Sundermann v. Hy-Vee, 306 Neb. 749

Background

On March 2, 2012, Rita Sundermann was struck and seriously injured by a pickup truck while inflating her car tires at a Hy-Vee convenience store; the free-standing air compressor was located so its hose reached patrons parked in an eastbound drive aisle.
The property had perpendicular parking stalls across from the eastbound drive aisle; Hy-Vee designed the lot and placed the air compressor and knew patrons sometimes parked in the drive aisle to use it.
Driver Robert Swanson, an employee, admitted negligence (testified his foot slipped onto the accelerator while backing) and settled with Sundermann; he is not a party to the premises suit.
Sundermann sued Hy-Vee and the landowner for negligence, alleging the air compressor’s location created a dangerous condition; both sides presented expert testimony about customary design, codes, and risks.
The district court granted summary judgment for Hy-Vee, concluding the pedal-slip accident was not a reasonably foreseeable consequence of the site design (and alternatively was an efficient intervening cause); the Court of Appeals reversed. The Nebraska Supreme Court granted further review.
The Supreme Court reversed the Court of Appeals and directed affirmance of the district court, reasoning the case turns on premises-liability duty principles: the risk was open and obvious and Hy-Vee had no reason to expect invitees like Sundermann would fail to protect themselves.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. What legal framework governs this claim?	Sundermann treated it as negligence based on design causing hazardous condition.	Hy-Vee acknowledged premises law applies but focused on foreseeability/breach.	Court: This is a premises-liability case governed by the five-factor test for conditions on land.
2. Did the air compressor’s location create an "unreasonable risk of harm"?	The compressor encouraged parking in a drive aisle, increasing vehicle–pedestrian conflict and created an unreasonably high risk.	Hy-Vee: lot complied with codes; similar to other stores; risk is ordinary to mixed-use parking lots.	Court: Evidence could be viewed to create a dispute on unreasonable risk, but resolution not required because next element dispositive.
3. Should Hy-Vee have expected patrons would not discover or would fail to protect themselves from the danger?	Sundermann argued Hy-Vee knew patrons parked in the drive aisle and thus should have anticipated patron vulnerability.	Hy-Vee argued the risks were open and obvious; patrons (including Sundermann) knew and took precautions.	Court: Held as a matter of law Hy-Vee had no reason to expect invitees would fail to protect themselves; the risk was open and obvious and the third element not satisfied.
4. Was the driver’s pedal error a superseding/efficient intervening cause that severs Hy-Vee's liability?	Sundermann argued site design set up the collision and proximate cause remained for Hy-Vee.	Hy-Vee argued the pedal slip was unforeseeable and an intervening act breaking causation.	Court: Did not rest on intervening-cause analysis; resolved in Hy-Vee’s favor on duty/third-element grounds and affirmed district court judgment.

Key Cases Cited

Hodson v. Taylor, 290 Neb. 348 (2015) (articulates open-and-obvious rule and when possessor must anticipate invitee failure to protect)
Williamson v. Bellevue Med. Ctr., 304 Neb. 312 (2019) (distinguishes ordinary/common risks from unreasonable risks on premises)
Derr v. Columbus Convention Ctr., 258 Neb. 537 (2000) (addresses first element: creation, knowledge, or discoverability of condition)
Danner v. Myott Park, Ltd., 209 Neb. 103 (1981) (defines "unreasonable risk of harm" as a risk a reasonable person would not allow to continue)
A.W. v. Lancaster Cty. Sch. Dist., 280 Neb. 205 (2010) (discusses foreseeability analysis and role of common-sense in negligence)
Connelly v. City of Omaha, 284 Neb. 131 (2012) (addresses distraction exception—when possessor should anticipate invitee inattention)