Strahan v. McCook Hotel Group

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
Ron Strahan, appellant, v.
McCook Hotel Group, LLC, appellee.
___ N.W.3d ___
Filed August 16, 2024. 	No. S-23-176.
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. Negligence. Not every negligence action involving an injury suffered on
someone’s land is properly considered a premises liability case.
4. ____. In Nebraska, a premises liability case generally falls into one
of three categories: (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.
5. 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.
6. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
the movant would be entitled to judgment if the evidence were uncon-
troverted at trial. If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:22 AM CDT

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
7. ____: ____. If the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judgment may satisfy its
prima facie burden either by citing to materials in the record that affirm-
atively negate an essential element of the nonmoving party’s claim or
by citing to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
8. Negligence: Liability: Proximate Cause. In Nebraska, a possessor of
land is subject to liability for injury caused to a lawful visitor by a con-
dition on the land if (1) the possessor either created the condition, knew
of the condition, or by the existence of reasonable care would have dis-
covered the condition; (2) the possessor should have realized the condi-
tion 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 reasonable care to protect the lawful visitor against the danger; and
(5) the condition was a proximate cause of damage to the plaintiff.
9. Negligence: Words and Phrases. There is no fixed rule for determining
when a risk of harm is unreasonable. But the plain meaning of the term
suggests a uniquely or unacceptably high risk of harm—something more
than the usual risks commonly encountered.
10. ____: ____. In a premises liability case, the phrase “unreasonable risk of
harm” means a risk that a reasonable person, under all the circumstances
of the case, would not allow to continue.
11. Negligence: Presumptions. The mere fact that a fall occurred is not
evidence of negligence, nor does it raise a presumption of negligence.
12. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
the purposes of summary judgment.
13. Evidence: Proof. The failure of proof on an essential element of a claim
necessarily renders all other facts immaterial.
14. Judgments: Appeal and Error. Where the record demonstrates that
the decision of the trial court is ultimately correct, an appellate court
may affirm.
Appeal from the District Court for Red Willow County,
Patrick M. Heng, Judge. Affirmed.
Ross Pesek, of Pesek Law, L.L.C., and MaryGaye LeBoeuf,
pro hac vice, for appellant.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
Michael L. Moran and Daniel E. Kemp, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
While staying in a hotel, Ron Strahan slipped and fell while
showering. He filed a negligence action against the hotel,
alleging the floor was not slip resistant and presented an unrea-
sonably dangerous condition. The district court granted the
hotel’s motion for summary judgment, reasoning that Strahan
could not establish a material element of his premises liability
claim. Strahan appeals, and we affirm.
I. BACKGROUND
McCook Hotel Group, LLC, owns and operates a hotel in
McCook, Nebraska, that was constructed in 2016. Strahan
stayed at that hotel for several days in January 2019 while
traveling for business. He stayed in room No. 104 (room 104),
which included a handicap accessible bathtub/shower combi-
nation that the parties generally refer to as a “shower tub.”
The following photograph depicts the shower tub in room 104:

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
On the morning of January 21, 2019, Strahan was injured
when he slipped and fell while using the shower tub. He
filed a complaint against the hotel in the district court for
Red Willow County, alleging he fell “because the floor of the
shower was not equipped with slip resistant materials.” The
complaint alleged:
• the shower tub floor was “unreasonably slippery” and was not
equipped with slip-resistant materials;
• the hotel either created the condition, knew of the condition,
or, in the exercise of reasonable care, should have discovered
the condition;
• the hotel should have realized the condition created an unrea-
sonable risk of harm to lawful entrants;
• the hotel should have expected that lawful entrants such as
Strahan would fail to discover, realize, or protect themselves
from the danger;
• the hotel failed to exercise reasonable care in remedying the
condition; and
• the hotel’s negligence was the proximate cause of Strahan’s
fall and damages.
The complaint sought to recover damages for past and future
medical expenses, past and future pain and suffering, lost
income, and loss of earning capacity. The hotel filed an answer
generally denying it was negligent and alleging several affirm-
ative defenses.
1. Summary Judgment
Approximately 2 years after the complaint was filed, the
hotel moved for summary judgment in its favor, arguing that
Strahan could not prove the requisite elements of a premises
liability action as a matter of law. The court held a hearing
on the summary judgment motion, and both parties adduced
evidence.
The hotel offered portions of Strahan’s deposition testi-
mony; portions of the deposition testimony given by the hotel’s
general manager, who also served as the hotel’s designated

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
corporate representative; and a report prepared by an expert
Strahan retained to inspect the shower tub.
Strahan offered photographs of the shower tub and his
injuries and the full deposition transcripts of both Strahan and
the hotel manager. Strahan also offered his own affidavit and
the affidavits signed by his friend Thomas Harrigan and the
expert Strahan retained to inspect the shower tub.
(a) Strahan’s Deposition and Affidavit
Strahan testified that in the early morning hours of January
21, 2019, he turned the water on in the shower tub and stepped
in. He stood facing the showerhead, and while he was sham-
pooing his hair, his feet slipped and he began to fall. He tried
to reach for a grab bar but fell out of the shower tub and
landed on the bathroom floor, hitting his head. He sustained
injuries and bruising to his head, face, wrist, and foot.
Strahan testified that after his fall, he rubbed his hands over
the floor of the shower tub and did not feel any “roughness”
or “texture.” He took a photograph of the shower tub, which
depicted a “crescent moon shaped chip” near the drain but did
not clearly depict whether the standing area of the floor had
a textured surface. The day after his fall, Strahan laid a bath
towel on the shower tub floor before showering.
Strahan’s affidavit stated that based on his experience stay-
ing in hotels, his “expectation is that hotel rooms are situated
with bathtub/shower floors with anti-slip surfaces.” He averred
there were no “warning signs or a rubber mat present that
would indicate the tub floor would be slick or did not have a
slip-resistant” surface. He stated, “I know that water can be
slippery in some circumstances, however I had no reason to
believe water running in this tub would be slippery” and that
“it never crossed my mind the tub would be slick or dangerous
when the water was turned on.”
(b) Harrigan’s Deposition
Approximately 6 months after Strahan’s fall, his friend
Harrigan stayed in room 104 at the same hotel. Harrigan

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
testified that he did not observe the shower tub floor to have a
slip-resistant surface. Harrigan also testified that he had stayed
at the same hotel approximately 36 times between November
2018 and June 2021 and that in his experience, “several” of
the rooms had shower tubs without a slip-resistant floor.
Harrigan took a photograph of the shower tub in room 104
in July 2019. Like Strahan’s photograph from January 2019,
Harrigan’s photograph depicted a crescent-shaped chip near
the drain but did not clearly depict whether the standing area
of the floor had a textured surface.
(c) Hotel Manager’s Deposition
In March 2022, Strahan deposed the hotel manager. The
manager testified that the hotel was built in 2016 and had
54 rooms, all with similarly molded acrylic shower tubs.
The hotel did not have an active role in choosing the shower
tubs to be installed. Instead, the hotel allowed the builder to
make all decisions about the shower tubs, and it understood
the builder would “make sure [the shower tubs] are approved
for hotels.” The manager testified that all of the rooms in
the hotel had shower tubs that had been manufactured with
slip-resistant floors that she described as “textured.” She
specifically testified the shower tub floor in room 104 had a
“textured surface” and that, other than regular maintenance, it
was in the same condition as when it was originally installed
in 2016.
The manager testified that the hotel was aware guests
would use the shower tubs to bathe, and she generally agreed
the hotel had a duty to ensure the shower tubs were reason-
ably safe for that purpose. She also admitted the hotel knew
it was possible for guests to slip and fall in a wet shower tub.
She testified the hotel did not routinely provide rubber mats
for the shower tubs and did not have signs or decals warning
guests about the shower tubs. She testified that when Strahan
fell, the hotel had been open for 31 months and had not
received any complaints about the shower tubs.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
The manager testified that the hotel would not expect
guests to inspect the shower tub floor for slip resistance
prior to using it, and she agreed it would be “reasonable for
the customer or the patron . . . using the tubs . . . to have an
expectation that the hotel is providing a slip resistant tub.”
When asked if it would “create a dangerous condition” if the
shower tub in room 104 did not have slip-resistant floors,
the manager answered, “Hypothetically, possibly, but it’s got
texture on it.”
(d) Expert’s Report and Affidavit
Strahan retained an expert to inspect the shower tub in
room 104. The inspection took place on September 6, 2022,
after Strahan and the hotel manager had been deposed. The
expert prepared a report stating that the shower tub was made
of acrylic and had a “raised truncated type slip resistant sur-
face that is part of [its] construction” and “covers the entire
[shower] tub bottom.” The expert’s report included photo-
graphs of the floor that plainly depicted a textured, cross-
hatched surface. The report stated that the expert “physically
felt” the floor and determined the “[r]esistance felt similar
in both dry and wet conditions . . . .” The report also stated
that “[n]o damage/chipping/scratches are evident on any part
of the [shower] tub or surround” and that the shower tub
“appear[ed] to be unmodified original construction.”
After reviewing the expert’s report, Strahan noticed the
expert’s photographs did not depict the crescent-shaped chip
near the drain that was visible in the 2019 photographs taken
by Strahan and Harrigan. After the expert was advised of this,
he prepared an affidavit specifically stating that he did not
observe any chip during his September 2022 inspection, nor
did he observe evidence of repairs to the shower tub floor.
The expert opined “there is no means by which the chip in
the [shower] tub floor would simply disappear, [and] the
[shower] tub would necessarily had to have been replaced.”

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
(e) Hotel Manager’s Affidavit
In response to the inspection report and affidavit from
Strahan’s expert, the hotel manager prepared an affidavit on
behalf of the hotel, averring that “routine maintenance” of the
hotel shower tubs included “repair of any cosmetic defects,
such as minor chips in the bathtubs’ surface.” She further
averred that a commercially available resin was used by the
hotel to repair minor chips in the surfaces of the shower tubs
and that sometime between July 31, 2019, and September 6,
2022, the hotel applied that resin to the chip in the shower tub
floor in room 104. The manager stated that other than the chip
repair, “the bathtub in room 104 . . . has not been modified
or replaced since it was originally installed.” She attached a
photograph to her affidavit depicting the resin-filled chip in
the shower tub floor of room 104.
2. District Court Order
In a written order, the district court granted summary judg-
ment in favor of the hotel, finding as a matter of law that
Strahan could not prove at least one of the material elements
of his premises liability claim. The order began by reciting
the familiar elements of a premises liability claim involving
conditions on the land:
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 condition, or by the existence of reasonable care
would have discovered the condition; (2) the possessor
should have realized the condition involved an unreason-
able 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 dan-
ger 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

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
(5) the condition was a proximate cause of damage to
the plaintiff. 1
The district court found there was a factual dispute as to
whether the shower tub floor in room 104 had a textured or
slip-resistant surface at the time Strahan fell, but it ultimately
concluded that the factual dispute was not material. In reaching
that conclusion, the court examined both the second and third
elements of a premises liability claim.
Regarding the second element, the court questioned whether
there was any evidence adduced to support a reasonable infer-
ence that a shower tub without a slip-resistant floor was an
unreasonably dangerous condition. The court noted evidence
establishing that the hotel intended to provide shower tubs
with slip-resistant floors and that Strahan expected as much,
but emphasized that there was no evidence showing an indus-
try standard, any health or safety code, or similar law or regu-
lation that required shower tubs to have slip-resistant floors.
The court also cited cases from other states for the general
proposition that showers and tubs without slip-resistant mate-
rials are not presumed to be unreasonably dangerous. 2 But
ultimately, the court did not resolve the summary judgment
motion based on the second element. Instead, the court appears
to have assumed that a wet shower or tub presents an “open
and obvious” danger of slipping, and it analyzed the evidence
under the open and obvious doctrine.
The court noted that in Nebraska, the presence of an open
and obvious condition generally bars recovery on a prem-
ises liability claim unless the plaintiff shows the possessor
should have expected that lawful visitors either would not
discover the condition or would fail to protect themselves
1 Sundermann v. Hy-Vee, 306 Neb. 749, 766, 947 N.W.2d 492, 505 (2020);
See, e.g., Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).
2 See, Hale v. SS Liquors, Inc., 956 N.E.2d 1189 (Ind. App. 2011); Jones
v. Abner, 335 S.W.3d 471 (Ky. App. 2011); Kutz v. Koury Corp., 93 N.C.
App. 300, 377 S.E.2d 811 (1989).

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317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
from it. 3 The court reasoned that, viewing the evidence in
the light most favorable to Strahan, there was no evidence
“from which it can be inferred that [the hotel] should have
expected [Strahan] would fail or be unable to protect himself
against the open and obvious dangers associated with taking a
shower.” The court concluded that although there was “obvi-
ously an evidentiary dispute as to whether there was slip-
resistant tub flooring in [r]oom 104 and whether the tub had
been replaced,” such disputes were not material, and the hotel
was entitled to judgment as a matter of law because Strahan
was unable to satisfy the third element of his premises liabil-
ity claim. The court granted summary judgment in favor of
the hotel and dismissed the complaint with prejudice.
Strahan filed this timely appeal, which we moved to our
docket on our own motion.
II. ASSIGNMENTS OF ERROR
Strahan assigns, consolidated and restated, that the district
court erred in granting summary judgment because (1) there
were genuine issues of material fact regarding the condition
of the shower tub floor at the time of Strahan’s fall and (2)
there were genuine issues of material fact bearing on the
application of the open and obvious doctrine.
III. 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. 4 An appellate court reviews the district court’s
grant of summary judgment de novo, viewing the record in the
3 See, Clark, supra note 1; Sundermann, supra note 1.
4 Woodward v. Saint Francis Med. Ctr., 316 Neb. 737, 6 N.W.3d 794 (2024).

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317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. 5
IV. ANALYSIS
1. Premises Liability
[3,4] Not every negligence action involving an injury suf-
fered on someone’s land is properly considered a premises
liability case, 6 but this action plainly presents a premises lia-
bility claim, and no party contends otherwise. In Nebraska, a
premises liability case generally falls 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 activ-
ity on the land, and (3) those concerning the failure to protect
lawful entrants from the acts of a third person on the land. 7
The parties agree this case falls squarely into the first cat-
egory of premises liability cases, because Strahan has sued
the hotel claiming the shower tub presented an unreasonably
dangerous condition.
In the sections that follow, we review the premises liability
framework as it applies to conditions on the land, after which
we analyze the parties’ summary judgment evidence in light
of those principles. But first, we recall the familiar summary
judgment principles that frame our analysis.
[5-7] 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. 8 The party moving for summary
5 Id.
6 Sundermann, supra note 1; Hodson v. Taylor, 290 Neb. 348, 860 N.W.2d
162 (2015).
7 Sundermann, supra note 1.
8 407 N 117 Street v. Harper, 314 Neb. 843, 993 N.W.2d 462 (2023).

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317 Nebraska Reports
STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
judgment must make a prima facie case by producing enough
evidence to show the movant would be entitled to judgment
if the evidence were uncontroverted at trial. 9 If the moving
party makes a prima facie case, the burden shifts to the non-
movant to produce evidence showing the existence of a mate-
rial issue of fact that prevents judgment as a matter of law. 10
And, if the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judgment may
satisfy its prima facie burden either by citing to materials in
the record that affirmatively negate an essential element of
the nonmoving party’s claim or by citing to materials in the
record demonstrating that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving
party’s claim. 11
[8] In Nebraska, 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 condition, or by the existence of reasonable care
would have discovered the condition; (2) the possessor
should have realized the condition involved an unreason-
able 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 dan-
ger 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. 12
The parties agree there was sufficient evidence to establish
the first element, because the hotel installed the shower tub
9 Id.
10 Id.
11 Clark, supra note 1.
12 Sundermann, supra note 1, 306 Neb. at 766, 947 N.W.2d at 505.

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STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
and thus created the condition about which Strahan complains.
We therefore begin our de novo review by considering the
evidence adduced relating to the second element of Strahan’s
premises liability claim.
2. Unreasonable Risk of Harm
[9,10] The second element of a premises liability claim
requires Strahan to show the hotel should have realized the
condition of the shower tub involved an unreasonable risk
of harm to lawful visitors. We discussed this element in
Sundermann v. Hy-Vee, 13 where we explained:
Our cases considering conditions on the land have
generally drawn a distinction between conditions which
present ordinary or common risks, and those which pre-
sent unreasonable risks. By limiting tort liability to only
those conditions which pose an unreasonable risk of
harm, the traditional premises liability test balances two
competing policies: requiring businesses to exercise rea-
sonable care to maintain the premises in a safe condition
and protecting businesses from becoming the insurers of
their patrons’ safety.
There is no fixed rule for determining when a risk of
harm is unreasonable. But the plain meaning of the term
suggests a uniquely or unacceptably high risk of harm—
something more than the usual risks commonly encoun-
tered. In some premises liability cases, we have approved
of defining the phrase “unreasonable risk of harm” to
mean “‘a risk that a reasonable person, under all the cir-
cumstances of the case, would not allow to continue.’”
[11] We also discussed the second element of a premises
liability claim in Clark v. Scheels All Sports. 14 In that case,
the plaintiff fell while entering a retail store and claimed
that her fall was caused either by an unsafe foot grate or by
13 Id. at 767-68, 947 N.W.2d at 505-06. See, also, NJI2d Civ. 8.26 and 8.83.
14 Clark, supra note 1.

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STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
defective entry doors. The store moved for summary judg-
ment, arguing that discovery showed the plaintiff had not
developed competent evidence showing that either condi-
tion presented a uniquely or unacceptably high risk of harm
beyond the ordinary risks encountered by lawful entrants on
the premises, and thus, she could not prove the second ele-
ment of her premises liability action. The plaintiff argued
that her own testimony about the manner of her fall provided
circumstantial evidence that the conditions were unreason-
ably dangerous and was sufficient to create a genuine issue
of fact for trial. We disagreed, reasoning, with respect to the
foot grate:
[E]vidence describing how [the plaintiff] fell, without
more, does not show the foot grate was unreasonably
dangerous or support a reasonable inference in that
regard. A condition is unreasonably dangerous only if it
presents a uniquely or unacceptably high risk of harm—
something more than the usual risks commonly encoun-
tered. And the mere fact that a fall occurred is not evi-
dence of negligence, nor does it raise a presumption of
negligence.
Moreover, the record contains no materials that sup-
port a reasonable inference that the foot grate presented
an unreasonably dangerous condition. None of the wit-
nesses deposed identified any feature of the foot grate
specifically, or the foyer generally, that increased the
danger of tripping or falling or otherwise presented an
unreasonable risk of harm. None of the affidavits, depo-
sitions, or discovery responses indicated that any witness
would testify the foot grate presented an unreasonable
risk of harm. . . . Nor was there evidence that others had
fallen on the grate, or similar grates, that might arguably
support a reasonable inference that the grate posed an
unreasonable risk of harm. 15
15 Id. at 74-75, 989 N.W.2d at 56 (internal quotation marks omitted).

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STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
Clark also concluded the record on summary judgment
failed to show a genuine factual dispute about whether the
entry doors were unreasonably dangerous, reasoning:
None of the depositions in the record identify any
defect with the doors or any history of malfunctioning
that might arguably support a reasonable inference the
doors posed an unreasonable risk of harm. The affida-
vit of [the plaintiff’s] counsel stated only that the entry
doors had been replaced several years after her fall; it
did not aver the doors were defective, dangerous, or had
ever malfunctioned. And none of the written discovery
responses in the record indicate that any witness would
testify, or any exhibit would show, that the entry doors
malfunctioned or otherwise presented an unreasonable
risk of harm. 16
Clark ultimately held that, even viewing the evidence in the
light most favorable to the plaintiff and giving her the benefit
of all reasonable inferences, the record on summary judgment
showed a complete absence of proof concerning the second
element of her premises liability claim, and the store was
therefore entitled to summary judgment as a matter of law.
Here, the parties’ appellate briefing focuses primarily on
the third element of Strahan’s claim, addressing whether the
lower court correctly applied the open and obvious doctrine.
That doctrine generally holds that when a dangerous condi-
tion is open and obvious, the owner is not liable in negligence
for harm caused by the condition, unless the owner should
have expected that lawful visitors would not discover or real-
ize the danger or would fail to protect themselves against
it. 17 But application of the open and obvious doctrine neces-
sarily assumes the existence of a dangerous condition. So,
in our de novo review, we consider as a threshold matter
whether the record contains evidence that the shower tub was
16 Id. at 76-77, 989 N.W.2d at 57.
17 See Sundermann, supra note 1.

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STRAHAN v. McCOOK HOTEL GROUP
Cite as 317 Neb. 350
unreasonably dangerous before we address whether the evi-
dence supports application of the open and obvious doctrine.
Strahan’s theory, as alleged and argued below, appears to
be that a shower tub without a textured or slip-resistant floor
presents an unreasonably dangerous condition. But as we will
explain, we see no competent evidence in the record to support
that theory, and Strahan directs us to none.
The mere fact that Strahan slipped in a wet shower tub is
not evidence of negligence and does not, without more, sup-
port a reasonable inference that an unreasonably dangerous
condition existed. 18 At the time Strahan fell, the hotel had
been open for 31 months and had not received any complaints
about the shower tubs. More importantly, Strahan presented
no evidence—expert or otherwise—tending to show that the
shower tub in room 104 was unusually slippery or had a
coefficient of friction that presented a uniquely or unaccept-
ably high risk of harm. He presented no evidence of industry
standards for shower tubs, generally, and no evidence that any
code, regulation, ordinance, or similar provision required the
shower tub to have a textured or slip-resistant surface. In fact,
the record contains no evidence that the shower tub failed to
meet any applicable safety standard or that it was unsafe or
defective in any respect. Nor was there any evidence suggest-
ing that an acrylic shower tub with a textured floor is safer
or less slippery than one with an ordinary floor. So, although
there was a factual dispute about whether the shower tub in
room 104 had a textured surface at the time of Strahan’s fall,
we cannot conclude, on this evidentiary record, that such a
dispute was material.
[12] On this record, a fact finder would have to speculate
to conclude that the shower tub presented an unreasonable
risk of harm. And “conclusions based on guess, speculation,
conjecture, or a choice of possibilities do not create material
18 See Clark, supra note 1.

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issues of fact for the purposes of summary judgment.” 19 Even
giving Strahan all reasonable inferences from the evidence
in the record, we see no direct or circumstantial evidence in
the record to support his theory that a shower tub without a
textured or slip-resistant floor presents an unreasonably dan-
gerous condition. Nor do we find support for such a theory in
case law generally.
In Jones v. Abner, 20 the plaintiff was injured when she fell
while getting into a hotel bathtub. She alleged the tub was
unusually slippery because the slip-resistant strips had been
allowed to deteriorate. The court in Abner concluded that any
factual dispute regarding the failure to maintain the strips was
immaterial, reasoning:
[The plaintiff] seems to assume that a bathtub that is not
equipped with safety strips or hand-holds is an inher-
ently dangerous condition, but she failed to produce evi-
dence of any type of industry standard, statutory law, or
common-law rule that could arguably reflect a duty on
the part of [the defendant] to equip motel bathtubs with
such safety devices. The owner of a motel or hotel has
“the duty to exercise that degree of care generally used
by ordinarily careful, prudent hotel operators in circum-
stances similar to those proven in the case, to provide
reasonably safe accommodations,” but [the owner] is not
an insurer of a guest’s safety. . . . [The plaintiff] simply
did not provide the trial court with anything of substance
to meet this burden. 21
In Hale v. SS Liquors, Inc., 22 the plaintiff slipped and fell
in a hotel bathtub. He did not see any slip resistant materi-
als in the tub and described it as “‘slippery.’” An engineer-
ing company hired to inspect the tub found the floor was
19 Id. at 75, 989 N.W.2d at 56.
20 Abner, supra note 2.
21 Id. at 476-77 (citations omitted).
22 Hale, supra note 2, 956 N.E.2d at 1190.

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smooth with a pattern of gray circles that were “‘intended
as texturing’” 23 and thus concluded the tub complied with
all applicable safety standards. Another expert suggested the
gray circles may have been added after the plaintiff’s fall,
but the appellate court concluded this did not create a mate-
rial factual dispute preventing summary judgment, because
there was no evidence that a tub without the gray circles
would have failed to comply with industry standards. It also
reasoned that “[e]ven if the gr[a]y circles decreased the like-
lihood of a fall, that does not by itself establish that the tub
was unreasonably unsafe without the circles.” 24
In Leavins v. Nayan Corp., 25 the plaintiff slipped and fell
in a hotel bathtub, and there was testimony that the tub was
manufactured with a “‘raised bumpy area’” 26 on the floor. The
court held that under Georgia premises liability law, the hotel
could only be liable if the tub presented an unreasonable risk
of harm, and it found there was no genuine issue of material
fact on that issue, reasoning:
[The plaintiff] offered no expert testimony that the bath-
tub itself was somehow unreasonably hazardous, nor did
she show that the bathtub was in violation of any appli-
cable safety code. Indeed, [the plaintiff] proffered no
evidence that the bathtub presented a hazard other than
her fall and her and her daughter’s testimony that they
believed that the bathtub was “slippery” and/or “slick.”
Because [the plaintiff’s] claim lacked evidence that the
bathtub presented an unreasonable risk of harm, the
23 Id. at 1191.
24 Id. at 1193.
25 Leavins v. Nayan Corp., 344 Ga. App. 417, 810 S.E.2d 324 (2018).
26 Id. at 419, 810 S.E.2d at 327. Cf. Hall v. Noble-Interstate Management
Group, 349 Ga. App. 661, 664, 824 S.E.2d 705, 708 (2019) (reversing
grant of summary judgment because plaintiff adduced evidence that hotel
tub did not comply with certain state safety regulations requiring hotel
tubs to have “‘[a]nti-slip tubs, slip strips, appliques, or slip-proof mats’”
and thus created jury question).

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trial court correctly granted [the defendant’s] summary
judgment. 27
In Kutz v. Koury Corp., 28 the North Carolina Court of
Appeals addressed whether the trial court properly granted a
hotel’s motion for a directed verdict. There, the plaintiff slipped
in a hotel shower and alleged there were “non-slip strips” 29 on
the bottom of the tub but that some were missing. The court
found that even if some strips were missing, the hotel was not
negligent as a matter of law, reasoning:
We cannot say, however, that failure to maintain any
certain number of non-slip strips was negligence on
defendant’s part. It is common knowledge that bathtub
surfaces, especially when water and soap are added, are
slippery and that care should be taken when one bathes
or showers. Here there was evidence that, even with one-
half of the strips missing, plaintiff could have showered
while standing on the remaining strips. We note that
plaintiff had showered in the same bathtub the day before
his slip without incident. The bathtub here was not so
unnecessarily dangerous so as to give rise to a claim of
negligence. 30
In Cooper Hotel Services, Inc. v. MacFarland, 31 the plain-
tiff slipped and fell in a hotel bathtub. The evidence at trial
showed the hotel had requested “textured-bottomed tubs” but
that “smooth-bottomed” tubs were installed based on the tub
manufacturer’s representation that such tubs met all safety
requirements, were easier to clean, and “were the bathtubs
of choice of several major hotel chains with the same safety
27 Leavins, supra note 25, 344 Ga. App. at 421, 810 S.E.2d at 328 (emphasis
omitted).
28 Kutz, supra note 2.
29 Id. at 301, 377 S.E.2d at 812.
30 Id. at 304, 377 S.E.2d at 813-14.
31 Cooper Hotel Services, Inc. v. MacFarland, 662 So. 2d 710 (Fla. App.
1995).

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concerns.” 32 The evidence also showed that more than 300,000
showers had been taken in identical tubs in the same hotel
without incident. The trial court overruled the hotel’s motion
for directed verdict at the close of the plaintiff’s evidence, and
the jury returned a verdict for the plaintiff. The hotel appealed,
arguing its motion for directed verdict should have been sus-
tained. The appellate court agreed, reasoning:
[T]he record is devoid of evidence—expert or other-
wise—to establish that [the hotel] breached its duty of
care . . . . [The plaintiff] made no showing that . . . the
smooth-bottomed tubs installed failed to meet the non-
slip specifications required; that smooth-bottomed tubs
do not or cannot offer the same non-slip performance as
textured tubs regardless of the materials they are made
of; that [the hotel] failed to properly maintain the tub in
which [the plaintiff] fell [or] that the tub was, otherwise,
unreasonably dangerous . . . .
To the contrary, [the plaintiff] showed only that she
safely stepped into the tub while the water was run-
ning, washed the front of her body, and fell upon turning
around. Viewed in the light most favorable to her, such
evidence shows only that at some point during the course
of her shower, the tub became slippery. The evidence,
however, does not establish why.
Based on the foregoing, [the plaintiff] failed to estab-
lish a prima facie case of negligence. 33
These cases illustrate the critical importance, in a prem-
ises liability case such as this, of adducing evidence showing
that a shower or tub presented “a uniquely or unacceptably
high risk of harm—something more than the usual risks com-
monly encountered.” 34 Here, Strahan alleged that a shower
tub without a textured or slip-resistant floor is unreasonably
32 Id. at 712.
33 Id. at 713.
34 Sundermann, supra note 1, 306 Neb. at 768, 947 N.W.2d at 506.

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dangerous, but in response to the hotel’s motion for summary
judgment, he adduced only speculation and conjecture to sup-
port that allegation. Consequently, even when we view the
evidence in the light most favorable to Strahan and give him
all reasonable inferences from that evidence, we cannot find
that he adduced any evidence to satisfy the second element of
his premises liability claim.
[13] The failure of proof on this essential element of
Strahan’s premises liability claim necessarily rendered all other
facts immaterial and entitled the hotel to summary judgment as
a matter of law. 35
[14] Where the record demonstrates that the decision of
the trial court is ultimately correct, an appellate court may
affirm. 36 Although our reasoning differs from that applied by
the district court, we agree on this evidentiary record that the
hotel was entitled to summary judgment as a matter of law.
Absent direct or circumstantial evidence showing that the
shower tub presented an unreasonably dangerous condition,
Strahan cannot prove an essential element of his premises
liability claim.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment.
Affirmed.
35 See Clark, supra note 1.
36 See Sundermann, supra note 1.