Toulan-Zekpa v. Wal-Mart Stores, Inc.

Filing 29

MEMORANDUM AND ORDER - Walmart's Motion for Summary Judgment, ECF No. 20 , is granted. The above-captioned action is dismissed, with prejudice. The pending Motion to Strike Plaintiff's Expert Witness Report, ECF 28 , is denied as moot. The parties will bear their own costs and attorney fees. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DEDE TOULAN-ZEKPA,
Plaintiff,

8:17CV233

vs.
MEMORANDUM AND ORDER
WAL-MART STORES, INC., (#3153);
Defendant.

This matter is before the Court on the Motion for Summary Judgment, ECF No. 20,
filed by Defendant Walmart Inc. (formerly Wal-Mart Stores, Inc.) (“Walmart”). For the
reasons stated below, the Motion with be granted.
BACKGROUND
Unless otherwise indicated, the following facts are those stated in the parties’
briefs, supported by pinpoint citations to admissible evidence in the record, in compliance
with NECivR 56.11 and Federal Rule of Civil Procedure 56.
Walmart is a Delaware corporation with its principal place of business in
Bentonville, Arkansas. Plaintiff, Dede Toulan-Zekpa is a citizen of Nebraska. The amount
in controversy exceeds $75,000, exclusive of interest and costs. Thus, this case is

1

See NECivR 56.1(b)(1):

The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. Each material fact in the
response must be set forth in a separate numbered paragraph, must include pinpoint
references to affidavits, pleadings, discovery responses, deposition testimony (by page
and line), or other material upon which the opposing party relies, and, if applicable, must
state the number of the paragraph in the movant’s statement of material facts that is
disputed. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

properly before the Court based on diversity-of-citizenship jurisdiction under 28 U.S.C. §
1332.
On July 17, 2013, Toulan-Zekpa and her husband entered the Walmart store
located at 6710 S. 167th Street in Omaha, Nebraska. Shortly after arriving, Toulan-Zekpa
walked into the dairy aisle where she suddenly slipped in what the parties believe was
yogurt, and she fell. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 100, 104; Compl., ECF
No. 22-1, Page ID 79. Toulan-Zekpa did not see the yogurt in the aisle prior to her fall.
Toulan-Zekpa Dep., ECF No. 22-4, Page ID 105. She was wearing glasses, and a factual
dispute exists as to whether her glasses may have prevented her from seeing the yogurt
on the floor.2 Toulan-Zekpa Dep., ECF No. 22-4, Page ID 104.
After Toulan-Zekpa’s fall, her husband and an unknown person helped her up.
Walmart associates then assisted her in cleaning her dress and they wiped the floor.
Toulan-Zekpa Dep., ECF No. 22-4, Page ID 93-94, 107-109. At her deposition, ToulanZekpa testified the Walmart associates were “shocked” when they arrived after her fall.
Toulan-Zekpa Dep., ECF No. 22-4, Page ID 110. Toulan-Zekpa signed a customer
statement regarding the incident. Customer Statement, ECF No. 22-2, Page ID 83.
Walmart’s Assistant Manager, Patty Hauck, was one of the Walmart associates
who responded to the report that Toulan-Zekpa had fallen. Hauck Decl. ¶ 3, ECF No. 22-

2

Toulan-Zekpa alleges she can see with or without her glasses and that she wears them because
her asthma affects her eyes. Walmart infers from Toulan-Zekpa’s deposition testimony that her glasses
impeded her ability to see the floor. Whether Toulan-Zekpa’s glasses affected her ability to see the yogurt
on the floor is unclear from her deposition testimony. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 104-105;
Pl.’s Br. Opp’n Mot. Summ. J., ECF No. 25, Page ID 124. However, any factual dispute regarding the effect
of Toulan-Zekpa’s glasses is not material to this Court’s decision.

2

5, Page ID 114. Upon arrival in the dairy aisle, Hauck noticed visible light pink yogurt on
the grey concrete floor. Hauck Decl. ¶¶ 4-5, ECF No. 22-5, Page ID 114. Hauck spoke
with Toulan-Zekpa and cleaned up the spill which was located approximately 40 feet
down the aisle. Hauck Decl. ¶¶ 3, 4, 7, ECF No. 22-5, Page ID 114-115. While cleaning
up the yogurt, Hauck noticed the yogurt was still wet and cool to the touch, leading her to
believe the yogurt had not been on the floor for very long. Hauck Decl. ¶ 7, ECF No. 225, Page ID 115. Toulan-Zekpa acknowledges the yogurt was still wet at the time of her
fall but does not recall whether the yogurt was cold to the touch. Toulan-Zekpa Dep., ECF
22-5, Page ID 109. Toulan-Zekpa admits she has no knowledge of how long the yogurt
was on the floor. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 106.
Before cleaning the floor, Hauck photographed the yogurt and noticed only one
smear in the yogurt, which appeared to have been caused by Toulan-Zekpa’s fall. Hauck
Decl. ¶ 6, 8, ECF No. 22-5, Page ID 114-115; Photographs, ECF No. 22-3, Page ID 90.
There were no other marks in the yogurt indicating that any other shopping carts,
associates, or customers had walked through the spill, and no yogurt was tracked along
the aisle. Hauck Decl. ¶ 8, ECF 22-5, Page ID 115; Toulan-Zekpa Dep., ECF No. 22-4,
Page ID 112. Walmart associates later found a partially opened Oikos strawberry yogurt
that had been placed on the deli counter by an unknown individual. Photographs, ECF
No. 22-3, Page ID 87; Hauck Decl. ¶12, ECF No. 22-5, Page ID 116. Toulan-Zekpa admits
to having no personal knowledge of how the yogurt spilled on the floor. 3 Toulan-Zekpa
Dep., ECF No. 22-4, Page ID 106.

3

On several occasions during Toulan-Zekpa’s deposition, she referenced a Walmart surveillance
video. However, no video is contained in the record, Toulan-Zekpa testified in her deposition that she has

3

Per company policy in effect at the time of Toulan-Zekpa’s fall, Walmart associates
continually walked through the store aisles, including the dairy aisle, to ensure that no
customer hazards existed and to address any hazards if they were present. Hauck Decl.
¶9, ECF No. 22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page ID
118-120. In these regular “safety sweeps,” associates carried towels to wipe up any spills
they observed. Hauck Decl. ¶9, ECF No. 22-5, Page ID 115; Walmart Maintenance
Policies, ECF No. 22-6, Page ID 118-120. Walmart maintenance associates also followed
a strategic route through the store, designed to ensure that they passed by all aisles to
observe and address any spills or other hazards. Hauck Decl. ¶10, ECF No. 22-5, Page
ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page ID 119-120.
At her deposition, Toulan-Zekpa testified that before Walmart associates came to
help her and to clean up, she did not see any Walmart employees in the area where she
fell. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 111. Toulan-Zekpa also testified that she
did not know whether any Walmart associates observed the yogurt on the floor before her
fall. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 112.
Walmart contends that Toulan-Zekpa admitted that, to her knowledge, no one else
saw the yogurt prior to her fall. Def.’s Br. Supp. Summ. J. ¶ 15, ECF No. 21, Page ID 70.
Toulan-Zekpa asserts that she only admitted no one saw the yogurt and attempted to
warn her not to step in it. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 105-106. However,
it is undisputed that no other customer reported the spill to Walmart prior to ToulanZekpa’s fall and Hauck is unaware of any Walmart associate who observed the yogurt on

not viewed a video, and no video is referenced in her Brief Opposing Walmart’s Motion for Summary
Judgment, ECF No. 25.

4

the dairy aisle floor prior to Toulan-Zekpa’s fall. Hauck Decl. ¶ 11, ECF No. 22-5, Page
ID 115.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods
Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)).
“Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty.
of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for
summary judgment, the Court will view “the record in the light most favorable to the
nonmoving party . . . drawing all reasonable inferences in that party’s favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920,
923–24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial
on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party
need not produce evidence showing “the absence of a genuine issue of material fact.”
Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex,
477 U.S. at 325). Instead, “the burden on the moving party may be discharged by
‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.”

5

St. Jude Med., Inc. v. Lifecare Int’l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
In response to the moving party’s showing, the nonmoving party’s burden is to
produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM
Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a genuine issue for trial.” Wagner
v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042).
“[T]here must be more than the mere existence of some alleged factual dispute” between
the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826
F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d
1337, 1339 (8th Cir. 1989)).
In other words, in deciding “a motion for summary judgment, facts must be viewed
in the light most favorable to the nonmoving party only if there is a genuine dispute as to
those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise,
where the Court finds that “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party,” there is no “genuine issue of material fact” for trial
and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).
DISCUSSION

6

Under Nebraska law,4 a landowner must exercise reasonable care toward all lawful
visitors. Herrera v. Fleming Cos., 655 N.W.2d 378, 382 (Neb. 2003). In a negligence case
based on premises liability “involving a slip-and-fall accident, it is incumbent upon the
plaintiff to show that the accident was a result of the defendant’s negligence.” Id.
In premises liability cases, an owner or occupier is subject to liability for
injury to a lawful visitor resulting from a condition on the owner or occupier’s
premises if the lawful visitor proves (1) that the owner or occupier either
created the condition, knew of the condition, or by exercise of reasonable
care would have discovered the condition; (2) that the owner or occupier
should have realized the condition involved an unreasonable risk of harm
to the lawful visitor; (3) that the owner or occupier should have expected
that the visitor either would not discover or realize the danger or would fail
to protect himself or herself against the danger; (4) that the owner or
occupier failed to use reasonable care to protect the visitor against the
danger; and (5) that the condition was a proximate cause of damage to the
visitor.
Edwards v. HyVee, Inc., 883 N.W.2d 40, 43 (Neb. 2016) (quoting Hodson v. Taylor, 860
N.W.2d 162, 174 (Neb. 2015)). Walmart argues there is no evidence to establish the first
element.
A.

Evidence Walmart created the condition that caused Toulan-Zekpa’s fall
It is undisputed that Toulan-Zekpa fell after slipping on a substance, believed to be

yogurt, in Walmart’s dairy aisle. She argues that Walmart created the dangerous
condition. In support of this argument, Toulan-Zekpa cites Chelberg v. Guitars &
Cadillacs, 572 N.W.2d 356 (Neb. 1998). In Chelberg, a patron at a nightclub slipped and
fell in a clear liquid located four to five feet from a trough filled with ice and bottles of beer.
Id. at 359. Evidence established that, generally, a bartender would pull out a bottle and
dry it with a towel before handing it to a customer, but sometimes customers pulled out

4

The parties agree Nebraska law applies.

7

bottles themselves. Id. at 358. On the day in question, after the beer trough had closed,
a patron fell in an area where a dolly was located, used by employees to transport beer
from the trough to the beer cooler. Id. at 359. The Nebraska Supreme Court concluded
that a question of fact existed as to whether the nightclub created the dangerous condition
by allowing customers or employees to remove bottles without wiping them. Id. at 361.
Thus, in Chelberg, the Nebraska Supreme Court reversed a grant of summary judgment
on the basis that a fact-finder could determine the employees’ actions created the
dangerous condition. Id.
The facts of this case are more comparable to those in Edwards, where a customer
slipped on what was presumed to be a piece of watermelon approximately six feet from
a sample stand where a Hy-Vee employee passed out watermelon samples. 883 N.W.2d
at 44. On appeal, the Nebraska Supreme Court upheld a grant of summary judgment
stating there was no evidence from which a fact-finder could reasonably infer that Hy-Vee
created the dangerous condition through its employees. Id. at 45. The court distinguished
the case from Chelberg stating “[t]he key to potential liability in that case was the active
involvement of the nightclub’s employees in creating the dangerous condition.” Id. at 44.
Here, Toulan-Zekpa has no knowledge of how the yogurt was spilled. ToulanZekpa Dep., ECF No. 22-4, Page ID 106. No evidence has been presented showing that
a Walmart associate spilled the yogurt or was aware of its presence before ToulanZekpa’s fall. Walmart has presented evidence of its policies requiring regular inspections
of grocery aisles and training of its employees to identify and clean up spills.5 Hauck Decl.

5

Toulan-Zekpa has not contested the existence or reasonableness of Walmart’s inspection or
clean-up policies, but disagrees with any inference that the policies were followed. Pl’s Br. Opp’n Mot.

8

¶¶ 9-10, ECF No. 22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page
ID 117-120. Unlike the employees in Chelberg who either failed to wipe the wet beer
bottles or allowed customers to take bottles without wiping them, there is no evidence to
support Toulan-Zekpa’s position that Walmart or its associates participated in or
contributed to the spill of yogurt in the dairy department. As in Edwards, there is no
evidence from which a fact-finder could reasonably infer that Walmart or its associates
created the dangerous condition.
Citing Wilke v. Woodhouse Ford, Inc., 774 N.W.2d 370 (Neb. 2009), Toulan-Zekpa
also contends Walmart is not relieved of liability merely because the yogurt was likely
dropped by a customer. She argues that the customer’s actions were reasonably
foreseeable and that an owner is liable for the intervening acts of third parties if the
intervening acts are reasonably foreseeable. The court’s decision in Wilke focused on
whether intervening actions of a third party were sufficient to break a causal connection
between the defendant’s negligent conduct and the plaintiff’s injury. Id. at 383. Unlike
Wilke, where the alleged negligence was based on evidence that an automobile
dealership failed to inspect a vehicle before sale, there is no evidence to establish any
negligence on the part of Walmart. Id. To say an owner “created the condition through the
actions of a third party would expand the definition of ‘created’ well beyond its plain and
ordinary meaning” and the Nebraska Supreme Court has refused such expansion.
Edwards, 883 N.W.2d at 44.

Summ. J., ECF No. 25, Page ID 126. Yet Toulan-Zekpa has failed to point the Court to any evidence that
the policies implemented by Walmart were not followed on the day of her fall.

9

After Toulan-Zekpa’s fall, Walmart associates found a partially opened Oikos
strawberry yogurt, placed on the deli counter by an unknown individual, giving rise to a
reasonable inference that a customer caused the yogurt spill. Photographs, ECF No. 223, Page ID 87; Hauck Decl. ¶12, ECF No. 22-5, Page ID 116. The fact that a customer
may have caused the spill and that a customer spill may have been reasonably
foreseeable is not evidence from which a fact-finder can reasonably infer that Walmart
created the condition which caused Toulan-Zekpa’s fall.
B.

Evidence Walmart knew of the condition that caused Toulan-Zekpa’s fall
Walmart asserts Toulan-Zekpa admitted that, to her knowledge, no one else saw

the yogurt prior to her fall. Def.’s Br. Supp. Summ. J. ¶ 15, ECF No. 21, Page ID 70.
Toulan-Zekpa disputes this assertion, stating she only admitted that no one both saw the
yogurt and attempted to warn her not to step in it. Toulan-Zekpa Dep. ECF No. 22-4,
Page ID 105. Regardless, there is no evidence that any customer reported the spill to
Walmart prior to Toulan-Zekpa’s fall, and Hauck is unaware of any Walmart associate
who observed the yogurt on the dairy aisle floor prior to Toulan-Zekpa’s fall. Hauck Decl.
¶ 11, ECF No. 22-5, Page ID 115.
Toulan-Zekpa testified at her deposition that before Walmart associates came to
help her and to clean the spill, she did not see any Walmart employees in the area where
she fell, but she disputes that an inference should be drawn that Walmart associates were
not in the area after the yogurt was spilled and before she fell. Toulan-Zekpa Dep., ECF
No. 22-4, Page ID 111; Pl.’s Br. Opp’n Mot. Summ. J. ECF No. 25, Page ID 125. ToulanZekpa also disputes that any inference should be drawn from her statement in her
deposition that associates were “shocked” she had fallen. Pl.’s Br. Opp’n Mot. Summ. J.,
10

ECF No. 25., Page ID 125. Regardless, Toulan-Zekpa has presented no evidence that
any Walmart associate was in the area after the yogurt was spilled and before her fall,
and no fact-finder could infer that Walmart had notice of the hazardous condition before
Toulan-Zekpa’s fall.
C.

Evidence that by exercise of reasonable care Walmart would have

discovered the condition
“Constructive knowledge is generally defined as knowledge that one using
reasonable care or diligence should have.” Edwards, 883 N.W.2d at 45. (quoting Gaytan
v. Wal-Mart, 853 N.W.2d 181, 195-96 (Neb. 2014)). “In order for a defendant to have
constructive notice of a condition, the condition must be visible and apparent and it must
exist for a sufficient length of time prior to an accident to permit a defendant or the
defendant’s employees to discover and remedy it.” Id. (quoting Range v. Abbott Sports
Complex, 691 N.W.2d 525, 529 (Neb. 2005)). In the absence of evidence to support an
inference of actual or constructive knowledge of the hazardous condition, the Nebraska
Supreme Court has refused to allow juries to speculate as to the defendant’s negligence.
Id. (citing Range, 691 N.W.2d at 529). “Inferences based upon guess or speculation do
not create material issues of fact for purposes of summary judgment.” Id. (quoting Range,
691 N.W.2d at 531).
Here, Hauck was able to photograph the light pink yogurt on the grey concrete
making it arguable the condition was visible and apparent. However, Toulan-Zekpa has
presented no evidence that the condition existed for a sufficient length of time prior to the
incident to permit Walmart associates to discover or remedy it. Although not dispositive,
at the time of Toulan-Zekpa’s fall there were no other marks in the yogurt indicating that
11

any other shopping carts, associates, or customers had walked through the spill, and no
yogurt was tracked along the aisle.6 Hauck Decl. ¶ ¶ 7-8, ECF 22-5, Page ID 115; ToulanZekpa Dep., ECF No. 22-4, Page ID 112.
For additional support of Walmart’s contention that the condition had not existed
for a sufficient length of time prior to the incident to permit Walmart associates to discover
or remedy it, Walmart cites to company policies to show Walmart associates continually
walked through the store aisles, including the dairy aisle, to ensure no customer hazards
existed and to address any hazards if they were present. Hauck Decl. ¶ ¶ 9, 10, ECF No.
22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page 119-120. In
these regular “safety sweeps,” associates carried towels with them to wipe up any spills
they observed. Hauck Decl. ¶ 9, ECF No. 22-5, Page ID 115; Walmart Maintenance
Policies, ECF No. 22-6, Page ID 117-118. Walmart also states that its maintenance
associates followed a strategic route through the store, designed to ensure that they
passed by all aisles to observe and address any spills or other hazards. Hauck Decl. ¶
10, ECF No. 22-5, Page 115. Toulan-Zekpa does not contest the existence or sufficiency
of these Walmart policies but disagrees with any inference that the policies were executed
on the date in question. Pl.’s Br. Opp’n Mot. Summ. J., ECF No. 25, Page ID 126. Yet,
she cites no evidence for her contention that Walmart inspection and clean-up policies
were not followed on the day of her fall. Even without any inference that Walmart followed
its safety policies on the date in question, Toulan-Zekpa has failed to point to any

6

Toulan-Zekpa argues that the absence of evidence that other parties walked through the yogurt
does not conclusively prove the yogurt was only on the floor for a short period of time. Yet she has presented
no evidence that the yogurt spill was present for so long that Walmart would have discovered it with
reasonable care.

12

evidence that the hazardous condition existed for a sufficient length of time prior to the
incident to permit Walmart associates to discover or remedy it.
Toulan-Zekpa admits she has no knowledge of how long the yogurt was on the
floor. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 106. Walmart associate, Hauck, noticed
the yogurt was still wet and cool to the touch leading her to believe it had not been on the
floor very long. Hauck Decl. ¶ 7, ECF No. 22-5, Page ID 115. Toulan-Zekpa
acknowledges the yogurt was still wet at the time of her fall but does not recall whether it
was cold to the touch and objects to the inference drawn by Hauck that it could not have
been on the floor long. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 109; Pl.’s Br. Opp’n
Mot. Summ. J., ECF No. 25, Page ID 125. Even viewing the facts in the light most
favorable to Toulan-Zekpa, rejecting the inference that the temperature of the yogurt
suggested it was newly spilled, Toulan-Zekpa still failed to present any evidence that the
condition persisted for a sufficient length of time prior to the incident to permit Walmart
associates to discover or remedy it as is required for constructive notice.
CONCLUSION
Walmart has satisfied its burden by showing there is an absence of evidence to
support Toulan-Zekpa’s claim that Walmart either created the hazardous condition that
caused her injury, knew of the condition, or by exercise of reasonable care would have
discovered the condition. Based on the evidence in the record, Toulan-Zekpa cannot
establish the first element in a prima facie case of negligence based on premises liability.

13

There remain no genuine issues of material fact, and Walmart is entitled to judgment as
a matter of law.7
Accordingly,
IT IS ORDERED:
1.

Walmart’s Motion for Summary Judgment, ECF No. 20, is granted;

2.

The above-captioned action is dismissed, with prejudice;

3.

The pending Motion to Strike Plaintiff’s Expert Witness Report, ECF 28, is
denied as moot;

4.

The parties will bear their own costs and attorney fees; and

5.

A separate judgment will be entered.

Dated this 21st day of August, 2018.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

7

Toulan-Zekpa’s final argument is that this Court should apply the mode-of-operation approach to
premises liability. The Nebraska Supreme Court recently examined the mode-of-operation approach and
expressly declined to adopt such an approach. Edwards, 883 N.W.2d at 47-48. The mode-of-operation
approach is not the current law in the state of Nebraska for premises liability. Therefore, this Court need
not consider whether Toulan-Zekpa would prevail under the mode-of-operations approach.

14