Riggs v. Nickel

The Tribe’s motion to dismiss is not based in § 6-1112(b)(6),
but instead on § 6-1112(b)(1) for lack of jurisdiction over the
subject matter. Thus, this language in § 6-1112(b) and this
court’s opinion in Crane Sales & Serv. Co. are inapplicable.33
We additionally note that when the Tribe filed its motion,
that motion indicated it would be supported by affidavit, and
in fact, such affidavits were presented by the Tribe. We there-
fore question whether the Tribe was truly without notice as to
whether the motion to dismiss would be converted to a motion
for summary judgment.
The Tribe’s final assignment of error is also without merit.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
Wright, J., not participating.
33 Cf. Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).
RIggS v. NICkeL 	249
Cite as 281 Neb. 249
K enneth riggs And L e A nn riggs , husbAnd And Wife ,
AppeLLAnts , v. gAry nicKeL, AppeLLee .
796 N.W.2d 181
Filed March 25, 2011. 	No. S-10-459.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
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 is granted and gives such party the benefit of all favorable
inferences deducible from the evidence.
3. Trial: Witnesses: Evidence. Where a party without reasonable explanation testi-
fies to facts materially different concerning a vital issue, the change clearly being
made to meet the exigencies of pending litigation, such evidence is discredited
as a matter of law and should be disregarded. In applying this rule, the important
considerations are that the testimony pertains to a vital point, that it is clearly
apparent the party has made the change to meet the exigencies of the pend-
ing case, and that there is no rational or sufficient explanation for the change
in testimony.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

4. Negligence. Not every negligence action involving an injury suffered on some-
one’s land is properly considered a premises liability case.
5. ____. Under a premises liability theory, a court is generally concerned with either
a condition on the land or the use of the land by a possessor.
6. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
7. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
8. ____. An actor ordinarily has a duty to exercise reasonable care when the actor’s
conduct creates a risk of physical harm.
Appeal from the District Court for Lancaster County: Jeffre
cheuvront, Judge. Affirmed.
John C. Fowles, of Fowles Law Office, P.C., L.L.O., and
John M. Lefler for appellants.
Andrea D. Snowden and Stephanie F. Stacy, of Baylor,
evnen, Curtiss, grimit & Witt, L.L.P., for appellee.
heAvicAn, c.J., connoLLy, gerrArd, stephAn, mccormAcK,
and miLLer-L ermAn, JJ.
stephAn, J.
kenneth Riggs (Riggs) and his wife, LeAnn Riggs, brought
this action against gary Nickel seeking damages for injuries
Riggs suffered while repairing a motor grader, and for LeAnn’s
related loss of consortium. The district court for Lancaster
County sustained Nickel’s motion for summary judgment, and
the Riggses appealed. We affirm.
I. FACTS AND PROCeDURAL BACkgROUND
The accident occurred on August 2, 2007, in rural Lancaster
County on an acreage owned by Nickel. Nickel’s neighbor had
stored an older-model motor grader on Nickel’s property for
approximately 4 years prior to the accident, and Nickel had
used the grader on the property a few times.
At the time of the accident, Riggs was 41 years old and
had approximately 20 years’ experience as a mechanic. In
January 2007, he opened a business specializing in the repair
of cars, trucks, and heavy machinery. Approximately 3 months
before the accident, Riggs installed a new engine and clutch in
250 	281 NeBRASkA RePORTS

the grader. He considered himself to be “very familiar” with
the machine.
The grader has an enclosed cab in which the operator’s seat
and controls are located. There is a door on the right side of
the cab. The keyed ignition switch is located on the backwall
of the cab to the right and adjacent to the rear portion of the
operator’s seat. The separate starter button is located on a panel
to the right and near the front portion of the operator’s seat.
The grader is started by first turning the ignition switch to the
“on” position and then pressing the starter button.
On the day of the accident, Riggs came to Nickel’s acreage
to repair a tractor owned by Nickel. As Riggs was completing
work on the tractor, Nickel asked him to look at the grader,
which had developed a hydraulic leak. Although the parties
agree that the grader was parked near a shed on Nickel’s prop-
erty when Riggs began working on it, they disagree as to when
it was parked there. According to Nickel, he parked the grader
near the shed on the preceding weekend when it began to leak
hydraulic fluid while he was using it. But Riggs testified that
Nickel was using the grader when he asked him to look at it
and that he parked it next to the shed just before Riggs began
the repair.
Nickel testified that in order to bring the grader to a stop
after operating it, he depressed the clutch and then turned the
ignition switch to the “off” position, leaving the grader in gear
as he did so. Nickel testified that turning the ignition switch to
the “off” position was the only way he knew to stop the engine.
Riggs stated in an affidavit that a grader engine is typically shut
down by pulling up on the choke and flooding the engine.
The parties agree that when Riggs approached the grader to
make the repair, its engine was not running. After examining
the area of the leak, Riggs retrieved a wrench and, standing
outside the right side of the cab with both feet on the ground,
reached through the open doorway to the interior of the cab to
tighten a bolt in the area of the leak. Riggs testified that after
he finished the repair, which took about 30 seconds, he started
to turn around to back away from the cab. But as he did so,
his left elbow accidently struck the starter button, causing the
grader to lurch forward. The lurch startled Riggs and caused
RIggS v. NICkeL 	251
Cite as 281 Neb. 249

him to turn. When that occurred, he struck the starter button
again, this time with his right wrist. The engine started and the
grader began moving forward. Riggs fell to the ground and the
grader passed over him, causing significant injuries.
In the complaint, the Riggses alleged that Nickel was negli-
gent in “failing to turn the motor grader off before requesting
that [Riggs] do the repair” and in “failing to warn [Riggs] that
the motor grader was on before requesting that [Riggs] engage
in the minor repair.” Nickel answered by denying any negli-
gence on his part and alleging that the accident and resulting
injuries were caused by Riggs’ own negligence.
Nickel then moved for summary judgment. The record
includes the depositions of both Riggs and Nickel, Riggs’
answers to Nickel’s interrogatories, and Riggs’ affidavit. In
sustaining the motion for summary judgment, the district court
reasoned that the Riggses could not recover under a premises
liability theory because Nickel was not conducting an activ-
ity on his land and that the Riggses could not recover under
a theory of direct negligence because Nickel owed Riggs no
legal duty to protect him from harm. The Riggses perfected
this timely appeal, which we moved to our docket on our own
motion pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.1
II. ASSIgNMeNTS OF eRROR
The Riggses assign, summarized and restated, that the dis-
trict court erred in granting summary judgment in favor of
Nickel because the evidence does not show that Nickel was
entitled to judgment as a matter of law.
III. STANDARD OF ReVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.2 In reviewing
1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2 Schlatz v. Bahensky, 280 Neb. 180, 785 N.W.2d 825 (2010); In re Estate of
Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
252 	281 NeBRASkA RePORTS

a summary judgment, an appellate court views the evidence in
the light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all favorable
inferences deducible from the evidence.3
IV. ANALYSIS
1. fActs And inferences
The only witnesses to the accident are Riggs and Nickel.
Their accounts differ in two respects. First, as noted above,
Nickel testified that he parked the grader near the shed on
his property approximately 1 week before the accident, while
Riggs testified that Nickel was operating the grader on the
day of the accident and parked it just before asking Riggs
to repair the hydraulic leak. Under our standard of review,
we assume the truth of Riggs’ version of these events for
purposes of determining whether Nickel was entitled to sum-
mary judgment.
Second, the parties disagree as to whether the grader’s igni-
tion switch was in the “on” or “off” position just prior to the
accident. Nickel testified that he turned the ignition switch off
when he parked the grader, and he argues that there is no evi-
dence to refute his testimony. Riggs testified in his deposition
that Nickel did not leave the grader running when he parked
it, and agreed that Nickel “turned it off.” But in a subsequent
affidavit, Riggs explained that in giving this testimony, he was
referring only to the status of the engine because he “could not
see what . . . Nickel had done with the key.”
[3] Where a party without reasonable explanation testifies to
facts materially different concerning a vital issue, the change
clearly being made to meet the exigencies of pending litigation,
such evidence is discredited as a matter of law and should be
disregarded.4 In applying this rule, the important considerations
are that the testimony pertains to a vital point, that it is clearly
3 Id.
4 Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208
(1981). See, also, Insurance Co. of North America v. Omaha Paper Stock,
Inc., 189 Neb. 232, 202 N.W.2d 188 (1972); Clark v. Smith, 181 Neb. 461,
149 N.W.2d 425 (1967).
RIggS v. NICkeL 	253
Cite as 281 Neb. 249

apparent the party has made the change to meet the exigencies
of the pending case, and that there is no rational or sufficient
explanation for the change in testimony.5 Although Nickel
argues otherwise, we conclude that the rule is not applicable
here because the record does not show that Riggs changed his
testimony to meet the exigencies of litigation. By agreeing
in his deposition that Nickel “turned [the grader] off,” Riggs
could have meant either that Nickel turned the ignition switch
to the “off” position or that Nickel shut down the motor in
another manner. In his affidavit, Riggs simply explained that
he meant the latter.
We also note that it is uncontroverted that the grader would
start only if the ignition switch was “on” and the starter but-
ton was depressed. It is also uncontroverted that the grader
lurched forward and then started when Riggs unintentionally
depressed the starter button. From these facts, a finder of fact
could reasonably infer that the ignition switch was in the “on”
position when Riggs began working on the grader. The Riggses
are entitled to the benefit of that inference under our standard
of review.
2. premises L iAbiLity
[4,5] The Riggses first argue that the district court erred
in failing to recognize the existence of a duty on the part of
Nickel under a theory of premises liability. But not every neg-
ligence action involving an injury suffered on someone’s land
is properly considered a premises liability case.6 Under a prem-
ises liability theory, a court is generally concerned with either
a condition on the land or the use of the land by a possessor.7
The Riggses argue that this case falls in the second category
and is governed by the principle of premises liability stated in
Restatement (Second) of Torts § 341A, which provides:
A possessor of land is subject to liability to his invitees
for physical harm caused to them by his failure to carry
on his activities with reasonable care for their safety if,
5 Momsen v. Nebraska Methodist Hospital, supra note 4.
6 Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004).
7 Id.
254 	281 NeBRASkA RePORTS

but only if, he should expect that they will not discover
or realize the danger, or will fail to protect themselves
against it.8
We found this principle to be applicable to the facts in Haag v.
Bongers,9 a case in which a person was injured while attend-
ing an estate auction. The auction was conducted on property
owned by the estate by auctioneers hired by the estate. Antique
vehicles offered for sale were towed into a building where the
bidding and sale occurred. The plaintiff was struck and injured
when a hitch ball came loose from the drawbar of a tractor
which was towing one of the vehicles. In affirming the verdict
against the estate, we reasoned that the estate was in possession
of the premises on the day of the auction and that the injury
arose out of an activity conducted on the premises.
The Riggses argue that the “activity” in this case was
Nickel’s act of driving the grader to the spot on his property
where the repair was undertaken. Assuming without deciding
that this could constitute the type of activity contemplated
by § 341A of the Restatement (Second), it had clearly ended
before the injury occurred. The only “activity” being conducted
at the time of the injury was the repair of the grader by Riggs
himself. The circumstance is no different than if Nickel had
driven the grader to Riggs’ property and left it there to be
repaired. Here, the property was simply the place where the
injury occurred. No defective condition of the property or neg-
ligently conducted activity on the property caused the injury.
We conclude that Haag is factually distinguishable and that the
Riggses’ premises liability theory fails as a matter of law.
3. negLigence : duty to exercise reAsonAbLe cAre
The Riggses alleged in their complaint that Nickel was neg-
ligent in “failing to turn the motor grader off before requesting
that [Riggs] do the repair” and in “failing to warn [Riggs] that
the motor grader was on” before requesting that Riggs repair
the hydraulic leak. As noted above, the words “on” and “off”
as used here necessarily refer to the ignition switch, as Riggs
8 Restatement (Second) of Torts § 341A at 209 (1965).
9 Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318 (1999).
RIggS v. NICkeL 	255
Cite as 281 Neb. 249

admits that the grader’s engine was not actually running when
he began his work. The district court concluded that under the
specific facts of this case, considered in a light most favorable
to Riggs, there was no duty on the part of Nickel.
[6,7] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages.10 The ques-
tion whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situa-
tion.11 In the past, we used the risk-utility test to determine the
existence of a tort duty.12 That approach required consideration
of multiple factors, including “the foreseeability of the harm,”
in resolving the legal issue of whether a plaintiff owed a legal
duty to a defendant under the particular circumstances of the
case.13 The district court utilized this test in determining that
Nickel owed no duty to Riggs as a matter of law, noting that
the “chance that someone working on a hydraulic leak would
inadvertently hit the starter button twice causing the grader
motor to start and move forward is extremely remote.”
[8] In A.W. v. Lancaster Cty. Sch. Dist. 0001,14 decided dur-
ing the pendency of this appeal, we abandoned the risk-utility
test and adopted the duty analysis set forth in the Restatement
(Third) of Torts.15 Under this approach, an actor ordinarily has
a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.16 This approach examines the
defendant’s conduct, not in terms of whether he had a “duty”
to take particular actions, but, rather, in terms of whether his
10 A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
11 Id.
12 See, e.g., Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d
793 (2007).
13 Id. at 28, 735 N.W.2d at 805.
14 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 10.
15 See Restatement (Third) of Torts: Liability for Physical and emotional
Harm (2010).
16 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 10; Restatement (Third),
supra note 15, § 7(a).
256 	281 NeBRASkA RePORTS

conduct breached the duty to exercise the care that would be
exercised by a reasonable person under the circumstances.17
Based on the analytical framework we adopted in A.W., we
conclude that Nickel had a duty to exercise reasonable care in
operating the grader on his property. We examine the record
to determine if there is a genuine issue of material fact as to
whether he breached that duty in either of the ways alleged in
the complaint.
(a) Failure to Turn Off Ignition Switch
Nickel could breach his duty to use reasonable care in oper-
ating the grader by failing to turn the ignition switch off only if
it was reasonably foreseeable that harm to Riggs would result
from the ignition switch’s being left on.18 The record shows that
even with the ignition switch in the “on” position, the grader
was not running and posed no immediate risk of harm to Riggs.
The record further shows that Nickel had limited experience
with the grader, while Riggs was an experienced mechanic
who was very familiar with the grader and had the opportunity
to use appropriate care while working on the machine. In light
of these facts, we agree with the district court that the “chance
that someone working on a hydraulic leak would inadvertently
hit the starter button twice causing the grader motor to start and
move forward is extremely remote.” Although foreseeability of
the risk is a question of fact,19 on this record no reasonable fact
finder could conclude that Nickel breached his duty to exer-
cise reasonable care with respect to Riggs simply by leaving
the ignition switch in the “on” position. Nickel was entitled to
summary judgment on this theory of liability.
(b) Failure to Warn
The Riggses also alleged that Nickel failed to exercise rea-
sonable care by “failing to warn [Riggs] that the motor grader
was on” before requesting him to undertake its repair. Again,
17 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 10; Behrendt v. Gulf
Underwriters Ins. Co., 318 Wis. 2d 622, 768 N.W.2d 568 (2009).
18 See A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 10.
19 Id.
RIggS v. NICkeL 	257
Cite as 281 Neb. 249

we understand the word “on” to refer to the position of the
ignition switch.
In Erickson v. U-Haul Internat.,20 we held that § 388 of the
Restatement (Second) defined the common-law duty of a les-
sor to warn those expected to use a leased vehicle of dangers
attendant to its use. Section 388 provided that one who sup-
plied a chattel for use by another could be liable for physical
harm caused by its use if the supplier
(a) knows or has reason to know that the chattel is or
is likely to be dangerous for the use for which it is sup-
plied, and
(b) has no reason to believe that those for whose use
the chattel is supplied will realize its dangerous condi-
tion, and
(c) fails to exercise reasonable care to inform them
of its dangerous condition or of the facts which make it
likely to be dangerous.21
Other courts applied § 388 in defining the duty owed by the
owner of personal property to one who performs repairs on the
property at the owner’s request.22
Section 18 of the Restatement (Third) broadens the scope of
potential liability for negligent failure to warn beyond suppliers
of chattels, providing:
(a) A defendant whose conduct creates a risk of physi-
cal or emotional harm can fail to exercise reasonable care
by failing to warn of the danger if:
(1) the defendant knows or has reason to know: (a) of
that risk; and (b) that those encountering the risk will be
unaware of it; and
(2) a warning might be effective in reducing the risk
of harm.23
20 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
21 Restatement (Second), supra note 8, § 388 at 300-01.
22 See, Alvarez v. E & A Produce Corp., 708 So. 2d 997 (Fla. App. 1998);
Overbeck v. Cates, 700 A.2d 970 (Pa. Super. 1997); Quinton v. Kuffer, 221
Ill. App. 3d 466, 582 N.e.2d 296, 164 Ill. Dec. 88 (1991).
23 Restatement (Third), supra note 15, § 18(a) at 205.
258 	281 NeBRASkA RePORTS

The official comment to § 18 notes that an obligation to warn
can arise in a wide range of circumstances, including that of
the owner of a product who turns it over to another for repair.24
We adopt § 18(a) as the standard for determining liability
based upon alleged negligent failure to warn.
As noted, there is evidence in this record from which a finder
of fact could reasonably conclude that Nickel left the ignition
switch in the “on” position when he parked the grader. But
nothing in the record supports an inference that he was aware
that he had done so. There is no evidence upon which a finder
of fact could reasonably infer that Nickel knew that the ignition
switch was on when he asked Riggs to repair the grader.
Nor does the evidence support a reasonable inference that
Nickel could have expected Riggs to be unaware of any risk
created by the ignition switch’s being left on. Failure to warn
can be a breach of the standard of care articulated in § 18(a)
of the Restatement (Third) “only if the defendant knows or
can foresee that potential victims will be unaware of the haz-
ard. Accordingly, there generally is no obligation to warn of
a hazard that should be appreciated by persons whose intel-
ligence and experience are within the normal range.”25 In this
case, Nickel knew that Riggs was an experienced mechanic
and that he had recently worked on the grader. The ignition
switch did not constitute a “latent defect,” as the Riggses
allege, because there is no evidence that it was mechanically
defective and it was within Riggs’ view and reach when he
worked on the grader. There is no evidence to support a rea-
sonable inference that Nickel had reason to know that Riggs
would not understand and appreciate the risk posed by acci-
dentally depressing the starter while the ignition switch was
in the “on” position. Indeed, Riggs admitted that he under-
stood this risk.
We conclude as a matter of law that Nickel was not negli-
gent in failing to warn, under the principles stated in § 18(a) of
the Restatement (Third).
24 Id., § 18, comment a.
25 Id., comment f. at 208.
RIggS v. NICkeL 	259
Cite as 281 Neb. 249

V. CONCLUSION
Although for different reasons, we agree with the district
court’s determination that as a matter of law, Nickel had
no liability to Riggs under theories of premises liability or
common-law negligence. We affirm the judgment of the dis-
trict court.
A ffirmed.
Wright, J., not participating.
260 	281 NeBRASkA RePORTS