Johansen v. Reed

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
Paul Johansen and Acuity, a Mutual Insurance
Company, appellants, v. Patrick Reed and
PWR Ag Properties, LLC, appellees.
___ N.W.3d ___
Filed May 6, 2025. 	No. A-24-419.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact or
as to the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
4. ____. The primary purpose of the summary judgment procedure is to
pierce the allegations in the pleadings and show conclusively that the
controlling facts are other than as pled.
5. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
6. Summary Judgment. At the summary judgment stage, the trial court
determines whether the parties are disputing a material issue of fact.
It does not resolve the factual issues. Where reasonable minds could
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
draw different conclusions from the facts presented, there is a triable
issue of material fact.
7. Negligence: Liability: Contractors and Subcontractors. Generally,
one who employs an independent contractor is not liable for physical
harm caused to another by the acts or omissions of the contractor or
its servants.
8. ____: ____: ____. An employer of an independent contractor can be
liable for physical harm caused to another if (1) the employer retains
control over the contractor’s work, (2) the employer is in possession and
control of premises, (3) a statute or rule imposes a specific duty on the
employer, or (4) the contractor’s work involves special risks or dangers.
9. Negligence: Liability: Contractors and Subcontractors: Words and
Phrases. A nondelegable duty means that an employer of an indepen-
dent contractor, by assigning work consequent to a duty, is not relieved
from liability arising from the delegated duties negligently performed.
10. Negligence. Not every negligence action involving an injury suffered on
someone’s land is properly considered a premises liability case.
11. ____. Generally, premises liability cases fall into one of three catego-
ries: (1) those concerning the failure to protect lawful entrants from a
dangerous condition on the land, (2) those concerning the failure to pro-
tect lawful entrants from a dangerous activity on the land, and (3) those
concerning the failure to protect lawful entrants from the acts of a third
person on the land.
12. Negligence: Liability: Proximate Cause. A possessor of land is subject
to liability for injury caused to a lawful visitor by a condition on the
land if (1) the possessor either created the condition, knew of the condi-
tion, or by the existence of reasonable care would have discovered the
condition; (2) the possessor should have realized the condition involved
an unreasonable risk of harm to the lawful visitor; (3) the possessor
should have expected that a lawful visitor such as the plaintiff either
(a) would not discover or realize the danger or (b) would fail to protect
himself or herself against the danger; (4) the possessor failed to use rea-
sonable care to protect the lawful visitor against the danger; and (5) the
condition was a proximate cause of damage to the plaintiff.
13. Negligence: Liability. Even where a dangerous condition exists, a
premises owner will not be liable unless the premises owner should
have expected that a lawful visitor such as the plaintiff either would not
discover or realize the danger or would fail to protect himself or herself
against the danger.
14. Negligence. Generally, when a dangerous condition is open and obvious,
the owner or occupier is not liable in negligence for harm caused by
the condition.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
15. ____. Under the open and obvious doctrine, a possessor of land is not
liable to invitees for physical harm caused by any activity or condition
on the land whose danger is known or obvious to the invitee, unless
the possessor should anticipate the harm despite such knowledge or
obviousness.
16. ____. A condition on the land is considered open and obvious when the
risk is apparent to and of the type that would be recognized by a reason-
able person in the position of the invitee exercising ordinary perception,
intelligence, and judgment.
17. ____. Even when a land possessor is aware lawful visitors are choosing
to encounter an obvious risk, it does not necessarily follow that the land
possessor has reason to expect the lawful visitors will fail, or be unable,
to protect themselves from that risk.
Appeal from the District Court for Seward County: James
C. 	Stecker, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
John Andrew McWilliams, of Gross, Welch, Marks & Clare,
P.C., L.L.O., for appellants.
Maggie L. Brokaw and David L. Welch, of Pansing, Hogan,
Ernst & Buser, L.L.P., for appellees.
Moore, Pirtle, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Paul Johansen and Acuity, a Mutual Insurance Company,
(collectively Appellants) appeal from the order of the Seward
County District Court granting summary judgment in favor
of Patrick Reed and PWR Ag Properties, LLC (collectively
Appellees). For the reasons stated herein, we reverse the order
and remand the cause for further proceedings.
STATEMENT OF FACTS
In 2018, Reed was building a personal residence and was
acting as the general contractor overseeing the construction of
the residence and the hiring of subcontractors. Reed was also
the owner of and agent for PWR Ag Properties, which owned
the property that was under construction. In these capacities,

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
Reed entered into a contract with Hardwood Artisan L.L.C.
for the delivery and installation of cabinets for his residence.
Johansen, an employee of Hardwood Artisan, delivered the
cabinets to Reed’s residence.
After Johansen had delivered the cabinets to the second floor
of Reed’s residence, he began descending the staircase, which
had no handrail or guardrail. While descending the staircase,
Johansen fell over the side of the unprotected staircase and
sustained injuries. A photograph of the unprotected staircase
was received into evidence and is reproduced here:
Acuity, as the workers’ compensation carrier for Hardwood
Artisan, paid workers’ compensation benefits to Johansen on
behalf of Hardwood Artisan.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
In September 2022, Appellants filed a complaint in the
district court, alleging that Acuity had a subrogation inter-
est 	against Appellees 	under 	theories 	of 	premises 	liability
and negligence, and sought a judgment for money damages.
Appellees filed a motion for summary judgment asserting that
no genuine issues of material fact existed as to their alleged
liability. During the summary judgment hearing, the district
court received evidence, including the depositions of Reed
and Johansen; a deposition of Shane Stutzman, Johansen’s
coworker; a deposition of Appellants’ expert, who was both
an engineering expert and an instructor for the Occupational
Safety and Health Administration; and affidavits from Reed
and from Appellants’ attorney.
Following the hearing, the district court granted summary
judgment in favor of Appellees, finding that no material issue
of fact existed. Specifically, regarding Appellees’ premises
liability claim, the district court found:
Under the open and obvious doctrine, a possessor of
land is not liable to invitees for physical harm caused
by any activity or condition on the land whose danger
is known or obvious to the invitee unless the possessor
should anticipate the harm despite such knowledge of
obviousness. A condition on the land is considered open
and obvious when the risk is apparent to and of the type
that would be recognized by a reasonable person in the
position of the invitee exercising ordinary perception,
intelligence and judgment.
Here[,] Johansen, was aware of the condition of the
staircase. He was aware that the staircase had no railing.
Johansen had already descended the staircase at least once
on the day of the accident. Johansen had been up and
down the stairs 5 or 6 times without a railing. Johansen
did not tell his employer that “something needed to be
done about those stairs.” Johansen would have known
prior to the accident happening that there weren’t [sic]
any handrail or any railings on the side of the stairs.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
A determination that a risk or danger is open and obvi-
ous does not end the duty analysis in a premises liability
case. A court must also determine whether the possessor
should have anticipated that lawful entrants would fail
to protect themselves despite the open and obvious risk.
One such circumstance is where the invitee’s attention
may be distracted. There is no evidence that Johansen
was distracted.
The court further rejected Appellees’ negligence claim related
to the employees of independent contractors, framing the issue
as involving the peculiar risk doctrine and finding that
[t]he peculiar risk doctrine is not applicable where an
employee is injured on the job and has [workers’] com-
pensation to recover his damages. Where the injuries
resulting from an independent contractor’s performance
of inherently dangerous work are to an employee of the
contractor and thus subject to [workers’] compensation
coverage, the peculiar risk doctrine affords no basis for
the employee to seek recovery of tort damages from the
person who hired the subcontractor but did not cause
the injuries. The principle, landowner, has no greater
liability than the independent subcontractor. There is
no evidence that [Appellees were] the employer of . . .
Johansen. Johansen was an employee of a subcontractor
hired by [Appellees]. Johansen received [workers’] com-
pensation for his injury and damages.
Essentially, the peculiar risk analysis [is] inapplicable
under these facts. [Johansen] received a recovery through
[workers’] 	compensation 	for 	his 	injuries. A separate
action against the landowner is not available.
Appellants have now timely appealed from the court’s order
granting summary judgment in favor of Appellees.
ASSIGNMENTS OF ERROR
Appellants assign, restated, that the district court erred in
(1) finding that Appellants could not maintain a separate action
against Appellees as a result of Johansen’s receipt of workers’

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Nebraska Court of Appeals Advance Sheets
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JOHANSEN v. REED
Cite as 33 Neb. App. 592
compensation benefits and (2) granting summary judgment on
the basis of the open and obvious doctrine.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Choice Homes v. Donner, 311 Neb. 835, 976 N.W.2d
187 (2022). An appellate court reviews the district court’s
grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. Id.
ANALYSIS
Appellants assign that the district court erred in finding that
Appellants could not maintain their claim due to the exclusiv-
ity of workers’ compensation under the peculiar risk doctrine
and in granting summary judgment on the basis of the open
and obvious doctrine. Before addressing Appellants’ assign-
ments of error, we review the standard for summary judgments.
[3-6] Summary judgment is proper only when the plead-
ings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment
as a matter of law. Porter v. Knife River, Inc., 310 Neb. 946,
970 N.W.2d 104 (2022). The primary purpose of the summary
judgment procedure is to pierce the allegations in the plead-
ings and show conclusively that the controlling facts are other
than as pled. Id. The party moving for summary judgment
must make a prima facie case by producing enough evidence
to show that the movant is entitled to judgment if the evidence
were uncontroverted at trial. Id. If the party moving for sum-
mary judgment makes a prima facie case, the burden shifts to
the nonmovant to produce evidence showing the existence of

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
a material issue of fact that prevents judgment as a matter of
law. Id. At the summary judgment stage, the trial court deter-
mines whether the parties are disputing a material issue of fact.
It does not resolve the factual issues. Id. Where reasonable
minds could draw different conclusions from the facts pre-
sented, there is a triable issue of material fact. Id.
Whether Appellants Could Maintain Separate
Cause of Action Against Appellees
Appellants first argue that the district court erred in finding
that their subrogation claim was barred by application of the
peculiar risk doctrine. We agree.
The starting point of this analysis is governed by Neb. Rev.
Stat. § 48-118 (Reissue 2021), which addresses subrogation
claims. Section 48-118 provides in pertinent part:
When a third person is liable to the employee or to the
dependents for the injury or death of the employee, the
employer shall be subrogated to the right of the employee
or to the dependents against such third person. The recov-
ery by such employer shall not be limited to the amount
payable as compensation to such employee or dependents,
but such employer may recover any amount which such
employee or his or her dependents should have been
entitled to recover.
. . . .
Nothing 	in 	the 	Nebraska 	Workers’ 	Compensation
Act shall be construed to deny the right of an injured
employee or of his or her personal representative to
bring suit against such third person in his or her own
name or in the name of the personal representative based
upon such liability, but in such event an employer having
paid or paying compensation to such employee or his or
her dependents shall be made a party to the suit for the
purpose of reimbursement, under the right of subroga-
tion, of any compensation paid.
[7-9] As such, so long as Appellees were liable for Johansen’s
injuries, Johansen had the right to bring his claim for damages,

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
and Acuity was subrogated to Johansen’s right to recover the
payments it made on his behalf. Thus, the question becomes
whether Appellees, acting as the owner and the contractor for
this construction project, were potentially legally liable for
Johansen’s injuries arising from his fall off the unprotected
staircase. In this case, Reed hired numerous subcontractors
to construct his residence, and at least one of those subcon-
tractors erected the staircase without placing a handrail or
guardrail, or such railing was removed, leaving the staircase
unprotected. The unrefuted facts demonstrate that Reed was
not involved in the direct construction of the staircase, and, as
it relates to his liability as a general contractor, the Nebraska
Supreme Court has held:
Generally, one who employs an independent contractor
is not liable for physical harm caused to another by the
acts or omissions of the contractor or its servants. This is
the general rule, because an employer of an independent
contractor generally has no control over the manner in
which the work is to be done by the contractor, so the
contractor, rather than the employer, is the proper party to
be charged with the responsibility of preventing the risk
and bearing and distributing it.
Our case law has recognized four exceptions to the
general rule. Specifically, an employer of an indepen-
dent contractor can be liable for physical harm caused
to another if (1) the employer retains control over the
contractor’s work, (2) the employer is in possession and
control of premises, (3) a statute or rule imposes a spe-
cific duty on the employer, or (4) the contractor’s work
involves special risks or dangers. We often refer to the
latter three exceptions as involving “nondelegable” duties.
A nondelegable duty means that an employer of an inde-
pendent contractor, by assigning work consequent to a
duty, is not relieved from liability arising from the del-
egated duties negligently performed.
Gaytan v. Wal-Mart, 289 Neb. 49, 57-58, 853 N.W.2d 181,
192-93 (2014).

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JOHANSEN v. REED
Cite as 33 Neb. App. 592
It appears that the district court focused on the fourth excep-
tion to the general rule in ascertaining whether the contractor’s
work involved special risks or dangers and found that the work
hired out by Appellees did not involve a special risk, which
foreclosed that exception to the general liability rule. But as
Appellants note in their brief, the basis for their claim is that
Appellees remained liable for the subcontractor’s work under
the second exception to the general rule; that is, Appellees
retained possession and control of the premises during the
construction project, which made them separately liable for
the construction deficiencies. The district court did not appear
to address that potential exception.
Appellants identify numerous portions of the record that
point to Appellees’ maintaining possession and control of the
construction site under the role of general contractor, which
Appellants argue creates an exception to the general rule,
resulting in liability notwithstanding the hiring of subcontrac-
tors. On this record, at a minimum, the issue presents a ques-
tion of material fact that prevents summary judgment from
being entered in favor of Appellees on that basis. And although
we agree that the peculiar risk doctrine does not create liabil-
ity here, because we find there is a question of material fact
as to whether Appellees retained possession and control of the
construction site, so as to render them responsible for a dan-
gerous condition on the property, we find that Appellees were
not entitled to summary judgment on that basis.
Whether District Court Erred in
Granting Summary Judgment
Appellants’ second assignment of error is that the dis-
trict court erred in granting summary judgment in favor of
Appellees on their claim of premises liability. Specifically,
Appellants contend that the court erred in finding that the open
and obvious doctrine applied to bar recovery for Johansen’s
injuries.

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Nebraska Court of Appeals Advance Sheets
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JOHANSEN v. REED
Cite as 33 Neb. App. 592
[10,11] In Sundermann v. Hy-Vee, 306 Neb. 749, 765,
947 N.W.2d 492, 504 (2020), the Nebraska Supreme Court
addressed the proper framework for premises liability claims:
We have cautioned that “[n]ot every negligence action
involving an injury suffered on someone’s land is properly
considered a premises liability case.” Generally speaking,
our premises liability cases fall into one of three catego-
ries: (1) those concerning the failure to protect lawful
entrants from a dangerous condition on the land, (2) those
concerning the failure to protect lawful entrants from a
dangerous activity on the land, and (3) those concerning
the failure to protect lawful entrants from the acts of a
third person on the land.
Here, Appellants sued Appellees (as the owner and pos-
sessor of property), claiming that Johansen was injured as a
result of Appellees’ failure to protect him from a dangerous
condition on the property. Accordingly, this case falls under the
purview of the first category of premises liability cases, i.e.,
cases concerning the failure to protect lawful entrants from a
dangerous condition on the land. Based upon this determina-
tion, we next consider whether a genuine issue of material fact
existed under the premises liability framework that precluded
an award of summary judgment in favor of Appellees.
[12] In Sundermann, the Nebraska Supreme Court restated
the five-factor premises liability framework:
For more than 30 years we have applied the same
five-factor rule to premises liability actions involving a
condition on the land. A possessor of land is subject to
liability for injury caused to a lawful visitor by a condi-
tion on the land if (1) the possessor either created the
condition, knew of the condition, or by the existence of
reasonable care would have discovered the condition;
(2) the possessor should have realized the condition
involved an unreasonable risk of harm to the lawful visi-
tor; (3) the possessor should have expected that a lawful
visitor such as the plaintiff either (a) would not discover

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JOHANSEN v. REED
Cite as 33 Neb. App. 592
or realize the danger or (b) would fail to protect himself
or herself against the danger; (4) the possessor failed to
use reasonable care to protect the lawful visitor against
the danger; and (5) the condition was a proximate cause
of damage to the plaintiff.
306 Neb. at 766, 947 N.W.2d at 504-05.
Here, Appellees do not dispute that the record pertaining to
the first two factors of the premises liability framework cre-
ated genuine issues of material fact for a fact finder, i.e., that
Appellees knew of the condition on the property—the lack of
a handrail or guardrail on the staircase—and that Appellees
should have realized the condition involved an unreasonable
risk of harm to Johansen, who was a lawful visitor to the prop-
erty. We thus turn to the third factor of the premises liability
framework, i.e., the possessor should have expected that a
lawful visitor such as the plaintiff either would not discover
or realize the danger or would fail to protect himself or herself
against the danger, in order to determine whether the record
relating to this issue created a genuine issue of material fact
that precluded summary judgment in favor of Appellees.
[13-16] In analyzing the third factor of the premises liability
framework, the Nebraska Supreme Court has explained that
even where a dangerous condition exists, a premises
owner will not be liable unless the premises owner should
have expected that a lawful visitor such as the plaintiff
either would not discover or realize the danger or would
fail to protect himself or herself against the danger.
Generally, when a dangerous condition is open and
obvious, the owner or occupier is not liable in negli-
gence for harm caused by the condition. The rationale
behind this general rule is that the open and obvious
nature of the condition gives caution so that the risk of
harm is considered slight, since reasonable people will
avoid open and obvious risks. Stated differently, “Known
or obvious dangers pose less of a risk [of harm] than
comparable latent dangers because those exposed can

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JOHANSEN v. REED
Cite as 33 Neb. App. 592
take precautions to protect themselves.” Simply stated,
an open and obvious risk generally will not present an
unreasonable risk of harm.
Under the open and obvious doctrine, a possessor of
land is not liable to invitees for physical harm caused
by any activity or condition on the land whose danger
is known or obvious to the invitee, unless the possessor
should anticipate the harm despite such knowledge or
obviousness. A condition on the land is considered open
and obvious when the risk is apparent to and of the type
that would be recognized by a reasonable person in the
position of the invitee exercising ordinary perception,
intelligence, and judgment.
Sundermann v. Hy-Vee, 306 Neb. 749, 770-71, 947 N.W.2d
492, 507-08 (2020).
In granting summary judgment in favor of Appellees, the
district court found that Appellants’ claim failed under the
third element of the premises liability framework that relies
upon the open and obvious doctrine. The question, therefore,
is whether a genuine issue of material fact existed that the
possessor of land should have expected that a lawful visitor
either would not discover or realize the danger or would fail to
protect himself or herself against the danger.
Appellants acknowledge that the staircase’s lack of a hand-
rail or guardrail was an open and obvious condition but argue
that a genuine issue of material fact existed as to whether
Appellees should have anticipated that lawful visitors would
fail to protect themselves against the open and obvious risk
posed by the lack of a handrail or guardrail on the staircase.
Considering the record in the light most favorable to
Appellants, as we are required to do, the record shows that
Johansen was hired to deliver cabinetry to Appellees’ prem-
ises on the second floor and that the only access to the second
floor was via a staircase that had no handrail or guardrail; that
during the initial installation of the staircase, such railing was
installed but was removed at some later point; that there were

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JOHANSEN v. REED
Cite as 33 Neb. App. 592
several other individuals present at the time of the accident;
that Johansen had been to the residence four or five times
prior to the accident during various stages of construction;
that on prior occasions, Johansen used the staircase approxi-
mately five or six times; that during those prior occasions,
there was never a handrail or guardrail on the staircase or
any safety features alongside the staircase to prevent someone
from falling off; that Johansen had to use a flashlight in the
residence due to visibility and lighting issues; that prior to the
accident, Johansen was aware that there was not a handrail or
guardrail on the staircase; that Johansen never informed his
employer or made a complaint regarding the lack of such rail-
ing prior to the accident; that Johansen carried cabinetry parts
up the staircase but was not carrying anything down the stair-
case at the time of the accident; that Johansen, following the
accident, could not remember exactly how the fall happened
but remembered that he “slid[]” down the staircase, hit his
head, and then fell approximately 8 to 10 feet down to the first
floor of the residence; that Stutzman, Johansen’s coworker,
did not realize that there was not a handrail or guardrail on the
staircase; that Stutzman was on the staircase beneath Johansen
and that when Johansen fell, he landed beside Stutzman; that
following the accident, a handrail or guardrail was placed on
the staircase; and that Appellants’ expert, who was an expert
in engineering and an instructor for the Occupational Safety
and Health Administration, opined that the lack of a handrail
or guardrail created an unreasonable risk of harm and that had
a handrail or guardrail been in place, it may have prevented
Johansen’s fall.
Here, the district court, in granting summary judgment,
made a factual determination that there was no evidence that
Johansen was distracted and that the open and obvious nature
of the condition indicated that there were no material facts in
dispute. Although we agree that there was no evidence that
Johansen was distracted, that does not end our inquiry. The
role of summary judgment is not used to make determinations

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of fact, but, rather, it is to determine whether the parties are
disputing an issue of fact. See Porter v. Knife River, Inc.,
310 Neb. 946, 970 N.W.2d 104 (2022) (at summary judg-
ment stage, trial court determines whether parties are disput-
ing material issue of fact; it does not resolve factual issues).
Distraction is only one circumstance where the possessor of
land should anticipate that lawful entrants would fail to protect
themselves, despite the open and obvious risk. As the Nebraska
Supreme Court noted in Sundermann v. Hy-Vee, 306 Neb. 749,
772, 947 N.W.2d 492, 508 (2020):
We have given examples of some circumstances that
may provide a land possessor with reason to expect
invitees will fail to protect themselves from an open and
obvious danger on the land, such as: “‘“[w]here the pos-
sessor has reason to expect that the invitee’s attention
may be distracted, so that he will not discover what is
obvious, or will forget what he has discovered, or fail
to protect himself against it. Such reason may also arise
where the possessor has reason to expect that the invitee
will proceed to encounter the known or obvious danger
because to a reasonable man in his position the advan-
tages of doing so would outweigh the apparent risks.”’”
It is the latter example that we find dispositive here.
Appellants argue that although Johansen recognized that
there was no handrail or guardrail on the staircase, the only
means to complete his work of delivering the cabinetry was
via the staircase, as there was no other way to the second
floor of the residence. Appellees did not dispute that the
staircase was the only means of access to the second floor
or that Johansen’s work required that he access the second
floor of the residence via the staircase. And where a con-
tractor such as Reed hired a subcontractor to perform work
that required access to the unprotected staircase in order to
perform the work and keep the project moving, we find, at a
minimum, there was a genuine issue of fact on this record as
to whether Appellees should have anticipated that Johansen

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would choose to encounter the obvious risk. See Hodson v.
Taylor, 290 Neb. 348, 860 N.W.2d 162 (2015) (holding pos-
sessor of land may anticipate harm from open and obvious
danger where possessor has reason to expect that invitee will
proceed to encounter known or obvious danger because, to
reasonable person in his or her position, advantages of doing
so outweigh apparent risk).
[17] But our inquiry does not end there. In Sundermann, the
Nebraska Supreme Court stated, “But even when a land pos-
sessor is aware lawful visitors are choosing to encounter an
obvious risk, it does not necessarily follow that the land pos-
sessor has reason to expect the lawful visitors will fail, or be
unable, to protect themselves from that risk.” 306 Neb. at 773,
947 N.W.2d at 509.
It was the latter factor that proved dispositive in Sundermann.
After reviewing the record, the Nebraska Supreme Court held
that there was no evidence to demonstrate that the land pos-
sessor should have anticipated that patrons who chose to
encounter the known risk would fail to protect themselves
against it. In Sundermann, the known risk was a patron park-
ing a vehicle in a drive aisle for the purpose of inflating the
tire or tires of the patron’s vehicle. As it related to those
patrons who chose to encounter that risk, the court noted that
there were numerous precautions available to the patrons,
“includ[ing] things like watching and listening for approach-
ing vehicles, getting out of the drive aisle when a vehicle is
approaching, or parking in a way that allowed them to inflate
their tires while remaining on the curb.” Sundermann v.
Hy-Vee, 306 Neb. 749, 773, 947 N.W.2d 492, 509 (2020). As
it relates to the available safety measures, the court noted the
land possessor had received no safety complaints and there
had been no previous accidents as a result of the condition.
But we find the record before us is distinguishable from
Sundermann. In this case, the staircase presented a general fall
risk to workers such as Johansen. And as Appellants’ expert
opined, the purpose of a handrail or guardrail is to provide

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
JOHANSEN v. REED
Cite as 33 Neb. App. 592
a level of safety against that known risk. Because Appellees
failed to provide a handrail or guardrail, which provided the
very mechanism a worker such as Johansen could use to pro-
tect themselves against a fall risk, we find, at a minimum,
there remains a factual question on this record as to whether
Appellees should have expected Johansen would fail, or be
unable, to protect himself against the open and obvious danger
posed by a staircase that connected the floors of Reed’s resi-
dence and did not have a handrail or guardrail.
Assuming the fact finder determines that an unprotected
staircase provides an unreasonable risk of harm and that the
condition was known to the contractor, we find there remains
a question of fact as to whether Appellees should have antici-
pated that Johansen, whose work required access to the second
floor of the residence via the staircase, would fail to protect
himself against it. Therefore, Appellants raised a genuine issue
of material fact as to whether Appellees should have antici-
pated that Johansen would fail to protect himself from the open
and obvious risk, and summary judgment was inappropriate.
The district court did not make any findings with regard to
the remaining two elements of the premises liability frame-
work, finding that the third element was dispositive of the
case, nor do we read Appellees’ summary judgment motion or
their brief in support of that motion to contest the final two
elements of the claim. We would note, however, that Appellees
conceded at oral argument that there remains a factual question
on this record relating to the final two elements. As such, hav-
ing found there remain material factual questions on the record
governing all elements of Appellants’ premises liability claim,
we find that summary judgment was improper on this record.
CONCLUSION
Because we find that the district court erred in granting
summary judgment in favor of Appellees, we reverse the order
and remand the cause for further proceedings.
Reversed and remanded for
further proceedings.