Sundermann v. Hy-Vee, 947 N.W.2d 492

Background

Plaintiff Rita Sundermann was injured when a pickup driven by Hy‑Vee employee Robert Swanson struck her while she was crouched in an access drive inflating tires at a Hy‑Vee convenience store; Swanson admitted a pedal error (intended brake but hit gas) and settled with Sundermann.
The air compressor was mounted on the sidewalk/curb line so its hose reached into the eastbound drive aisle; patrons commonly parked in that drive aisle to use it; Hy‑Vee designed and placed the compressor and knew patrons used it there but had no prior accidents or complaints.
Experts disagreed: plaintiff’s architect opined the compressor location encouraged blocking the drive aisle and increased pedestrian‑vehicle conflict; Hy‑Vee’s experts testified the layout complied with codes, was typical, and risk was inherent to mixed‑use parking areas.
District court granted summary judgment for Hy‑Vee, holding the pedal‑slip acceleration was not reasonably foreseeable and that Swanson’s negligence was an intervening cause.
Nebraska Court of Appeals reversed, finding genuine issues of fact on foreseeability of harm; Supreme Court granted further review and framed the dispute as a premises‑liability question about duty and the open‑and‑obvious doctrine.
Supreme Court reversed the Court of Appeals and directed affirmance of the district court, holding (under premises liability rules) Hy‑Vee had no reason to expect patrons who knowingly park in the drive aisle would fail to protect themselves from the obvious hazard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Scope of duty under premises liability	Hy‑Vee created a dangerous condition by placing compressor where hose reaches into drive aisle, so owes duty to protect patrons	Hy‑Vee owed duty but complied with codes and had no superior knowledge of a special hazard beyond ordinary parking lot risks	Court treated this as premises liability and found Hy‑Vee created/ knew of the condition but scope of duty depends on elements 2–3 of the test
2. Whether compressor location posed an "unreasonable risk of harm"	Location increased pedestrian‑vehicle conflict beyond ordinary parking‑lot risks	Layout complied with codes and was typical; risk was common to mixed‑use areas	Court: disputed but assuming risk could be unreasonable, the claim still fails on element 3 (anticipation)
3. Whether possessor should have expected invitees would not discover or would fail to protect themselves (open‑and‑obvious / distraction exception)	Hy‑Vee should have anticipated patrons would park in drive aisle and be at risk; thus should anticipate failure to protect	Hy‑Vee knew patrons parked there but had no reason to expect they would be distracted or unable to protect themselves; no prior incidents or complaints	Held for Hy‑Vee as a matter of law: risk was open and obvious and Hy‑Vee had no reason to expect patrons like Sundermann would fail to protect themselves
4. Causation / intervening cause (driver’s pedal error)	Condition on land made collision foreseeable (patron parked in aisle, vehicle backing)—proximate cause links Hy‑Vee to injury	The pedal‑slip acceleration was an unforeseeable, efficient intervening cause severing Hy‑Vee’s liability	Court affirmed summary judgment without relying on intervening‑cause rationale; dispositive was lack of duty to protect against open‑and‑obvious risk

Key Cases Cited

A.W. v. Lancaster Cty. Sch. Dist., 280 Neb. 205 (2010) (foreseeability inquiry and common‑sense analysis)
Hodson v. Taylor, 294 Neb. 237 (2016) (application of open‑and‑obvious doctrine in premises liability)
Williamson v. Bellevue Med. Ctr., 304 Neb. 312 (2019) (premises liability framework and distinction between ordinary and unreasonable risks)
Connelly v. City of Omaha, 284 Neb. 131 (2012) (scope of land possessor’s duty and invocation of specialized elements)
Danner v. Myott Park, Ltd., 209 Neb. 103 (1981) (definition of "unreasonable risk of harm" in premises cases)