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Keywords

plaintiffdefendantdamagesnegligenceliabilitysustained

contractplaintiffnegligencesummary judgmentsustained

Related Cases

Muckey v. Dittoe, 235 Neb. 250, 454 N.W.2d 682

Facts

Kenneth A. Muckey, employed as a delivery person, attempted to deliver a freezer to 3811 J Street in Lincoln, Nebraska, on January 20, 1988. Upon finding no one home, Muckey slipped on ice in the driveway while placing a tag on the front door and sustained injuries. The premises were owned by Douglas A. Dittoe, who was engaged to Lorele A. Lesoing. Lesoing had requested the delivery to Dittoe's address but was not present at the time of the accident, and the court found that she did not occupy or control the premises.

Plaintiff was employed as a delivery person for an independent contractor which delivered furniture for Nebraska Furniture Mart. On January 20, 1988, a delivery crew which included plaintiff Muckey attempted to deliver a freezer to 3811 J Street in Lincoln, Nebraska. The crew found no one at home, and Muckey then walked up to the front door to place a tag upon it. While returning to the delivery truck, Muckey allegedly slipped upon a patch of ice in the driveway, fell, and sustained personal injuries.

Issue

Did Lorele A. Lesoing have any degree of control or possession over the premises where Kenneth A. Muckey was injured, which would justify holding her liable for negligence?

Rule

Ordinarily, a person who is not the owner and is not in control of property is not liable for negligence with respect to such property. It is indispensable to any recovery for damages caused by the defective condition of property that the plaintiff show by evidence that the defendant was at the time of the accident in control of the premises upon which the plaintiff was injured.

Ordinarily, a person who is not the owner and is not in control of property is not liable for negligence with respect to such property.

Analysis

The court analyzed the facts and determined that Muckey failed to establish that Lesoing had any control or possession of the premises at the time of the accident. The evidence showed that Dittoe was the sole owner and responsible for the maintenance of the property, while Lesoing did not contribute to the ownership or upkeep of the premises. The court emphasized that Lesoing's occasional presence and her engagement to Dittoe did not equate to control or possession.

Muckey has failed to establish that Lesoing fell within any of the three Restatement categories or in any manner exhibited a degree of control or possession of the subject premises which would justify holding Lesoing liable under these circumstances.

Conclusion

The court affirmed the district court's decision, concluding that Muckey did not provide sufficient evidence to hold Lesoing liable for his injuries.

The district court was correct in granting summary judgment, and that judgment is affirmed.

Who won?

Lorele A. Lesoing prevailed in the case because the court found that she did not have control or possession of the premises where the injury occurred, thus negating any liability.

Lorele A. Lesoing prevailed in the case because the court found that Muckey failed to demonstrate that she had any control or possession over the premises at the time of the accident.

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