LINCOLN — The Nebraska Supreme Court found Friday that a convenience store was not liable for an accident in which a customer was struck by a pickup while filling up her car tires with air.
Rita Sundermann had sued Hy-Vee, claiming that the store’s free air pump was in a dangerous, high-traffic location without warning signs. The lawsuit also alleged that the original design of the convenience store was not followed, increasing the danger.
In March 2012, Sundermann parked her car on the north side of a Hy-Vee convenience store at 156th Street and West Maple Road in Omaha, where the air compressor was located. Her parking spot was in one lane of a busy, two-way driveway used by customers entering and leaving the store.
She testified that she knew the spot was in a “dangerous position,” but that she was looking and listening for traffic as she crouched down to fill up her tires on the north side of her vehicle. She was struck by a pickup that was backing up from parking stalls used by employees across the drive.
The driver of the pickup testified that he had noticed Sundermann’s car after backing up about a foot, but when he went to hit the brakes, he depressed the accelerator instead, driving over Sundermann, who suffered serious injuries.
The driver, Robert Swanson, reached an out-of-court settlement with Sundermann. Friday’s ruling concerned whether Hy-Vee was also liable for Sundermann’s injuries.
An architect who designed several convenience stores testified for Sundermann and said there were no local or national safety codes pertaining to the location of air compressors. But he said that tire filling stations should be located in dedicated areas, out of driveways and away from other parking spots.
Hy-Vee’s expert disagreed, saying that other local convenience stores used the same layout, and that interactions between vehicles and pedestrians were to be expected at such facilities, and customers needed to be cautious.
Douglas County District Judge Horacio Wheelock dismissed the lawsuit, ruling that Hy-Vee had exercised reasonable care in the design of the convenience store and that the accidental acceleration of the pickup caused the accident.
But the Nebraska Court of Appeals reversed the judge’s ruling and ordered the case back for a trial, ruling that jurors should be allowed to consider whether the convenience store was liable.
That led to a 26-page ruling Friday by the state’s highest court, written by Supreme Court Judge Stephanie Stacy.
It concluded that the location of the convenience store’s air compressor did not create an unreasonable risk of harm, and while there was an obvious risk of parking in the busy driveway to fill one’s tires, the store owners could not have foreseen the accident.