Holsapple v. Union Pacific RR. Co.

279 Neb. 18Neb

Texte intégral

G lenn T. Holsapple , Jr ., appellanT, v. Union pacific
railroad company, a delaware
corporaTion, appellee .
776 N.W.2d 11
Filed December 11, 2009. 	No. S-09-152.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or 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 a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Federal Acts: Railroads: Negligence: Liability: Damages. Under the Federal
Employers’ Liability Act, railroad companies are liable in damages to any
employee who suffers injury during the course of employment when such injury
results in whole or in part due to the railroad’s negligence.
4. Federal Acts: Railroads. To be entitled to the protection of the Federal
Employers’ Liability Act, an injured employee must be acting within the scope of
his or her employment at the time of the injury.
5. Federal Acts: Railroads: Courts. Scope of employment under the Federal
Employers’ Liability Act is broadly construed by the federal courts and has been
interpreted to encompass acts incidental to employment.
6. Federal Acts: Railroads: Words and Phrases. Under the Federal Employers’
Liability Act, course and scope of employment includes not only actual service,
but also those things necessarily incident thereto, such as going to and from the
place of employment.
7. Federal Acts: Railroads. In determining whether an employee going to and from
work is performing an act necessarily incident to the employment, courts distin-
guish “traversing” cases from “commuter” cases.
8. ____: ____. In traversing cases, courts have generally held that the employee is
acting with the course and scope of employment. In traversing cases, an employee
(1) is exposed to risks not confronted by the general public (2) as a result of his
or her commute and (3) is injured within close proximity of his or her jobsite
(4) while attempting to return to or leave the jobsite (5) within a reasonable time
before or after the workday is over.
9. ____: ____. Employer liability in traversing cases does not depend on whether
the employer owns or has control over the premises where the employee is
injured. Rather, an employee is acting within the course and scope of his or her
employment if the employee is injured while traversing across premises which his
or her employer has either explicitly or implicitly encouraged the employee to use
when going to or returning from work.
10. ____: ____. In commuter cases, courts generally conclude that the Federal
Employers’ Liability Act does not provide coverage. In commuter cases, (1) the
18 	279 NEbRASkA REpoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST
employee is injured a significant distance from his or her jobsite while commut-
ing to or from the jobsite and (2) the employee is not in any greater danger or
exposed to any greater risks than any other member of the commuting public. The
Federal Employers’ Liability Act is not designed to protect workers from the risks
of commuting to which all employees of any employer are exposed.
11. Federal Acts: Railroads: Liability. Where an employer knows and implicitly
encourages its employees to traverse another’s property nearby to get to and from
the jobsite, that employer cannot avoid liability under the Federal Employers’
Liability Act simply by reason of the fact that it does not own the property.
Appeal from the District Court for Douglas County: w.
rUssell Bowie iii, Judge. Reversed and remanded for further
proceedings.
Christopher J. Moreland, Robert T. Dolan, and Robert E.
Dolan, of Yaeger, Jungbauer & barczak, p.L.C., and John J.
Higgins for appellant.
John M. Walker and David J. Schmitt, of Lamson, Dugan &
Murray, L.L.p., for appellee.
H eavican, 	c.J., 	wriGHT, 	connolly, 	G errard, 	sTepHan,
mccormack , and miller-lerman, JJ.
mccormack , J.
NATURE oF CASE
Glenn T. Holsapple, Jr., brought this action under the Federal
Employers’ Liability Act (FELA) for a knee injury he allegedly
sustained in the course of his employment. The injury occurred
when Holsapple stepped into a hole while walking through an
alleyway from a parking lot owned by Union pacific Railroad
Company (Up) to the Up yard office where he reported for
work. The district court granted Up’s motion for summary
judgment, concluding that Holsapple’s injury occurred outside
the scope of his employment. Holsapple appealed. We trans-
ferred the appeal to our docket in accordance with our statu-
tory authority to regulate caseloads of the appellate courts of
this state.
bACkGRoUND
The 	facts 	surrounding 	the 	sequence 	and 	location 	of
Holsapple’s injury are undisputed. Holsapple is employed by
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	19
Cite as 279 Neb. 18
Up as a railroad conductor. He works on a rotating pool; when
Holsapple’s name reaches the top of the list, he is called into
work. When Holsapple is called into work, he must report
to the yard office to receive his paperwork and assignment.
Holsapple’s shift officially starts once he has reported to the
yard office and has received his assignment.
on April 14, 2006, Holsapple was called into work and
instructed to report to the Marysville, kansas, yard office no
later than 10:30 p.m. Holsapple explained that it takes him
approximately 5 minutes to drive from home to work and that
he parks wherever he can find a parking spot. There are three
parking lots and street parking available for Up employees.
Up lets its employees decide where to park. The Up parking
lots are not open to the public and are reserved solely for Up
employees. pictures in the record show that the lots are marked
with signs stating, “private Roadway No Trespassing Union
pacific R.R.”
on the night Holsapple was injured, he parked in what he
referred to as the “east lot.” The east lot is owned by Up. The
east lot is bisected by an alleyway that runs east to west and
serves as both the entrance and exit driveway to the parking
lot. The yard office is located on the west end of the alleyway.
In order to get to the yard office from the east lot, employees
must walk through either the parking lot or the alleyway and
then cross the street on the west side of the lot.
The alleyway is owned by the city of Marysville as evi-
denced by a survey conducted by the vice president of a
Marysville engineering and surveying company. Up was aware
that its employees routinely traversed the alleyway to get
from the east lot to the Up yard office. Additionally, Up has
marked the alleyway as private property. Signs posted marking
the alleyway state: “private Roadway No Trespassing Union
pacific R.R.” Up denies that it has control over the alleyway or
that it has a responsibility to make sure the alleyway is safe for
travel. other than the signs marking the alleyway as a private
roadway, there is no evidence in the record establishing that
Up had an agreement with Marysville for its employees to use
the alleyway or that Up had agreed to indemnify Marysville.
It was, however, Up and not the city of Marysville that
20 	279 NEbRASkA REpoRTS
repaired the hole in the alleyway after the accident that caused
Holsapple’s injury.
Holsapple’s injury occurred while he was walking from the
east lot to the yard office to report for duty. Holsapple testi-
fied that he parked his car, exited the car, and started to walk
through the alleyway toward the yard office. As he was walking
through the alleyway, he stepped into a hole. Holsapple’s injury
occurred approximately 15 minutes before he was scheduled to
report to the yard office.
Holsapple maintains that his injury occurred in the course
and scope of his employment and that therefore, the FELA
applies. Holsapple testified that he thought the injury occurred
“on company property because it was a company parking lot.”
Holsapple also stated, “I was also on duty because I was going
to work. The only reason I was there because I was going to
work . . . .” Up maintains that Holsapple’s injury occurred
outside the course and scope of his employment and is thus
not covered under the FELA. Up’s argument is based on the
fact that Holsapple had not picked up his paperwork from
the yard office. Up maintains that this is when an employee’s
shift begins. Up also relies on the fact that Holsapple’s injury
occurred at 10:15 p.m., 15 minutes before he was required to
report for duty.
Holsapple brought suit against Up under the FELA, alleg-
ing that he was injured while performing a duty necessarily
incident to his employment. Holsapple further alleged that his
injuries were caused, in whole or in part, by Up’s negligence
in violation of the FELA. The court granted Up’s motion for
summary judgment and dismissed Holsapple’s cause of action
under the FELA, concluding that Holsapple was not within the
course and scope of his employment at the time of his injury.
The court reasoned that Holsapple’s injury occurred before he
was to report for duty and before he picked up his paperwork
at the yard office. Additionally, the court noted that his injury
occurred in the alleyway owned by the city of Marysville, not
Up. The court also relied on the fact that Holsapple chose his
means of transportation and where to park. Thus, the court
concluded that Holsapple was not acting within the course and
scope of his employment. Holsapple brought this appeal.
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	21
Cite as 279 Neb. 18
ASSIGNMENT oF ERRoR
Holsapple argues the court erred in finding that he was not
acting in the course and scope of his employment with Up at
the time of his injury.
STANDARD oF REVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or 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
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.2
ANALYSIS
As a preliminary matter, we will address the proper standard
of review. The underlying facts surrounding how and when
Holsapple’s injury occurred are undisputed. As such, the only
issue for the summary judgment motion was the legal effect
of those facts. The question is whether under those facts,
Holsapple was acting within the course and scope of employ-
ment for purposes of the FELA. We hold that this presents a
question of law.3
[3-6] This case presents the question of whether an employee
is acting in the course and scope of employment while walking
from a company parking lot and through public property on
the way into work. This is an issue of first impression for our
court. We have explained that under the FELA, railroad compa-
nies are liable in damages to any employee who suffers injury
1 McNeel v. Union Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008).
2 Id.
3 See, Rogers v. Chicago & North Western Transp. Co., 947 F.2d 837 (7th
Cir. 1991); Hoover v. Burlington Northern RR. Co., 251 Neb. 689, 559
N.W.2d 729 (1997). See, also, Keovorabouth v. Industrial Com’m, 222
Ariz. 378, 214 p.3d 1019 (Ariz. App. 2009); La Croix v. Omaha Public
Schools, 254 Neb. 1014, 582 N.W.2d 283 (1998).
22 	279 NEbRASkA REpoRTS
during the course of employment when such injury results in
whole or in part due to the railroad’s negligence.4 To be entitled
to the protection of the FELA, an injured employee must be
acting within the scope of his or her employment at the time of
the injury.5 Scope of employment under the FELA is broadly
construed by the federal courts6 and has been interpreted to
encompass acts incidental to employment.7 Course and scope
of employment includes not only actual service, but also those
things necessarily incident thereto, such as going to and from
the place of employment.8
[7-9] In determining whether an employee going to and from
work is performing an act necessarily incident to the employ-
ment, cases from other jurisdictions distinguish 	“traversing”
cases from “commuter” cases.9 In traversing cases, courts have
generally held that the employee is acting within the course
and scope of employment.10 In traversing cases, an employee
(1) is exposed to risks not confronted by the general public11
(2) as a result of his or her commute and (3) is injured within
close proximity of his or her jobsite12 (4) while attempting to
4 McNeel v. Union Pacific RR. Co., supra note 1.
5 Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R., 841 F.2d 1347 (7th Cir.
1988); Moore v. Chesapeake & O. Ry. Co., 649 F.2d 1004 (4th Cir. 1981);
Betoney v. Union Pacific R. Co., 701 p.2d 62 (Colo. App. 1984). See 45
U.S.C. § 51 et seq. (2006).
6 Erie R. R. Co. v. Winfield, 244 U.S. 170, 37 S. Ct. 556, 61 L. Ed. 1057
(1917); Ponce v. Northeast Illinois Regional Commuter R.R., 103 F. Supp.
2d 1051 (N.D. Ill. 2000).
7 Erie R. R. Co. v. Winfield, supra note 6; Schneider v. National R.R.
Passenger Corp., 854 F.2d 14 (2d Cir. 1988); Sassaman v. Pennsylvania
R. Co., 144 F.2d 950 (3d Cir. 1944); Ponce v. Northeast Illinois Regional
Commuter R.R. Corp., supra note 6. See Cudahy Co. v. Parramore, 263
U.S. 418, 44 S. Ct. 153, 68 L. Ed. 366 (1923).
8 See, Erie R. R. Co. v. Winfield, supra note 6; Virginian Ry. Co. v. Early,
130 F.2d 548 (4th Cir. 1942).
9 Caillouette v. Baltimore & Ohio Chicago Terminal R., 705 F.2d 243 (7th
Cir. 1983).
10 See Ponce v. Northeast Illinois Regional Commuter R.R., supra note 6.
11 See Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
12 See Carter v. Union Railroad Company, 438 F.2d 208 (3d Cir. 1971).
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	23
Cite as 279 Neb. 18
return to or leave the jobsite13 (5) within a reasonable time
before or after the workday is over.14 Employer liability in
traversing cases does not depend on whether the employer
owns or has control over the premises where the employee
is injured.15 Rather, an employee is acting within the course
and scope of his or her employment if the employee is injured
while traversing across premises which his or her employer has
either explicitly or implicitly encouraged the employee to use
when going to or returning from work.16
[10] In commuter cases, courts generally conclude that the
FELA does not provide coverage.17 In commuter cases, (1) the
employee is injured a significant distance from his or her job-
site and while commuting to or from the jobsite18 and (2) the
employee is not in any greater danger or exposed to any greater
risks than any other member of the commuting public.19 These
courts hold that the FELA is not designed to protect workers
from the risks of commuting to which all employees of any
employer are exposed.20
In rejecting Holsapple’s argument that he was acting within
the course and scope of his employment at the time of his
injury, the district court relied on Sassaman v. Pennsylvania R.
Co.,21 Metropolitan Coal Company v. Johnson,22 and Getty v.
13 See Erie R. R. Co. v. Winfield, supra note 6.
14 See Carter v. Union Railroad Company, supra note 12.
15 See, Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S. Ct. 1667, 10
L. Ed. 2d 709 (1963); Kooker v. Pittsburgh & Lake Erie Railroad Co.,
258 F.2d 876 (6th Cir. 1958); Chicago Great Western Railway Company v.
Casura, 234 F.2d 441 (8th Cir. 1956).
16 See Empey v. Grand Trunk Western R. Co., 869 F.2d 293 (6th Cir. 1989).
See, also, Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72 L.
Ed. 507 (1928); Carter v. Union Railroad Company, supra note 12.
17 Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
18 See Schneider v. National R.R. Passenger Corp., supra note 7.
19 Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
20 See, Ponce v. Northeast Illinois Regional Commuter R.R., supra note 6;
Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
21 Sassaman v. Pennsylvania R. Co., supra note 7.
22 Metropolitan Coal Company v. Johnson, 265 F.2d 173 (1st Cir. 1959).
24 	279 NEbRASkA REpoRTS
Boston and Maine Corporation.23 The facts of those cases are
distinguishable from the facts in the case at bar.
In Sassaman v. Pennsylvania R. Co.,24 a railroad worker was
injured when he stepped off one of his employer’s trains, 9
miles from the jobsite, while returning home from work. The
trains were open to the general public as a mode of transporta-
tion. The employee’s injury occurred far away from his jobsite.
Nevertheless, the injured employee insisted that the FELA
applied because he was still on his employer’s premises when
he was injured. The court disagreed:
[T]he condition which makes possible a claim for inju-
ries suffered as in the course of employment but which
are actually received on premises away from the employ-
ee’s place of employment is the fact that the employee
must, of necessity, traverse such other premises in order
to reach or depart from the place of the discharge of
his duties.25
The court explained that the deciding fact was not whether the
employee was injured on employer property. To illustrate, the
court noted that if an employee is injured while on property
adjacent to employer property, but his or her employer has
knowledge and consents to the use of the adjacent property,
then the employee is discharging a duty incident to his employ-
ment and the FELA would apply.26 In Metropolitan Coal
Company v. Johnson,27 employing the rationale in Sassaman,
the court held that an employee possessing a free pass and
injured while commuting to work aboard an express train
owned by his employer, but open to the public, was not within
the scope of employment. The court reasoned that although
the employee was on his employer’s premises when injured,
he was not on a part of the premises which was necessary for
him to reach work. Further, the court stressed that while riding
23 Getty v. Boston and Maine Corporation, 505 F.2d 1226 (1st Cir. 1974).
24 Sassaman v. Pennsylvania R. Co., supra note 7.
25 Id. at 953.
26 Sassaman v. Pennsylvania R. Co., supra note 7.
27 Metropolitan Coal Company v. Johnson, supra note 22.
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	25
Cite as 279 Neb. 18
on the passenger train, the employee was not exposed to any
greater hazards than any of the other passengers who were
not employees.
The employee in Getty v. Boston and Maine Corporation28
was likewise injured while riding a commuter train owned by
his employer but open to the public. However, the employee
in Getty tried to distinguish his case by arguing that recently
fallen snow made any alternative mode of transportation to
work impossible. In other words, the employee argued that he
was compelled to ride his employer’s train due to inclement
weather and that therefore, the FELA applied. In rejecting this
argument, the court reasoned that the employee’s decision to
use his employer’s train to get to work did not stem directly
from a specific requirement of his job or from a specific
understanding between himself and his employer regarding his
mode of transportation.29 In conclusion, the court stated, “We
perceive no reason why he should receive favored treatment
simply because he happened to be employed by the operator of
the public conveyance.”30
Unlike the facts of this case, all three of the aforementioned
cases involve a situation where an employee is injured a great
distance from his jobsite by means of one of his employer’s
passenger trains. We find the traversing cases more appli-
cable to the facts of this case. For instance, in Erie R. R. Co.
v. Winfield,31 the U.S. Supreme Court applied the traversing
rule where an employee was struck and killed by a switch
engine shortly after he had put his engine away for the night
and was crossing the carrier’s yard on his way home. The
Court held that in leaving the carrier’s yard at the close of his
day’s work, the employee was engaged in a “necessary inci-
dent of his day’s work” and was, thus, discharging a duty of
his employment.32
28 Getty v. Boston and Maine Corporation, supra note 23.
29 Id.
30 Id. at 1228.
31 Erie R. R. Co. v. Winfield, supra note 6.
32 Id., 244 U.S. at 173.
26 	279 NEbRASkA REpoRTS
Following this reasoning, the court in Morris v. Pennsylvania
R. Co.33 noted that the deceased employee was acting within
the course and scope of his employment when killed on his
employer’s property shortly before he was to report for work.
In Caillouette v. Baltimore & Ohio Chicago Terminal R.,34
the Seventh Circuit Court of Appeals held that a switchman
employed by the railroad was within the course and scope of
employment when he tripped over wires while crossing his
employer’s premises to report for duty. The court explained
that the employee “had to, of necessity, cross some part of the
worksite to reach the place where he was to report” to work.35
Central to the court’s conclusion that the employee was injured
in the course and scope of his employment was the fact that
he was injured in an area not open to the public and was thus
subjected to dangers beyond those experienced by the general
commuting public.36
In Carter v. Union Railroad Company,37 a Union Railroad
Company (Union Railroad) employee was injured on his way
into work while traversing property owned by another cor-
poration. Union Railroad was aware that its employees rou-
tinely traversed this property. The property owner had, in fact,
entered into an agreement with Union Railroad whereby Union
Railroad was given permission for its employees to traverse the
property in exchange for Union Railroad’s agreement to indem-
nify the property owner. Union Railroad did not, however,
have any authority or control over the property. Nor did it bear
any responsibility for maintaining the property. In concluding
that the FELA applied, the court said: “While the parking lot
used and the property crossed by [the employee] belonged to
[another], the use thereof by railroad employees was within the
expectations and intentions of the railroad. [Union Railroad]
went to great lengths to make the parking lot available to its
33 Morris v. Pennsylvania R. Co., 187 F.2d 837 (2d Cir. 1951).
34 Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
35 Id. at 246.
36 Id.
37 Carter v. Union Railroad Company, supra note 12.
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	27
Cite as 279 Neb. 18
employees.”38 The court went on to conclude that the FELA
imposes a nondelegable duty to use reasonable care to furnish
a safe place to work.39 Further, the court held that this duty
extends beyond the employer’s premises to property which
employees are encouraged or required to use and which a third
person, rather than the employer, has a primary obligation
to maintain.40
Although no Nebraska decision has considered whether an
employee is acting within the course and scope of employ-
ment for purposes of applying the FELA, we have considered
whether an employee is acting within the course and scope of
employment for workers’ compensation purposes. In La Croix
v. Omaha Public Schools,41 the plaintiff was encouraged by her
employer to park in a parking lot not owned by the employer
and to use a shuttle service supplied by the employer to get to
her work premises. While on her way to board the shuttle bus,
the plaintiff fell in the parking lot and was injured. We held
that by encouraging employees to park in the lot and providing
transportation to the workplace from the lot, the employer cre-
ated a condition under which its employees would necessarily
encounter hazards while traveling to the premises where they
work. We concluded that there was a distinct and causal con-
nection between the employer’s sponsoring of the parking lot
and the plaintiff’s injury. because of this causal connection, we
concluded the plaintiff’s injury arose out of and in the course
of her employment.
In a case arising under the Utah Workmen’s Compensation
Act, the court in Bountiful Brick Co. v. Giles42 provided a use-
ful discussion of the scope of employment. The court stated:
[E]mployment includes not only the actual doing of the
work, but a reasonable margin of time and space neces-
sary to be used in passing to and from the place where the
38 Id. at 210.
39 Id.
40 Carter v. Union Railroad Company, supra note 12.
41 La Croix v. Omaha Public Schools, supra note 3.
42 Bountiful Brick Co. v. Giles, supra note 16.
28 	279 NEbRASkA REpoRTS
work is to be done. If the employee be injured while pass-
ing, with the express or implied consent of the employer,
to or from his work by a way over the employer’s prem-
ises, or over those of another in such proximity and rela-
tion as to be in practical effect a part of the employer’s
premises, the injury is one arising out of and in the course
of the employment as much as though it had happened
while the employee was engaged in his work at the place
of its performance.43
Although Bountiful Brick Co. was decided under Utah’s work-
ers’ compensation laws, it has been cited with approval by sev-
eral other courts in the FELA context and is instructive.44
We conclude that Holsapple was injured while in the course
and scope of his employment. At the time of his injury,
Holsapple was within close proximity to the yard office. His
injury occurred while he was on his way to report for duty and
occurred shortly before he was scheduled to report for duty. It
was a necessary incident of the workday for Holsapple to walk
from his car to the yard office to report for duty.
[11] In walking from his car to report for duty, Holsapple
was exposed to dangers and risks not shared by the general
public. The alleyway was not open to the general public. Up
strategically placed signs restricting the use of the alleyway to
Up employees. Further, Up was fully aware that its employees
routinely traversed the alleyway to and from the east lot. Not
only was Up fully aware that its employees routinely traversed
the alleyway, but Up has restricted the access to the alleyway to
Up employees as evidenced by the signs. And in doing so, Up
has effectively encouraged its employees to use the alleyway.
There is a distinct causal connection between Up’s encourag-
ing its employees to traverse the alleyway and Holsapple’s
injury. As already discussed, where an employer knows and
implicitly encourages its employees to traverse another’s prop-
erty nearby to get to and from the jobsite, that employer cannot
avoid liability under the FELA simply by reason of the fact that
it does not own the property. For these reasons, we conclude
43 Id., 276 U.S. at 158.
44 See Caillouette v. Baltimore & Ohio Chicago Terminal R., supra note 9.
HoLSAppLE v. UNIoN pACIFIC RR. Co. 	29
Cite as 279 Neb. 18
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.
reversed and remanded for
fUrTHer proceedinGs.
30 	279 NEbRASkA REpoRTS

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