year statute of repose, § 25-223, governs damages for negligent construction and related design/supervision actions.
- Court held § 25-223 bars Durre’s personal injury claim against Tri-City; no fraudulent concealment found; Love Signs had no duty to discover latent defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 25-223 bar Tri-City’s liability as a matter of law? | Durre argues the statute of repose does not apply to personal injury from latent defects. | Tri-City contends the 10-year repose bars the action. | Yes, § 25-223 bars Tri-City. |
| Was there fraudulent concealment tolling the statute against Tri-City? | Durre asserts Tri-City concealed the defect to prevent timely filing. | Tri-City contends no concealment evidence exists and no fiduciary duty shown. | No fraudulent concealment; no tolling. |
| Did Love Signs owe Wilkinson a duty to discover latent defects? | Love Signs negligently failed to inspect for latent defects. | Love Signs had no duty to inspect latent defects and did not breach any duty when servicing the sign. | Love Signs owed no duty to discover latent defects. |
Key Cases Cited
- Williams v. Kingery Constr. Co., 225 Neb. 235 (Nebraska 1987) (applies §25-223 to personal injury from negligent construction)
- Andres v. McNeil Co., 270 Neb. 733 (Nebraska 2005) (fraudulent concealment requires evidence of concealment creating genuine issues)
- Jeremiah J. v. Dakota D., 826 N.W.2d 242 (Nebraska 2013) (burden shifting framework for summary judgment on fraud/fraudulent concealment)
- Olson v. Wrenshall, 822 N.W.2d 336 (Nebraska 2012) (duty in negligence is a question of law judged by facts)