Tedd Bish Farm v. Southwest Fencing Servs.

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
tedd bish Farm , iNc., a Nebraska corporatioN,
appellaNt, v. southwest FeNciNg
services , llc, a Nebraska limited
liability compaNy, appellee .
867 N.W.2d 265
Filed August 7, 2015. 	No. S-14-915.
1. 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 the party the benefit of all reasonable inferences deducible from
the evidence.
2. Summary Judgment. Summary judgment proceedings do not resolve
factual issues, but instead determine whether there is a material issue of
fact in dispute.
3. ____. Summary judgment is proper if the pleadings and admissible evi-
dence offered 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.
4. ____. When reasonable minds can differ as to whether an inference can
be drawn, summary judgment should not be granted.
5. Damages. The issue of whether an injured party actually exercised rea-
sonable efforts in mitigating the damage is a question of fact.
6. Summary Judgment: Damages. A trial court must decide the issue of
mitigation of damages as a matter of law on summary judgment where
the facts are undisputed or are such that reasonable minds can draw but
one conclusion therefrom.
7. Damages. Under the doctrine of avoidable consequences, which is
another name for the failure to mitigate damages, a wronged party
will be denied recovery for such losses as could reasonably have been
avoided, although such party will be allowed to recover any loss, injury,
or expense incurred in reasonable efforts to minimize the injury.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:31 AM CST

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
8. ____. A plaintiff’s failure to take reasonable steps to mitigate damages
bars recovery, not in toto, but only for the damages which might have
been avoided by reasonable efforts.
9. ____. The avoidable consequences doctrine creates responsibility only
for those hypothetical ameliorative actions that could have been accom-
plished through ordinary and reasonable care.
10. ____. An injured party may be excused from the duty to mitigate if the
injured party lacks the financial ability to do so.
11. ____. The duty to mitigate is often excused in cases where the defendant
inhibits the plaintiff from taking actions to avoid additional damages.
12. Damages: Intent. The repeated assurances of a defendant after an
injury has begun that he or she will remedy the condition is sufficient
justification for a plaintiff’s failure to take steps to minimize loss,
so long, at least, as there is ground for expecting that the defendant
will perform.
Appeal from the District Court for Hamilton County, rachel
a. daugherty, Judge, on appeal thereto from the County Court
for Hamilton County, liNda s. caster seNFF, Judge. Judgment
of District Court affirmed.
Scott D. Pauley, of Conway, Pauley & Johnson, P.C., for
appellant.
Matthew B. Reilly, of Erickson & Sederstrom, P.C., L.L.O.,
for appellee.
heavicaN, c.J., wright, coNNolly, mccormack , miller-
lermaN, and cassel , JJ.
heavicaN, c.J.
I. NATURE OF CASE
Tedd Bish Farm, Inc., owns a 120-acre tract of farmland
in Hamilton County, Nebraska. We refer to Tedd Bish Farm
and its owner, Tedd Bish, collectively as “Bish.” One 6.5-acre
corner of the land is irrigated by a gravity irrigation system,
which is fed by a pipe that runs along the property fence line.
Southwest Fencing Services, LLC (Southwest Fencing), dam-
aged a section of the pipe while removing and replacing the

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
fence along Bish’s property. Bish discovered the damage to
the pipe in July 2011. According to Bish, the pipe needed to
be repaired by June 1, 2012, in order to avoid crop damage
in the 6.5-acre corner for the 2012 crop year. Bish took the
pipe in to be repaired on May 15, 2012, and was informed
that repairs could be made by June 1. Bish, according to the
county court, “chose not to authorize repairs” at that time, and
the pipe was not repaired before June 1.
Bish filed a complaint in the county court for Hamilton
County, seeking damages for repair of the pipe and lost prof-
its from loss of use of the pipe for the 2012 crop year. The
county court granted Southwest Fencing’s motion for partial
summary judgment on the issue of whether Bish failed to
mitigate damages and complete the repairs within a reasonable
amount of time. That order was affirmed by the district court
for Hamilton County. Bish now appeals to this court from the
district court’s order affirming the county court’s order grant-
ing Southwest Fencing’s motion for partial summary judgment
on the issue of whether Bish had made reasonable efforts to
mitigate its damages.
We determine that summary judgment on an issue of fact,
such as whether a party exercised reasonable efforts in mitigat-
ing damages, is appropriate when reasonable minds could draw
but one conclusion from the facts. Further, we find that the
district court did not err in affirming the county court’s order,
because the cost of the repair was reasonable in comparison to
the damages avoided; Bish had the financial ability to pay for
the repairs; and Southwest Fencing’s own actions did not pre-
vent Bish from authorizing the repairs itself.
II. BACKGROUND
As acknowledged by the county and district courts, the
underlying facts of the case are largely not in dispute by the
parties. Bish owns a 120-acre tract of farmland in Hamilton
County, and one side of Bish’s property, lined by a fence, is
directly adjacent to Interstate 80. The majority of Bish’s land

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
is irrigated by a center pivot, but a 6.5-acre corner of Bish’s
land cannot be reached by the pivot and is instead irrigated by
gravity irrigation.
Bish utilizes approximately 660 feet of irrigation pipe,
which runs along the property fence line adjacent to Interstate
80, to supply water to the gravity irrigation system. Southwest
Fencing contracted with Nebraska’s Department of Roads to
replace sections of fence separating private property from
Interstate 80 in Hamilton County. During the course of replac-
ing the fence on Bish’s property in 2011, an employee from
Southwest Fencing ran over portions of Bish’s irrigation pipe
with a skid loader and caused damage to the pipe.
On July 25, 2011, Bish discovered the damage to the
pipe and contacted Southwest Fencing. A representative for
Southwest Fencing denied that Southwest Fencing caused the
damage and refused to pay for the repairs. On the same day,
Bish contacted the Department of Roads. Bish testified in his
deposition that the department informed him that Southwest
Fencing’s insurance company would pay for the damage to the
pipe. Bish then contacted Southwest Fencing again that day,
but its representative again denied any liability. Bish testified
in his deposition that he did not remove the pipe or seek to get
the pipe repaired at that time because Southwest Fencing had
yet to admit to the damage.
Bish contacted Southwest Fencing again in 2012 regarding
the damaged irrigation pipe, and its representative gave Bish
the contact information for Southwest Fencing’s insurer. On
May 14, 2012, Bish met with an insurance claims investiga-
tor for Southwest Fencing’s insurer. The claims investigator
acknowledged that the damage to the pipe was caused by
Southwest Fencing and told Bish to take the pipe to Northern
Agri-Services, Inc., to get an estimate for the repair. Bish testi-
fied that he told the claims investigator the pipe needed to be
repaired by June 1 in order to utilize the gravity irrigation sys-
tem for the 2012 crop year. In its motion for partial summary
judgment, Southwest Fencing did not dispute the significance
of the June 1 cutoff date.

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
On May 15, 2012, Bish took the damaged pipe to Northern
Agri-Services for an estimate. Bish also informed Northern
Agri-Services that the pipe needed to be repaired by June 1.
Northern Agri-Services estimated the cost to repair the pipe
would be $1,772.40 and informed Bish that it could complete
the repairs by June 1. Bish, however, did not authorize the
repairs at that time. Bish testified in his deposition that he
did not authorize the repairs because he believed Southwest
Fencing’s insurance company needed to approve the repairs
before Northern Agri-Services could make the repairs. Bish
testified that he had the financial ability to pay for the repairs
himself at that time.
On June 5, 2012, Southwest Fencing requested its own
estimate, and on July 13, it verbally offered Bish $1,772.40 to
fix the pipe and later offered the same amount in writing on
August 21. The pipe was not repaired in time for the 2012 crop
year. Bish eventually had the pipe repaired before the 2013
crop season, and Northern Agri-Services sent Bish an invoice
totaling $2,854.83 for the repairs. Southwest Fencing never
paid Bish for the repairs.
Bish filed a complaint on May 22, 2013, in the county court
for Hamilton County alleging that Southwest Fencing negli-
gently damaged the irrigation pipe. In an amended complaint,
Bish requested $13,578.62 in damages: $2,854.83 for the cost
of the repair of the damaged irrigation pipe and $10,723.79
in lost profits for the 2012 crop year. In Southwest Fencing’s
answer to Bish’s complaint, Southwest Fencing affirmatively
pled that Bish failed to mitigate its damages with respect to the
lost profits.
Southwest Fencing filed a motion for partial summary judg-
ment on the issue of mitigation of damages. In support of its
motion for partial summary judgment, Southwest Fencing
submitted Bish’s response to a request for admissions and
a portion of Bish’s deposition testimony. Bish submitted an
affidavit from Bish and Southwest Fencing’s answers to inter-
rogatories. On January 31, 2014, the county court determined

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
that Bish did not seek to repair the pipe within a reasonable
amount of time and that therefore, Bish could not recover any
lost profits associated with not having the pipe repaired by
June 1, 2012.
A bench trial on the issues of negligence and the amount of
damages for repair or replacement of the pipe was held on May
12, 2014. On May 23, the county court entered judgment in
favor of Bish and awarded Bish $2,854.83. Bish then appealed
to the Hamilton County District Court the county court’s
order granting Southwest Fencing’s partial motion for sum-
mary judgment. On September 19, the district court affirmed
the county court’s order granting Southwest Fencing’s motion
for partial summary judgment on the issue of whether Bish
made reasonable efforts to mitigate its damages. Bish now
appeals to this court.
III. ASSIGNMENT OF ERROR
Bish assigns, consolidated and restated, that the district
court erred in affirming the county court’s order granting par-
tial summary judgment on the issue of whether Bish failed to
mitigate damages as to the 2012 crop year.
IV. STANDARD OF REVIEW
[1] 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 the party
the benefit of all reasonable inferences deducible from the
evidence.1
V. ANALYSIS
Bish assigns that the district court erred in affirming the
county court’s order granting partial summary judgment on the
issue of mitigation of damages. Bish argues that (1) summary
judgment was not appropriate and (2) the evidence, viewed in
1 Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
a light most favorable to Bish, shows that Bish exercised rea-
sonable efforts in attempting to mitigate the damages.
1. summary JudgmeNt
[2-4] Bish contends that summary judgment was not appro-
priate, because the issue of whether Bish acted reasonably in
mitigating the damages is a question of fact and should have
been resolved by the jury. Southwest Fencing, on the other
hand, contends that mitigation is a question of law. Summary
judgment proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.2
Summary judgment is proper if the pleadings and admissible
evidence offered 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.3 When reasonable minds can
differ as to whether an inference can be drawn, summary judg-
ment should not be granted.4
[5,6] The decision over whether the issue of mitigation of
damages should be presented to the jury lies with the court
and is a question of law.5 However, the issue of whether an
injured party actually exercised reasonable efforts in mitigat-
ing the damage is a question of fact.6 But a trial court must
2 O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731
(2014).
3 Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015).
4 Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
5 See Gottsch Feeding Corp. v. Red Cloud Cattle Co., 229 Neb. 746, 429
N.W.2d 328 (1988).
6 See, e.g., Manufacturers Life Ins. v. Mascon Inform. Techn., 270 F. Supp.
2d 1009 (N.D. Ill. 2003); Aircraft Guar. Corp. v. Strato-Lift, Inc., 991
F. Supp. 735 (E.D. Pa. 1998); McCormick Intern. USA, Inc. v. Shore,
152 Idaho 920, 277 P.3d 367 (2012); Lewis v. Community First Nat.
Bank, N.A., 101 P.3d 457 (Wyo. 2004); Tincher v. Interstate Precision
Tool Corp., No. 19093, 2002 WL 1396097 (Ohio App. June 28, 2002)
(unpublished opinion) (cause dismissed at 96 Ohio St. 3d 1531, 776
N.E.2d 111 (table captioned “Supreme Court of Ohio Table Decisions”)).

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
decide the issue of mitigation of damages as a matter of law
on summary judgment “[w]here the facts are undisputed or
are such that reasonable minds can draw but one conclusion
therefrom . . . .”7 Applying this same principle, courts in other
jurisdictions have found summary judgment to be appropri-
ate for the issue of mitigation “where the facts clearly dem-
onstrated the injured party, by his own avoidable action or
inactions, caused the damages about which he complained.”8
Thus, even though the issue of whether an injured party’s
actions constituted reasonable efforts to mitigate is a ques-
tion of fact, summary judgment would still be appropriate so
long as “reasonable minds could not differ concerning efforts
to mitigate.”9
2. reasoNable eFForts
[7,8] Keeping in mind that we view the evidence in a light
most favorable to Bish, we next move to the question of
whether Bish took reasonable steps to mitigate the damage as
a matter of law.
Under the doctrine of avoidable consequences, which
is another name for the failure to mitigate damages, a
wronged party will be denied recovery for such losses as
could reasonably have been avoided, although such party
will be allowed to recover any loss, injury, or expense
incurred in reasonable efforts to minimize the injury.10
“A plaintiff’s failure to take reasonable steps to mitigate dam-
ages bars recovery, not in toto, but only for the damages which
might have been avoided by reasonable efforts.”11 In assessing
7 Sweem v. American Fidelity Life Assurance Co., 274 Neb. 313, 319, 739
N.W.2d 442, 447 (2007).
8 Lewis, supra note 6, 101 P.3d at 460.
9 Id.
10 Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 95, 710 N.W.2d
71, 80 (2006).
11 Id.

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
the reasonableness of Bish’s efforts, we look to (a) the cost of
mitigation, (b) Bish’s financial ability to mitigate, and (c) the
actions of Southwest Fencing.
(a) Cost of Mitigation
[9] The avoidable consequences doctrine creates responsi-
bility only for “those hypothetical ameliorative actions that
could have been accomplished through ordinary and reason-
able care.”12 In property damage cases, courts generally meas-
ure reasonableness by comparing the cost of the threatened
injury against the cost of the repair.13 To put it another way, the
injured party has the responsibility to protect himself or her-
self if it can be done at a “‘“trifling expense.”’”14 “The word
‘trifling’ means a sum which is trifling in comparison with the
consequential damages which the party is seeking to recover in
a particular case.”15
A New Hampshire case similarly involving lost crops
illustrates this principle.16 In that case, the plaintiffs, own-
ers of farmland, entered into a landfill removal contract with
the defendant. Pursuant to the terms of the agreement, the
defendant was allowed to remove earthfill from the farmland,
but was also obligated to restore the excavation area to its
original condition after completion of the work. The defend-
ant failed to satisfactorily complete the restoration of the
land, and the plaintiffs sued for breach of contract. The trial
court awarded the plaintiffs $10,500 in damages for the cost
to restore the topsoil and $3,000 in lost profit for 2 years’
12 25 C.J.S. Damages § 184 at 548 (2012) (citing System Components Corp.
v. Florida DOT, 14 So. 3d 967 (Fla. 2009)).
13 See 25 C.J.S., supra note 12, § 45.
14 See, e.g., Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 857 (Tex. 1999).
15 Tatum v. Morton, 386 F. Supp. 1308, 1311 (D.D.C. 1974) (citing 22 Am.
Jur. 2d Damages § 32 (1965)).
16 Emery v. Caledonia Sand and Gravel Co., 117 N.H. 441, 374 A.2d 929
(1977).

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
worth of lost crops from the damaged area. On appeal, the
defendant argued, with respect to the award of lost profit,
that the plaintiffs failed to mitigate damages by replacing
the topsoil themselves. The New Hampshire Supreme Court
determined that it would not be reasonable to expect the
plaintiffs to spend $10,500 in order to avoid $3,000 in lost
profits. Cases from other jurisdictions have reached similar
conclusions when the cost of mitigation outweighed the dam-
ages avoided.17
Contrary to the cases cited above, the cost of mitigation
in this case is far less than the potential damages avoided.
The $2,845 cost of the repair is a reasonable expense by
comparison, considering Bish stood to gain almost four times
that amount in additional income (Bish alleged approximately
$10,700 in lost profits) if it was able to farm the 6.5-acre cor-
ner section for the 2012 crop year. An ordinarily prudent per-
son in Bish’s position would have viewed the cost of the repair
as a reasonable expense given the circumstances.
(b) Bish’s Financial Ability
[10] Even if mitigation could be achieved through reason-
able expense compared to the damages avoided, an injured
party may be excused from the duty to mitigate if the injured
party lacks the financial ability to do so.18 If Bish did not
have the financial ability to pay for the repairs of the pipe
before June 1, 2012, then it may be excused from the duty
to mitigate. Bish admitted in his deposition that Bish had
the ability to pay for the repairs, and eventually did fund
the repair of the pipe before the 2013 crop year. Bish also
stated in his deposition that had he caused the damage to the
pipe himself, he would have immediately taken the pipe in
17 See, Lochthowe v. C.F. Peterson Estate, 692 N.W.2d 120 (N.D. 2005);
Avco Financial Services v. Ramsey, 631 So. 2d 940 (Ala. 1994); Lake
Village Impl. Co. v. Cox, 252 Ark. 224, 478 S.W.2d 36 (1972).
18 See, e.g., McPherson v. Kerr, 195 Mont. 454, 636 P.2d 852 (1981).

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
to be repaired. The record reveals Bish had the wherewithal
to make the repairs, which further leads us to the conclusion
that Bish did not exercise reasonable efforts in minimizing
the injury.
(c) Southwest Fencing’s Actions
[11,12] The duty to mitigate is also often excused in cases
where the defendant inhibits the plaintiff from taking actions
to avoid additional damages.19 For example, it has been said
that “‘[t]he repeated assurances of the defendant after an injury
has begun that he will remedy the condition is sufficient jus-
tification for the plaintiff’s failure to take steps to minimize
loss, so long, at least, as there is ground for expecting that
[the defendant] will perform.’”20 Bish testified that he did not
authorize the repair because he believed Southwest Fencing
needed to request an estimate, and in his affidavit, he stated
that after taking the pipe to Northern Agri-Services, he “had
done everything reasonably necessary to ensure the irrigation
pipe was repaired by June 1, 2012.” But there is no evidence
that a representative of Southwest Fencing actually assured
Bish that Southwest Fencing would pay for the repairs before
June 1. In both his deposition and affidavit, Bish stops short
of stating that Southwest Fencing indicated to Bish that it
should not or could not authorize the repairs itself. Bish also
acknowledged in his deposition that nothing prevented Bish
from authorizing Northern Agri-Services to start the repairs.
Although we give Bish the benefit of all reasonable inferences,
there is nothing in the record which indicates that Southwest
Fencing, or anyone acting on behalf of Southwest Fencing,
prevented Bish from authorizing and paying for the repairs to
avoid the lost profits for the 2012 crop year.
19 See 22 Am. Jur. 2d Damages § 356 (2013) (citing First Nat’l Bank v.
Milford, 239 Kan. 151, 718 P.2d 1291 (1986)).
20 Little v. Rose, 285 N.C. 724, 728, 208 S.E.2d 666, 669 (1974). See, also,
United States v. Russell Electric Co., 250 F. Supp. 2 (S.D.N.Y. 1965).

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291 Nebraska reports
TEDD BISH FARM v. SOUTHWEST FENCING SERVS.
Cite as 291 Neb. 527
Accordingly, we find the record indicates the cost to miti-
gate the damage was reasonable, Bish had the financial ability
to mitigate the damages, and Southwest Fencing did not give
any assurances that would justify Bish’s inaction. In this case,
the record clearly demonstrates that Bish, through its own inac-
tion, did not exercise reasonable efforts in attempting to avoid
the lost profits for the 2012 crop year; as a result, reasonable
minds could not differ concerning the efforts to mitigate. The
district court did not err in affirming the county court’s order
granting Southwest Fencing’s motion for partial summary
judgment with respect to the issue of mitigation.
VI. CONCLUSION
The district court’s order affirming the county court’s order
is affirmed.
aFFirmed.
stephaN, J., not participating.