988 N.W.2d 537
Neb. Ct. App.2023Background
- Perry (pro se) sued Steve Buchanan and Bucks, Inc. ("Bucky's") after an intoxicated driver struck and injured him in Bucky's parking lot in Sept. 2017, asserting negligence and a secondary "Loss of Excitement Claim of Children."
- He alleged Bucky's owed a duty to protect invitees from foreseeable criminal assaults and sought substantial damages.
- Bucky's moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6); the district court dismissed the complaint (Jan. 27, 2022) for failure to state a claim and denied leave to amend as futile.
- On appeal Perry raised multiple assignments of error; the court declined to consider several assignments not argued in his brief.
- Appellate review was de novo for the dismissal and abuse-of-discretion for denial of leave to amend (with futility reviewed de novo).
- The court affirmed: it found Bucky's owed a duty but that the injury from an intoxicated driver was not a foreseeable risk Bucky's could have discovered or prevented; premises-liability theories likewise failed and amendment would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bucky's owed a duty to protect Perry from third‑party criminal acts | Perry: Bucky's had a duty to exercise reasonable care to protect invitees from foreseeable assaults/attacks | Bucky's: claim fails as pleaded; harm was not foreseeable and no actionable duty breach | Court: duty exists for public businesses, but duty alone insufficient—case disposed on breach/foreseeability grounds |
| Whether Bucky's breached that duty (foreseeability) | Perry: Bucky's knew or should have known the area was high‑crime and failed to provide security/cameras | Bucky's: could not have discovered or prevented the intoxicated driver’s conduct; harm not reasonably foreseeable | Court: injury from intoxicated driver was not foreseeable; no reasonable person could find otherwise—no breach alleged |
| Premises‑liability (failure to protect from third‑party acts or dangerous condition) | Perry: Bucky's failed to warn, provide security, or otherwise protect invitees from crime on its premises | Bucky's: same as above—no basis for liability; parking‑lot risks are ordinary and obvious | Court: plaintiff failed to allege facts that Bucky's knew or should have known the specific risk or could have warned/protected; premises‑liability claim fails |
| Denial of leave to amend | Perry: should have been allowed to amend to add facts about high‑crime area and lack of security | Bucky's: amendment would be futile; complaint lacks necessary factual basis | Court: Perry did not request amendment at hearing or identify amendable facts; proposed amendments would be futile—denial not an abuse of discretion |
Key Cases Cited
- Pittman v. Rivera, 293 Neb. 569 (2016) (conduct at bar that differed from later vehicle attack made the vehicle attack unforeseeable)
- Sundermann v. Hy‑Vee, 306 Neb. 749 (2020) (elements/test for premises‑liability based on land condition)
- Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb. 606 (2022) (standard for de novo review of dismissal on pleadings)
- Williams v. State, 310 Neb. 588 (2021) (abuse‑of‑discretion review for denial to amend; futility reviewed de novo)
- Erichsen v. No‑Frills Supermarkets, 246 Neb. 238 (1994) (repeated prior crimes may make future criminal acts foreseeable)
- Schroer v. Synowiecki, 231 Neb. 168 (1989) (statement of proprietor’s duty to protect patrons from third‑party acts)
- Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153 (2007) (amendment futile if it could not survive a § 6‑1112(b)(6) motion)
- Buttercase v. Davis, 313 Neb. 1 (2022) (errors must be both assigned and argued on appeal to be considered)