Wilke v. Woodhouse Ford

When reviewing a claim of ineffective assistance of counsel,
an appellate court will not second-guess reasonable strategic
decisions by counsel.12 Glover cannot demonstrate that his
attorney’s actions were unreasonable, nor can he demonstrate
any sort of prejudice. Glover’s assignments of error are there-
fore without merit.
CONCLUSION
Glover has been unable to demonstrate that his counsel’s
performance was deficient or that he was prejudiced. For those
reasons, we affirm the decision of the district court.
A ffirmed.
elizAbeth A. Wilke And mArk Wilke , husbAnd And Wife ,
AppellAnts , v. Woodhouse ford, inc., A nebrAskA
corporAtion, Appellee .
774 N.W.2d 370
Filed November 6, 2009. 	No. S-08-807.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom the
judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Legislature: Public Policy. It is the function of the Legislature,
through the enactment of statutes, to declare what is the law and public policy of
this state.
4. Uniform Commercial Code: Sales: Warranty. Pursuant to Neb. U.C.C. § 2-316
(Reissue 2001), the implied warranty of merchantability may be disclaimed
or excluded.
5. Negligence: Words and Phrases. Ordinary negligence is defined as the doing of
something that a reasonably careful person would not do under similar circum-
stances, or the failing to do something that a reasonably careful person would do
under similar circumstances.
12 State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).
800 	278 NebRaSka RePORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

6. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, there must be a legal duty on the part of the defendant to protect the plain-
tiff from injury, a failure to discharge that duty, and damage proximately caused
by the failure to discharge that duty.
7. Negligence: Words and Phrases. In negligence cases, a duty may be defined as
an obligation, to which the law will give recognition and effect, to conform to a
particular standard of conduct toward another.
8. Negligence. When determining whether a legal duty exists for actionable neg-
ligence, a court employs a risk-utility test concerning (1) the magnitude of the
risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the
opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6)
the policy interest in the proposed solution.
9. Negligence: Evidence: Tort-feasors. the existence of a duty and the identifi-
cation of the applicable standard of care are questions of law, but the ultimate
determination of whether a party deviated from the standard of care and was
therefore negligent is a question of fact. to resolve the issue, a finder of fact must
determine what conduct the standard of care would require under the particular
circumstances presented by the evidence and whether the conduct of the alleged
tort-feasor conformed with the standard.
10. Torts: Liability: Warranty. tort liability is not based upon representations or
warranties. Rather, it is based upon a duty imposed by the law upon one who may
foresee that his or her actions or failure to act may result in injury to others.
11. Negligence: Proximate Cause: Trial. Determination of causation is, ordinarily, a
matter for the trier of fact.
12. Negligence: Proximate Cause: Proof. to establish proximate cause, the plaintiff
must meet three basic requirements: (1) Without the negligent action, the injury
would not have occurred, commonly known as the “but for” rule; (2) the injury
was a natural and probable result of the negligence; and (3) there was no efficient
intervening cause.
13. Negligence: Proximate Cause. Plaintiffs are contributorily negligent if (1) they
fail to protect themselves from injury, (2) their conduct occurs and cooperates
with the defendant’s actionable negligence, and (3) their conduct contributes to
their injuries as a proximate cause.
14. Negligence: Proximate Cause: Words and Phrases. an efficient intervening
cause is new and independent conduct of a third person, which itself is a proxi-
mate cause of the injury in question and breaks the causal connection between
the original conduct and the injury. the causal connection is severed when (1) the
negligent actions of a third party intervene, (2) the third party had full control of
the situation, (3) the third party’s negligence could not have been anticipated by
the defendant, and (4) the third party’s negligence directly resulted in injury to
the plaintiff.
15. Negligence: Proximate Cause: Tort-feasors: Liability. the doctrine that an
intervening act cuts off a tort-feasor’s liability comes into play only when the
intervening cause is not foreseeable. but if a third party’s negligence is reason-
ably foreseeable, then the third party’s negligence is not an efficient intervening
cause as a matter of law.
WILke v. WOODhOUSe FORD 	801
Cite as 278 Neb. 800

appeal from the District Court for Douglas County: W. mArk
A shford, Judge. affirmed in part, and in part reversed.
Melany S. Chesterman, of hauptman, O’brien, Wolf &
Lathrop, P.C., for appellants.
brian D. Nolan, of Nolan, Olson, hansen, Lautenbaugh &
buckley, L.L.P., for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
mccormAck , J.
I. NatURe OF CaSe
elizabeth a. Wilke and her husband, Mark Wilke, pur-
chased a van from Woodhouse Ford, Inc. (Woodhouse). that
same day, elizabeth was injured when their 3-year-old daugh-
ter allegedly pulled the gearshift out of park, allowing the van
to roll over elizabeth’s foot and leg, causing her to fall and hit
her head on a concrete driveway. the Wilkes testified that the
key was out of the ignition at the time of the accident. the van
was purchased that day from Woodhouse. Woodhouse sold the
van to the Wilkes “as is” and disclaimed all implied warran-
ties. the Wilkes brought suit against Woodhouse alleging two
alternative theories: negligence and breach of implied war-
ranty of merchantability. the district court entered summary
judgment in favor of Woodhouse, and the Wilkes appealed.
We moved the case to our docket pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.1
II. baCkGROUND
the Wilkes purchased a used 2002 Ford econoline cargo
van from Woodhouse on September 18, 2004. Mark is not a
trained mechanic and has only a basic knowledge of mechan-
ics. before purchasing the van, Mark started the van’s engine
but did not test-drive the van. Mark felt that test-driving the
1 Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
802 	278 NebRaSka RePORtS

van or inspecting it further was unnecessary because he had
purchased “good vehicles from Woodhouse before.”
the purchase agreement stated that the van was used and
purchased “aS IS” and “WIthOUt aNY WaRRaNtY”
in bold type. the agreement further provided in a smaller
font, “DeaLeR heRebY eXPReSSLY DISCLaIMS aLL
WaRRaNtIeS, 	eXPReSS 	OR 	IMPLIeD, 	INCLUDING
aNY IMPLIeD WaRRaNtIeS OF MeRChaNtabILItY
OR FItNeSS FOR a PaRtICULaR PURPOSe . . . .” both
the Wilkes and the Woodhouse salesman signed the purchase
agreement. there is no evidence that Woodhouse made any
representations to the Wilkes regarding the condition or quality
of the van.
Immediately after purchasing the van, the Wilkes drove
directly to the home of their friend, approximately a 30- to
45-minute drive from the dealership. elizabeth and her daugh-
ter drove in the family vehicle, and Mark followed in the new
van. Upon arriving, Mark pulled the van into the driveway,
which was slightly sloped, and parked. Mark did not apply
the emergency brake after he parked the van. the Wilkes both
remembered Mark taking the key out of the ignition and put-
ting it in his pocket after parking the van. Mark testified that
he had no doubt that he took the key out of the ignition. and
elizabeth testified in her deposition that she did not hear any
chimes or buzzers indicating that the key had been left in
the ignition.
after parking the van, the Wilkes and their daughter went
inside for approximately 30 minutes. they then went back
outside to show their friend the new van. Mark opened the
driver’s-side door and the two doors in the back of the van.
elizabeth testified that she was standing directly behind the
van and that Mark was sitting at the end of the van with their
daughter on his lap. at some point, the daughter got down from
Mark’s lap and stood beside elizabeth. elizabeth testified that
she turned her head to talk to their friend for a moment and
that when she was turning back to look at Mark, she saw her
daughter climbing into the driver’s seat. elizabeth immediately
screamed for her daughter to get down, and elizabeth ran
around to the driver’s side of the van.
WILke v. WOODhOUSe FORD 	803
Cite as 278 Neb. 800

elizabeth testified that as she approached the side of the van,
she saw her daughter with her left hand on the steering wheel
and her right hand on the gearshift. according to elizabeth,
her daughter’s legs were tucked underneath her and she was on
her knees. before getting to the driver’s side, elizabeth heard
a “clunk,” and then the van started rolling backward. elizabeth
explained that her daughter grabbed the gearshift to pull herself
up to come to elizabeth, but that elizabeth shoved her back
into the van to make sure she would not fall out as the van
rolled backward.
as the van rolled backward, elizabeth was hit by the door
and her right foot got caught under the van’s tire. the force
caused her to fall backward onto the pavement and hit her
head. according to elizabeth, the left front tire rolled over her
right foot and thigh. the tire missed her shoulder, but her shirt
was pinned under the tire.
Once the van started to roll, Mark turned and saw his daugh-
ter in the front seat. Mark entered the van through the open
back doors, pushed open the separator cage, and “dove for the
brake pedal with [his] hand.” the van stopped rolling at that
point. Mark testified that he noticed his daughter was in the
front seat after he realized the van was moving and that she
was on the seat either on her knees or standing. Mark also testi-
fied that he did not know which gear the van was in as it rolled
over elizabeth but that he knew the gearshift was not “aligned
with the P.” after stopping the van, Mark moved the van to
release elizabeth’s shirt. elizabeth was taken by ambulance to
a hospital.
the deputy sheriff’s report regarding the accident states:
“VehICLe 1 WaS DISCOVeReD tO haVe a DeFeC-
tIVe ShIFt LeVeR that WaS abLe tO be ShIFteD
OUt OF PaRk MODe WIthOUt DePReSSING bRake
PeDaL.” the report does not explain or provide any details
as to whether the key was in the ignition or how the defective
gearshift was discovered.
Donald Jeffers, an automotive engineering consultant and
the Wilkes’ expert witness, conducted an investigation of the
accident and prepared a report on his findings. In making his
findings, Jeffers examined the State of Nebraska investigator’s
804 	278 NebRaSka RePORtS

motor vehicle accident report, color prints of photographs of
the accident scene, transcripts of depositions and telephone
interviews, Ford engineering drawings and shop manuals, the
Federal Motor Vehicle Safety Standards, and elizabeth’s medi-
cal report.
In his report, Jeffers summarized parts of the telephone
interview transcripts. according to Jeffers’ report, the officer
who responded to the call to the 911 emergency dispatch serv-
ice testified in his telephone interview that “‘[he] got in the
driver’s side and moved the shift lever, which shouldn’t have
moved, and it went into neutral and drive out of park without
stepping on the brake pedal.’” according to the Federal Motor
Vehicle Safety Standards relied upon by Jeffers, vehicles
which have an automatic transmission with a “park” position
must “‘prevent removal of the key unless the transmission
or transmission shift lever is locked in “park” as the direct
result of removing the key.’” the purpose of this feature
is “‘to reduce the incidence of crashes resulting from the
rollaway of parked vehicles with automatic transmissions as
a result of children moving the shift mechanism out of the
“park” position.’”
after 	the 	accident, 	elizabeth’s 	father 	took 	the 	van 	to
Woodhouse for the first of two repairs. the record does not
contain a repair order regarding the first repair. however, it
appears as though Woodhouse adjusted the linkage on the gear-
shift because it was not going into park completely.
according to Mark, the transmission continued to shift out
of park without the key in the ignition after the first Woodhouse
repair. Mark explained that he and elizabeth’s father tested it by
pulling the gearshift without his foot on the brake and that the
gearshift would go into any gear that he put it into. Woodhouse
came and picked up the van a second time for repairs.
Matthew eschliman is a Woodhouse employee, and por-
tions of his deposition testimony were included in the record.
eschliman’s deposition testimony indicates that there was
excessive play in the gearshift. Specifically, eschliman stated,
“You could move the lever up and down excessively but not
actually physically get it out of gear.” eschliman testified that
although there was free play in the gearshift, the transmission
WILke v. WOODhOUSe FORD 	805
Cite as 278 Neb. 800

would not shift from park to reverse without the key in the
ignition. It is unclear from the record whether this observation
was made before the first repair or the second repair.
the record suggests that Dustin Oppliger was the Woodhouse
technician who actually repaired the van. Part of Oppliger’s
deposition was also included in the record. Oppliger testified
that he checked the van before he made any repairs to see
whether the gearshift would move. When asked if the gearshift
had “free play from park to drive,” Oppliger stated, “I wouldn’t
really call it free play. the shifter had free play, but not the
actual linkage. You could feel the free play but you couldn’t
— there was no strength there.” Oppliger also testified that he
parked the van on a steep hill and tried to pull the gearshift out
of park but was unable to get the gearshift to shift out of park.
In other words, Oppliger was allegedly unable to duplicate the
problem. even though the Woodhouse employees reportedly
could not shift the van out of park without the key in the igni-
tion and the brake depressed, Oppliger replaced the bushings
and adjusted the shifter cable.
the 	repair 	order 	concerning 	the 	second 	repair 	states:
“Customer Reports: WheN keY IS OUt OF IGNItION the
tRaNS WILL COMe OUt OF GeaR eNOUGh tO ROLL
FReeLY. Chk aND aDVISe[.] Caused by aDJUSteD
the ShIFteR CabLe, R&I the SteeRING COLUMN
& 	DISaSSeMbLeD 	the 	ShIFt 	ShaFt, 	RePLaCeD
the bRGS. & ReteSt[.]” the repair order also contains
handwritten notes, which state: “adjust shifter cable[.] R&R
steering column[.] Disassemble found shift shaft [b]ushings
worn out[.] Replaced them[.] Inspect shift lockout mecha-
nism[.] Nothing worn on that[.] Reassemble and check[.]
Works good.”
after the second repair, a Woodhouse employee brought the
van back to Mark, and Mark testified that when the van was
brought back the second time, he could not get the gearshift to
come out of park without the key in the ignition and the brake
pedal depressed. In other words, according to Mark, the gear-
shift on the van worked properly after the second repair.
based on his review and investigation, Jeffers concluded
that “[t]hree separate failure modes caused and contributed”
806 	278 NebRaSka RePORtS

to the accident. according to Jeffers’ report, the brake shift
interlock system failed, the transmission shift cable was mis-
adjusted, and the key shift interlock failed or malfunctioned.
Jeffers did not make any determinations regarding whether the
defect in the gearshift could have been discovered by a reason-
able inspection.
It is undisputed that the van was not inspected by Woodhouse
employees prior to the Wilkes’ purchase. eschliman explained
in his deposition testimony that because of the high volume of
vehicles traded in, there are times when the service department
does not inspect used vehicles before they are resold. Oppliger
testified similarly. he explained that Woodhouse gets “too
many vehicles in that we can’t keep up on inspecting every one
of them.” there is no indication in the record that Woodhouse
was aware prior to the accident that the gearshift on the van
was defective.
the Wilkes filed a petition, which was later amended, against
Ford Motor Company and Woodhouse seeking damages for
elizabeth’s injuries. Ford Motor Company has been dismissed,
without prejudice, and is not a party in this appeal. the petition
contains three theories of recovery, only two of which involve
Woodhouse. In count II of the petition, the Wilkes allege that
Woodhouse knew or should have known that the defective
condition of the van would pose an unreasonable and foresee-
able danger to its customer or, alternatively, that Woodhouse
knew or should have known that the van was defective when
it was sold and that such negligence was the proximate cause
of elizabeth’s injuries. In count III of the petition, the Wilkes
allege that Woodhouse impliedly warranted, pursuant to Neb.
U.C.C. § 2-314 (Reissue 2001), the van was merchantable and
that Woodhouse breached that implied warranty. the district
court granted Woodhouse’s motion for summary judgment, and
the Wilkes appeal.
III. aSSIGNMeNtS OF eRROR
the Wilkes allege that the district court erred (1) as a mat-
ter of law in holding that no genuine issue of material fact
exists and in granting summary judgment to Woodhouse and
(2) in determining that used-car dealers can exclude through
WILke v. WOODhOUSe FORD 	807
Cite as 278 Neb. 800

“as is” clauses an implied warranty of safety that involves the
vehicle’s inherently dangerous defects, because such exclusions
violate public policy.
IV. StaNDaRD OF ReVIeW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts 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.2 In
reviewing a summary judgment, the court views the evidence
in the light most favorable to the party against whom the judg-
ment was granted, and the court gives that party the benefit of
all reasonable inferences deducible from the evidence.3
V. aNaLYSIS
this case presents two issues: (1) whether a car dealer can
exclude through the use of an “as is” clause the implied war-
ranty of merchantability and (2) whether a car dealer has a
duty to inspect used vehicles for safety defects prior to selling
the vehicle.
1. implied WArrAnty of merchAntAbility
the Wilkes’ breach of warranty claim arises from the law of
sales as codified in the Uniform Commercial Code (U.C.C.).4
historically, a warranty is an undertaking or assertion by the
seller that the thing sold is as represented.5 Under the U.C.C.,
warranties relating to goods sold can be either express or
implied.6 Under § 2-314:
(1) Unless excluded or modified (section 2-316), a
warranty that the goods shall be merchantable is implied
in a contract for their sale if the seller is a merchant with
respect to goods of that kind . . . .
2 Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009).
3 Id.
4 See Neb. U.C.C. §§ 2-101 to 2-725 (Reissue 2001).
5 See Erskine v. Swanson, 45 Neb. 767, 64 N.W. 216 (1895).
6 See §§ 2-313 and 2-315.
808 	278 NebRaSka RePORtS

(2) Goods to be merchantable must be at least such as
. . . .
(c) are fit for the ordinary purposes for which such
goods are used[.]
the Wilkes contend that Woodhouse breached this express
warranty of merchantability with respect to the van it sold
to them.
as noted in the statutory language defining an implied
warranty of merchantability, it exists “unless excluded or
modified.”7 Section 2-316(3)(a) provides: “[U]nless the cir-
cumstances indicate otherwise, all implied warranties are
excluded by expressions like ‘as is’, ‘with all faults’ or other
language which in common understanding calls the buyer’s
attention to the exclusion of warranties and makes plain that
there is no implied warranty.” the purchase agreement evi-
dencing the sale of the van from Woodhouse to the Wilkes
included a conspicuous statement that it was sold “as is,”
“without any warranty either expressed or implied,” and fur-
ther stated that Woodhouse was disclaiming any implied war-
ranty of merchantability. this language met the requirements
of § 2-316(2) and (3)(a) for excluding an implied warranty
of merchantability.
[3,4] the Wilkes argue, however, that exclusion of an
implied warranty of merchantability with respect to a safety
defect would violate public policy and therefore should not be
enforced by a court. In support of their argument, the Wilkes
cite to general propositions defining public policy as restric-
tions on the freedom to contract in order to prevent acts inju-
rious to the public.8 but we have also explained that it is the
function of the Legislature, through the enactment of statutes,
to declare what is the law and public policy of this state.9 and
our Legislature has provided, in § 2-316, that the implied war-
ranty of merchantability may be disclaimed or excluded.
7 § 2-315.
8 See New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d
25 (1994).
9 State v. Barranco, ante p. 165, 769 N.W.2d 343 (2009).
WILke v. WOODhOUSe FORD 	809
Cite as 278 Neb. 800

the provisions of the U.C.C. which permit a seller to
exclude warranties make no exception for warranties relating
to the safety of the product. We conclude that the use of an “as
is” clause to exclude the implied warranty of merchantability
cannot be against the public policy of this state when it mir-
rors the statutory requirements specifically allowing for such
exclusion.10 Section 2-316 is the Legislature’s clear expres-
sion of the public policy of this state. therefore, the purchase
agreement effectively disclaimed and excluded any implied or
express warranties for the vehicle. as such, the district court
properly entered summary judgment in favor of Woodhouse for
the Wilkes’ cause of action for breach of the implied warranty
of merchantability.
2. negligence
the Wilkes also alleged a theory of recovery based on
negligence. While a breach of warranty claim is based upon a
seller’s express or implied statements regarding the product, a
negligence claim focuses on the seller’s conduct.11 a common-
law duty exists to use due care so as not to negligently injure
another person.12 thus, the absence of implied warranties does
not absolve Woodhouse from any potential liability resulting
from its failure to exercise reasonable care.13 In other words,
nothing in the statutes dealing with exclusion of implied war-
ranties allows for the exclusion of tort liability.
the Wilkes alleged that Woodhouse was negligent because it
failed to reasonably inspect the van for safety defects prior to
10 See, Continental Western Ins. Co. v. Conn, 262 Neb. 147, 629 N.W.2d 494
(2001); Koperski v. Husker Dodge, Inc., 208 Neb. 29, 302 N.W.2d 655
(1981). See, also, Peterson v. North American Plant Breeders, 218 Neb.
258, 354 N.W.2d 625 (1984).
11 See Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827
(2000).
12 Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994).
13 See Fleming v. Stoddard Wendle Motor Co., 70 Wash. 2d 465, 423 P.2d
926 (1967). See, also, Kopischke v. First Continental Corp., 187 Mont.
471, 610 P.2d 668 (1980). See, generally, Freeman v. Hoffman-La Roche,
Inc., supra note 11. but see New Texas Auto v. Gomez De Hernandez, 249
S.W.3d 400 (tex. 2008).
810 	278 NebRaSka RePORtS

its sale and that but for such negligence, elizabeth would not
have sustained her injuries by being run over by the van.
[5,6] Ordinary negligence is defined as the doing of some-
thing that a reasonably careful person would not do under
similar circumstances, or the failing to do something that a rea-
sonably careful person would do under similar circumstances.14
In order to prevail in a negligence action, there must be a legal
duty on the part of the defendant to protect the plaintiff from
injury, a failure to discharge that duty, and damage proximately
caused by the failure to discharge that duty.15
(a) Duty
[7,8] Woodhouse first maintains that it had no duty to
inspect the van prior to its sale. In negligence cases, a duty
may be defined as an obligation, to which the law will give
recognition and effect, to conform to a particular standard of
conduct toward another.16 When determining whether a legal
duty exists, a court employs a risk-utility test concerning (1)
the magnitude of the risk, (2) the relationship of the parties,
(3) the nature of the attendant risk, (4) the opportunity and
ability to exercise care, (5) the foreseeability of the harm, and
(6) the policy interest in the proposed solution.17
[9] the existence of a duty and the identification of
the applicable standard of care are questions of law, but the
ultimate determination of whether a party deviated from the
standard of care and was therefore negligent is a question
of fact.18 to resolve the issue, a finder of fact must deter-
mine what conduct the standard of care would require under
the particular circumstances presented by the evidence and
14 Caguioa v. Fellman, 275 Neb. 455, 747 N.W.2d 623 (2008); Bargmann v.
Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998).
15 Bargmann v. Soll Oil Co., supra note 14.
16 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
17 See, Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73
(2006); Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).
18 Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697
(2001).
WILke v. WOODhOUSe FORD 	811
Cite as 278 Neb. 800

whether the conduct of the alleged tort-feasor conformed with
the standard.19
We have never before addressed whether a used-car dealer
has a duty to its customers to inspect vehicles for safety
defects before they are sold. Most courts which have consid-
ered the issue have recognized a limited duty on the part of
the dealer to inspect for patent safety defects existing at the
time of sale. For example, Minnesota courts have held that the
seller of a used vehicle intended for use upon the public high-
ways has a duty to the public using such highways to exercise
reasonable care in supplying the purchaser with a vehicle
which will not constitute a menace or source of danger, so
that liability attaches to the seller for injuries which are the
result of patent defects in the vehicle, or defects which could
have been discovered in the exercise of reasonable care.20
Ohio courts have held that even when a dealer sells a used
vehicle “as is,” the dealer has a duty to exercise reasonable
care in examining the vehicle to discover defects which would
make the vehicle dangerous to users or those who might
come in contact with them, and upon discovery, to correct
those defects or at least give warning to the purchaser.21 the
kentucky Court of appeals has noted that used cars are more
likely to be subject to mechanical defects than new vehicles
and that the dealer is in a better position than the average con-
sumer to “discover what defects might exist in any particular
car to make it a menace to the public,” holding that “[w]e are
of the opinion it is not too harsh a rule to require these deal-
ers to use reasonable care in inspecting used cars before resale
to discover these defects, which the customer often cannot
discover until too late.”22 In Kopischke v. First Continental
Corp.,23 the Montana Supreme Court held that a used-car
19 Id.
20 Crothers by Crothers v. Cohen, 384 N.W.2d 562 (Minn. app. 1986); Kothe
v. Tysdale, 233 Minn. 163, 46 N.W.2d 233 (1951).
21 See, Stamper v. Motor Sales, 25 Ohio St. 2d 1, 265 N.e.2d 785 (1971);
Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.e.2d 419 (1953).
22 Gaidry Motors v. Brannon, 268 S.W.2d 627, 629 (ky. 1954).
23 Kopischke v. First Continental Corp., supra note 13.
812 	278 NebRaSka RePORtS

dealer had a duty to inspect a vehicle for safety defects prior
to sale, notwithstanding the fact that the vehicle was sold “as
is.” the court reasoned:
When the ordinary person purchases a car “as is,” he
expects to have to perform certain repairs to keep the car
in good condition. he does not expect to purchase a death
trap. Public policy requires a used car dealer to inspect
the cars he sells and to make sure they are in safe, work-
ing condition. this duty cannot be waived by the use of a
magic talisman in the form of an “as is” provision.24
but courts which have recognized a duty on the part of used-
car dealers to inspect for safety defects prior to sale have also
emphasized that the duty is limited. Courts have stated that
used-car dealers are not insurers and therefore are not liable
for latent defects in the vehicle.25 Courts have limited the duty
to inspect for patent defects26 affecting the minimum essentials
for safe operation of the vehicle.27 Dealers are not required to
disassemble the vehicle to inspect for latent defects,28 and they
are not responsible for the continuing safety of the vehicles
they sell.29
applying our risk-utility test for the existence of a legal duty
to use reasonable care, we conclude that there is a relatively
great magnitude of risk of injury in the circumstance where an
unknowing buyer drives off the dealer’s lot in a used vehicle
which has a patent safety defect, such as defective brakes or
steering. the dealer is better equipped than the purchaser to
perceive such a defect before it causes harm. the nature of
the risk is such that personal injury or death could result not
only with respect to the purchaser of the defective vehicle,
but to other members of the motoring public. the dealer has
24 Id. at 491-92, 610 P.2d at 679.
25 Stamper v. Motor Sales, supra note 21; Armour v. Haskins, 275 S.W.2d
580 (ky. 1955); Thrash v. U-Drive-It Co., supra note 21.
26 Rogers v. Hilger Chevrolet Co., 155 Mont. 1, 465 P.2d 834 (1970).
27 Foley v. Harrison Ave. Motor Co., 267 Mont. 200, 883 P.2d 100 (1994).
28 Crothers by Crothers v. Cohen, supra note 20.
29 Armour v. Haskins, supra note 25.
WILke v. WOODhOUSe FORD 	813
Cite as 278 Neb. 800

the earliest opportunity to discover and repair a patent safety
defect in a used vehicle. an unknown safety defect existing at
the time of sale poses foreseeable harm to the purchaser and
the general public, and there exists a policy interest in requir-
ing reasonable conduct on the part of the dealer to prevent
such harm.
We, therefore, hold that a commercial dealer of used vehicles
intended for use on public streets and highways has a duty to
conduct a reasonable inspection of the vehicle prior to sale in
order to determine whether there are any patent defects exist-
ing at the time of sale which would make the vehicle unsafe
for ordinary operation and, upon discovery of such a defect, to
either repair it or warn a prospective purchaser of its existence.
the dealer has no duty to disassemble the vehicle to discover
latent defects or to anticipate the future development of safety
defects which do not exist at the time of sale. the tort duty we
recognize today is not affected by a valid disclaimer or exclu-
sion of U.C.C. warranties, because such contractual provisions
do not absolve a seller from exercising reasonable care to pre-
vent foreseeable harm.
[10] tort liability is not based upon representations or war-
ranties. Rather, it is based upon a duty imposed by the law
upon one who may foresee that his or her actions or failure to
act may result in injury to others.30
that being the case, whether or not the court properly
entered summary judgment in favor of Woodhouse depends
upon whether Woodhouse breached this duty. It is undisputed
that Woodhouse did not inspect the van prior to selling it.
however, that alone does not rise to the level of a breach of the
applicable standard of care, because its duty extends only to
patent, not to latent, defects. thus, a breach of duty occurred if
a reasonable inspection would have revealed the alleged defect
in the gearshift. this is a question of fact that must be decided
by the fact finder. a party moving for summary judgment has
the burden to show that no genuine issue of material fact exists
30 Gaidry Motors v. Brannon, supra note 22. See, Turner v. International
Harvester Company, 133 N.J. Super. 277, 336 a.2d 62 (1975); Kothe v.
Tysdale, supra note 20.
814 	278 NebRaSka RePORtS

and must produce sufficient evidence to demonstrate that the
moving party is entitled to judgment as a matter of law if the
evidence presented for summary judgment remains uncontro-
verted.31 after the moving party has shown facts entitling it to a
judgment as a matter of law, the opposing party has the burden
to present evidence showing an issue of material fact which
prevents judgment as a matter of law for the moving party.32
the record presents conflicting testimony as to whether the
gearshift malfunctioned occasionally or regularly. according to
Mark, the gearshift malfunctioned regularly. additionally, the
officer who responded to the accident indicated that the gear-
shift came out of park without the key in the ignition. however,
Woodhouse employees claim that they could not get the gear-
shift to malfunction. as such, there is a genuine issue of mate-
rial fact whether a reasonable inspection of the van would have
revealed any alleged defect.
(b) Causation
Woodhouse argues that even if there is a duty that was
breached, there is no material issue of fact that Woodhouse was
not the proximate cause of the accident. Rather, Woodhouse
asserts that Mark and the child were the proximate cause of
the accident.
[11,12] Determination of causation is, ordinarily, a matter
for the trier of fact.33 to establish proximate cause, the plaintiff
must meet three basic requirements: (1) Without the negligent
action, the injury would not have occurred, commonly known
as the “but for” rule; (2) the injury was a natural and probable
result of the negligence; and (3) there was no efficient interven-
ing cause.34
[13] assuming that Woodhouse breached its duty to reason-
ably inspect, Woodhouse proximately caused the vehicle to be
placed into the hands of the Wilkes with a defect that could
31 See Kline v. Farmers Ins. Exch., 277 Neb. 874, 766 N.W.2d 118 (2009).
32 See id.
33 Dolberg v. Paltani, 250 Neb. 297, 549 N.W.2d 635 (1996); Merrick v.
Thomas, supra note 12.
34 Merrick v. Thomas, supra note 12.
WILke v. WOODhOUSe FORD 	815
Cite as 278 Neb. 800

have been discovered by a reasonable inspection. this defect
undoubtedly existed at the time of sale. and it is undisputed
that the van was not altered in any way prior to the incident.
but Woodhouse first argues that Mark’s failure to set the park-
ing brake was the proximate cause of the accident. In doing
so, however, Woodhouse confuses the concepts of proximate
causation and contributory negligence. Woodhouse is really
arguing that Mark was contributorily negligent by not using
the parking brake. Plaintiffs are contributorily negligent if
(1) they fail to protect themselves from injury, (2) their
conduct occurs and cooperates with the defendant’s action-
able negligence, and (3) their conduct contributes to their
injuries as a proximate cause.35 Whether or not the Wilkes
were contributorily negligent to the point where recovery is
precluded is a question for the trier of fact, and Woodhouse’s
allegations regarding Mark’s failure to implement the park-
ing brake are insufficient to warrant summary judgment in
Woodhouse’s favor.36
[14,15] Second, Woodhouse argues that the Wilkes’ daugh-
ter was the proximate cause of the accident because she
manipulated the gearshift, causing the accident. essentially,
Woodhouse is arguing that viewing the facts in the light most
favorable to the Wilkes, the daughter’s actions constituted an
efficient intervening cause, warranting judgment as a mat-
ter of law in its favor. an efficient intervening cause is new
and independent conduct of a third person, which itself is a
proximate cause of the injury in question and breaks the causal
connection between the original conduct and the injury.37 the
causal connection is severed when (1) the negligent actions of a
third party intervene, (2) the third party had full control of the
situation, (3) the third party’s negligence could not have been
anticipated by the defendant, and (4) the third party’s negli-
gence directly resulted in injury to the plaintiff.38 the doctrine
35 Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
36 See Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d
510 (2001).
37 Malolepszy v. State, 273 Neb. 313, 729 N.W.2d 669 (2007).
38 Id.
816 	278 NebRaSka RePORtS

that an intervening act cuts off a tort-feasor’s liability comes
into play only when the intervening cause is not foreseeable.39
but if a third party’s negligence is reasonably foreseeable,
then the third party’s negligence is not an efficient intervening
cause as a matter of law.40 the record contains evidence that if
the van had been operating properly, the gearshift should not
have come out of park unless the key was in the ignition and
the brake pedal was depressed. a jury could find that it is fore-
seeable that an accident could occur if a young child was able
to take the vehicle out of park without the key in the ignition
and the brake pedal depressed. thus, we conclude that there is
a genuine issue of material fact whether the alleged efficient
intervening cause was foreseeable by Woodhouse, and there-
fore judgment as a matter of law is precluded.41
VI. CONCLUSION
We conclude that Woodhouse effectively disclaimed all
implied warranties, including the warranty of merchantability.
but we also conclude that commercial dealers of used vehicles
have a duty to exercise reasonable care to discover any existing
safety defects that are patent or discoverable in the exercise of
reasonable care or through reasonable inspection. because there
are genuine issues of material fact as to whether Woodhouse
breached its duty of care and, if so, whether Woodhouse’s
breach was the proximate cause of elizabeth’s injuries, we
conclude that the district court incorrectly granted summary
judgment in favor of Woodhouse on the Wilkes’ negligence
claim. We affirm the grant of summary judgment in favor of
Woodhouse on count III and reverse the judgment of the dis-
trict court granting summary judgment in favor of Woodhouse
on count II.
A ffirmed in pArt, And in pArt reversed.
39 Delaware v. Valls, 226 Neb. 140, 409 N.W.2d 621 (1987).
40 See Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992).
41 See Kozicki v. Dragon, 255 Neb. 248, 583 N.W.2d 336 (1998).
WILke v. WOODhOUSe FORD 	817
Cite as 278 Neb. 800