Kuhn v. Wells Fargo Bank of Neb.

L eon D ean Kuhn, P ersonaL rePresentative of the estate
of ashton hasebrooK, aPPeLLee , v. WeLLs fargo banK of
nebrasKa , n.a., aPPeLLee , tJ L auvetz enterPrises , inc.,
DefenDant anD thirD-Party PLaintiff, aPPeLLant,
anD o’K eefe eLevator comPany, inc.,
thirD-Party DefenDant, aPPeLLee .
771 N.W.2d 103
Filed August 28, 2009. 	No. S-08-141.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a jus-
ticiability doctrine that operates to prevent courts from exercising jurisdiction,
an appellate court reviews mootness determinations under the same standard of
review as other jurisdictional questions.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower courts.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
4. Contracts. The meaning of a contract and whether a contract is ambiguous are
questions of law.
5. Statutes. The meaning of a statute is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
7. Moot Question: Words and Phrases. A case becomes moot when the issues
initially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
8. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction,
an actual case or controversy is necessary for the exercise of judicial power.
9. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
10. Moot Question. As a general rule, a moot case is subject to summary dismissal.
11. Liability: Damages. Indemnification is available when one party is compelled to
pay money which in justice another ought to pay or has agreed to pay.
12. Moot Question: Proof. The burden of proving mootness is on the party seek-
ing dismissal.
13. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court
of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate,
some or all of the assignments of error the Court of Appeals did not reach.
428 	278 NeBrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

14. Contracts: Negligence: Intent. An indemnitee may be indemnified against his
or her own negligence if the contract contains express language to that effect or
contains clear and unequivocal language that that is the intention of the parties.
15. Contracts: Negligence: Intent: Presumptions. The parties to a contract are pre-
sumed to intend that an indemnitee shall not be indemnified for a loss occasioned
by his or her own negligence unless the language of the contract affirmatively
expresses an intent to indemnify for such loss.
16. Contracts: Words and Phrases. An indemnity agreement is a contract to be
construed according to the principles generally applied in construction or inter-
pretation of other contracts.
17. Contracts. A contract must receive a reasonable construction and must be
construed as a whole, and if possible, effect must be given to every part of
the contract.
18. Negligence: Words and Phrases. Gross negligence is great or excessive neg-
ligence, which indicates the absence of even slight care in the performance of
a duty.
19. Invitor-Invitee: Words and Phrases. In tort law, an invitee is a person who
goes on the premises of another in answer to the express or implied invitation
of the owner or occupant on the business of the owner or occupant or for their
mutual advantage.
20. Landlord and Tenant. A landlord has a duty to keep the common areas of leased
premises, such as areas under his or her control and areas used by more than one
tenant, reasonably safe.
21. Landlord and Tenant: Invitor-Invitee: Negligence. Guests and invitees of a
tenant derive their right to enter upon the premises leased through the tenant and
have the same but no greater right to proceed against the landlord for personal
injuries resulting from alleged defects than the tenant has.
22. Statutes: Legislature: Intent. The principal objective of construing a statute is
to determine and give effect to the legislative intent of the enactment.
23. Words and Phrases. Under the ejusdem generis canon of construction, when a
general word or phrase follows a list of specific persons or things, the general
word or phrase will be interpreted to include only persons or things of the same
type as those listed.
24. ____. Under the ejusdem generis canon of construction, specific terms modify
and restrict the interpretation of general terms when they are used in a sequence.
25. Contracts: Property: Words and Phrases. “Maintenance of a building,” within
the meaning of Neb. rev. Stat. § 25-21,187(1) (reissue 2008), does not
encompass the ordinary activities associated with management of commer-
cial property.
26. Contribution: Words and Phrases. Contribution is defined as a sharing of
the cost of an injury as opposed to a complete shifting of the cost from one to
another, which is indemnification.
27. Liability: Contribution. Common liability is required between a party seeking
contribution and the party from whom it is sought.
28. Contribution: Words and Phrases. Indemnification is distinguishable from the
closely related remedy of contribution in that the latter involves a sharing of the
loss between parties jointly liable.
kUhN v. WellS FArGo BANk oF NeB. 	429
Cite as 278 Neb. 428

29. Liability: Contracts. An obligation to indemnify may grow out a liability
imposed by law or a contractual relation.
30. Negligence: Tort-feasors: Liability. Indemnity may occur when an active or
primary tort-feasor is held liable for injuries proximately caused by the passive
negligence of a joint tort-feasor.
31. Liability: Contracts. Indemnity may occur when a party expressly contracts
for it.
32. Summary Judgment: Final Orders: Appeal and Error. When adverse parties
have each moved for summary judgment and the trial court has sustained one of
the motions, the reviewing court obtains jurisdiction over both motions and may
determine the controversy which is the subject of those motions.
petition for further review from the Court of Appeals,
inboDy, Chief Judge, and sievers and moore, Judges, on appeal
thereto from the District Court for Adams County, stePhen r.
iLLingWorth, Judge. Judgment of Court of Appeals reversed,
and cause remanded with directions.
Justin r. herrmann and Jeffrey h. Jacobsen, of Jacobsen, orr,
Nelson, lindstrom & holbrook, p.C., l.l.o., for appellant.
Michael F. Scahill and Terry J. Grennan, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellee Wells Fargo Bank of
Nebraska, N.A.
heavican, c.J., Wright, gerrarD, stePhan, and miLLer-
L erman, JJ.
gerrarD, J.
This appeal arises from a procedurally complicated tort case
involving an injured plaintiff, the owner of the building in
which the plaintiff was injured, the bank that the plaintiff was
in the building to patronize, and the installer of the elevator
in which the plaintiff fell. The bank was dismissed from the
case, and the remaining parties apparently settled, although
the settlement agreement is not in the record. The question
presented, on further review to this court, is whether the build-
ing owner’s appeal from the dismissal of its indemnity claim
against the bank is moot because the appellate record does not
contain the terms of the building owner’s settlement with the
plaintiff. We conclude that the appeal is not moot. We further
conclude that the district court erred in dismissing the bank
from the case.
430 	278 NeBrASkA reporTS

I. BACkGroUND
1. P remises anD L ease
TJ lauvetz enterprises, Inc. (lauvetz), owned Burlington
Center, a building in hastings, Nebraska, containing approxi-
mately 55,000 rentable square feet. lauvetz leased a little
less than half that space to what is now Wells Fargo Bank of
Nebraska, N.A. (the Bank), on the first floor and on the “gar-
den,” or basement, level of the building. The rest of the build-
ing contained other offices, including lauvetz’.
lauvetz’ lease agreement with the Bank provided, within
the “Utilities and Services” section, that lauvetz “shall furnish
passenger elevator service whenever the Building is open.”
lauvetz “shall have the right to stop the operation of said
elevators whenever alterations, improvements or repairs therein
or in the machinery or appliances connected therewith shall be
necessary or desirable and shall not be liable for damages for
any such stoppage of service.” And the “indemnity” section,
paragraph 20 of the lease, provided, in relevant part:
With the exception of those claims arising out of [lauvetz’]
gross negligence or willful misconduct, . . . [the Bank]
shall indemnify [lauvetz] and hold it harmless from
any claim or damage arising out of any injury, death or
property damage occurring in, on or about the property,
the Building, the leased premises and appurtenances
thereto to [the Bank] or an employee, customer or invitee
of [the Bank]. With the exception of those claims arising
out of [the Bank’s] negligence or willful misconduct, . . .
[lauvetz] shall indemnify [the Bank] and hold it harm-
less from any claim or damage arising out of any injury,
death or property damage occurring in, on or about the
property, the Building, the leased premises and appurte-
nances thereto to [lauvetz] or any employee, customer or
invitee of [lauvetz].
(emphasis supplied.)
2. acciDent
The elevators in the building had been malfunctioning by
reporting to the wrong floors. A repairperson from o’keefe
elevator Company (o’keefe) instructed lauvetz to implement
kUhN v. WellS FArGo BANk oF NeB. 	431
Cite as 278 Neb. 428

a new procedure for elevator use over the weekend. The old
procedure had been to take the elevators to the ground floor
and turn them off. To help o’keefe diagnose the problem,
the repairperson suggested that the malfunctioning elevator be
turned to “independent service” over the weekend of March 1,
2003. An elevator on independent service does not respond to
calls from hallway buttons. Instead, the elevator remains parked
with the doors open until a floor is selected on the inside panel
and the “close door” button is held down. The elevator will
then travel to the selected floor, where it will again remain
parked with the doors open.
In addition to helping o’keefe diagnose the problem, setting
the elevator to independent service would allow the building’s
janitors to use it over the weekend. That was why it was decided
not to put a sign or caution tape in front of the elevator. But
turning an elevator to independent service can also cause the
elevator’s self-leveling device to not operate properly.
The new independent service procedure began on a Friday.
early the next day, Ashton hasebrook, who was 90 years old,
visited the Bank to get a certificate of deposit from his safe
deposit box, which was located in the Bank’s basement. he
went to the elevators to go back upstairs and found one stand-
ing open. he stepped into the elevator, fell, and broke his hip.
hasebrook testified that the elevator car was “about a foot”
below floor level, although other observers described the dif-
ference as being less than 2 inches after the accident.
3. P roceDuraL history
hasebrook sued lauvetz and the Bank in district court,
seeking damages for medical expenses, pain and suffering,
disability, and future medical care. lauvetz and the Bank filed
cross-claims against one another, seeking indemnity under
paragraph 20 of the lease. And lauvetz filed a third-party com-
plaint against o’keefe. hasebrook later died, and the claim
was revived by leon Dean kuhn, the personal representative of
his estate. For the sake of clarity, the estate is also referred to
simply as “hasebrook.”
In 2006, the Bank and lauvetz each filed motions for sum-
mary judgment. The district court found that the Bank could
432 	278 NeBrASkA reporTS

not be liable to hasebrook because it did not control the eleva-
tor. The court reasoned that the lease agreement did not shift
the duty lauvetz owed to hasebrook from lauvetz to the Bank.
The court further found that paragraph 20 of the lease was
“ambiguous and does not clearly set forth that lauvetz should
be indemnified by [the Bank].” Therefore, the court found that
lauvetz’ cross-claim against the Bank did not state a claim
upon which relief could be granted. The court denied lauvetz’
motion for summary judgment and granted the Bank’s. The
Bank was dismissed as a party, with prejudice. lauvetz filed a
notice of appeal, but the appeal was dismissed without opinion
for lack of a final, appealable order.1
The claims left pending were hasebrook’s against lauvetz,
and lauvetz’ against o’keefe. In 2008, hasebrook, lauvetz,
and o’keefe filed a joint motion and stipulation for dismissal
with prejudice. Apparently, the various claims were settled,
although the settlement itself is not in the record. The district
court granted the motion and dismissed the remaining claims.
lauvetz again filed an appeal from the 2006 summary judgment
order, contending that the court had erred in granting summary
judgment for the Bank and dismissing it from the case.
The Nebraska Court of Appeals dismissed the appeal as
moot.2 The Court of Appeals explained that the final order
entered in 2008 dismissed hasebrook’s complaint without any
finding as to liability or an award of damages. Although the
order theoretically preserved lauvetz’ cross-claim against the
Bank, the Court of Appeals reasoned that without a finding of
liability or damages against lauvetz, there was no basis for
indemnity. Although lauvetz asserted at oral argument that
the case had been settled, the Court of Appeals found that
to be irrelevant, because there was no evidence in the record
of any settlement agreement or payment pursuant to such an
agreement. The court concluded that because of the 2008 order
dismissing hasebrook’s claim against lauvetz, any opinion on
1 See Kuhn v. Wells Fargo Bank, No. A-06-1003 (Neb. App. Nov. 8, 2006).
2 See Kuhn v. Wells Fargo Bank of Neb., No. A-08-141, 2009 Wl 97167
(Neb. App. Jan. 13, 2009) (selected for posting to court Web site).
kUhN v. WellS FArGo BANk oF NeB. 	433
Cite as 278 Neb. 428

lauvetz’ right to indemnity from the Bank would be moot.3 We
granted lauvetz’ petition for further review.
II. ASSIGNMeNTS oF error
on further review, lauvetz assigns that the Court of Appeals
erred in determining that the district court’s 2008 order dismiss-
ing hasebrook’s complaint as to lauvetz rendered lauvetz’
appeal of its cross-claim against the Bank moot.
In its brief to the Court of Appeals, lauvetz assigned, con-
solidated and restated, that the district court erred in (1) finding
that lauvetz could not contractually require indemnification
from the Bank for damages arising from an injury occurring to
the Bank’s customer on the leased premises and arising from
lauvetz’ ordinary negligence, (2) finding that the indemnifica-
tion provision of the lease was ambiguous and did not clearly
set forth that lauvetz should be indemnified by the Bank, (3)
failing to apply the indemnification provision as written, and
(4) overruling lauvetz’ motion for summary judgment and sus-
taining the Bank’s.
lauvetz also assigned error with respect to the court’s find-
ing that lauvetz, not the Bank, had a legal duty to hasebrook
to maintain a safe elevator. But lauvetz did not argue that in
his brief, so it does not need to be addressed.4
III. STANDArD oF revIeW
[1,2] Because mootness is a justiciability doctrine that oper-
ates to prevent courts from exercising jurisdiction, an appel-
late court reviews mootness determinations under the same
standard of review as other jurisdictional questions.5 When a
jurisdictional question does not involve a factual dispute, its
determination is a matter of law, which requires an appellate
court to reach a conclusion independent of the decisions made
by the lower courts.6
3 See id.
4 See Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006).
5 In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).
6 Id.
434 	278 NeBrASkA reporTS

[3] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of
all reasonable inferences deducible from the evidence.7
[4-6] The meaning of a contract and whether a contract is
ambiguous are questions of law.8 The meaning of a statute is
also a question of law.9 When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court.10
Iv. ANAlySIS
1. mootness
[7-10] lauvetz assigns that the Court of Appeals erred in
dismissing its appeal as moot. A case becomes moot when the
issues initially presented in the litigation cease to exist, when
the litigants lack a legally cognizable interest in the outcome
of litigation, or when the litigants seek to determine a question
which does not rest upon existing facts or rights, in which the
issues presented are no longer alive.11 Although not a constitu-
tional prerequisite for jurisdiction, an actual case or controversy
is necessary for the exercise of judicial power.12 In the absence
of an actual case or controversy requiring judicial resolution,
it is not the function of the courts to render a judgment that is
merely advisory.13 Therefore, as a general rule, a moot case is
subject to summary dismissal.14
[11] lauvetz does not take issue with these propositions.
Nor does lauvetz argue that any exception to the mootness
7 In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d 704 (2009).
8 Pavers, Inc. v. Board of Regents, 276 Neb. 559, 755 N.W.2d 400 (2008).
9 Harvey v. Nebraska Life & Health Ins. Guar. Assn., 277 Neb. 757, 765
N.W.2d 206 (2009).
10 In re Estate of Ronan, supra note 7.
11 BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596,
755 N.W.2d 807 (2008).
12 Id.
13 Id.
14 Id.
kUhN v. WellS FArGo BANk oF NeB. 	435
Cite as 278 Neb. 428

doctrine is applicable.15 And lauvetz does not contend that
in the absence of some liability to hasebrook, there is any
basis for indemnity. Under Nebraska law, indemnification is
available when one party is compelled to pay money which in
justice another ought to pay or has agreed to pay.16 lauvetz’
claim for indemnification will ultimately require proof of such
a payment to hasebrook, in essence to prove its damages.
Instead, the issue here is based on the appellate record. As
the Court of Appeals noted, the record does not affirmatively
demonstrate that this appeal is not moot—that is, the record
does not prove a basis for lauvetz’ liability besides the now-
dismissed tort action. But the record does not disprove other
bases for liability either—in particular, the apparent settlement
of hasebrook’s tort claim. We must determine what inferences
can be drawn from such a record or, more precisely, what the
record should show in order for an appellate court to make a
determination regarding mootness.
In 	that 	regard, 	our 	decisions 	in 	Mullendore 	v. 	School
Dist. No. 1 (Mullendore I)17 and Mullendore v. Nuernberger
(Mullendore II)18 are instructive. In those cases, the legislature
had enacted a law containing a formula for determining non-
resident high school tuition and a corresponding tax levy.19 A
taxpayer filed a petition for declaratory judgment in the district
court, challenging the law as unconstitutional. But before the
case was decided by the district court, the legislature repealed
the law. The district court granted the defendants’ motion for
summary judgment, reasoning that the repeal of the challenged
legislation made the case moot.
But in Mullendore I, we reversed that determination. We
noted that the record did not conclusively establish that taxes
had already been collected under the challenged law. however,
15 See, e.g., In re Interest of Anaya, supra note 5.
16 See, Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007);
Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992).
17 Mullendore v. School Dist. No. 1, 223 Neb. 28, 388 N.W.2d 93 (1986).
18 Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989).
19 See 1982 Neb. laws, l.B. 933.
436 	278 NeBrASkA reporTS

the taxpayer’s petition “provide[d] a reasonable inference”
that they had.20 If taxes had been levied, a controversy would
remain between the taxpayers and school district. And while
the record did not establish that taxes had been collected, it did
not establish that they had not been either. Therefore, there was
a question of fact regarding the viability of the action, and the
district court had erred in dismissing it as moot.21
on remand, the district court decided the case on the consti-
tutional merits, and it declared the law unconstitutional. But on
appeal, we again reversed the district court’s judgment, finding
in Mullendore II that there was no justiciable case or contro-
versy.22 In Mullendore II, unlike Mullendore I, the court had
decided the declaratory judgment action on the merits. And the
taxpayer had still not proved any adverse impact on him while
the challenged legislation had been in effect. So, we reasoned
that the taxpayer had failed to prove an element of his prima
facie case for declaratory relief, because he had not proved that
his rights had been affected by the statute.23
The difference between Mullendore I and Mullendore II was
the burden of proof. In Mullendore I, the burden had been on
the defendants to establish that the case was moot, so when the
record did not affirmatively prove mootness, we reversed the
lower court’s dismissal. But the taxpayer still had the burden
to prove his prima facie case for declaratory relief in order to
prevail on the merits, and in Mullendore II, we determined he
had not.
[12] The procedural posture of the present case is more
akin to Mullendore I. Generally, the burden of proving moot-
ness is on the party seeking dismissal.24 Although the Court of
20 See Mullendore I, supra note 17, 223 Neb. at 37, 388 N.W.2d at 100.
21 See id.
22 See Mullendore II, supra note 18.
23 See Neb. rev. Stat. § 25-21,150 (reissue 2008).
24 See, e.g., County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379,
59 l. ed. 2d 642 (1979); Kansas Judicial Review v. Stout, 562 F.3d 1240
(10th Cir. 2009); In re Smith, 880 A.2d 269 (D.C. 2005); Novi v. Adell
Children’s Funded Trust, 473 Mich. 242, 701 N.W.2d 144 (2005).
kUhN v. WellS FArGo BANk oF NeB. 	437
Cite as 278 Neb. 428

Appeals raised mootness as an issue in this case sua sponte,
the principle remains the same. In the district court, the Bank’s
motion for summary judgment did not shift the burden to
lauvetz to prove damages, because the motion was based
solely on the lease. In the Court of Appeals, no order to show
cause was entered that directed either party to adduce evidence
relating to mootness. Without a motion or order requiring
lauvetz to present evidence of damages, there was no basis
for the Court of Appeals to infer mootness from the absence
of such evidence.
In order to prevail on the merits of its claim, lauvetz will
have to prove that it was liable to hasebrook. one possible
means of establishing this liability—a court judgment on the
merits of hasebrook’s tort claim—has been foreclosed. But
the record does not foreclose the possibility that lauvetz paid
hasebrook in settlement of his claim. That, in fact, may rea-
sonably be inferred from this record. hasebrook’s dismissal of
his tort claim precludes one way of proving liability, but does
not support a finding of mootness.
A brief hypothetical might help to illustrate this point. A
plaintiff sues a defendant in a separate action—not a cross-
claim—for contractual indemnification. The defendant files a
motion for summary judgment based solely on the allegation
that the contract provides no basis for indemnity. The motion
is sustained, and the plaintiff appeals. An appellate court would
not be justified in dismissing the appeal as “moot” simply
because the record did not prove that the plaintiff had suffered
damages. At that point in the action, the plaintiff would not
have been required to present evidence of damages, and there
would be no burden on the plaintiff to present a record affirm-
atively proving its damages or any other element of its prima
facie case besides the contract.
The procedural posture of the present case is substantially
indistinguishable. The record does not show that lauvetz will
be able to prove liability to hasebrook, but does not foreclose
it either. The order of dismissal does not mean that lauvetz
cannot prove liability arising from some other source (e.g.,
settlement payment), and the Court of Appeals should not have
assumed an absence of liability from an absence of evidence,
438 	278 NeBrASkA reporTS

when lauvetz’ burden to prove liability had not yet been
implicated. The record does not show that lauvetz’ appeal
is moot, and lauvetz’ assignment of error on further review
has merit.
[13] The Court of Appeals erred in finding that this appeal
is moot, and its decision to that effect will be reversed. Upon
reversing a decision of the Court of Appeals, we may consider,
as it deems appropriate, some or all of the assignments of
error the Court of Appeals did not reach.25 Because some of
the issues raised in the Court of Appeals involve novel legal
questions,26 we will consider the errors lauvetz assigned in its
appellate brief.
2. inDemnity cLause
lauvetz argues, generally, that the district court erred in
finding that paragraph 20 of the lease is ambiguous and does
not clearly set forth that lauvetz should be indemnified by the
Bank. The Bank makes three arguments in response: (1) that
paragraph 20 is ambiguous and unenforceable, (2) that para-
graph 20 is void as against public policy under Neb. rev. Stat.
§ 25-21,187 (reissue 2008), and (3) that there is no basis for
indemnity because the Bank and lauvetz share no common
liability to hasebrook. We address each argument in turn.
(a) Ambiguity
By way of reminder, the “indemnity” language of paragraph
20 most pertinent to this case provides:
With the exception of those claims arising out of [lauvetz’]
gross negligence or willful misconduct, . . . [the Bank]
shall indemnify [lauvetz] and hold it harmless from any
claim or damage arising out of any injury, death or prop-
erty damage occurring in, on or about the property, the
Building, the leased premises and appurtenances thereto
to [the Bank] or an employee, customer or invitee of
[the Bank].
25 Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
26 See Neb. rev. Stat. § 24-1106(2) (reissue 2008).
kUhN v. WellS FArGo BANk oF NeB. 	439
Cite as 278 Neb. 428

(emphasis supplied.) The district court found this language
to be ambiguous, and the Bank argues that the district court
was right.
(i) Inclusion of Indemnitee’s Negligence
[14,15] The Bank relies on the proposition that an indem-
nitee may be indemnified against his or her own negligence if
the contract contains express language to that effect or contains
clear and unequivocal language that that is the intention of the
parties.27 The parties to the contract are presumed to intend that
the indemnitee shall not be indemnified for a loss occasioned
by his or her own negligence unless the language of the con-
tract affirmatively expresses an intent to indemnify for such
loss.28 The Bank argues that the language at issue in this case
does not clearly set forth that lauvetz should be indemnified
for its own negligence.
[16,17] But the language at issue quite clearly requires the
Bank to indemnify lauvetz for something. And it is difficult to
read the specific exclusion of “gross negligence” from indem-
nification as anything other than the inclusion of ordinary neg-
ligence.29 An indemnity agreement is a contract to be construed
according to the principles generally applied in construction or
interpretation of other contracts.30 And a contract must receive a
reasonable construction and must be construed as a whole, and
if possible, effect must be given to every part of the contract.31
The specific exclusion of the Bank’s ordinary negligence from
lauvetz’ duty to indemnify it demonstrates that the parties
were aware of the distinction and chose not to exclude ordinary
negligence from the Bank’s duty to indemnify lauvetz.
[18] paragraph 20 plainly requires the Bank to indemnify
lauvetz for any claim or damage arising out of any injury
27 See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
28 See Peter Kiewit Sons Co. v. O’Keefe Elevator Co., Inc., 191 Neb. 50, 213
N.W.2d 731 (1974).
29 Cf. Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635 (2008).
30 Oddo, supra note 27.
31 State ex rel. Bruning v. R.J. Reynolds Tobacco Co., 275 Neb. 310, 746
N.W.2d 672 (2008).
440 	278 NeBrASkA reporTS

occurring in the building to a customer of the Bank, except
for claims arising from lauvetz’ “gross negligence or willful
misconduct.” Gross negligence is great or excessive negligence,
which indicates the absence of even slight care in the perform-
ance of a duty.32 If “any injury” within the meaning of para-
graph 20 did not include the indemnitee’s negligence, it would
have been unnecessary to specifically exclude the Bank’s neg-
ligence and lauvetz’ gross negligence. Because paragraph 20
places a duty on the Bank to indemnify lauvetz for any injury
other than gross negligence, it clearly still includes negligence
that is less than gross,33 just as lauvetz’ duty to indemnify the
Bank does not.
(ii) Meaning of “Invitee”
The Bank also argues that paragraph 20 is ambiguous
because it is circular. The Bank argues that a customer of the
Bank is also, logically, an invitee of lauvetz.34 Therefore, the
Bank contends that a customer of the Bank is an invitee of
both the Bank and lauvetz, and the parties would be required
to indemnify one another. The Bank argues that because this
is an illogical result, paragraph 20 must be unenforceable. We
disagree. As noted above, a contract must be given a reason-
able construction, which, if possible, gives effect to every part
of the contract.35 The Bank’s construction of paragraph 20 is
contrary to that well-established proposition.
To begin with, even if paragraph 20 was ambiguous about
whose injuries were to be indemnified, it would still be clear
about the duty to indemnify, and the inclusion of lauvetz’ neg-
ligence within that duty. In other words, paragraph 20 would
32 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
33 See, e.g., Law v. Reading Company, 312 F.2d 841 (3d Cir. 1963); Blue
Grass Restaurant Company v. Franklin, 424 S.W.2d 594 (ky. 1968);
Leonard L. Farber Company, Inc. v. Jaksch, 335 So. 2d 847 (Fla. App.
1976).
34 See, e.g., Ginn v. Lamp, 234 Neb. 198, 450 N.W.2d 388 (1990); Van Avery
v. Platte Valley Land & Investment Co., 133 Neb. 314, 275 N.W. 288
(1937).
35 See R.J. Reynolds Tobacco Co., supra note 31.
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Cite as 278 Neb. 428

still be unambiguous on the points that are necessary in order
for it to be enforceable. But more fundamentally, we disagree
with the premise of the Bank’s argument, that paragraph 20
is circular.
[19-21] An “invitee,” in the common sense of the word, is
simply “one who is invited.”36 More particularly, in tort law,
an invitee is a person who goes on the premises of another
in answer to the express or implied invitation of the owner or
occupant on the business of the owner or occupant or for their
mutual advantage.37 (We note that the lease in this case was
executed before the tort-law distinction between invitees and
licensees was abolished in Nebraska.38) A landlord has a duty
to keep the common areas of leased premises, such as areas
under his or her control and areas used by more than one ten-
ant, reasonably safe.39 And guests and invitees of the tenant
derive their right to enter upon the premises leased through
the tenant and have the same but no greater right to proceed
against the landlord for personal injuries resulting from alleged
defects than the tenant has.40
In this case, there is no dispute that hasebrook was primarily
a customer and invitee of the Bank. Any status he might have
had as an invitee of lauvetz was derived through the Bank.41
And this is not a tort action—the question is not the scope of
hasebrook’s right to sue, but the meaning of paragraph 20 of
the lease. even if an invitee of the Bank has derivative status
as an invitee of lauvetz for purposes of premises liability, it
is entirely possible—and reasonable—to distinguish primary
invitees of the Bank from primary invitees of lauvetz when
construing paragraph 20. The obvious intent of paragraph 20 is
to require each party to be responsible for injuries to its own
36 8 The oxford english Dictionary 54 (2d ed. 1989).
37 Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).
38 See id.
39 See Tighe v. Cedar Lawn, Inc., 11 Neb. App. 250, 649 N.W.2d 520
(2002).
40 See Ginn, supra note 34.
41 See id.
442 	278 NeBrASkA reporTS

visitors. except for the rare instance in which the same visitor
has business with both lauvetz and the Bank, it should not be
difficult to determine—as in this case—who an injured person
was in the building to see. Under such circumstances, para-
graph 20 is not difficult to apply.
Simply put, paragraph 20 is part of a lease agreement that
was negotiated at arm’s length between sophisticated business
entities.42 The Bank was certainly capable of examining the
lease and recognizing paragraph 20 as an indemnity clause.
The lease, in fact, connotes the unmistakable intent of the par-
ties to indemnify,43 excepting only claims arising from the
Bank’s ordinary negligence, lauvetz’ gross negligence, or the
willful misconduct of either. We find no merit to the Bank’s
argument that paragraph 20 is ambiguous. And accordingly, we
find merit to lauvetz’ argument that the district court erred in
that regard.
(b) § 25-21,187(1)
As an alternative, the Bank relies on § 25-21,187(1), which
provides in relevant part:
In the event that a public or private contract or agreement
for the construction, alteration, repair, or maintenance of a
building, structure, highway bridge, viaduct, water, sewer,
or gas distribution system, or other work dealing with
construction or for any moving, demolition, or excavation
connected with such construction contains a covenant,
promise, agreement, or combination thereof to indemnify
or hold harmless another person from such person’s own
negligence, then such covenant, promise, agreement, or
combination thereof shall be void as against public policy
and wholly unenforceable.
The Bank argues that the lease, which discusses the parties’
respective obligations to maintain the premises, is a contract
for the “maintenance of a building” within the meaning of
§ 25-21,187(1). Thus, the Bank argues that paragraph 20 is
42 See Hogeland v Sibley, Lindsay, 42 N.y.2d 153, 366 N.e.2d 263, 397
N.y.S.2d 602 (1977).
43 See id.
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Cite as 278 Neb. 428

void to the extent that it purports to require the Bank to indem-
nify lauvetz for lauvetz’ own negligence.
Statutes like § 25-21,187(1) are not uncommon, but are
generally applied to construction contracts. The purpose of
such statutes is to prohibit avoidance by parties to construction
contracts of all risks created by their own fault associated with
contract performance, to require employers to provide employ-
ees with a safe place to work, and to preclude delegating to
subcontractors such duty.44 Authority is sparse regarding the
application of such provisions to leases of real property. Some
courts have, without much discussion, applied comparable stat-
utes to real property leases.45
More fully reasoned opinions, however, have held compa-
rable statutory language to be inapplicable to circumstances
beyond the construction or building activity to which the
statute was intended to apply.46 At common law, a party could
protect itself from the consequences of its own negligence by
contract, and because the statutory language changes the com-
mon law with respect to construction contracts, it should be
strictly construed.47 And by specifically addressing indemnity
clauses in the construction industry, the legislature showed
an intention that the practice not be barred in other industries,
such as the leasing of commercial property.48
Thus, courts have concluded that the statutory language was
simply not intended to protect parties to transactions outside
44 See, generally, 42 C.J.S. Indemnity § 9 (2007).
45 See, Borg-Warner v. Executive Park Ventures, 198 Ga. App. 70, 400 S.e.2d
340 (1990); Lawlor v. MFD 1251 Americas Corp., No. 93 Civ. 1862
(SWk), 1995 Wl 110090 (S.D.N.y. Mar. 14, 1995).
46 See, Smith v. Seaboard Coast Line R. Co., 639 F.2d 1235 (5th Cir. 1981);
Kole v. Amfac, Inc., 665 F. Supp. 1460 (D. haw. 1987); Kone, Inc. v.
Robinson, 937 So. 2d 238 (Fla. App. 2006); McNiff v. Millard Maintenance
Service Co., 303 Ill. App. 3d 1074, 715 N.e.2d 247, 239 Ill. Dec. 802
(1999); Phoenix Ins. Co. v. Town of Vernon, No. hhDX07Cv044025148,
2007 Wl 196405 (Conn. Super. Jan. 5, 2007).
47 Smith, supra note 46.
48 See Phoenix Ins. Co., supra note 46.
444 	278 NeBrASkA reporTS

the construction industry.49 In particular, courts have rejected
the arguments that general janitorial services50 and elevator
repair51 are “maintenance” within the meaning of comparable
statutory language, because the statute was intended to apply
to construction services. In short, given the statute’s purpose, it
has been held that its scope should not be extended beyond its
intended limits to activity with only a tenuous connection with
any construction activity.52
[22] That reasoning is persuasive, and consistent with both
the history and intent of § 25-21,187(1) and our basic principles
of statutory construction. The principal objective of construing
a statute is to determine and give effect to the legislative intent
of the enactment.53 And a court may examine the legislative
history of the act in question in order to ascertain the intent
of the legislature.54 The legislative history of § 25-21,187(1)
clearly establishes that its intent was to “prohibit the use by
architects and engineers of hold harmless clauses in construc-
tion contracts.”55 The statute is simply meant to provide that on
construction projects, parties such as contractors and architects
remain responsible for their own negligence.56
[23,24] And under the ejusdem generis canon of construc-
tion, when a general word or phrase follows a list of specific
persons or things, the general word or phrase will be inter-
preted to include only persons or things of the same type as
those listed.57 In other words, specific terms modify and restrict
49 See Kole, supra note 46.
50 See McNiff, supra note 46.
51 See Kone, Inc., supra note 46.
52 Smith, supra note 46.
53 See Mason v. State, 267 Neb. 44, 672 N.W.2d 28 (2003).
54 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
55 Statement of Intent, l.B. 288, Banking, Commerce & Insurance Committee,
86th leg., 1st Sess. (Feb. 26, 1979) (emphasis supplied).
56 See id.
57 State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007), cert. denied 552
U.S. 1065, 128 S. Ct. 715, 169 l. ed. 2d 560; Nebraska Liq. Distrib. v.
Nebraska Liq. Cont. Comm., 269 Neb. 401, 693 N.W.2d 539 (2005).
kUhN v. WellS FArGo BANk oF NeB. 	445
Cite as 278 Neb. 428

the interpretation of general terms when they are used in a
sequence.58 here, ejusdem generis principles suggest that the
word “maintenance” in § 25-21,187(1) is intended to encom-
pass activity of the same general type as, though not specifi-
cally embraced within, “construction, alteration, [or] repair.”59
Section § 25-21,187(1) is also in derogation of the common
law, and as such, should be strictly construed.60
[25] Based on those principles, and well-reasoned author-
ity from other jurisdictions, we hold that “maintenance of a
building,” within the meaning of § 25-21,187(1), does not
encompass the ordinary activities associated with management
of commercial property. To hold otherwise would be to expand
the scope of § 25-21,187(1) to void indemnity clauses in con-
tracts well beyond the legislature’s intent. We find no merit to
the Bank’s argument that paragraph 20 of the lease is contrary
to § 25-21,187(1).
(c) Common liability
Finally, the Bank argues that it cannot be liable to indemnify
lauvetz, because lauvetz and the Bank do not share a com-
mon liability to hasebrook. But the Bank’s argument does not
account for the differences between indemnity and contribution
and among different types of indemnity. And the Bank’s argu-
ment is incorrect because in this case, the basis of lauvetz’
claim to indemnity is contractual.
[26-28] First, it is important to distinguish between principles
of contribution and indemnification. Contribution is defined as
a sharing of the cost of an injury as opposed to a complete
shifting of the cost from one to another, which is indemnifica-
tion.61 Common liability is required between a party seeking
58 See, Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d
357 (2007); Nebraska Liq. Distrib., supra note 57; Jensen v. Board of
Regents, 268 Neb. 512, 684 N.W.2d 537 (2004).
59 See Columbia Nat. Ins. v. Pacesetter Homes, 248 Neb. 1, 532 N.W.2d 1
(1995).
60 See, Smith, supra note 46; Tadros v. City of Omaha, 273 Neb. 935, 735
N.W.2d 377 (2007).
61 Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 496 (2009);
Cerny, supra note 16.
446 	278 NeBrASkA reporTS

contribution and the party from whom it is sought.62 Contrary
to the Bank’s suggestion, principles of indemnification and
contribution are not interchangeable. Indemnification is dis-
tinguishable from the closely related remedy of contribution
in that the latter involves a sharing of the loss between parties
jointly liable.63
[29-31] An obligation to indemnify, however, may grow out
a liability imposed by law or a contractual relation.64 Indemnity
may occur when an active or primary tort-feasor is held liable
for injuries proximately caused by the passive negligence of a
joint tort-feasor.65 But indemnity may also occur when a party
expressly contracts for it.66 The most common example of
indemnity arising from express contract is simple—an insur-
ance contract.67 Taken at face value, the logical implication of
the Bank’s argument is that liability insurance policies would
be unenforceable unless the insurer was independently liable to
the injured party. obviously, that cannot be the case.
Simply stated, while a common liability between an active
and passive tort-feasor is one way for indemnity to arise, it is
not the only way.68 Indemnity can also be based on an express
contract, as it is here. The Bank’s argument that indemnity can-
not occur without common liability is without merit.
3. L auvetz’ motion for summary JuDgment
For the reasons explained above, we find merit to lauvetz’
argument that the district court erred in sustaining the Bank’s
62 See Estate of Powell, supra note 61.
63 See Warner, supra note 16.
64 See Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., 232 Neb.
763, 443 N.W.2d 872 (1989). See, also, Harsh International v. Monfort
Indus., 266 Neb. 82, 662 N.W.2d 574 (2003); Motor Club Ins. Assn. v.
Fillman, 5 Neb. App. 931, 568 N.W.2d 259 (1997).
65 See, Harsh International, supra note 64; Hiway 20 Terminal, Inc., supra
note 64.
66 See, e.g., Oddo, supra note 27.
67 See First Trust Co. v. Airedale Ranch & Cattle Co., 136 Neb. 521, 286
N.W. 766 (1939).
68 See, e.g., Hysell v. Iowa Public Service Co., 534 F.2d 775 (8th Cir.
1976).
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Cite as 278 Neb. 428

motion for summary judgment and concluding as a matter of
law that the indemnity clause in paragraph 20 was ambiguous
and unenforceable. Therefore, the judgment will be reversed,
and the cause remanded for further proceedings. But we do not
agree with lauvetz’ suggestion that we should enter an order
granting its motion for summary judgment.
[32] We recognize that when adverse parties have each
moved for summary judgment and the trial court has sustained
one of the motions, the reviewing court obtains jurisdiction
over both motions and may determine the controversy which
is the subject of those motions.69 But here, as discussed above,
there is no evidence establishing that lauvetz was liable to
hasebrook, or for what. And because the parties’ attention
has been focused on whether paragraph 20 was enforceable
at all, there has been little discussion of other issues—for
instance, whether lauvetz might have committed gross negli-
gence, which would be excepted. Therefore, we conclude that
directing the entry of summary judgment would be inappropri-
ate. Instead, the cause will be remanded for further proceedings
consistent with this opinion.
v. CoNClUSIoN
The Court of Appeals erred by dismissing this appeal as
moot, because the burden had not yet been placed on lauvetz
to prove damages, and the record does not foreclose the pos-
sibility that lauvetz was liable to hasebrook. The district court
erred in concluding that paragraph 20 was ambiguous, and we
find no merit to the Bank’s alternative reasons why paragraph
20 was purportedly unenforceable. The judgment of the Court
of Appeals is reversed, and the cause is remanded to the Court
of Appeals with directions to reverse the judgment of the dis-
trict court and remand the cause to the district court for further
proceedings consistent with this opinion.
reverseD anD remanDeD With Directions.
connoLLy and mccormacK, JJ., not participating.
69 See Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840
(2007).
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