Packard v. Darveau, Jr. et al

Filing 117

ORDER granting 91 Cory Snethen's Motion to Dismiss; granting 96 Fall City Area Jaycees' Motion for Judgment on the Pleadings; denying as moot 112 Cory Snethen's Motion to Stay Discovery. Ordered by Senior Judge Warren K. Urbom. (EJL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DIANE PACKARD, the Executrix of the
Estate of Edward A. Packard,

)
)
)
Plaintiff,
)
)
v.
)
)
STEVEN J. DARVEAU, JR., an Individual, )
FALLS CITY AREA JAYCEES, a
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Nebraska Non-Profit Corporation, CARICO )
FARMS, Incorporated, a Nebraska
)
Corporation, and CORY SNETHEN, an
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individual,
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Defendants.
)
)

4:11CV3199

MEMORANDUM AND ORDER ON
DEFENDANT SNETHEN’S MOTION TO
DISMISS AND DEFENDANT FALLS CITY
AREA JAYCEES’ MOTION FOR
JUDGMENT ON THE PLEADINGS

On July 17, 2012, the plaintiff, Diane Packard, filed a third amended complaint against the
defendants, Steven J. Darveau, Jr. (Darveau), Falls City Area Jaycees (FCJC), Carico Farms
Incorporated (Carico Farms), and Cory Snethen (Snethen). (See Third Am. Compl., ECF No. 68.)
Now before me are Snethen’s motion to dismiss the plaintiff’s claims against him pursuant to
Federal Rule of Civil Procedure 12(b)(6), (ECF No. 91), and FCJC’s motion for judgment on the
pleadings, (ECF No. 96). For the following reasons, Snethen’s and FCJC’s motions will be granted.

I.

BACKGROUND

The third amended complaint alleges as follows. Diane Packard is a resident of Ohio and
the executrix of the estate of Edward A. Packard. (Third Am. Compl. ¶¶ 1, 6, ECF No. 68.)
Darveau is a resident of Richardson County, Nebraska. (Id. ¶ 7.) FCJC is a Nebraska non-profit
corporation with its principal place of business in Falls City, Nebraska. (Id. ¶ 8.) Carico Farms is
a Nebraska corporation with its principal place of business in Falls City, Nebraska. (Id. ¶ 9.)
Snethen is a resident of Richardson County, Nebraska. (Id. ¶ 10.)

1

On or about August 5, 2011, FCJC held its annual Demolition Derby and Tractor Pull (the
Event) at the Falls City Jaycees Community Field (the Property). (Id. ¶ 12.) The Property is located
in Richardson County, Falls City, Nebraska, and is owned by Carico Farms and leased by Snethen.
(Id.) Snethen publicly misrepresented that he owned the Property and that he was donating the land
to FCJC. (Id. ¶ 13.) Snethen also “gave permission to [FCJC], of which he was a member, to hold
a public event on the Property and permitted public improvements to be made to the Property.” (Id.)
“The entrance gate to the Event was located three miles south of Falls City, on the South 703
Loop, off of U.S. Highway 73.” (Id. ¶ 14.) The third amended complaint refers to the area that
includes the entrance to the Event and the intersection of South 703 Loop and U.S. Highway 73 as
“the Intersection.” (Id.) However, the operative complaint states clearly that the entrance to the
Event was “off of U.S. Highway 73,” and that patrons reached the entrance to the Event by turning
off of U.S. Highway 73 onto South 703 Loop. (See id. ¶¶ 16, 19-22.) In other words, the entrance
to the Property is not alleged to intersect with U.S. Highway 73, and there are in fact two distinct,
relevant intersections. Therefore, I shall use the term “Intersection” to refer to the intersection
between U.S. Highway 73 and South 703 Loop, and I shall use the term “Entrance” to refer to the
intersection between South 703 Loop and the Property.1
The plaintiff alleges that “[o]n the day of the Event, Defendants knew that the traffic on U.S.
Highway 73 would be greatly exacerbated due to traffic being diverted from Interstate 29, which was
closed due to flooding and a bridge closure,” and “by event patrons using U.S. Highway 73 to get
to the Event.” (Id. ¶ 15.) During past events at the Property, “either the county police or local police
assisted in traffic control.” (Id. ¶ 17.) On the date in question, however, FCJC, Carico Farms, and
the police all failed to “direct[] or guid[e] the excessive traffic or warn[] motorists of the danger at
the Intersection” or the Entrance. (Id.)
On the day of the Event, Edward A. Packard was driving northbound on U.S. Highway 73
in Richardson County, Nebraska, on his motorcycle. (Id. ¶ 21.) He was wearing appropriate safety
gear and a helmet, and he “had been an experienced motorcycle rider for over 40 years.” (Id. ¶¶ 18,
21.) On the same day, Darveau was driving southbound on U.S. Highway 73 in his pickup truck.
1

When citing the plaintiff’s allegations concerning the Intersection, I shall emphasize that
those allegations refer not only to the Intersection (as defined by me), but also to the Entrance.
2

(Id. ¶ 19.) As Darveau approached the Intersection, he proceeded to turn left onto eastbound South
703 Loop with the intention of entering the Event. (Id. ¶¶ 20, 22.) When making his turn, Darveau
failed to observe Mr. Packard traveling northbound on U.S. Highway 73, and he caused Mr. Packard
to collide with the passenger side of the pickup truck. (Id. ¶ 22.) Mr. Packard suffered fatal injuries
in the collision. (Id.) It merits emphasis that the collision is alleged to have occurred at the
Intersection (i.e., the intersection between U.S. Highway 73 and South 703 Loop), not at the
Entrance (i.e., the intersection between South 703 Loop and the Property).
In Count I of the Third Amended Complaint, the plaintiff alleges that Darveau failed to
exercise ordinary care in the operation of his pickup truck, and thereby “directly and proximately
caused [the] collision.” (Id. ¶ 24.) More specifically, she alleges that Darveau acted negligently by:
a.

Turning his [v]ehicle into oncoming traffic and failing to yield to traffic
which had the right of way;

b.

Failing to maintain control of his [v]ehicle;

c.

Traveling at a high rate of speed in excess of [a speed suitable for the] road
conditions;

d.

Operating the [v]ehicle in willful or wanton disregard of the safety of persons
or property;

e.

Failing to maintain attention in operating the [v]ehicle, including but not
limited to paying attention to traffic and [to Edward Packard’s motorcycle];
and

f.

Failing to take evasive maneuvers to prevent injuries and harm to others . .
..

(Id.) She also cites a number of Nebraska Statutes and alleges that “Darveau was negligent per se.”
(Id. ¶¶ 26-34.)
In Count II, the plaintiff alleges that FCJC “owed a duty of care to the public to keep the
premises of the Event in a reasonably safe condition for the persons attending the Event and passing
in close proximity to the Event and to create a safe entrance and exit to the Event.” (Id. ¶ 38.) She
adds that FCJC “knew or should have known that public safety was at risk” due to its failure “to
provide control or direction of traffic at the Intersection,” especially given its “experience at prior

3

Events” and “the road closures and diversions of traffic” noted above. (Id. ¶ 40.) In addition, she
alleges, “As a direct and proximate result of [FCJC’s] negligence in failing to keep the premises of
the Event and the surrounding area and entrance in a reasonably safe condition, failing to warn
drivers of the risk of physical harm at the Intersection and failing to direct and control traffic, [Mr.
Packard] was severely injured, [and] said injuries eventually result[ed] in his untimely death.” (Id.
¶ 41.)
Counts III and IV state negligence claims against Carico Farms and Snethen, respectively,
based on essentially the same grounds stated in Count II. (See id. ¶¶ 44-58.)2 In Count V, the
plaintiff alleges that due to their negligence, each of the defendants is liable for Mr. Packard’s
wrongful death in accordance with Revised Statutes of Nebraska sections 30-809, 30-810, and 251401. (Id. ¶¶ 59-69.)

II.

STANDARD OF REVIEW

“Federal Rule of Civil Procedure 8 requires that a complaint present ‘a short and plain
statement of the claim showing that the pleader is entitled to relief.’” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Also, although a court must accept
as true all factual allegations when analyzing a Rule 12(b)(6) motion, it is not bound to accept as true
legal conclusions that have been framed as factual allegations. See id. (“[T]he tenet that a court must

2

The negligence claim against Snethen re-emphasizes Snethen’s alleged
misrepresentations about the land where the Event was held, his giving FCJC permission to hold
the Event on the Property, and his giving permission for “public improvements to be made to the
Property.” (Third Am. Compl. ¶¶ 52-53, ECF No. 68.) In all other respects, the plaintiff’s
allegations against Snethen are parallel to the allegations against FCJC. (Compare Third Am.
Compl. ¶¶ 38-43, ECF No. 68 with id. ¶¶ 54-58
4

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
See also Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989, 992 (8th Cir. 2011).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted). In other words,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘shown’–‘that the pleader is entitled to relief.’”
Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (brackets omitted).
FCJC’s motion for judgment on the pleadings, which is made pursuant to Rule 12(c), will
be analyzed using the same standard that applies to Snethen’s Rule 12(b)(6) motion. See Clemons
v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009).

III.

ANALYSIS

Snethen argues that the claims against him must be dismissed “because [he] did not have a
duty to control traffic on the public roadway located close to the property he was leasing” and
“because [his] alleged acts and/or omissions were not the proximate cause of the accident as a matter
of law.” (Snethen’s Br. at 4, 8, ECF No. 92.) In support of its motion for judgment on the pleadings,
FCJC argues that it, like Snethen, owed “no duty to control, regulate, direct, guide, or warn of the
danger of traffic at or around the intersection of U.S. Highway 73 and South 703 [Loop] near the
Event.” (FCJC’s Br. at 10, ECF No. 97 (internal quotation marks omitted).) I agree that Snethen
and FCJC lacked a duty to control the traffic at the intersection, and therefore the plaintiff’s claims
against them will be dismissed.3

3

In light of this conclusion, I shall not analyze Snethen’s argument that his alleged acts
and omissions “were not the proximate cause of the accident as a matter of law.” (Snethen’s Br.
at 8, ECF No. 92.) I note in passing, however, that determinations of causation are ordinarily
5

Each of the plaintiff’s claims against Snethen and FCJC are based on the theory that those
defendants acted negligently. “In order to recover in a negligence action, a plaintiff must show a
legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.”
Tolbert v. Jamison, 794 N.W.2d 877, 883 (Neb. 2011) (citing A.W. v. Lancaster County School
District 0001, 784 N.W.2d 907 (Neb. 2010)). As noted above, the common argument raised by
Snethen and FCJC concerns the plaintiff’s inability to satisfy the “duty” element. “Duty is a question
whether the defendant is under any legal obligation for the benefit of a particular plaintiff; and in
negligence cases, the duty is always the same – to conform to the legal standard of reasonable
conduct in light of the apparent risk.” Danler v. Rosen Auto Leasing, Inc., 609 N.W.2d 27, 31 (Neb.
2000) (citing Wollen v. State, 593 N.W.2d 729 (Neb. 1999)). See also A.W., 784 N.W.2d at 913.
“The question whether a legal duty exists for actionable negligence is a question of law dependent
on the facts in a particular situation.” Tolbert, 794 N.W.2d at 883 (citing A.W., 784 N.W.2d at 907).
See also, e.g., Doe v. Omaha Public School District, 727 N.W.2d 447, 453-54 (Neb. 2007); Danler,
609 N.W.2d at 31.
The Nebraska Supreme Court has “recognized that a common-law duty exists to use due care
so as not to negligently injure another person.” Danler, 609 N.W.2d at 31-32.4 However, “the duty
of reasonable care generally does not extend to third parties absent . . . other facts establishing a
duty.” Id. at 32 (quoting Merrick v. Thomas, 522 N.W.2d 402, 406 (Neb. 1994)). For example,
where “the avoidance of foreseeable harm requires a defendant to control the conduct of another
person,” (e.g., Darveau), “the common law has traditionally imposed liability only if the defendant
bears some special relationship to the dangerous person or to the potential victim.” Id. (quoting
Popple v. Rose, 573 N.W.2d 765, 770 (Neb. 1998) abrogated on other grounds, A.W., 784 N.W.2d
at 907). See also, e.g., A.W., 784 N.W.2d at 917, 919 (holding, in a case involving a negligence

reserved for the trier of fact. See, e.g., Zeller v. Howard County, 419 N.W.2d 654, 672-73 (Neb.
1988).
4

The complaint does not allege, and the plaintiff does not argue, that Snethen or FCJC
breached a statutorily-imposed duty. Indeed, as discussed below, Snethen and FCJC argue
persuasively that Nebraska statutes prohibit them from controlling traffic on public roadways,
and that the duty to control such traffic rests with the government. (See Snethen’s Br. at 7-8,
ECF No. 92; Snethen’s Reply Br. at 4, ECF No. 94; FCJC’s Br. at 8, ECF No. 97.)
6

action against a school district for a third party’s assault on a student, that instructors have a wellestablished duty to supervise and protect students against risks that arise “within the scope of [the]
relationship” between the student and the school district). Thus, to avoid dismissal, the plaintiff
must allege a special relationship between Snethen and FCJC (on the one hand) and either Darveau
or Edward Packard (on the other), or other facts establishing a duty on the part of Snethen and FCJC.
See Danler, 609 N.W.2d at 32 (“In order for us to determine that Danler was owed a duty by Rosen
in this case, there must be allegations of some special relationship or other facts to establish a duty
on the part of Rosen.”)
The operative complaint does not allege that there is any relationship whatsoever between
the two defendants and Mr. Packard, and the only alleged relationship between the two defendants
and Darveau is that at the time of the collision, Darveau was on his way to an event being held by
FCJC on property leased by Snethen. The plaintiff refers me to no authority suggesting that such
a tenuous connection amounts to a “special relationship” that could support a finding that Snethen
or FCJC owed a duty to Mr. Packard.5 Thus, the plaintiff’s claims against Snethen and FCJC must
be dismissed unless the third amended complaint alleges “other facts” that establish a duty on the
part of those two defendants.
The plaintiff alleges that “[FCJC and Snethen] owed a duty of care to the public to keep the
premises of the Event in a reasonably safe condition for the persons attending the Event and passing
in close proximity to the Event and to create a safe entrance and exit to the Event.” (Third Am.
Compl. ¶¶ 38, 54, ECF No. 68.) She also alleges that FCJC and Snethen breached their duty by
failing to “properly control, regulate, direct, guide or warn of the danger of the traffic at or around
the Intersection [and the Entrance] of the Event.” (Id. ¶¶ 39, 55.) The operative complaint contains
no allegations that could support a conclusion that the collision was caused by an unsafe condition
on the Property. Thus, it is irrelevant whether Snethen and FCJC “owed a duty of care to the public
to keep the premises of the Event in a reasonably safe condition” for persons in or around the

5

On the contrary, the plaintiff argues that the caselaw that discusses “special
relationship” as a basis for establishing a common-law duty to prevent harm caused by a third
person “does not apply” in this case. (Pl.’s Response to Snethen’s Br. at 4-5, ECF No. 93; see
also Pl.’s Response to FCJC’s Br. at 7-8, ECF No. 107.)
7

property. Also, the collision did not happen at the Entrance to the Event, or on the Property, but
rather at the intersection of U.S. Highway 73 and the South 703 Loop. (See id. ¶¶ 14, 19-22.)
Therefore, it is irrelevant whether Snethen and FCJC owed a duty to “create a safe entrance and exit
to the Event” or to “control, regulate, direct, guide, or warn of the danger of the traffic” at the
Entrance. The plaintiff’s claims against Snethen and FCJC depend, then, on whether Snethen and
FCJC had a duty to control, regulate, direct, guide, or warn of the danger of the traffic at the
Intersection where the collision occurred.
Snethen and FCJC argue persuasively that they owed no such duty. First, Snethen and FCJC
cite Nebraska statutes that authorize various government authorities to control highway traffic. (See
Snethen’s Br. at 7-8, ECF No. 92 (citing, inter alia, Neb. Rev. Stat. §§ 60-680 (“Any local authority
with respect to highways under its jurisdiction and within the reasonable exercise of the police power
may . . . [r]egulate traffic by means of peace officers or traffic control devices . . . .”); 39-1337 (“The
construction, maintenance, protection, and control of the state highway system shall be under the
authority and responsibility of the [Department of Roads] . . . .”); 39-1402 (“General supervision and
control of the public roads of each county is vested in the county board. . . .”)); FCJC’s Br. at 8, ECF
No. 97.) See also Neb. Rev. Stat. §§ 60-6,121 (“Local authorities in their respective jurisdictions
shall place and maintain such traffic control devices upon highways under their jurisdictions as they
deem necessary to indicate and to carry out the provisions of the Nebraska Rules of the Road or to
regulate, warn, or guide traffic.”); 60-6,127(1) (“No person shall place, maintain, or display upon
or in view of any highway any unauthorized sign, signal, light, marking, or device which purports
to be, is an imitation of, or resembles a lawful traffic control device[,] . . . which uses the words stop
or danger prominently displayed, which implies the need or requirement of stopping or the existence
of danger, which attempts to direct the movement of traffic, [or] which otherwise copies or
resembles any lawful traffic control device . . . .”); 60-6,127(4) (“Every such prohibited sign, signal,
or marking is hereby declared to be a public nuisance . . . .”). As I will discuss in more detail below,
these statutes indicate that the government bears the responsibility for controlling traffic at the
Intersection, not Snethen and FCJC.

8

Next, Snethen cites cases from “across the country” that have rejected the notion that private
entities have a duty to control, regulate, direct, guide, or warn of dangers presented by traffic on
public roadways.6 (See Snethen’s Br. at 5-7, ECF No. 92 (citing Ferreira v. Strack, 636 A.2d 682
(R.I. 1994) (holding that a church had no duty to control traffic on public roadway abutting the
church, even though the church had made a prior request for public traffic control to protect its
parishioners); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760 (Tex. App. 1994) (holding that
because accident occurred on public roadway outside the control of the raceway, the raceway owed
no legal duty to motorist who collided with a vehicle that was attempting to turn onto the raceway’s
premises); Haymon v. Pettit, 880 N.E.2d 416 (N.Y. 2007) (holding that baseball stadium owner
owed no duty to a non-patron who was struck by a vehicle while chasing a foul ball into a street
adjacent to the stadium, even though the stadium had a policy of providing free tickets to persons
who retrieved foul balls outside the stadium, because the stadium could not control the public street
and the dangers inherent in the street existed independent of the policy); Walton v. UCC X, Inc., 640
S.E.2d 325 (Ga. Ct. App. 2006) (holding that landlord did not owe a duty to tenant who was struck
by a vehicle while crossing a roadway that separated his apartment from a parking lot because the
landlord did not control the roadway or the manner in which the tenant crossed it, and the landlord
did not prevent the tenant from making other arrangements to reach his apartment); Wall v. Skyline
Drive Motel, Inc., No. 2-05-079, 2006 WL 1562839 (Tex. App. June 8, 2006) (holding that motel
adjacent to highway did not owe duty to warn passing motorists of danger caused by motel guests
entering the highway); Portelli v. Garcia, 756 N.Y.S.2d 415 (N.Y. Sup. Ct. 2003) (rejecting argument
raised by plaintiff, who was struck by a vehicle on an adjacent street while waiting to enter
defendant’s station, that the station owed a duty to provide safe access to its premises to customers
as an extension of its duty to provide safe premises); Zapata v. Cormier, 858 So.2d 601 (La. Ct. App.
2003) (holding that bar owner did not owe a duty to customer who was struck and killed while
crossing highway outside the bar because the accident occurred on the highway, not on the bar’s
premises, and the owner had no control over the highway); Owens v. Kings Supermarket, 243 Cal.
Rptr. 627 (Cal. Ct. App. 1988) (holding that supermarket did not owe a duty to a customer injured

6

No party has referred me to a Nebraska case that squarely addresses this issue.
9

by the negligence of a third party on an adjacent public street because the supermarket had no control
over the public street); Laumann v. Plakakis, 351 S.E.2d 765 (N.C. Ct. App. 1987) (holding that
business owner did not have a duty to provide a crossing guard, warning signals, or other traffic
controls on an adjacent city street, nor did its duty to keep its premises safe extend to the public
street); Mahle v. Wilson, 323 S.E.2d 65 (S.C. Ct. App. 1984) (holding that skating rink adjacent to
highway had no duty to request that highway department post speed limit signs or furnish a
pedestrian crosswalk on the highway).
Finally, both Snethen and FCJC discuss Ferreira v. Strack, 636 A.2d 682 (R.I. 1994), at
length, and FCJC argues that the analytical factors discussed in Ferreira weigh in favor of a finding
that no duty was owed to Mr. Packard. (See Snethen’s Br. at 5, ECF No. 92; FCJC’s Br. at 5-9, ECF
No. 97.) In Ferreira, a group of parishioners seeking to attend a midnight church service parked their
car in a lot that was separated from the church by a public highway. As they crossed the street to
return to their car after the service, two members of the group were struck by a driver who was later
determined to be intoxicated. On prior occasions, the church had requested that a police officer be
dispatched to control traffic on the highway, but they had not made such a request on the night in
question. The parishioners brought a negligence action against the church, arguing that the church
owed them a duty to control traffic on the public highway “because the church knew that a
substantial number of parishioners would cross [the highway] to reach the parking lot late at night
after Mass ended,” and, alternately, that “the church voluntarily assumed a duty to patrol traffic by
its past conduct of occasionally contacting the police and requesting the assignment of traffic
officers.” 636 A.2d at 684. In rejecting the parishioners’ theory that the church owed a duty, the
Rhode Island Supreme Court noted that the “great weight of authority holds” that landowners have
no duty “to one who is struck by a vehicle while crossing an adjacent public way.” Id. at 686. The
court then adopted this majority rule based on the following considerations: “First and most
importantly, the duty to control traffic has traditionally rested squarely with the government,” which
“weighs heavily against the imposition of a duty on an abutting landowner to control traffic.” Id. at
686-87. “Second, the church had no control over the property on which the injury occurred.” Id. at
687. The court added, “The fact that a landowner may request public traffic control on a public
street does not vest in that landowner the personal right or obligation to control such a public way.”
10

Id. “Third, the church had no control over the instrumentality causing the injury.” Id. “Fourth, [the
court] express[ed] concern that if [it] were to impose a duty upon a landowner to patrol traffic on
public ways, the line which would cut off the landowner’s liability then becomes nearly impossible
to draw.” Id. (quoting Wofford v. Kennedy’s 2nd Street Co., 649 S.W.2d 912, 914 (Mo. Ct. App.
1983)) (internal quotation marks and brackets omitted). “Fifth, [and finally,] the expense of traffic
control should be borne by the public at large and not by individual landowners abutting public
ways.” Id. The court also noted, “Having no duty itself to control traffic, neither would the church
have a duty to contact the police and request the stationing of a traffic officer on [the highway].” Id.
at 687-88. In addition, the court rejected the parishioners’ argument that either “the lack of adequate
parking [or] the foreseeability that many parishioners would park in the nearby lot requiring them
to cross [the highway] warrant[] the imposition of a duty to control traffic on a public highway,” and
it concluded that “[t]he same principles that militate against the duty to control traffic on public
highways would also preclude the gratuitous assumption of such a duty.” Id. at 688.
I find that Snethen and FCJC owed no duty to control, regulate, direct, guide, or warn of the
danger of the traffic at the Intersection where the collision occurred. The Nebraska Supreme Court
has indicated that “whether a duty exists is a policy decision” based on “legislative facts, not
adjudicative facts arising out of the particular circumstances of the case.” A.W. v. Lancaster County
School Dist. 0001, 784 N.W.2d 907, 915, 916 (Neb. 2010) (emphasis omitted). See also id. at 914
(“Duty rules are meant to serve as broadly applicable guidelines for public behavior, i.e., rules of law
applicable to a category of cases.” (footnote omitted)). Thus, it seems to me that the Nebraska
Supreme Court would endorse the approach taken by the court in Ferreira, which involves the
weighing of broad policy considerations and rules of law that apply across cases to determine
whether a common-law duty exists. Furthermore, I agree with FCJC that the guidelines discussed
in Ferriera are instructive in this case, and that each weighs in favor of the conclusion that FCJC and
Snethen owed no duty to Mr. Packard. First, as the statutes cited by Snethen and FCJC demonstrate,
the duty to control traffic on the Nebraska public roadways rests with the government. Second,
neither Snethen nor FCJC had any control over the property where the collision occurred. Third,
neither Snethen nor FCJC had any control over the instrumentality that caused Mr. Packard’s fatal
injuries (i.e., Darveau’s pickup truck). Fourth, if a duty were imposed upon Snethen and FCJC to
11

control, regulate, direct, guide, or warn of the danger of traffic at the Intersection, it would become
difficult, if not impossible, to draw a line that would cut off the defendant’s liability. This concern
is perhaps even more salient here than in Ferreira, because in the instant case the accident did not
occur at the Entrance to the Event, but rather at an intersection some unspecified distance away.
Finally, the expense of traffic control on the public roadways should be borne by the public, not by
individuals who own or control nearby land. In light of these principles, and in light of the fact that
the vast majority of courts have reached the same conclusion in analogous cases, I find that neither
Snethen nor FCJC owed a duty to Mr. Packard. Given this finding, the plaintiff’s negligence claims
against Snethen and FCJC must be dismissed.
The plaintiff argues that Snethen’s and FCJC’s motions should be denied because all of the
cases cited by the defendants involve situations where “the dangerous condition which proximately
caused the plaintiff[’s] injury was out of the control of the landowner or occupier,” whereas here the
“uncontrolled and unmonitored traffic in and around the entrance to [the] Event . . . was in Snethen’s
[and FCJC’s] control.” (Pl.’s Response to Snethen’s Br. at 5, ECF No. 93; see also Pl.’s Response
to FCJC’s Br. at 11, ECF No. 107 (adding that Snethen and FCJC controlled “the date and time of
the Event, traffic flow into the entrance of the Event, serving of alcohol at the Event, [and] parking
for, hours of and admission to the Event”).) The plaintiff’s argument assumes that Snethen and
FCJC had an obligation to control traffic on the public roadway where the accident occurred, and
as I have explained, neither Snethen nor FCJC had such a duty. Also, the plaintiff’s suggestion that
the collision was caused by factors that were within Snethen’s and FCJC’s control (such as the
timing of the Event, the serving of alcohol, etc.) is not supported by the allegations in the operative
complaint. Put simply, the third amended complaint does not allege facts showing plausibly that a
dangerous condition on the Property (or otherwise within Snethen’s and FCJC’s control) caused Mr.
Packard’s injuries.
The plaintiff also argues that the instant case should be governed by the analysis set forth in
Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct. App. 1989). (See Pl.’s Response to
Snethen’s Br. at 6-9, ECF No. 93; see also Pl.’s Response to FCJC’s Br. at 11-13, ECF No. 107.)
In Gessinger, a motorcyclist was seriously injured in an accident on a public highway adjacent to the
defendant’s plant. The accident occurred when Danny Slabaugh, the defendant’s employee, was
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leaving the plant. Slabaugh attempted to enter the southbound lane of the highway by making a left
hand turn from a driveway leading out of the plant, but he stopped approximately eight feet into the
northbound lane of the highway to avoid hitting two vehicles that were entering the same highway
from a second driveway. A driver heading north on the highway attempted to avoid hitting
Slabaugh’s truck, but she skidded into the truck and ultimately spun into the southbound lane, where
she collided with Gessinger’s motorcycle. The record showed that the highway was a two lane
asphalt road with a 55 mile-per-hour speed limit; there were four driveways leading from the plant
onto the highway within a space of 800 feet; that the accident occurred at the time when the plant’s
employees’ shift was ending; and that the employees use all four driveways to travel in either
direction on the highway. The Indiana Court of Appeals concluded that the plant had a duty to the
public traveling on the adjacent highway “to prevent injury to travelers upon the highway from any
unreasonable risks created by the property’s dangerous condition which the landowner knew or
should have known about.” 541 N.E.2d at 562 (emphasis added). In reaching this conclusion, the
court distinguished prior cases holding that the law imposes no duty upon a business to guard against
injuries that are caused by persons over whom it has no control and that occur off of the business’s
premises. See id. at 561-62. The court explained that in contrast to these prior cases, here the plant
had “a relationship to the agency causing the problem” because Slabaugh was one of its employees;
Slabaugh caused the accident when trying to avoid hitting other employees; and the plant was
responsible for creating the dangerous condition by “provid[ing] its employees four driveways within
eight hundred feet,” “allow[ing] hundreds of people to exit at 3:00 p.m. each day onto a state road
with a speed limit of fifty-five miles per hour,” and allowing employees to exit “from the driveways
in both directions with no established traffic patterns.” Id. at 562.
Unlike Gessigner, in the instant case there are no allegations that a dangerous condition on
the Property created an unreasonable risk to the traveling public. The third amended complaint
merely alleges that event patrons would “exacerbate” the traffic on U.S. Highway 73, that traffic was
already “exacerbated due to traffic being diverted from Interstate 29,” and that patrons coming from
a certain direction would be required to make a left turn across oncoming traffic on U.S. Highway
73. (See Third Amended Compl. ¶¶ 15-16, ECF No. 68.) Relatedly, the court’s holding in
Gessinger depends upon a finding that the plant had a “relationship to the agency that caused the
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accident because the plant could control the timing and volume of traffic leaving the plant, the
number of driveways leading away from the plant, and the traffic patterns of the cars using those
driveways. Here, in contrast, Snethen and FCJC could not control traffic on U.S. Highway 73. They
had no control over the volume of traffic using the highway, they could not control the direction of
the traffic, and they could not control whether a driver might attempt to turn left across traffic on
U.S. Highway 73 in order to drive on South 703 Loop. Nor could they control the fact that traffic
had been diverted onto U.S. Highway 73 from other highways. More particularly, they had no
control over the movements of either Darveau or Mr. Packard at the time of the collision. While the
plant in Gessinger had a responsibility to investigate and correct the conditions on its property that
caused the accident, in the case before me there are no allegations that conditions on the Property
caused the accident, and Smethen and FCJC had no responsibility to investigate and alter the
conditions on the public roadway away from the Entrance to the Event.
In short, Gessinger does not hold that a private entity has a duty to control, regulate, direct,
guide, or warn of the danger of the traffic on a public highway; rather, it holds that a private entity
has a duty to correct known dangerous conditions on its own property that threaten traffic on a public
roadway. The case simply does not avail the plaintiff.7
The plaintiff argues next that Snethen and FCJC incurred a duty to Mr. Packard because the
risk posed by Event-related traffic on U.S. Highway 73 was foreseeable, adding that “a common law
duty arises from FCJC’s prior pattern and practice of having traffic controllers for its events.” (Pl.’s
Response to FCJC’s Br. at 9, ECF No. 107; see also id. at 13-14; Pl.’s Response to Snethen’s Br. at
2, 8, ECF No. 93.) The plaintiff maintains that Ferreira v. Strack supports her argument because
“[t]he Ferreira court stated that because of the past conduct of the church in obtaining a law officer
to assist with traffic, . . . the church had a duty to warn pedestrians when it chose not to have a traffic
officer present.” (Pl.’s Response to FCJC’s Br. at 9, ECF No. 107 (emphasis in original).) As I
noted above, however, Ferreira holds that the church had no such duty. See 636 A.2d at 688
7

The plaintiff also attempts to draw an analogy between the instant case and Esfahani v.
Five Star Productions, Inc., No. A-97-1246, 1999 WL 273996 (Neb. Ct. App. May 4, 1999),
wherein a performer sued a promoter of a public performance for negligence after she fell into an
uncovered orchestra pit. (See Pl.’s Response to Snethen’s Br. at 9-10, ECF No. 93; Pl.’s
Response to FCJC’s Br. at 6-7, ECF No. 107.) The case is inapposite and merits no discussion.
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(“Alternatively, plaintiffs argue that even if the church did not have a duty to patrol traffic, the
church assumed such a duty by requesting traffic control by the police on prior occasions. Once the
church assumed that duty, plaintiffs argue, parishioners relied upon the church to contact officials
in the future, and therefore, the church had a duty to warn parishioners when the church failed to
perform its duty on other occasions. We disagree. The same principles that militate against the duty
to control traffic on public highways would also preclude the gratuitous assumption of such a duty.”).
Furthermore, the Nebraska Supreme Court has held that “foreseeability is not a factor to be
considered by courts when making determinations of duty.” A.W. v. Lancaster County School Dist.
0001, 784 N.W.2d 907, 918 (Neb. 2010). Allegations that police traffic controllers had been
obtained during prior events and that Snethen and FCJC knew or should have known of the risks at
the Intersection do not establish that Snethen and FCJC had a duty to control traffic at the
Intersection.
The plaintiff’s remaining arguments in opposition to Snethen’s and FCJC’s motions merit
little comment. The plaintiff appears to argue that Snethen’s alleged misrepresentations about his
ownership of the Property and his “oversight of the Property and Event” somehow give rise to a duty,
(see Pl.’s Response to Snethen’s Br. at 4, ECF No. 93; Pl.’s Response to FCJC’s Br. at 4-5, ECF No.
107), but I fail to see how these allegations are material. The plaintiff also argues that FCJC’s
motion for judgment on the pleadings is improper because FCJC failed to file “a motion to dismiss
when the timing was procedurally appropriate,” (see Pl.’s Response to FCJC’s Br. at 3, ECF No.
107), but I am not persuaded that the motion is untimely, see Fed. R. Civ. P. 12(c) (“After the
pleadings are closed – but early enough not to delay trial – a party may move for judgment on the
pleadings.”).
The third amended complaint does not allege facts showing plausibly that Snethen or FCJC
owed a duty to Mr. Packard to control traffic or provide warnings at the public intersection where
the collision occurred. Nor does it allege facts showing plausibly that the accident was caused by
a dangerous condition that emanated from Snethen’s and FCJC’s property or was otherwise under
their control. The plaintiff’s claims against Snethen and FCJC will therefore be dismissed.

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In light of the foregoing, Snethen’s motion to stay discovery, (ECF No. 112), will be denied
as moot. The remaining parties may seek to schedule a status conference to evaluate the progression
deadlines if they deem it necessary to do so.
IT IS ORDERED that:
1.

Cory Snethen’s motion to dismiss, (ECF No. 91), is granted;

2.

Falls City Area Jaycees’ motion for judgment on the pleadings, (ECF No. 96), is
granted;

3.

Cory Snethen’s motion to stay discovery, (ECF No. 112), is denied as moot.

Dated December 5, 2012.
BY THE COURT

____________________________________________
Warren K. Urbom
United States Senior District Judge

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