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Durre v. Wilkinson Dev., Inc. (2013) - 285 Neb. 880, 830 N.W.2d 72 (2013)

Rule:

A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. If a genuine issue of fact exists, summary judgment may not properly be entered.

Facts:

On April 3, 2009, Mark Durre and his wife were sitting in their pickup truck, which was parked at a gas station/fast-food restaurant in North Platte, Nebraska owned by Wilkinson. About 1 p.m., the restaurant's sign fell onto the cab of the truck, injuring Durre and killing his wife. The restaurant’s sign and the pole structure to which the sign was attached were designed, built, and installed by the employees of Tri-City Sign Company (Tri-City). Installation of the sign was completed on or about May 15,1999. In November 2008, Love Signs of North Platte, L.L.C, doing business as Condon's House of Signs (Love Signs) was contracted by Wilkinson to replace lamps and ballasts in the sign; however, there was no evidence that Lovesigns was requested to review the construction. On November 13, 2009, Durre filed a suit against Wilkinson for personal injury and wrongful death. Durre filed an amended complaint on March 10, 2011, naming Wilkinson, Tri-City, and Love Signs as defendants. The district court sustained Tri-City's motion for summary judgment, because the action was barred by the 10-year statute of repose in Neb. Rev. Stat. § 25-223. The court also sustained Love Signs' motion for summary judgment, because the court found there was no evidence Love Signs breached a duty of reasonable care when it performed work on the sign. Durre appealed.

Issue:

  1. Was the grant of summary judgment in favor of Tri-City proper?
  2. Was the grant of summary judgment in favor of Love Signs proper?

Answer:

1) Yes. 2) Yes.

Conclusion:

On appeal, the Court found that the claims against Tri-City were barred by the 10-year statute of repose in Neb. Rev. Stat. § 25-223 (Reissue 2008). The Court noted that the action against Tri-City was not commenced until March 20, 2011, which was more than 10 years after the May 1999 completion and installation of the sign. Durre did not present any evidence that Tri-City fraudulently concealed information that prevented his timely filing of the action. Moreover, Tri-City did not provide evidence that the latter knew of a latent defect in the height of the sign before measurements were taken after the accident. Anent the second issue, the Court held that there was no evidence that Love Signs breached a duty of reasonable care when it replaced lamps and ballasts within the lighted portion of the sign. It was not aware that the height of the sign exceeded the limits imposed by city code.

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