Wichman v. Hy-Vee, 969 N.W.2d 688

On Aug. 10, 2015, Beti Wichman slipped and fell in a puddle of milk in a Hy‑Vee grocery store and injured her elbow and wrist.
Wichman was standing at a chest freezer when her granddaughter alerted her to the milk; Wichman and granddaughter testified the milk and a milk jug with its red cap were next to the freezer.
A Hy‑Vee employee (a stocker) had been stocking an endcap freezer in the area for about 20 minutes before the fall; his back was to the chest freezer, he did not see or hear the spill, and he testified he was not specifically watching that area.
Store managers and employees testified store policy required immediate cleanup of spills and routine store walks/sweeps to look for hazards; no employee reported seeing the milk before Wichman fell.
At summary judgment the district court found no evidence Hy‑Vee had actual or constructive knowledge of the spilled milk (no evidence how long it was on the floor), and granted Hy‑Vee judgment as a matter of law; the court of appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hy‑Vee had constructive notice of the spilled milk (i.e., should have discovered it by reasonable care)	Wichman: stocker was in the area ~20 minutes and admitted he wasn’t paying attention, so a fact issue exists on constructive knowledge	Hy‑Vee: no evidence how long milk was on floor, no employee saw it, store had policies and inspections, so no constructive knowledge	Court: Affirmed summary judgment — no evidence milk existed long enough or was visible to permit discovery; no constructive notice
Whether a "momentary distraction" of the plaintiff creates a duty question	Wichman: employees should have expected customers might be distracted and not see the hazard	Hy‑Vee: primary failure is lack of evidence on discovery/notice; momentary distraction irrelevant if no constructive notice	Court: Declined to reach because plaintiff failed on the first element (notice)
Whether denial of new trial was erroneous	Wichman: asserted as error on appeal	Hy‑Vee: argued against reversal	Court: Not addressed on merits — plaintiff did not brief the issue, so it was waived

Sundermann v. Hy‑Vee, 306 Neb. 749 (summary judgment standard and appellate review principles)
Edwards v. Hy‑Vee, 294 Neb. 237 (elements of premises‑liability claim; constructive notice must be visible/apparent and exist long enough for discovery and remedy)
Herrera v. Fleming Cos., 265 Neb. 118 (affirming summary judgment where plaintiff could not show how long hazardous condition existed and no employee observed it)
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47 (issues not argued in brief are waived on appeal)