LINCOLN, Neb. (Legal Newsline) - A department store was entitled to summary judgment against a woman who came up with multiple explanations for why she fell in a doorway but ultimately said she couldn’t recall what happened, the Nebraska Supreme Court ruled.
Citing 2017 amendments to the state’s summary judgment rules, the high court said a defendant can cite a lack of evidence in the record to establish the plaintiff has no case to bring before a jury. The majority decision drew a lengthy dissent from Chief Justice Michael Heavican, who said that at the summary judgment stage, the burden should be on the defendant to prove the plaintiff’s allegations are false.
Kristine Clark was visiting Scheels All Sports in 2016 in Omaha when she fell. She sued the company three years later, claiming her “shoelace got caught in the store foyer area” and there was a “wind tunnel effect” that contributed to her fall. Surveillance video didn’t show the moment of her fall but an incident report at the time cited her “very long” shoelaces that got caught in the grate. No employees recalled seeing any defects in the foyer and none said other customers had fallen there.
In a deposition, Clark dropped her claim her shoelaces were to blame and said she didn’t think she was wearing shoes with laces at all. “I remember pushing the button for the electric door to open, but after that, I don’t remember anything else,” she said under oath. She later suggested someone might have pushed her, or there was a door malfunction.
“So as you — you didn’t — sounds like what you’re saying is you didn’t know what happened,” a lawyer asked. “Yeah, I — I don’t really — I mean, I — I don’t know. I remember walking in, sort of, and then that was the last I remember,” Clark responded. Her lawyer later accused Scheels of evidence spoliation by replacing the doors five years after her fall and asked the court for a ruling allowing the jury to assume the doors were defective.
A trial judge dismissed Clark’s case for lack of evidence and the Nebraska Supreme Court affirmed in an April 21 decision. The court cited U.S. Supreme Court precedent as well as the amendments to Nebraska law relieving defendants of the burden of proving a plaintiff’s allegations are false. It is enough to prove the plaintiff hasn’t presented enough evidence to establish disputed material facts, the court ruled.
“While it is true that Clark is entitled to all reasonable inferences from the evidence in the record, we see nothing that would support a reasonable inference that the foot grate presented an unreasonably dangerous condition,” the court concluded.
Chief Justice Heavican dissented, saying the majority got the law wrong. Clark “was not required to reveal evidence she expected to produce at trial,” the justice wrote, joined by Justice Lindsey Miller-Lerman.
“It is one thing for Scheels to show an absence of evidence of an unreasonable risk of harm; it is very different to merely aver that one cannot be proved,” he wrote.