Robertson v. U Save Foods
A-16-397
| Neb. Ct. App. | May 2, 2017Background
- Ellen Robertson tripped on a wooden loading pallet used as a watermelon display at a U Save (Bag ’N Save) grocery store and broke her hip; she had shopped there regularly for decades.
- The pallet held a cardboard box labeled "Watch Step," sat on white tile, and did not appear to extend into the aisle; Ellen acknowledged seeing pallets in stores before but claimed distraction at the time of the fall.
- Ellen and Timothy Robertson sued U Save for premises liability and loss of consortium; U Save moved for summary judgment arguing the pallet did not pose an unreasonable risk.
- The district court granted summary judgment for U Save, finding no evidence the pallet was defective or created an unreasonable hazard and that, alternatively, the condition was open and obvious.
- The Robertsons appealed, arguing the pallet’s open base created an unreasonable risk and the "distraction" exception to the open-and-obvious doctrine applied.
- The Nebraska Court of Appeals affirmed, holding the plaintiffs failed to produce evidence of an unreasonable danger or of circumstances making the distraction exception applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether U Save’s use of a wooden pallet as a display created an unreasonable risk of harm | Pallet’s open base created a trip hazard that U Save should have known and fixed | Pallet was non-defective, stationary, visible, and not an unreasonable risk as a matter of law | No genuine issue: use of non-defective pallet alone did not show unreasonable risk |
| Whether the open-and-obvious doctrine bars recovery | Acknowledged pallet was open-and-obvious but argued distraction exception applies | Condition was open-and-obvious and store had no superior knowledge of a hidden danger | Held open-and-obvious; distraction exception not supported by record |
| Whether U Save had superior knowledge or reason to anticipate patrons would not avoid the hazard | Ellen was distracted by nearby produce; store should have anticipated distraction | No evidence store had reason to expect invitees would fail to observe an obvious pallet | No superior knowledge shown; store not liable under premises-liability standard |
| Whether Timothy Robertson’s loss-of-consortium claim survives if Ellen’s claim fails | Loss-of-consortium derives from injured spouse’s claim; argued both should proceed | If Ellen’s tort claim fails, Timothy’s derivative claim also fails | Held derivative claim fails with dismissal of Ellen’s claim |
Key Cases Cited
- Hodson v. Taylor, 290 Neb. 348 (Neb. 2015) (open-and-obvious doctrine and standard for possessor liability)
- Edwards v. Hy‑Vee, Inc., 294 Neb. 237 (Neb. 2016) (elements of premises liability claim)
- Herrera v. Fleming Cos., 265 Neb. 118 (Neb. 2003) (plaintiff bears burden to prove negligence; accident alone does not prove negligence)
- Bahrs v. R M B R Wheels, Inc., 6 Neb. App. 354 (Neb. Ct. App. 1998) (definition of unreasonable risk of harm)
- Connelly v. City of Omaha, 284 Neb. 131 (Neb. 2012) (anticipation of harm despite obviousness; distraction exception discussion)
- Warner v. Simmons, 288 Neb. 472 (Neb. 2014) (land possessor liability limited where invitee has comparable knowledge of condition)
- Bahe v. Safeway Stores, Inc., 186 Neb. 228 (Neb. 1970) (grocery store not insurer of customer safety; display did not create unreasonable risk)
- H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218 (Tex. 1999) (the mere presence of a customer sampling/display is not evidence of unreasonable risk)