Hughes v. School Dist. of Aurora

HUGHES v. SCHOOL DIST. OF AURORA 	47
Cite as 290 Neb. 47
court will affirm the lower court’s decision regarding those
errors.19 Because the appellant has the duty to present a record
supporting the assigned errors, he or she necessarily bears the
burden of presenting a record demonstrating that the appellate
court has jurisdiction.
If the party appealing from a judgment after the denial of
a motion for new trial is relying upon the savings clause of
§ 25-1144.01, the party must ensure that the “announcement”
of decision appears in the record. If the trial court’s record
does not include it, the party seeking to appeal must make sure
that it properly becomes part of the record. And the party must
then make sure that it is included in the record presented to the
appellate court.
CONCLUSION
The savings clause of § 25-1144.01 is a useful tool to avoid
losing the right to appeal. But it has no effect when a motion
is filed before announcement or where the record does not
show an announcement before entry of judgment. I remind the
practicing bar that failing to ensure that such an announce-
ment is included in the record might result in an irrevocable
loss of an appeal, which in turn is likely to lead to unpleas-
ant consequences.
19 Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62 (2013).
John hughes, appellant, v. school D istrict
of aurora, nebraska, a nebraska
political subDivision, appellee.
858 N.W.2d 590
Filed February 6, 2015. 	No. S-13-1144.
1. Summary Judgment: Appeal and Error. An appellate court affirms a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:32 AM CST

48 	290 NEBRASKA REPORTS
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Summary Judgment: Proof. The party moving for summary judgment must
make a prima facie case by producing enough evidence to show that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
4. ____: ____. If the party moving for summary judgment makes a prima facie case,
the burden shifts to the nonmovant to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of law.
5. Proximate Cause: Words and Phrases. A proximate cause is one that produces
a result in a natural and continuous sequence and without which the result would
not have occurred.
6. Negligence: Proximate Cause: Proof. To establish proximate cause, the plaintiff
must meet three basic requirements: (1) Without the negligent action, the injury
would not have occurred, commonly known as the “but for” rule; (2) the injury
was a natural and probable result of the negligence; and (3) there was no efficient
intervening cause.
7. Trial: Negligence: Proximate Cause. Causation is ordinarily a matter for the
trier of fact.
8. Summary Judgment. Key factual propositions may be present for summary
judgment purposes by reasonable inference.
9. ____. When reasonable minds can differ as to whether an inference can be drawn,
summary judgment should not be granted.
10. ____. A choice between two equally likely possibilities does not create a material
issue of fact.
11. 	Trial: Negligence: Proof. A plaintiff is not bound to exclude the possibility that
the event might have happened in some other way.
Appeal 	from 	the 	District 	Court 	for 	Hamilton 	County:
M ichael J. owens, Judge. Reversed and remanded for further
proceedings.
Tina M. Marroquin, of Pollack & Ball, L.L.C., for appellant.
Andrea D. Snowden and Robert B. Seybert, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
heavican, c.J., connolly, stephan, MccorMack, M iller-
lerMan, and cassel, JJ.
connolly, J.
SUMMARY
John Hughes tripped and fell while exiting a building owned
by the School District of Aurora, Nebraska (District). Hughes
sued the District, alleging that the District failed to maintain
sufficient lighting, failed to construct a handrail along an exit

HUGHES v. SCHOOL DIST. OF AURORA 	49
Cite as 290 Neb. 47
ramp, allowed a section of concrete to “heave,” and allowed a
concrete bench to obstruct the path of egress. The court sus-
tained the District’s motion for summary judgment because
Hughes did not “know” what caused him to fall. Because
reasonable minds could draw contrary conclusions from the
evidence, we reverse.
BACKGROUND
factual backgrounD
The District operates a middle school in Aurora. The north
side of the building has an “entrance-exit” consisting of a pair
of exterior doors, a “vestibule area,” and a pair of interior
doors. The exterior doors open to a landing that transitions into
a concrete ramp running north and south. “Sloping sides (ramp
like) flank the ramp on the east and west.” The ramp terminates
at a driveway, running east and west, that separates the middle
and high schools. A concrete bench is anchored outside the
doors. The bench sits to the west of the ramp and about 4 feet
from the ramp’s edge.
On October 15, 2009, Hughes went to the middle school in
Aurora to watch his daughter compete in a varsity volleyball
match. The varsity match started about 7 p.m., but Hughes
arrived at 5 or 5:30 p.m. to watch the junior varsity match.
Hughes’ wife drove their vehicle to the game and parked it
along the driveway between the middle and high schools, at a
point west of the terminus of the ramp. Hughes testified that
“[i]t was daylight still” when he arrived. Hughes entered the
middle school through the north doors.
Hughes estimated that the varsity match ended “a little
bit after nine o’clock.” After the match ended, Hughes lin-
gered to congratulate the players and talk to other spectators.
Hughes testified that it was 9:15 or 9:30 p.m. when he exited
the building.
Walking alone, Hughes exited the middle school through
the north doors. His wife and father-in-law, who had accom-
panied him to the match, had already made it back to the
vehicle. Hughes testified that “[i]t was dark, very dark” when
he left the building, too dark for him to see the bench. Hughes
testified that there were some lights inside the vestibule and

50 	290 NEBRASKA REPORTS
just outside the doors. An ambulance parked along the drive-
way also emitted some light.
Hughes testified that after he passed through the north doors,
his progress was stopped by a crowd of 8 to 15 people stand-
ing on the ramp and preventing him from continuing down
the ramp to the driveway. The bench was southwest of where
Hughes testified the crowd was located. Hughes explained that
to avoid the crowd, he “turned around,” “walked back,” and
“made the right-hand turn.” That is, Hughes testified that he
walked to the south and west. Hughes stated that as he did so,
“I was looking ahead of me to make sure I wasn’t going to run
into anything . . . .”
Hughes testified that after he turned, “[a]ll of a sudden I
went flying through the air, and I remember putting my hand
down, because I could see the bench and put one hand down.
I pushed myself off from the bench. That’s when I came down
and hit the concrete.” Hughes’ elbow bore the brunt of the
impact, and he underwent surgery to repair a broken bone in
his arm.
Asked what “caused [him] to fall,” Hughes initially testified
that “[t]here was a piece of concrete by the bench that’s stick-
ing up . . . that tripped me.” But Hughes later testified that he
was not sure what caused him to fall:
I was walking along, and all of a sudden I was flying in
the air. If I knew exactly how I fell or what caused the
fall, whether it was the slope or the incline or the edge
that was protruding, I’d tell you, but I don’t really know.
I was walking. Next thing I knew I was flying through
the air.
Hughes testified that he did not believe that he tripped over
the bench. The bench is about 18 inches tall, and Hughes did
not have any “serious injuries” on his legs consistent with
walking into the bench.
Hughes returned about a week after his fall to view the
layout of the north exit and take photographs. Hughes testi-
fied that one of the concrete slabs near the bench had heaved,
creating a raised “lip” 11⁄2 to 13⁄4 inches high. The heaved sec-
tion of concrete was to the immediate east of the north edge
of the bench, so that a person approaching the bench in a

HUGHES v. SCHOOL DIST. OF AURORA 	51
Cite as 290 Neb. 47
southwesterly direction would encounter the lip immediately
before the bench.
Jim Harper, a licensed engineer, testified about the con-
ditions at the north exit. Harper stated that he formed his
opinions from site inspections, Hughes’ account of the inci-
dent, photographs taken by Hughes, and a review of relevant
building codes. Harper testified that he visited the site twice.
On his first visit, Harper arrived “about dusk” and “just kind
of watched the site . . . as it got dark.” On his second visit,
Hughes accompanied Harper and Hughes explained the various
issues that he believed contributed to his fall.
Harper testified that school buildings in Nebraska must
comply with the National Fire Protection Association’s “Life
Safety Code.” Based on conversations with Hughes, the pho-
tographs taken by Hughes, and his independent observations,
Harper testified that the lighting as it existed on October 15,
2009, violated the code. Harper also testified that the absence
of handrails along the ramp violated the code. Based on the
“rise of the ramp,” the code required handrails that extended
the entire length of the ramp. Harper testified that the “flare”
or “side slope” on either side of the ramp was itself non-
compliant in the absence of handrails. Harper opined that the
presence of the bench itself did not violate the code but that,
because the District did not establish a clear path of egress,
the bench could become an obstruction. Generally, Harper
testified that there was not a “defined means of egress” from
the north exit: “You left the exit, and you were somewhat on
your own.”
As to causation, Harper opined the lighting condition “con-
tributed to” Hughes’ fall because Hughes “couldn’t tell how
to proceed out those doors.” Harper also testified that code-
compliant handrails “would have prevented” Hughes from
leaving the ramp, “[s]hort of him climbing over [the handrail]
or going under it or going all the way to the street and then
coming up around it . . . .”
proceDural backgrounD
In his operative complaint, Hughes alleged that he “was
caused to trip and fall on the public sidewalk of the [District].”

52 	290 NEBRASKA REPORTS
Hughes identified four conditions that contributed to his fall:
(1) The District’s failure to “install and maintain lighting at the
exit of the gymnasium building”; (2) “the slope of the side-
walk . . . unprotected by a proper guardrail”; (3) an “adjoining
sidewalk section [that] had heaved leaving dangerous vertical
differences between adjoining sections of the sidewalk”; and
(4) the obstruction created by the concrete bench.
The District moved for summary judgment, and the court
sustained its motion. The court stated that the “one primary
issue” was whether the allegedly negligent conditions on the
District’s property proximately caused Hughes’ injuries. More
specifically, the court framed the issue as whether our opinion
in Swoboda v. Mercer Mgmt. Co.1 was “controlling in the case
at bar.” The court concluded that “the holding of Swoboda is
controlling,” emphasizing that Hughes testified that he did not
“know” what caused him to fall.
ASSIGNMENT OF ERROR
Hughes assigns that the district court erred by sustaining the
District’s motion for summary judgment.
STANDARD OF REVIEW
[1,2] We affirm a lower court’s grant of summary judgment
if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the mov-
ing party is entitled to judgment as a matter of law.2 In review-
ing a summary judgment, we view the evidence in the light
most favorable to the party against whom the judgment was
granted, and give that party the benefit of all reasonable infer-
ences deducible from the evidence.3
ANALYSIS
Hughes argues that the record supports an inference that
the District’s negligence proximately caused his injuries. His
1 Swoboda v. Mercer Mgmt. Co., 251 Neb. 347, 557 N.W.2d 629 (1997).
2 deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
3 Id.

HUGHES v. SCHOOL DIST. OF AURORA 	53
Cite as 290 Neb. 47
theory on appeal is that a fact finder could infer that he tripped
over the concrete lip, which he could not see because of poor
lighting. Hughes contends that he “has a complete recollec-
tion of the events,” including the manner of his exit from the
building and the mechanics of his fall.4 The District argues that
Hughes was “unable to recall how he went from walking to
flying in the air” and has offered “four possibilities” of what
caused his injury.5 According to the District, “Nebraska law
does not permit a fact finder to be presented with more than
one possibility of the cause of a plaintiff’s fall . . . .”6
[3,4] The primary purpose of the summary judgment pro-
cedure is to pierce the allegations in the pleadings and show
conclusively that the controlling facts are other than as pled.7
The party moving for summary judgment must make a prima
facie case by producing enough evidence to show that the mov-
ant is entitled to judgment if the evidence were uncontroverted
at trial.8 If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the
existence of a material issue of fact that prevents judgment as a
matter of law.9 Summary judgment proceedings do not resolve
factual issues. Instead, they determine whether there are factual
issues to be decided.10
[5-7] Here, the court entered summary judgment for the
District because Hughes failed to produce evidence that his
injury was proximately caused by the District’s negligence.
A proximate cause is one that produces a result in a natural
and continuous sequence and without which the result would
not have occurred.11 To establish proximate cause, the plaintiff
must meet three basic requirements: (1) Without the negligent
4 Brief for appellant at 9.
5 Brief for appellee at 10, 13-14.
6 Id. at 10.
7 Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004).
8 Id.
9 Id.
10 See Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014).
11 Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).

54 	290 NEBRASKA REPORTS
action, the injury would not have occurred, commonly known
as the “but for” rule; (2) the injury was a natural and probable
result of the negligence; and (3) there was no efficient inter-
vening cause.12 Causation is ordinarily a matter for the trier
of fact.13
In reaching its conclusion, the district court reasoned that
our decision in Swoboda v. Mercer Mgmt. Co.14 was “control-
ling.” In Swoboda, the plaintiff fell as she reached the top
of a flight of stairs in a building owned and managed by the
defendants. The landing at the top of the stairs was made of
brick before giving way to an elevated wood floor. A brick
ramp extended from the wood floor to the landing at an angle
perpendicular to the stairway. The plaintiff, who was 95 years
old, ascended the stairs using the left handrail while her grand-
daughter held onto her right arm. As the plaintiff approached
the last step, her granddaughter left her side to open a door.
When the granddaughter looked back, she saw the plaintiff sit-
ting on the wood floor with her legs extended down the ramp.
The plaintiff alleged that she tripped over the side of the ramp,
and the affidavit of an engineer stated that the ramp violated
the building code. The trial court sustained the defendants’
motion for summary judgment.
We affirmed, stating that an issue of fact cannot be cre-
ated 	by 	“guess, 	speculation, 	conjecture, 	or 	choice 	of
possibilities.”15 The “practical difficulty” with the plaintiff’s
claim was that no one saw her fall and the plaintiff her-
self “d[id] not remember the circumstances surrounding the
fall.”16 The evidence revealed two possible causes of the
plaintiff’s injury but did not yield an inference that one was
more likely than the other:
[A] jury presented with the question of why [the plain-
tiff] fell would be faced with at least two possibilities:
12 Id.
13 Id.
14 Swoboda v. Mercer Mgmt. Co., supra note 1.
15 Id. at 352, 557 N.W.2d at 632.
16 Id. at 349, 351, 557 N.W.2d at 631, 632.

HUGHES v. SCHOOL DIST. OF AURORA 	55
Cite as 290 Neb. 47
(1) [The plaintiff] tripped over the top step or (2) [the
plaintiff] tripped over the ramp. . . . [T]he evidence in
this case leaves the jury with the prospect of guesswork
as to which of these possibilities actually caused [the
plaintiff’s] injuries.17
Because the evidence did not “lead a reasonable mind to one
conclusion rather than another,”18 the defendants were entitled
to summary judgment. The plaintiff could not remember if she
was on the landing or ascending the stairs when she began
to fall, and the position of her body when her granddaughter
turned around did not support an inference that her fall began
at one point rather than the other.
Below and on appeal, Hughes has analogized the facts to
those in Kotlarz v. Olson Bros., Inc.19 In Kotlarz, the plaintiff
attended a physical therapy session at a clinic. The property
was under construction, but no work was being done on the
day of the plaintiff’s injury because of strong winds. After her
session ended, the plaintiff walked to her car and placed equip-
ment inside the trunk. As she closed the trunk door, the plain-
tiff felt a gust of wind followed by a sharp blow to her neck.
The plaintiff looked up and saw a foam sheet flying through
the air in front of her. She also noticed several other foam
sheets in the parking area. The plaintiff brought a negligence
action against several construction firms. Relying on Swoboda,
the trial court sustained the defendants’ motions for summary
judgment because “‘a fact finder would have to guess at the
possible cause of the accident.’ . . .”20
The Nebraska Court of Appeals reversed, concluding that
the evidence supported a reasonable inference that one of
the 	defendants’ foam 	sheets 	caused 	the 	plaintiff’s 	injury.
Admittedly, the plaintiff “did not know where the object
came from, she did not see what hit her, and there were no
17 Id. at 352-53, 557 N.W.2d at 633.
18 Id. at 352, 557 N.W.2d at 632.
19 Kotlarz v. Olson Bros., Inc., 16 Neb. App. 1, 740 N.W.2d 807 (2007).
20 Id. at 5, 740 N.W.2d at 812.

56 	290 NEBRASKA REPORTS
eyewitnesses.”21 The trial court based its judgment “largely on
the fact that no one saw an object hit [the plaintiff], and [the
plaintiff] herself does not ‘know’ what hit her.”22 But the Court
of Appeals stated that the plaintiff did not have to “‘know’”
what hit her, and could not have known without “rearview
vision.”23 As the court noted, “if complete personal knowledge
or an eyewitness were the legal standard, circumstantial evi-
dence would be of little or no value.”24 The court concluded
that the circumstantial evidence—particularly evidence of the
location of the defendants’ foam sheets, wind direction, and
foam sheets in the parking area—provided a basis to infer that
a foam sheet from the defendants’ pile struck the plaintiff.
Whereas the plaintiff in Swoboda could not remember whether
she was on the landing or still traversing the steps when she
fell, the plaintiff in Kotlarz was able to “recall[] all of the cir-
cumstances of the incident.”25
Recently, the Eighth Circuit distinguished Swoboda, empha-
sizing that Swoboda involved evidence of two equally likely
causes of the plaintiff’s injury. In Pohl v. County of Furnas,26
the plaintiff was driving to a farm on a snowy evening, when
he turned onto a gravel road. After some distance, the road
made a 90-degree turn, and the county had posted a warning
sign about 110 feet from the curve. The plaintiff’s vehicle
left the road at the curve and collided with an embankment.
The plaintiff brought a negligence action against the county,
alleging that the county’s placement of and failure to maintain
the sign proximately caused his injuries. Because of trauma
from the crash, the plaintiff “had no memory of that night
from shortly after turning onto [the road] until he regained
consciousness after the accident.”27 As a result, “he did not
21 Id. at 3, 740 N.W.2d at 810.
22 Id. at 8, 740 N.W.2d at 813.
23 Id. at 9, 740 N.W.2d at 814.
24 Id.
25 Id.
26 Pohl v. County of Furnas, 682 F.3d 745 (8th Cir. 2012).
27 Id. at 749.

HUGHES v. SCHOOL DIST. OF AURORA 	57
Cite as 290 Neb. 47
remember seeing the sign or braking prior to leaving the
roadway.”28 A traffic engineer testified that the placement
and lack of “retroreflectivity” of the sign violated the U.S.
Department of Transportation’s Manual on Uniform Traffic
Control Devices.29 Based on data from the vehicle’s “black
box,” an accident reconstructionist testified that the plaintiff was
speeding as he approached the curve and started to brake when
the vehicle was “closely aligned with the sign.”30 The court allo-
cated 60 percent of the negligence to the county after a bench
trial and awarded the plaintiff damages.
Citing Swoboda, the county argued on appeal that the trial
court erred in determining that its negligence proximately
caused the crash:
The county contends that there were several equally
likely causes of the accident, including that [the plaintiff]
was not maintaining a proper lookout and thus failed to
see the sign, that he saw it and failed to heed it, or that
the falling snow prevented him from seeing it. It urges
that because [the plaintiff] cannot remember whether or
not he saw the sign before leaving the road, the district
court’s proximate cause determination was based on spec-
ulation rather than evidence.31
The Eighth Circuit concluded that the facts supported an infer-
ence that the illegibility and placement of the sign caused the
plaintiff’s injury. Although the plaintiff “could not remember
whether or not he saw the sign prior to the accident,” there
was circumstantial evidence that he braked near the sign.32
This evidence supported a reasonable inference that the plain-
tiff braked because he saw the sign and, therefore, might have
braked sooner if the sign was farther up the road or visible from
a greater distance. Furthermore, the record did not support the
county’s alternative theories of causation. For example, there
28 Id.
29 Id. at 750.
30 Id.
31 Id. at 752-53.
32 Id. at 753.

58 	290 NEBRASKA REPORTS
was no evidence that the plaintiff was not paying attention to
the road or that the snow impeded visibility.
[8,9] We conclude that whether the allegedly negligent con-
ditions outside the middle school proximately caused Hughes’
injuries is a disputed material issue of fact. Hughes produced
evidence that, below the ramp unguarded by a handrail, there
was an elevated concrete lip adjacent to a concrete bench and
that he could not see these conditions because of weak light-
ing. Importantly, Hughes testified about the path he took and
where he was when he fell. Viewed in a light most favorable
to Hughes, his testimony supports an inference that his path
of egress intersected the concrete lip. If a person approaching
from the angle Hughes described tripped on the lip, he would
have fallen onto the concrete bench. Key factual propositions
may be present for summary judgment purposes by reason-
able inference.33 And when reasonable minds can differ as to
whether an inference can be drawn, summary judgment should
not be granted.34 Here, the evidence permits a reasonable infer-
ence that Hughes tripped on a concrete lip that he could not see
because of a lack of lighting.
[10] In contrast, the plaintiff in Swoboda was not only
unable to produce direct evidence of the cause of her injury,
she was unable to testify about the circumstances. She could
not recall, for example, whether she was on the stairs or on
the landing when she began to fall. Nor could an inference
be drawn based on where her granddaughter found her sit-
ting. A choice between two equally likely possibilities does
not create a material issue of fact.35 But like the plaintiff in
Kotlarz, Hughes was able to recall the circumstances of his
fall, and these circumstances support a reasonable inference as
to the cause.
[11] Furthermore, as the Eighth Circuit noted, Swoboda
involved evidence of two equally likely causes of the plaintiff’s
33 Kotlarz v. Olson Bros., Inc., supra note 19.
34 McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014); Schade v.
County of Cheyenne, 254 Neb. 228, 575 N.W.2d 622 (1998).
35 See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
(2012).

STATE v. MUHANNAD 	59
Cite as 290 Neb. 59
fall. Here, the District, the movant, did not produce evidence
of an alternative cause. It is always possible, of course, that
Hughes’ feet simply became tangled, even if there is direct
evidence to the contrary. But a plaintiff is not bound to exclude
the possibility that the event might have happened in some
other way.36 Contrary to the District’s argument, Hughes’ case
is not doomed because there is more than one possible cause.
It is enough for summary judgment purposes that the evidence
permits a reasonable inference that negligent conditions on the
District’s property caused Hughes’ injury.
CONCLUSION
Because reasonable minds could draw contrary conclusions
from the evidence presented, the District did not show that
it was entitled to judgment as a matter of law. We therefore
reverse the court’s summary judgment order and remand the
cause for further proceedings.
reverseD anD reManDeD for
further proceeDings.
wright, J., participating on briefs.
36 World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1
(1996).
state of nebraska, appellee, v.
wa’il M. MuhannaD, appellant.
858 N.W.2d 598
Filed February 6, 2015. 	No. S-14-129.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions
of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
3. Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent: Appeal and
Error. While the denial of a plea in bar generally involves a question of law, an
appellate court reviews under a clearly erroneous standard a finding concerning
the presence or absence of prosecutorial intent to provoke the defendant into
moving for a mistrial.