Gless v. Dritley Properties
A-16-978
| Neb. Ct. App. | Nov 28, 2017Background
- On Oct. 10, 2011, Laura Gless slipped on water inside the enclosed foyer of Elkhorn Animal Hospital; her husband Don Christensen claimed loss of consortium.
- Foyer measured ~8x8 ft; two mats outside and two ~3x3 ft mats inside; it was misting/light rain outside.
- No employee testified to seeing water before the fall; some employees and two patrons who arrived within 30–60 minutes after the incident also did not observe moisture prior to the fall.
- Gless testified she did not know how long the water had been on the floor or its exact source; she opined employees should have known and cleaned/warned.
- Defendants submitted affidavits and testimony that staff regularly monitored the foyer area, had assigned cleaning duties, and that no reports of slippery conditions were made before the fall.
- District court granted summary judgment for defendants; plaintiffs appealed arguing constructive notice, failure to exercise reasonable care, and that lack of inspections supports constructive notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice (knowledge) | Rain and tracked-in moisture plus absence of inspection support inference employees should have known of hazard | No evidence water existed long enough or was visible/apparent; no employee observed it before fall | No constructive notice: plaintiffs failed to show condition existed long enough or was visible/apparent to allow discovery/remedy |
| Exercise of reasonable care (duty to discover) | Staff failed to inspect foyer from opening to accident (~2.5 hrs), so condition should have been discovered | Staff frequently monitored foyer, had assigned cleaning duties, and no patrons reported a hazard before fall | No breach: insufficient evidence that reasonable care would have discovered the condition given lack of timing/source evidence |
| Failure to inspect as independent basis for liability | Failure to inspect within a period can establish constructive notice (citing other jurisdictions) | Nebraska law requires evidence condition was visible/apparent and existed long enough for discovery; mere lack of a documented inspection is not dispositive | Rejected plaintiffs’ reliance on other jurisdictions; Nebraska requires proof of visibility and sufficient duration before accident |
| Summary judgment standard | Factual inferences favor plaintiffs; disputes about inspection and policies create issues for trial | Affidavits/depositions show no evidence of notice or sufficient duration; therefore no genuine issue of material fact | Affirmed summary judgment for defendants; plaintiffs did not meet burden to overcome summary judgment |
Key Cases Cited
- Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (Neb. 2016) (constructive notice requires condition to be visible/apparent and exist long enough for discovery/remedy)
- Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (Neb. 2003) (plaintiff who cannot say how long water was on floor cannot create inference defendant should have known)
- Range v. Abbott Sports Complex, 269 Neb. 281, 691 N.W.2d 525 (Neb. 2005) (inferences based on guess/speculation do not defeat summary judgment)
- Zipsuch v. LA Workout, Inc., 155 Cal. App. 4th 1281, 66 Cal. Rptr. 3d 704 (Cal. Ct. App. 2007) (circumstantial evidence of lack of inspection can support inference condition existed long enough)
- Ortega v. Kmart Corp., 26 Cal. 4th 1200, 36 P.3d 11 (Cal. 2001) (failure-to-inspect cases cited by plaintiffs; contrasted with Nebraska rule)