Underhill v. Hobelman

that the district court should not have granted summary judg-
ment in favor of UP.
CONCLUSION
Based on the facts of this case, we conclude that the princi-
ples set forth in the commuter cases are not applicable. Rather,
we conclude that the facts of this case fit within the traversing
line of cases and that therefore, Holsapple’s injury occurred
within the course and scope of his employment for purposes of
the FELA. As such, UP was not entitled to judgment as a mat-
ter of law. We reverse the summary judgment entered in UP’s
favor and remand the cause for further proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
anne undeRhill , appellant, v.
shiloh hobelman, appellee .
776 N.W.2d 786
Filed December 18, 2009. 	No. S-09-150.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Where
a statute has been judicially construed and that construction has not evoked an
amendment, it will be presumed that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent.
Appeal from the District Court for Lancaster County: RobeRt
R. otte, Judge. Affirmed.
Gary J. Nedved and Joel Bacon, of Keating, O’Gara, Nedved
& Peter, P.C., L.L.O., for appellant.
30 	279 NEBRASKA REPORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

travis P. O’Gorman, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack,
and milleR-leRman, JJ.
peR cuRiam.
NAtURE OF CASE
the sole issue in this appeal is whether an amendment to
Neb. Rev. Stat. § 54-601 (Reissue 2004), which inserted the
word “injuring” to the list of recoverable actions, expands the
statute’s coverage to include damages caused by a dog’s play-
ful or mischievous behavior. Anne Underhill filed a complaint
against Shiloh Hobelman, seeking damages for injuries she
sustained when Hobelman’s dog ran into her knee, causing
her to fall. Underhill appeals the district court’s order grant-
ing partial summary judgment in favor of Hobelman. the
district court concluded that Hobelman was not strictly liable
pursuant to § 54-601 for Underhill’s injuries, because the dog
was not acting maliciously. We affirm the decision of the dis-
trict court.
BACKGROUND
the facts of this case are undisputed. Underhill and Hobelman
are friends. On December 31, 2005, Underhill went to meet
Hobelman at his dormitory room so that the two could go out
for dinner. Underhill parked her car and, as she was walk-
ing toward Hobelman’s dormitory room, she saw Hobelman’s
mother walking Brady, Hobelman’s golden retriever. Brady
has been trained to assist Hobelman with his day-to-day tasks,
and Brady responds to both verbal commands and hand ges-
tures. Brady recognized Underhill and began wagging his
tail. Because Underhill was familiar with Brady, Hobelman’s
mother let him off his leash to greet Underhill.
Once Brady was off the leash, he started running toward
Underhill. Underhill testified at her deposition that Brady was
not running at her in a threatening manner and that he did not
display any intent to harm her. However, Brady was running
very fast and he ran into Underhill’s left knee, causing her
to lose her balance and fall. As a result of this fall, Underhill
UNDERHILL v. HOBELmAN 	31
Cite as 279 Neb. 30

suffered injuries to her knee, which required surgery. Because
Underhill could no longer afford her medical bills, she filed
suit against Hobelman.
Underhill filed suit against Hobelman, asserting two theories
of recovery: strict liability pursuant to § 54-601 and negli-
gence. Underhill subsequently dismissed her cause of action
for negligence. Underhill’s main argument on appeal is that
the amendment to § 54-601 inserting the word “injuring” to
the list of recoverable damages expands the scope of coverage
to include damages caused from a dog’s playful or mischie-
vous behavior.
the district court concluded that the amendment to § 54-601
was not intended to expand coverage from injuries sustained
from a dog’s playful or mischievous conduct. In so conclud-
ing, the district court explained that it is bound by the doctrine
of vertical stare decisis and that thus, it relied on previous
case law interpreting § 54-601 to exclude from its coverage
the playful and mischievous acts of dogs. Underhill appealed,
and we granted her petition to bypass the Nebraska Court
of Appeals.
ASSIGNmENt OF ERROR
Underhill alleges, restated and consolidated, that the district
court erred in granting partial summary judgment in favor of
Hobelman, concluding that Hobelman was not strictly liable
pursuant to § 54-601 because his dog was acting playfully and
not maliciously.
StANDARD OF REVIEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts 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.1 In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
1 Erickson v. U-Haul Internat., 278 Neb. 18, 767 N.W.2d 765 (2009).
32 	279 NEBRASKA REPORtS

the judgment was granted, giving that party the benefit of all
reasonable inferences deducible from the evidence.2
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.3
ANALYSIS
this appeal turns on our application of § 54-601, which pro-
vides in relevant part that
the owner or owners of any dog or dogs shall be liable
for any and all damages that may accrue (1) to any person
. . . by reason of having been bitten by any such dog or
dogs and (2) to any person . . . by reason of such dog or
dogs killing, wounding, injuring, worrying, or chasing
any person or persons.
In Donner v. Plymate,4 we reasoned that “the Legislature was
fully aware of the need for protection from the intentional,
deliberate, and purposeful acts of dogs and as a result restricted
[§ 54-601] to those acts manifesting such qualities.” As a
result, we held that § 54-601 excluded strict liability for dam-
ages caused by “playful and mischievous acts of dogs.”5
Underhill does not argue that our holding in Donner was
incorrect. Rather, Underhill argues that 1992 Neb. Laws, L.B.
1011, abrogated our holding in Donner by adding the word
“injuring” to the list of harms that could support liability. We
agree with the general presumption that the Legislature, in
adopting an amendment, intended to make some change in the
existing law and that we should give effect to that change.6 But
the legislative record does not support Underhill’s interpreta-
tion of L.B. 1011.
2 Id.
3 Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765
N.W.2d 440 (2009).
4 Donner v. Plymate, 193 Neb. 647, 649-50, 228 N.W.2d 612, 614 (1975).
5 Id. at 650, 228 N.W.2d at 614. Accord Holden v. Schwer, 242 Neb. 389,
495 N.W.2d 269 (1993).
6 See No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822,
523 N.W.2d 528 (1994).
UNDERHILL v. HOBELmAN 	33
Cite as 279 Neb. 30

Instead, the legislative record makes clear that L.B. 1011
was prompted by a court decision in which an injured person
had been unable to recover for a broken hip that had alleg-
edly been caused by a dog, because it was not a “wound”
within the meaning of § 54-601.7 the purpose of L.B. 1011
was to expand the scope of § 54-601 to include “internal
damages even if there are no external damages caused by the
owner’s dog.”8 It did not address Donner, either implicitly
or explicitly.
[4] When we judicially construe a statute and that con-
struction fails to evoke an amendment, we presume that the
Legislature has acquiesced in our determination of its intent.9
And we presume that when we have construed a statute and the
same statute is substantially reenacted, the Legislature gave to
the language the significance we previously accorded to it.10
Nothing in the plain language of L.B. 1011, or its legislative
history, rebuts the presumption that the Legislature acquiesced
to our holding in Donner and reenacted § 54-601 without
affecting that holding. We find no merit to Underhill’s assign-
ment of error.
CONCLUSION
Relying on our holding in Donner, the district court cor-
rectly granted summary judgment for Hobelman. the judgment
of the district court is affirmed.
affiRmed.
WRight, J., not participating.
7 See, generally, Agriculture Committee Hearing, L.B. 1011, 92d Leg., 2d
Sess. (Jan. 28, 1992).
8 Introducer’s Statement of Intent, L.B. 1011, Agriculture Committee, 92d
Leg., 2d Sess. (Jan. 28, 1992).
9 See Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d
51 (2009).
10 See Brown v. Kindred, 259 Neb. 95, 608 N.W.2d 577 (2000).
mccoRmack, J., dissenting.
I respectfully dissent.
this appeal turns on our application of § 54-601, which was
revised in 1992 and provides in relevant part that
34 	279 NEBRASKA REPORtS

the owner or owners of any dog or dogs shall be liable
for any and all damages that may accrue (1) to any person
. . . by reason of having been bitten by any such dog or
dogs and (2) to any person . . . by reason of such dog or
dogs killing, wounding, injuring, worrying, or chasing
any person or persons.
Prior to 1992, the word “injuring” was not in the statute. Given
the current plain and unambiguous language of § 54-601, I
would impose liability where a person was injured by a dog
without regard to the intent of the dog at the moment of
impact. thus, in the instant case, I would reverse.
Donner v. Plymate,1 upon which the district court relied, was
decided in 1975 under the 1961 version of the statute, which
did not include the word “injuring.” At issue in Donner was
whether the statute then in effect supported liability when a
plaintiff was hurt by a dog that was simply being playful. In
Donner, we noted that prior to passage of § 54-601 at common
law, a plaintiff suing a dog owner for damage inflicted by a dog
was required to prove that the dog owner had knowledge of the
dangerous propensities of the dog.2 In other words, every dog
was entitled to “‘one free bite.’”3 However, § 54-601 created a
cause of action based upon strict liability on the part of a dog
owner and we have consistently referred to § 54-601 as a strict
liability statute.4
In Donner, we stated that the enactment of § 54-601
“removed the common law restriction of proving scienter or
knowledge of the dangerous propensities of dogs, but only as
it applied to the actions of dogs specified in the statute.”5 We
then discussed the statutory terms then in effect, which created
strict liability for damages inflicted by a dog that was biting,
1 Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).
2 See, e.g., Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931).
3 See State v. Ruisi, 9 Neb. App. 435, 442, 616 N.W.2d 19, 26 (2000), disap-
proved on other grounds, State v. Decker, 261 Neb. 382, 622 N.W.2d 903
(2001).
4 See, e.g., Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983); Paulsen
v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979).
5 Donner v. Plymate, supra note 1, 193 Neb. at 649, 228 N.W.2d at 614.
UNDERHILL v. HOBELmAN 	35
Cite as 279 Neb. 30

“killing, wounding, worrying, or chasing” a person or domestic
animal.6 We examined the definitions of those terms, each of
which we determined implied an aggressive act by the dog. We
therefore concluded that when the words which were then pres-
ent in the statute were read together, they impliedly excluded
playful and mischievous acts of dogs.7
the language upon which we based our holding in Donner
and subsequent cases was amended by 1992 Neb. Laws, L.B.
1011. Evidently, the Legislature found § 54-601 wanting and
expanded the scope of § 54-601 to include liability for a
dog’s “injuring” of a person or domestic animal. We are now
asked to examine and apply the language of § 54-601 as it
was revised in 1992 to the facts of this case, which facts the
parties agree involve an injury to Hobelman by a dog not act-
ing viciously.
As an initial matter, we note that to “injure” someone simply
means to “do physical harm or damage.”8 thus, unlike the lan-
guage we relied upon in Donner, injure does not imply intent,
aggression, or malice on the part of the dog. In fact, the word
“injury” is commonly used in law to describe the physical con-
sequences of an accident,9 and the phrase “accidental injury” is
regularly used and understood.10
We are aware that forms of the word “injuring” are used
in other state statutes dealing with dogs harming humans.
the courts in other states commonly conclude that where
the word “injure” is included in the statute, strict liability is
imposed without reference to the malice of the dog. In Boitz
v. Preblich,11 the court stated that “[t]he statutory language
6 Id. at 650, 228 Neb. at 614.
7 Id.
8 Concise Oxford American Dictionary 460 (2006).
9 See, e.g., Neb. Rev. Stat. §§ 48-101 and 48-151(4) (Reissue 2004).
10 See, e.g., Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672
(2001).
11 Boitz v. Preblich, 405 N.W.2d 907, 910 (minn. App. 1987). See, similarly,
Fifer v. Dix, 234 Wis. 2d 117, 608 N.W.2d 740 (Wis. App. 2000); Meunier
v. Ogurek, 140 Wis. 2d 782, 412 N.W.2d 155 (Wis. App. 1987).
36 	279 NEBRASKA REPORtS

[injuries] does not indicate a limitation to vicious attacks” and
that “injuries inflicted by a dog outside the scope of a vicious
attack are not, as a matter of law, excluded from coverage
under the statute.”
In Donner, we reasoned that the actions listed in § 54-601
then in effect implied that our strict liability statute did not
apply to playful or mischievous acts of dogs. Whatever may
have been the merits of this court’s reasoning in Donner,
that reasoning is not applicable to the amended language of
§ 54-601, the plain language of which permits recovery for
accidental injuries.
As noted, at common law, a dog owner was liable if he or
she knew of a dog’s “vicious or mischievous propensities” and
failed to protect others from injury.12 Section 54-601 removed
the common-law restriction of proving the owner’s knowledge
of the dog’s propensities. Considering a similar development,
the Florida Supreme Court observed in a dogbite case that
“‘the subject [Florida] statute modified the common law, in
that it makes the dog owner the insurer against damage by
his dog with certain exceptions’” and that the statute “‘super-
sedes the common law, only in those situations covered by
the statute.’”13
By the addition of “injuring,” the current plain and unam-
biguous statutory language implies no distinction based upon
whether the plaintiff’s injury resulted from hostile or playful
behavior on the part of the dog. the 1992 amendment to this
strict liability statute added an additional situation which was
covered by the statute and one which is not implicitly aggres-
sive. Under § 54-601, liability will be imposed by reason of a
dog injuring a person. As the court stated in Fifer v. Dix,14 “it
is not our role to create exceptions to the operation of a strict
liability statute by ‘implication or statutory construction.’” As
12 Netusil v. Novak, supra note 2, 120 Neb. at 754, 235 N.W. at 337 (empha-
sis supplied).
13 Donner v. Arkwright-Boston Manufacturers Mut., 358 So. 2d 21, 24 (Fla.
1978).
14 Fifer v. Dix, supra note 11, 234 Wis. 2d at 125, 608 N.W.2d at 744.
UNDERHILL v. HOBELmAN 	37
Cite as 279 Neb. 30

the court stated in Meunier v. Ogurek,15 the liability of “dog
owners depends on the terms of the statute, not on judge-made
law.” the current terms of § 54-601 do not require the court,
or the trier of fact, to make the difficult evaluation of a dog’s
intent in inflicting injury,16 although the trier of fact may be
asked to decide whether the dog was provoked,17 or whether
the plaintiff was aware of the dog’s propensities and assumed
the risk of injury.18 But those issues have not been presented in
this appeal.
I conclude that the district court erred in entering summary
judgment based upon this court’s decision in Donner and not
the plain language of the current version of § 54-601. And I
would therefore reverse the judgment of the district court and
remand the cause for further proceedings.
milleR-leRman, J., joins in this dissent.
15 Meunier v. Ogurek, supra note 11, 140 Wis. 2d at 786, 412 N.W.2d at
156.
16 Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993) (White, J.,
dissenting).
17 Paulsen v. Courtney, supra note 4.
18 See Corley v. Hubbard, 129 Neb. 38, 260 N.W. 551 (1935).
38 	279 NEBRASKA REPORtS