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Sall v. Kei Building9/13/2005
elied on Swanson's affidavit for the proposition that the ramp met the sidewalk ordinance requirements. The affidavit was properly before the court, and it was not error for the court to rely on it. We note as well that Swanson averred without objection the premises in question passed city inspection in 1995 and that a certified copy of that inspection was also received into evidence. This evidence also establishes a presumption that the area was free of defects.
In order to subject a possessor of land to liability, Nebraska law requires that the possessor "should have realized" that a condition on the land involved an unreasonable risk of harm to the lawful visitor. See Herrera v. Fleming Cos., 265 Neb. 118, 122, 655 N.W.2d 378, 382 (2003). In this case, the appellees presented expert evidence that the premises were in compliance with all regulations. This was sufficient to establish a presumption that the area did not contain a defect and that the appellees would not therefore have realized that a condition involving unreasonable risk of harm existed.
Once the appellees produced evidence that the area in question did not contain a defective condition, thus establishing a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifted to Sall. See Russell v. Bridgens, 264 Neb. 217, 647 N.W.2d 56 (2002). The only evidence offered was the opinion evidence of Sall and Compton, both laypersons. Although both Sall and Compton alleged that the ramp constituted a defective condition, Sall offered no expert opinion to that effect and failed to present evidence indicating that the conditions on the premises had been altered in any way since passing city inspection in 1995. See Vietz v. Texaco, Inc., 189 Neb. 514, 203 N.W.2d 513 (1973) (testimony related to alleged defective condition of property properly excluded as conclusion by non-expert witness in negligence action). Accordingly, the district court did not err in granting the appellees' motion for summary judgment.
CONCLUSION
The motion for summary judgment was properly sustained. The judgment of the district court is affirmed.
Affirmed.
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