Wichman v. Hy-Vee
30 Neb. Ct. App. 415
| Neb. Ct. App. | 2021Background
- On Aug. 10, 2015, Beti Wichman slipped and fell in a puddle of milk in front of a chest freezer at a Hy‑Vee grocery store; her granddaughter saw the milk and a milk jug with its red top near the puddle. Wichman injured her elbow and wrist.
- A Hy‑Vee stocker had been working in the general area for about 20 minutes prior to the fall, stocking an endcap freezer with his back toward the chest freezer; he testified he did not see or hear the fall and did not recall seeing milk on the floor.
- Hy‑Vee’s store policies required employees to clean spills immediately and to deploy caution signs; managers routinely walk the store and perform scheduled “sweeps”; the manager on duty testified he had walked the store that day and observed no spills.
- Neither Wichman nor any Hy‑Vee employee could say how long the milk had been on the floor before the fall, and no employee reported observing the milk prior to Wichman’s accident.
- The district court granted Hy‑Vee summary judgment for lack of actual or constructive knowledge of the hazard; Wichman appealed and also challenged denial of her motion for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive knowledge of the spill | Wichman: a Hy‑Vee employee was in the area ~20 minutes and admitted not paying attention, so Hy‑Vee should be charged with constructive notice | Hy‑Vee: no evidence the spill was visible or existed long enough for employees to discover it; employees and manager did not see the milk; cleaning/inspection policies existed | Affirmed: no genuine issue that Hy‑Vee had constructive knowledge; plaintiff produced no evidence of duration or employee observation |
| Momentary‑distraction doctrine (whether Hy‑Vee should have expected customers to be distracted) | Wichman: Hy‑Vee should have anticipated shoppers could be distracted and fail to see the spill | Hy‑Vee: first‑element (constructive notice) not met; no evidence to apply distraction rule | Not reached on the merits; rejected insofar as plaintiff failed to show constructive knowledge |
| Denial of new trial | Wichman: district court erred in denying her motion for new trial | Hy‑Vee: opposed; contends issue not properly raised on appeal | Not considered on appeal — issue not argued in appellant’s brief (waived) |
Key Cases Cited
- Edwards v. Hy‑Vee, 294 Neb. 237, 883 N.W.2d 40 (premises‑liability elements; constructive notice requires hazard be visible/apparent and exist long enough for discovery and remedy)
- Sundermann v. Hy‑Vee, 306 Neb. 749, 947 N.W.2d 492 (summary‑judgment standard; view evidence in light most favorable to nonmoving party)
- Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (affirming summary judgment where plaintiff could not show how long hazard existed and no employee observed it)
- AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (issues not briefed on appeal are not considered)