Borchman v. Burlington Capital Properties

B
                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                        BORCHMAN V. BURLINGTON CAPITAL PROPERTIES


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  JOY BORCHMAN, APPELLANT,
                                                V.

                          BURLINGTON CAPITAL PROPERTIES, LLC, AND
                            6801 LIMITED PARTNERSHIP, APPELLEES.


                            Filed February 23, 2021.   No. A-20-479.


       Appeal from the District Court for Douglas County: PATRICIA A. LAMBERTY, Judge.
Affirmed.
       Zachary Lutz-Priefert and Eric J. Sutton, of Gross & Welch, P.C., L.L.O., for appellant.
       Thomas J. Guilfoyle, of Erickson & Sederstrom, P.C., for appellees.


       MOORE, BISHOP, and WELCH, Judges.
       WELCH, Judge.
                                       INTRODUCTION
       Joy Borchman appeals the order of the Douglas County District Court granting summary
judgment in favor of Burlington Capital Properties, LLC, and 6801 Limited Partnership. For the
reasons set forth herein, we affirm.
                                   STATEMENT OF FACTS
       On September 9, 2016, Borchman fell on the steps outside her apartment in Omaha,
Nebraska, injuring her legs. As a result of the fall and injury, Borchman brought a lawsuit against
6801 Limited Partnership, owner of the apartment complex, and Burlington Capital Properties,
manager of the property (hereinafter referred to collectively as “Appellees”). Borchman’s lawsuit
alleged that while descending the steps outside of her apartment, her heel became caught on



                                               -1-
“stripping material” that had peeled away from the steps resulting in Borchman breaking both of
her legs. She further alleged that the Appellees were negligent in failing to maintain the steps and
in failing to remove faulty and defective steps. Borchman alleged the Appellees knew or should
have known the steps were not maintained in an appropriate condition and that Borchman and
other tenants had reported defects in the steps and that the steps were in a poor condition.
                                 MOTION FOR SUMMARY JUDGMENT
        In March 2020, the Appellees filed a motion for summary judgment asserting that
Borchman’s own negligence, not the Appellees’ negligence, resulted in her falling down the steps.
During the summary judgment hearing, the Appellees offered Borchman’s July 2019 deposition
and accompanying photographic deposition exhibits. The court also received into evidence an
affidavit from Tina Wagner, a manager for Burlington Capital.
                                      BORCHMAN’S DEPOSITION
         During her deposition, Borchman testified that she fell as she and a friend were leaving
Borchman’s apartment around 9 p.m., Borchman stated that her friend recalled seeing “a piece of
that [nonskid] tape blow up over my foot,” but Borchman explained, “I don’t recall that. I just
remember feeling something sticky under my heel.” Later, Borchman stated she never saw any
balled-up, nonskid tape on the area of the stair she believed led to her fall because it was dark
outside, the light from the building was behind her, and she was looking at the parking lot instead
of watching where she was stepping. When asked if she “[knew] for sure what [she] tripped on or
fell over,” Borchman replied, “Yes. It wasn’t a trip, it was a sticky piece of something or other.
Something sticky, because I can still feel that feeling. . . . No, I didn’t see it. It was dark. . . . I
knew the tape was there. . . . That’s the only thing that was on the step, was the tapes.” Borchman
recalled that there were portions of the nonskid tape on most of the steps.
         Borchman was also asked, “Was there a portion of a step that had a balled-up or wadded-up
portion of this non[skid] material on it,” to which Borchman replied, “Not that I recall until -- till
I stepped on it. . . . But I didn’t see it ahead of time.” However, she admitted she did not see it after
her fall either. When asked how she knew this information, Borchman explained, “It comes from
my reasoning, I think, that there was nothing else blocking the stairs or anything like that to trip
on.” When asked if she had talked to anyone in her apartment who had reported the nonskid tape
as a problem, she replied no, nothing specific about the nonskid tape, but that there were
complaints about the condition of the steps and that she had reported the condition of the steps to
the manager “more than once.” Borchman further acknowledged in her deposition that she did not
use the handrail at the time of the accident because the handrail was wet from a rainfall earlier in
the day. Borchman also acknowledged in her deposition that although she initially claimed she fell
from the second step from the sidewalk, after giving the matter further thought, she now believed
she had fallen from the fifth step. During her deposition, Borchman testified that photographs
marked as deposition exhibits 9 through 20, 22, and 23, were accurate depictions of the steps as
she remembered them. These photographs show that there was no nonskid tape on either step
number 2 or step number 5.




                                                  -2-
                                       WAGNER’S AFFIDAVIT
       In Wagner’s affidavit, she stated that she has managed Borchman’s apartment complex
from March 2016 to the date of her May 2020 affidavit. She explained that she had not received
complaints about the outside steps for Borchman’s apartment building, but upon learning of the
accident, Wagner requested that the maintenance department “check and make sure there was
nothing wrong with the steps.” Tristan Holton, a maintenance technician at Borchman’s apartment
complex, inspected the steps. Holton’s September 12, 2016, investigation report, which was
attached to Wagner’s affidavit, stated that he observed “nothing wrong with [the] deck or steps.”
Wagner stated no repairs, modifications, or changes were made to the exterior steps of Borchman’s
building after Borchman’s accident.
                                      DISTRICT COURT ORDER
         In the order on the motion for summary judgment, the district court found Borchman had
traversed the steps at least twice per day for approximately 2 years, had gone up the steps at 4 p.m.
on the day of the accident, and did not see loose nonskid tape which she blames for her fall. The
district court noted Borchman first claimed she fell from step number 2, then later concluded she
must have fallen from step number 5, and that the photographic exhibits did not show nonskid tape
on either step. The district court also relied on Wagner’s affidavit, which the court found
established that no one complained about the steps and that there was nothing wrong with the steps.
         The district court determined the present case was similar to Herrera v. Fleming Cos., 

265 Neb. 118

, 

655 N.W.2d 378

(2003). In Herrera, the Nebraska Supreme Court affirmed the district
court’s granting of summary judgment against a customer who alleged she slipped on a wet floor
in a store noting the customer failed to produce evidence that the store knew or should have known
of the wet floor. Similarly, the district court found Borchman did not provide evidence that the
Appellees created a condition or knew of the condition.
         Additionally, the district court found that Borchman breached her duty to use due care by
not using a handrail as she descended the steps. The district court noted Nebraska Supreme Court
precedent indicates that a plaintiff breaches his duty to use due care in not using a handrail, citing
Schwartz v. Selvage, 

203 Neb. 158

, 

277 N.W.2d 681

(1979), and in failing to watch where he or
she is stepping, citing Murphy v. Justus, 

214 Neb. 272

, 

333 N.W.2d 670

(1983). The district court
ultimately granted summary judgment in favor of the Appellees dismissing the matter with
prejudice. Borchman has timely appealed to this court.
                                   ASSIGNMENTS OF ERROR
        Borchman assigns that the district court erred in (1) granting the Appellees’ motion for
summary judgment because there are multiple disputes of material facts in this case, (2) making
findings of disputed facts in considering the Appellees’ motion for summary judgment, (3)
granting the motion for summary judgment because the Appellees are not entitled to judgment as
a matter of law, and (4) finding that Borchman breached her own duty of care when she decided
not to use a wet and slick handrail when descending the exterior steps of her apartment.




                                                -3-
                                    STANDARD OF REVIEW
        An appellate court reviews the district court’s grant of summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Kaiser v. Allstate Indemnity Co., 

307 Neb. 562

, 

949 N.W.2d 787

(2020).
        On a motion for summary judgment, failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial. Freeman v. Hoffman-La
Roche, Inc., 

300 Neb. 47

, 

911 N.W.2d 591

(2018).
                                            ANALYSIS
        Borchman’s first assignment of error is that the district court erred in granting the
Appellees’ motion for summary judgment because there are multiple disputes of material facts in
this case. She argues the district court improperly decided issues of fact and that the court drafted
its own statement of facts but failed to indicate if the facts are disputed, not disputed, or not
material. Borchman contends this amounts to an improper decision by the district court warranting
reversal.
        In determining which facts are material here, we note both parties characterize the present
action as a premises liability case. The Nebraska Supreme Court recently set forth the appropriate
analytical framework for premises liability cases, opining:
        We have cautioned that “[n]ot every negligence action involving an injury suffered on
        someone’s land is properly considered a premises liability case.” Generally speaking, our
        premises liability cases fall into one of three categories: (1) those concerning the failure to
        protect lawful entrants from a dangerous condition on the land, (2) those concerning the
        failure to protect lawful entrants from a dangerous activity on the land, and (3) those
        concerning the failure to protect lawful entrants from the acts of a third person on the land.

Sundermann v. Hy-Vee, 

306 Neb. 749

, 765, 

947 N.W.2d 492

, 504 (2020). Here, Borchman sued
the Appellees alleging she was injured on the steps leading from her apartment when her heel was
caught “by stripping material . . . which had peeled away” from the steps, which she contends was
an unreasonably dangerous condition on the property.
       There are five elements of a premises liability case for the failure to protect lawful entrants
from a dangerous condition on the land:
       (1) the possessor either created the condition, knew of the condition, or by the existence of
       reasonable care would have discovered the condition; (2) the possessor should have
       realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the
       possessor should have expected that a lawful visitor such as the plaintiff either (a) would
       not discover or realize the danger or (b) would fail to protect himself or herself against the
       danger; (4) the possessor failed to use reasonable care to protect the lawful visitor against
       the danger; and (5) the condition was a proximate cause of damage to the plaintiff.

Id. at 766, 947

N.W.2d at 505.
        The first element of the premises liability test can be met by proving that the possessor
created the condition, knew of the condition, or would have discovered the condition by the


                                                 -4-
exercise of reasonable care. 

Sundermann, supra

. Inherent in this analysis is that there is an
identifiable condition on the land.
         A person who alleges negligence on the part of another bears the burden to prove such
negligence by direct or circumstantial evidence. Herrera v. Fleming Cos., 

265 Neb. 118

, 

655 N.W.2d 378

(2003). The mere fact that an injury or accident occurred does not raise a presumption
of negligence.

Id. Summary judgment is

proper only when the pleadings, depositions, admissions,
stipulations, and affidavits in the record disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law.

Id. A prima facie

case for summary judgment is shown
by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor
if the evidence were uncontroverted at trial.

Id. At that point,

the burden of producing evidence
shifts to the party opposing the motion.

Id. Appellees filed a

motion for summary judgment claiming they were entitled to judgment
as a matter of law. At the hearing thereon, Appellees offered the affidavit of Wagner who asserted
that as manager of Borchman’s apartment complex, she had not received any complaints about the
outside steps of Borchman’s apartment, but upon hearing of the accident, she contacted
maintenance and as a result, Holton, a maintenance technician, inspected the steps. Holton’s
September 12, 2016, investigation report stated he had observed “nothing wrong with [the] deck
or steps.” Further, Wagner’s affidavit stated no modifications or changes were made to the deck
or steps following the incident.
         As the party moving for summary judgment, the Appellees established that there were no
known dangerous condition on the steps that caused Borchman’s fall. If these facts remained
uncontroverted, the Appellees were entitled to summary judgment as a matter of law. Stated
differently, at that point, the burden of producing evidence that a dangerous condition existed
which Appellees created, knew of, or by the exercise of reasonable care would have discovered,
shifted to Borchman.
         Borchman attempted to provide this evidence through her deposition testimony. Within
that deposition, Borchman stated that her friend, who was present when Borchman fell, said “he
saw a piece of that [nonskid] tape blow up over my foot. I don’t recall that. I just remember feeling
something sticky under my heel.” Borchman herself admitted that she never saw any balled-up,
nonskid tape on the area of the stair which tape she believed led to her fall. She surmised that she
did not see the tape because it was dark outside, the light from the building was behind her, and
she was looking at the parking lot instead of watching where she was stepping. Further, although
Borchman testified that she did not “trip,” and that her fall was caused by “[s]omething sticky,
because I can still feel that feeling,” she admitted that she “didn’t see it. It was dark. . . . I knew
the tape was there. . . . That’s the only thing that was on the step, was the tapes.” However,
Borchman admitted that she did not see any portion of a step that had balled-up or a wadded-up
portion of the non-skid material on it either “ahead of time” or after her fall. She explained that
her information regarding what caused her fall “comes from my reasoning, I think, that there was
nothing else blocking the steps or anything like that to trip on.” When asked if she had talked to
anyone in her apartment who had reported the nonskid tape as a problem, she replied no, that there
were complaints about the condition of the steps, but nothing specific about the nonskid tape.


                                                 -5-
Additionally, in her deposition, Borchman acknowledged that although she initially claimed she
fell from the second step from the sidewalk, after giving the matter further thought, she later
believed she had fallen from the fifth step. Photographs marked as deposition exhibits 4 and 9,
show that there was no nonskid tape on either steps 2 or 5.
         Borchman’s own testimony establishes that she is speculating as to the condition that led
to her injuries. Although Borchman testified that she knew balled-up, nonskid tape had caused her
fall because there was nothing blocking the steps or “anything like that to trip on,” she also stated
she was not looking at the steps as she descended them, could not see because it was dark, and that
she never saw balled-up, nonskid tape on the steps. We further note that upon subsequent
inspection, there was no tape on either of the steps on which Borchman alleges she fell, nor did
she provide any evidence from which a reasonable inference could be drawn that a dangerous
condition existed, or that Appellees knew of the specific condition, or by the exercise of reasonable
care should have discovered the dangerous condition.
         We note that “[c]onclusions based on guess, speculation, conjecture, or a choice of
possibilities do not create material issues of fact for the purposes of summary judgment; the
evidence must be sufficient to support an inference in the nonmovant’s favor without the fact finder
engaging in guesswork.” In re Estate of Fuchs, 

297 Neb. 667

, 678-79, 

900 N.W.2d 896

, 905
(2017). On a motion for summary judgment, failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial. Freeman v. Hoffman-La
Roche, Inc., 

300 Neb. 47

, 

911 N.W.2d 591

(2018).
         Because Borchman’s conclusion about the condition on the property causing her fall is
based on guess or speculation, she has failed to provide sufficient evidence to create a reasonable
inference that a dangerous condition existed, the first element necessary to maintain her case, and
the remaining facts are thus immaterial. Summary judgment may be granted if there are no genuine
disputes of material fact and the moving party is entitled to judgment as a matter of law. Peterson
v. Homesite Indemnity Co., 

287 Neb. 48

, 

840 N.W.2d 885

(2013). Therefore, we cannot say the
district court erred in finding there were no genuine issues of material fact and that the Appellees
were entitled to judgment as a matter of law.
         Having determined that Borchman failed to prove the first element necessary to maintain
her case and, consequently, the district court properly entered summary judgment in favor of the
Appellees, we need not consider Borchman’s remaining assignments of error. An appellate court
is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy
before it. Cain v. Lymber, 

306 Neb. 820

, 

947 N.W.2d 541

(2020).
                                          CONCLUSION
      For the reasons included herein, we affirm the district court’s order granting summary
judgment in favor of the Appellees.
                                                                                   AFFIRMED.




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