Salvation Army v. Kyle

Regardless of why McGill Restoration filed the motion,
however, the motion did not provide notice to Livingston that
he needed to offer evidence as to Pacific Realty’s liability.
Livingston’s claims against Pacific Realty constitute a separate
issue from Livingston’s relationship with McGill Restoration.
Pacific 	Realty’s 	liability 	was 	not 	raised 	in 	McGill
Restoration’s motion for summary judgment, and as such, the
district court erred in ruling on that issue.
VI. CONCLUSION
Because McGill Restoration’s motion for summary judg-
ment did not provide adequate notice to Livingston that Pacific
Realty’s liability was an issue being raised at the summary
judgment hearing, we reverse that part of the district court’s
order dismissing Livingston’s claims against Pacific Realty
and remand the matter for further proceedings consistent with
this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
the salvation aRmy, appellant, v. James Kyle
and tina Kyle , husband and wife ,
and James eweRs , appellees.
778 N.W.2d 485
Filed September 15, 2009. 	No. A-08-1190.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
3. Property: Easements: Contracts. Where a wall is entirely upon the property
of one party, the right of an adjoining owner to have support therefrom, whether
SALVAtION ARMy v. kyLe 	19
Cite as 18 Neb. App. 19
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

derived from contract or acquired by prescription, is in the nature of an easement,
which is terminated upon the destruction of the building by fire.
4. Property: Stipulations: Contracts. the fact that the owner of a building used
a wall upon the land of an adjoining proprietor for the support of his building
before the same was destroyed by fire is not such notice as charges a purchaser
of the property upon which the wall is situated with knowledge of a stipulation in
an unrecorded written contract that the owner of such building might renew the
use of such wall in case it should be destroyed and rebuilt.
5. Property: Easements. An easement for support in a party wall is terminated
upon destruction of the building by fire.
6. Property: Easements: Liability: Notice. the owners of a party wall do not have
a reciprocal easement of support from each other’s building, but either of them
may remove his own building without liability for the resulting damage to the
other, providing he gives proper notice of removal and uses reasonable care and
caution to protect the wall and remaining building.
7. Property. the removal of a part of a building pursuant to an order of condem-
nation creates no obligation on the part of the owner of the part of the building
removed to provide future protection for an interior division wall which then
becomes an exterior wall for the portion of the building remaining.
8. Property: Negligence. A landowner has a duty to use his property so as to not
unnecessarily and negligently injure his neighbor.
Appeal from the District Court for Adams County: teRRi
s. 	haRdeR, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Brian J. Adams, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellant.
Roger G. Steele, of Steele Law Office, for appellees James
kyle and tina kyle.
Randall L. Goyette and Cynthia R. Lamm, of Baylor, evnen,
Curtiss, Grimit & Witt, L.L.P., for appellee James ewers.
inbody, Chief Judge, and caRlson and mooRe, Judges.
mooRe, Judge.
INtRODUCtION
the Salvation Army filed this action against James kyle,
tina kyle, and James ewers in the district court for Adams
County, seeking to recover damages related to the loss of
the contents of a thrift store operated by the Salvation Army
and the ultimate demolition of the thrift store building in
20 	18 NeBRASkA APPeLLAte RePORtS

connection with a fire that occurred in May 2004. the district
court directed a verdict against the Salvation Army in connec-
tion with its claim for damages for the loss of its building and
the cost to demolish the building. the jury returned a verdict
in favor of the Salvation Army with respect to its damages for
the loss of equipment and inventory contained within the build-
ing. the Salvation Army appeals the district court’s entry of a
directed verdict. Because we find that the district court erred
in entering a directed verdict, we reverse, and remand for fur-
ther proceedings.
BACkGROUND
On May 5, 2004, the date of the fire in question, the
Salvation Army owned a two-story building in the city of
Hastings, Nebraska (City), from which it operated a thrift store.
the kyles owned a three-story building located immediately
to the west of the Salvation Army building; the kyle building
housed a retail antique store on the first floor and four residen-
tial apartments on the second floor. two of the apartments in
the kyle building were occupied by tenants at the time of the
fire. the kyle building, built in 1898, and the Salvation Army
building, built in 1900, shared a common wall, the west wall of
the Salvation Army building.
Despite having two tenants residing in their building, the
kyles never installed fire sprinklers or operable smoke detec-
tors as required by the Hastings City Code and the National
Fire Protection Association’s “Life Safety Code.”
ewers was the tenant occupying the southeast apartment in
the kyle building at the time of the fire. the kyles allowed
ewers to live in the building rent free in exchange for his help
in remodeling the apartments. the kyles also employed ewers
to perform various odd jobs. the evidence shows that ewers
smoked cigarettes and drank alcohol on a regular basis. the
kyles knew that ewers smoked and that he did so in his apart-
ment, but they did not take any steps to stop him from continu-
ing this practice.
the fire began sometime in the early morning hours of
May 5, 2004. According to an investigator with the State Fire
Marshal’s office, the fire originated in ewers’ apartment as a
SALVAtION ARMy v. kyLe 	21
Cite as 18 Neb. App. 19

result of careless handling of smoking materials by whoever
was occupying the apartment on that night. ewers admitted to
being intoxicated on the night of the fire. Because of the extent
of damage by the fire, the City ordered that the remains of the
kyle building be demolished.
Although the shared wall between the kyle building and
the Salvation Army building suffered very little fire damage,
the Salvation Army building and its contents suffered signifi-
cant smoke, water, and mold damage because of the fire. the
Salvation Army was unable to operate a thrift store at the loca-
tion of its building at any time after the date of the fire.
On May 17, 2004, the City building inspector observed that
the Salvation Army building had sustained damage, and the
City ordered that the building be vacated and secured against
entry. the City also ordered the Salvation Army to have its
building evaluated by a competent structural engineer.
On June 9, 2004, James Belina, an investigative engineer,
inspected the Salvation Army building, specifically its west
wall, to determine whether it was structurally sound. At the
time of Belina’s inspection, the kyle building had been demol-
ished. After his investigation, Belina concluded that it prob-
ably was not economical to repair the west wall and that it
should be torn down and replaced. Belina’s inspection showed
that when the Salvation Army building was constructed, holes
had been made in the wall of the kyle building and the roof
joists for the Salvation Army building had been slid into the
holes. Belina observed that the removal of the floor and roof
systems of the kyle building and its north and south walls left
the west wall of the Salvation Army building without needed
support. Belina also discovered that the Salvation Army build-
ing had experienced a fire at some time in the past and that
“sister joists” had been placed on some of the burned floor
joists, while other burned joists had not been repaired. Belina
noted that the limestone foundation of the Salvation Army
building was severely deteriorated due to loose and missing
mortar, creating an unstable condition and the potential for
total collapse. In his report, Belina concluded:
In summary, we believe that the condition of the wall
was primarily due to demolition of the adjacent building,
22 	18 NeBRASkA APPeLLAte RePORtS

which had resulted in removal of important load-resisting
components. the deterioration of the wall due to age
was severe and had greatly affected its ability to with-
stand load.
Renovation 	and 	construction 	of 	additional 	support
components for the wall would most likely be extremely
expensive and would likely exceed the cost of demolition
and rebuilding.
On October 6, 2004, the City building inspector observed
conditions inside the Salvation Army building, noting that the
interior was extremely humid, encouraging mold and mildew
growth; that the floor joists on the first floor had sustained
damage from a fire years before, which had not been repaired
or replaced in certain areas, and that the floor was substan-
tially weaker in those areas than prescribed by current building
codes; that the interior surface walls were growing mold and
mildew; and that the interior air quality was poor, with a stench
of mold and decay. On February 18, 2005, the building inspec-
tor observed that the west wall of the Salvation Army building
was unrestrained, due to the absence of floor-ceiling framing
on the west; that the west wall was exposed to the weather and
had no weather-resistive covering; that the west wall had holes
remaining from the floor framing which was recessed into the
party wall; and that no repair or stabilization had been done to
the building.
Based in part upon Belina’s report, the City ordered the
Salvation Army to demolish its building. the City also required
the Salvation Army to ensure that the wall the Salvation Army
building shared with its neighbor to the east would remain
stable after completion of the demolition.
the 	Salvation 	Army 	eventually 	retained 	an 	excavating
company to perform the demolition and stabilization work,
which cost $204,150. Demolition had to be performed by hand
because the demolition of the kyle building had damaged and
compromised the Salvation Army building’s west wall.
the 	Salvation 	Army 	filed 	the 	operative 	complaint 	on
November 2, 2007, seeking to recover the value associated
with the loss of the building, the costs incurred in demolishing
the building, the costs associated with replacing the inventory
SALVAtION ARMy v. kyLe 	23
Cite as 18 Neb. App. 19

and equipment in the building destroyed because of the fire,
and the profits the thrift store lost during the period in which it
could do no business because of the fire. the Salvation Army
alleged that ewers had a duty to exercise reasonable care in
conducting himself so as to not cause damage to the property
of others and that he breached such duty by smoking in his
apartment while intoxicated, failing to properly extinguish his
cigarette, and/or storing large amounts of flammable materials
in and around the kyle building in the course of his employ-
ment by the kyles. the Salvation Army alleged that the kyles,
as ewers’ employers, were responsible for any negligent acts
committed by ewers during the course of his employment. the
Salvation Army further alleged that the kyles had duties to
exercise reasonable care in preventing ewers, their tenant, from
continuing to engage in negligent activities which they knew
or should have known were reasonably likely to cause dam-
age to the Salvation Army building and, as property owners, to
exercise reasonable care in preventing a fire which originated
on their premises from spreading to the Salvation Army build-
ing. the Salvation Army alleged that the kyles breached these
duties by (1) allowing ewers to smoke in his apartment despite
their knowledge of his tendency to do so while intoxicated, (2)
allowing ewers to store large amounts of flammable materials
in and around the kyle building, and (3) failing to equip their
building with fire detection and suppression apparatus required
by City and state codes.
A jury trial was held on October 8 through 10, 2008. At the
close of the Salvation Army’s case, the district court entered a
directed verdict in favor of ewers and the kyles with respect
to the Salvation Army’s request for damages for the loss of its
building and the cost of demolishing it and with respect to the
allegations relating to ewers’ storage of flammable materials
and the kyles’ vicarious liability for that storage of materi-
als. With respect to the damages for the loss of the Salvation
Army building and the cost to demolish it, the court found that
those losses were not compensable, because the kyles did not
owe the Salvation Army a duty to provide any lateral support
and because the Salvation Army did not plead negligent demo-
lition of the kyle building. the issues of the kyles’ and ewers’
24 	18 NeBRASkA APPeLLAte RePORtS

liability for and damages resulting from the Salvation Army’s
loss of equipment, inventory, and profits were allowed to go to
the jury. the kyles and ewers rested without presenting further
evidence. the jury returned a verdict in favor of the Salvation
Army, finding the kyles to be 85-percent negligent and ewers
to be 15-percent negligent and awarding $19,529 in dam-
ages. the Salvation Army subsequently perfected its appeal to
this court.
ASSIGNMeNt OF eRROR
the Salvation Army asserts that the district court erred in
finding as a matter of law that the Salvation Army could not
recover damages for the loss of its building or the cost to
demolish the building on its claim against either the kyles
or ewers.
StANDARD OF ReVIeW
[1,2] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reasonably
be deduced from the evidence. State of Florida v. Countrywide
Truck Ins. Agency, 275 Neb. 842, 749 N.W.2d 894 (2008). A
directed verdict is proper at the close of all the evidence only
when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be
decided as a matter of law. Lacey v. State, 278 Neb. 87, 768
N.W.2d 132 (2009).
ANALySIS
In granting the motion for directed verdict, the district court
relied upon Bowhay v. Richards, 81 Neb. 764, 116 N.W. 677
(1908), and First Investment Co. v. State Fire Marshal, 175
Neb. 66, 120 N.W.2d 549 (1963).
[3,4] In Bowhay, the rights of the original adjoining land-
owners with respect to a party wall were governed by a written
contract, but the contract was never recorded. Both buildings
SALVAtION ARMy v. kyLe 	25
Cite as 18 Neb. App. 19

were subsequently destroyed by fire, but a portion of the party
wall was left standing. After the fire, the adjoining properties
were purchased by new landowners. the plaintiff constructed
a new building on his property and, in doing so, rebuilt and
used the former party wall. After completion of this building,
the defendant, who had purchased the adjoining lot, began
construction of a new building on his property and attempted
to use the former party wall for support of the ceiling and roof
joists of his building. the plaintiff then filed suit, seeking to
enjoin the defendant from doing so. On appeal, the Nebraska
Supreme Court agreed with the plaintiff’s allegation that any
easement in the party wall terminated upon destruction of the
original buildings by fire, stating that where a wall is entirely
upon the property of one party, the right of an adjoining owner
to have support therefrom, whether derived from contract or
acquired by prescription, is in the nature of an easement, which
is terminated upon the destruction of the building by fire.
Bowhay v. Richards, supra. the court went on to conclude that
the fact that the owner of a building used a wall upon the land
of an adjoining proprietor for the support of his building before
the same was destroyed by fire is not such notice as charges a
purchaser of the property upon which the wall is situated with
knowledge of a stipulation in an unrecorded written contract
that the owner of such building might renew the use of such
wall in case it should be destroyed and rebuilt. Id.
First Investment Co. v. State Fire Marshal, supra, was a con-
demnation action brought against a company to condemn a por-
tion of a building owned by the company. In 1914, the property
upon which the building sat was divided by deed and remained
so at the time of the condemnation action, the two halves of
the building being owned by different owners and divided by a
party wall. At the time of the condemnation action, the portion
of the building owned by the company had become dilapidated
through failure to repair and the erosion of time such that it
could no longer be used for its intended purpose. the adjoining
owners opposed the demolition of the portion of the building
owned by the company, alleging that because of the absence of
a supporting wall, the demolition would cause irreparable dam-
age to the portion of the building they owned. Accordingly, the
26 	18 NeBRASkA APPeLLAte RePORtS

adjoining owners sought an order requiring the construction of
a proper supporting wall at the company’s cost. the trial court,
among other things, ordered the company in demolishing its
portion of the building to not disturb the wall then existing
between the properties and to build and pay for half the costs
of a new tile wall extension.
On appeal, the company alleged that absent agreement
between the owners of a divided building, the owner of one part
had no obligation to repair or improve his part for the benefit
of the other owner or to extend an existing wall unless he was
using the extension. the Nebraska Supreme Court determined
that an implied easement in the party wall had arisen when the
premises was divided and conveyed to separate owners; the
court then sought to determine the duration of the implied ease-
ment under the facts of the case. the court stated:
Suppose, for the purpose of discussion, although the
record does not support it, the [c]ompany, which acquired
its interest in 1959, and its predecessors in interest, could
be charged with willfull neglect to repair its portion of
the building. to answer this supposition, it should first
be conceded that there is an obligation on each owner
to use his own property so as not to injure his neighbor.
However, can it be maintained from this obligation that
the right of support and shelter to which each is entitled,
and which may not be taken away by the wrongful act
of the other owner, imposes also the affirmative duty to
repair the premises and to maintain the existing condition
of things? Unless this is so, the judgment of the trial court
herein cannot be sustained. there is no question that if
a contract right were involved, one owner would not be
permitted to defeat an easement by his failure to repair.
[Citation omitted.] this, however, is not the present situ-
ation because we are concerned not with a contract right
but with an implied easement.
First Investment Co. v. State Fire Marshal, 175 Neb. 66, 72-73,
120 N.W.2d 549, 554 (1963) (emphasis supplied).
[5] the court observed:
Generally, the easement of support of adjoining build-
ings by the party wall ordinarily ceases when the wall
SALVAtION ARMy v. kyLe 	27
Cite as 18 Neb. App. 19

ceases to exist, or is accidentally destroyed, or has been
made unfit for its purpose by accident or age, or has
become so decayed as to require rebuilding from the
foundation. Similarly, when the buildings are accidentally
destroyed, the easement ceases.
Id. at 73, 120 N.W.2d at 554. the court went on to note its
holding in Bowhay v. Richards, 81 Neb. 764, 116 N.W. 677
(1908), that an easement for support in a party wall is termi-
nated upon destruction of the building by fire, stating specifi-
cally that “[t]his is the general rule where the destruction is by
accident or casualty.” 175 Neb. at 73, 120 N.W.2d at 554
(emphasis supplied).
[6] In answering the question of whether the company had
any duty to preserve its building for the protection of the party
wall, the Nebraska Supreme Court concluded that the owners
of a party wall do not have a reciprocal easement of support
from each other’s building, but either of them may remove his
own building without liability for the resulting damage to the
other, providing he gives proper notice of removal and uses
reasonable care and caution to protect the wall and remaining
building. First Investment Co. v. State Fire Marshal, supra. the
court stated that in the case where the action was brought “by
the State Fire Marshal for the protection and welfare of society,
there should be no question about the right to remove without
liability.” Id. at 78, 120 N.W.2d at 557.
[7] Finally, the court addressed the fact that the portion
of the building owned by the company could not be wholly
removed without damage to the remaining portion of the
building, noting the fact that the party wall was an interior
wall and not intended to protect against wind and weather,
making future damage probable absent the provision of an
exterior wall. the court noted that construction of the tile wall
sought by the adjoining owners was solely for the benefit of
the adjoining owners and could find no legal reason why the
company should be required to contribute to the cost of the tile
wall’s construction. Accordingly, the court determined that the
removal of a part of a building pursuant to an order of con-
demnation creates no obligation on the part of the owner of the
part of the building removed to provide future protection for an
28 	18 NeBRASkA APPeLLAte RePORtS

interior division wall which then becomes an exterior wall for
the portion of the building remaining. First Investment Co. v.
State Fire Marshal, supra.
the present case is distinguishable from Bowhay and State
Fire Marshal in several respects. those cases were premised
upon theories of contract law, easements, and the right to sup-
port from a common wall. In the present case, the Salvation
Army does not allege any contractual duty, easement, or breach
of a duty by the kyles to provide lateral support or protection
as a result of the common wall. Rather, the Salvation Army’s
case against the kyles is premised upon the kyles’ negligence
in allowing a tenant to smoke in the apartment and to store
flammable materials in the building, as well as the kyles’
failure to properly equip the building with fire detection and
suppression apparatus. thus, the general rule stated above in
State Fire Marshal regarding the termination of an easement in
a party wall upon the destruction of a building by fire does not
apply in the present case.
We agree with the Salvation Army that the issue relating to
the damages for the destruction and loss of its building is one of
proximate cause which should have been submitted to the jury.
In other words, whether the Salvation Army’s damages relat-
ing to the demolition and loss of its building were proximately
caused by the breach of the same duties that allowed recovery
against the kyles and ewers for the loss of the contents of the
Salvation Army building is a question of fact. We also note that
the directed verdict entered by the district court ignores the fact
that the loss of support was not the sole reason for the demo-
lition of the Salvation Army building. the record shows that
the conditions cited by the City leading to the order of demo-
lition of the Salvation Army building included the extremely
humid interior of the building, which encouraged mold and
mildew growth; the weakened condition of the floor, due to
damage from a previous fire; the growth of mold and mildew
on the interior surface walls; the poor interior air quality, with
a stench of mold and decay; the unrestrained west wall of the
Salvation Army building, due to the absence of floor-ceiling
framing; the west wall’s lack of a weather-resistive covering;
and lack of repair or stabilization to the building.
SALVAtION ARMy v. kyLe 	29
Cite as 18 Neb. App. 19

In 1 Am. Jur. 2d Adjoining Landowners § 12 at 937-38
(2005), it is stated that
[t]he principles of the law of negligence ordinarily
enter into the determination of the question of the reason-
able use of property. A private owner is liable for damages
inflicted by the owner’s negligence in connection with his
or her property, though the injury is inflicted outside and
beyond the limits of his or her property.
the proper test of liability of a possessor of land is
whether in the management of his or her property he or
she has acted as a reasonable person in view of the prob-
ability of injury to others. A landowner who engages in
activities that may cause injury to persons on adjoining
premises owes those persons a duty to take reasonable
precautions to avoid injuring them. Indeed, a landowner
owes adjoining landowners the duty to take such pre-
cautions and use such means to lessen the danger to
adjoining property as would a person of ordinary pru-
dence. Liability thus may be imposed on an adjoining
landowner or lessee if that individual creates a danger-
ous condition.
the fact that a building has been damaged or was
imperfectly constructed or has been condemned does
not affect the adjoining owner’s liability for additional
damage thereto by his or her negligence. Where a dan-
gerous condition on a person’s property causes injury
to the adjoining owner due to failure of the former to
fulfil his or her duty to correct the danger, a recovery of
damages based on negligence will lie. Further, in apply-
ing the law of negligence, if an abutting property owner
causes a defect on adjoining property, he or she may be
held responsible.
It is a general principle that in the absence of negli-
gence there is no liability if there was a legitimate and
reasonable use. Whether there was negligence is generally
a jury question.
[8] In Nebraska, a landowner has a duty to use his property
so as to not unnecessarily and negligently injure his neighbor.
Schomberg v. Kuther, 153 Neb. 413, 45 N.W.2d 129 (1950);
30 	18 NeBRASkA APPeLLAte RePORtS

Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, 62 N.W.
859 (1895).
It has been held that “[s]moke [damage] and water damage
to adjacent property are foreseeable consequences of a fire,
and plaintiff may recover for such damage[s] if he establishes
defendants’ breach of duty and proximate cause.” Cuevas
v. Quandt’s Foodservice Distributors, 6 A.D.3d 973, 974,
775 N.y.S.2d 429, 430 (2004). See, also, Excelsior Ins. Co.
v. Auburn Local Development Corp., 294 A.D.2d 861, 741
N.y.S.2d 632 (2002); Fontana Fabrics, Inc. v. Hodge, 187
A.D.2d 378, 589 N.y.S.2d 488 (1992).
We conclude that reasonable minds could differ and that
more than one conclusion could be drawn as to whether the
damages relating to the demolition and loss of the Salvation
Army building were proximately caused by the kyles’ and
ewers’ negligence. Accordingly, entry of a directed verdict
was improper.
CONCLUSION
the district court erred in entering a directed verdict on the
issue of the Salvation Army’s damages relating to the demo-
lition and loss of its building.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
SALVAtION ARMy v. kyLe 	31
Cite as 18 Neb. App. 19