A-14-0413 Kimminau (Appellants) v. City of Hastings, a Nebraska Political Subdivision; County of Adams, a Nebraska Political Subdivision; Hastings Rural Fire District, a Nebraska Political Subdivision; R Lazy K Trucking, Inc., a Nebraska Corporation; and Wayne Todd, an individual (Appellees)
Adams County, Judge Terri S. Harder
Attorneys: Douglas G. Pauley, Scott D. Pauley (Conway Pauley & Johnson PC) and Jefferson Downing (Keating O’Gara Nedved & Peter PCLLO) (for Appellants) --- Vincent Valentino, Brandy R. Johnson (County of Adams) --- Gail S. Perry, Robbie B. Seybert (Baylor Evnen Curtiss Grimit & Witt LLP) (City of Hastings) --- Stephen G. Olson II (Engles Ketcham Olson & Keith PC) (Hastings Rural Fire District) ---Stephen L. Ahl, Krista M. Carlson (Wolfe Snowden Hurd Luers & Ahl LLP) (R Lazy K Trucking Inc., and Wayne Todd)
Proceedings below: The trial court found that Hastings Rural Fire District, Adams County, and City of Hastings and Hastings Fire, were immune from liability under Neb. Rev. Stat. § 13-910(12) and granted summary judgment. The trial court sustained R Lazy K and Wayne Todd’s motions for summary judgment finding their duty was extinguished by the actions of Hastings Rural and Hastings Fire. The collective political subdivisions filed a Petition to Bypass which was granted by the Nebraska Supreme Court.
Issues: 1.The trial court erred, as a matter of law, in finding that Hastings Fire, the County and
Hastings Rural were immune from liability under Neb. Rev. Stat. § 13-910(12).
2. The trial court erred in granting Appellees' motion for summary judgment because it is a question of fact whether the Appellees exercised reasonable care when attempting to remediate the spot defect caused by the wet corn mash and whether the highway was left in a reasonably safe condition.
3. The trial court erred in granting Appellees' (Hastings Fire, the County and Hastings Rural) motions for summary judgment because an issue of material fact exists as to whether Kaelynn first encountered the wet corn mash on the paved roadway or the shoulder.
4. The trial court erred in finding that any duty owed by Wayne Todd and R Lazy K had been cut-off, as a matter of law, by the actions of Hastings Fire, Hastings Rural Fire, and Trooper Dart's subjective opinion that the entire highway was reasonably safe for travel after the cleanup, since this is a question of material fact.
5. The trial court erred in not granting Appellants' summary judgment motion and finding (1) that the Appellees' duty continued after the cleanup, (2) that they had breached this duty as a matter of law and (3) that their negligence was the proximate cause of the rollover, as a matter of law, on November 16, 2009.