The Nebraska Court of Appeals decides whether a broken hip and loss of consortium is the fault of the grocery store and its watermelons in Robertson v. U Save Foods, Inc. (No. A-16-397, May 2017).
Ellen Robertson and Timothy Robertson (“Robertsons”) brought a premises liability action and claim for loss of consortium against U Save Foods, Inc. (U Save), as a result of Ellen breaking her hip when she tripped over a wooden pallet display of watermelons. The cardboard watermelon box had black and yellow arrows pointing down with “Watch Step” printed across the arrows. Ellen Robertson tripped on the pallet, fell, and broke her hip. The district court said Plaintiff did not present any evidence that the pallet was broken or unexpectedly sticking out into an aisle, or that it otherwise presented an unreasonable hazard. The district court also said that, assuming the pallet did constitute a dangerous condition, the Robertsons would not be able to recover because the pallet was an open and obvious condition. Her tort claim failed. So, Timothy’s loss of consortium claim failed, too, because if the injured spouse’s tort claim fails, so does the loss of consortium claim for the uninjured spouse. The district court granted summary judgment in favor of U Save as to all claims.
The Robertsons appealed, saying the district court erred in granting summary judgment. The Court of Appeals stated, in premises liability cases, an owner is subject to liability for injury to a lawful visitor if the lawful visitor proves (among other things) that the owner should have realized the condition involved an unreasonable risk of harm; that the owner should have expected that the visitor would be injured; that the owner did not use reasonable care to protect the visitor; and that the condition was a proximate cause of damage to the visitor. The Court said the Robertsons failed to present evidence showing any unreasonable risk of harm created by U Save’s use of the pallet for a watermelon display, or that the use of the pallet posed such a risk to customers. The Court of Appeals affirmed the summary judgment in favor of U Save.
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