Ronnfeldt Farms v. Arp

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www.nebraska.gov/apps-courts-epub/
09/20/2024 09:09 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        317 Nebraska Reports
                                             RONNFELDT FARMS V. ARP
                                                Cite as 

                        Ronnfeldt Farms, Inc., a Nebraska corporation,
                          appellant and cross-appellee, v. Jason Arp,
                         Knee Deep, LLC, a Nebraska limited liability
                         company, Brian Frost, and Frosty’s Dragline,
                          LLC, a Nebraska limited liability company,
                               appellees and cross-appellants.
                                                    ___ N.W.3d ___

                                        Filed September 20, 2024.   No. S-23-116.

                 1. Summary Judgment: Appeal and Error. An appellate court reviews
                    rulings on a motion for summary judgment de novo, viewing the record
                    in the light most favorable to the nonmoving party and drawing all rea-
                    sonable inferences in that party’s favor.
                 2. 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.
                 3. Summary Judgment: Proof. The party moving for summary judg-
                    ment 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. If the burden of proof at trial would be on the
                    nonmoving 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 non-
                    moving party’s evidence is insufficient to establish an essential element
                    of the nonmoving party’s claim. If the moving party makes a prima facie
                    case, the burden shifts to the nonmovant to produce evidence showing
                    the existence of a material issue of fact that prevents judgment as a mat-
                    ter of law.
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           Nebraska Supreme Court Advance Sheets
                    317 Nebraska Reports
                        RONNFELDT FARMS V. ARP
                           Cite as 

 4. Summary Judgment: Appeal and Error. An appellate court may
    affirm summary judgment on any ground available to the trial court,
    even if it is not the same reasoning the trial court relied upon.
 5. Negligence. Whether a legal duty exists for actionable negligence is a
    question of law dependent on the facts in a particular situation.
 6. ____. In a negligence case, determining the standard of care to be
    applied in a particular case is a question of law.
 7. ____. In a negligence case, the ultimate determination of whether a
    party deviated from the standard of care and was therefore negligent is
    a question of fact.
 8. ____. In a negligence case, a finder of fact must determine what conduct
    the standard of care would require under the particular circumstances
    presented by the evidence and whether the conduct of the alleged
    tort-feasor conformed with the standard.
 9. ____. The duty in a negligence case is always the same—to conform to
    the legal standard of reasonable conduct in the light of the apparent risk.
10. Negligence: Words and Phrases. In negligence cases, the standard of
    care is typically general and objective and is often stated as the reason-
    ably prudent person standard, or some variation thereof; i.e., what a
    reasonable person of ordinary prudence would have done in the same or
    similar circumstances.
11. Negligence. The duty to use reasonable care does not exist in the
    abstract, but must be measured against a particular set of facts and
    circumstances.
12. Negligence: Proof. To prevail in any negligence action, a plaintiff must
    show a legal duty owed by the defendant to the plaintiff, a breach of
    such duty, causation, and resulting damages.
13. Negligence. When determining whether appropriate care was exercised,
    the fact finder must assess the foreseeable risk at the time of the defend­
    ant’s alleged negligence.
14. ____. Deciding what is reasonably foreseeable generally involves com-
    mon sense, common experience, and application of the standards and
    behavioral norms of the community.
15. ____. Because the extent of foreseeable risk depends on the specific
    facts of the case, it cannot be usefully assessed for a category of cases;
    small changes in the facts may make a dramatic change in how much
    risk is foreseeable.
16. ____. Analyzing foreseeability requires consideration of what the
    defend­ants knew, when they knew it, and whether a reasonable person
    would infer from those facts that there was a danger.
17. ____. Because foreseeability depends on the specific facts of the case,
    courts should leave such determinations to the trier of fact unless no
    reasonable person could differ on the matter.
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           Nebraska Supreme Court Advance Sheets
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                        RONNFELDT FARMS V. ARP
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18. Summary Judgment: Pleadings. The pleadings frame the issues to be
    considered on a motion for summary judgment.
19. Breach of Contract: Expert Witnesses: Proof. When the customary
    standard of care in a particular industry is outside the common knowl-
    edge and experience of ordinary persons, it will generally need to be
    established by expert testimony.
20. Negligence: Evidence. Evidence of the ordinary practice or uniform
    custom of persons performing acts like those alleged to be negligent is
    generally considered to be competent evidence of the relevant standard
    of care.
21. Negligence. Evidence of a defendant’s personal practice or routine does
    not necessarily establish the customary practice or standard of care in
    the industry.
22. Summary Judgment: Appeal and Error. It is a well-settled principle
    that an appellate court will not consider an issue on appeal that was not
    presented to or passed upon by the trial court, but this principle does
    not prevent an appellate court from reviewing an alternative ground for
    granting summary judgment that was presented to the trial court but not
    passed upon.
23. Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.

   Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Moore and Arterburn, Judges, on
appeal thereto from the District Court for Burt County, Bryan
C. Meismer, Judge. Judgment of Court of Appeals affirmed in
part, and in part reversed and remanded with directions.
  Stephen D. Mossman and Andrew R. Spader, of Mattson
Ricketts Law Firm, for appellant.
   Joel Bacon and Joel D. Nelson, of Keating, O’Gara, Nedved
& Peter, P.C., L.L.O., and David V. Drew, of Drew Law Firm,
P.C., L.L.O., for appellees.
   Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
   Stacy, J.
   After a swine producer experienced a disease outbreak in
its sow facility, it sued two manure management companies,
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            Nebraska Supreme Court Advance Sheets
                     317 Nebraska Reports
                        RONNFELDT FARMS V. ARP
                           Cite as 

alleging the outbreak was caused by the companies’ failure to
follow certain biosecurity protocols when pumping manure.
The complaint sought damages of $1.5 million under breach of
contract and negligence theories.
   The swine producer’s claims against one of the manure man-
agement companies were eventually dismissed with prejudice,
and the remaining manure management company successfully
moved for summary judgment on both theories of recovery.
The swine producer appealed, and the manure management
company cross-appealed. In a published opinion, the Nebraska
Court of Appeals affirmed in part and in part reversed the sum-
mary judgment, and remanded the cause for further proceed-
ings on some of the negligence claims. 1 It declined to address
the cross-appeal, which asserted an alternative basis for affirm-
ing summary judgment on the negligence claims.
   We granted further review. For reasons we will explain, we
affirm in part and in part reverse the Court of Appeals’ deci-
sion, and remand the cause with directions to affirm summary
judgment.
                      I. BACKGROUND
   The factual record in this appeal is limited to the pleadings
and the evidence adduced by the parties on summary judgment,
which we construe in the light most favorable to the nonmov-
ing party. 2 Except as otherwise indicated, the following facts
are uncontroverted.
   Ronnfeldt Farms, Inc. (RFI), is a swine producer that owns
and operates a sow facility in Burt County, Nebraska. Jason
Arp owns and operates a manure management company,
Knee Deep, LLC (collectively Arp), that contracts with swine
producers, cattle producers, and dairies to pump manure.
1
    See Ronnfeldt Farms v. Arp, 

, 

 (2023).
2
    See, e.g., Woodward v. Saint Francis Med. Ctr., 

, 

 (2024); Palmtag v. Republican Party of Neb., 

, 

 (2024) (appellate court reviews grant of summary judgment
    de novo, viewing record in light most favorable to nonmoving party).
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                    RONNFELDT FARMS V. ARP
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Beginning in 2016 and every fall thereafter, RFI orally con-
tracted with Arp to pump manure from pits under RFI’s sow
facility and apply it to nearby fields as fertilizer.
   In the fall of 2020, RFI informed Arp it wanted the annual
pumping at the sow facility to be completed by a certain date
in early November. To meet the requested deadline, Arp asked
Brian Frost, who owns and operates a manure management
company called Frosty’s Dragline, LLC (collectively Frost),
to assist Arp’s crew. Arp and Frost were long-time friends and
had a history of assisting one another on large or time-sensitive
pumping jobs; they had no formal arrangement but typically
“settled up” at the end of each year. Frost orally agreed to
assist Arp with the 2020 pumping job at RFI’s sow facility.
RFI was aware that Arp was asking another crew to assist with
pumping, and it approved of that arrangement.
   Shortly before pumping began at the sow facility, a repre-
sentative of RFI texted Arp to learn the name of the pumping
crew that would be assisting Arp and to ask whether that crew
was “aware of the [b]iosecurity expectations before, during and
on completion for equipment, personnel staying out of barn . . .
and whatnot?” Arp replied, “They are aware of [b]iosecurity,
Brian [F]rost is his name. I will stand behind him, he’s a good
guy and does things the right way. He will do whatever I tell
him to do.” After this text exchange, RFI relied exclusively on
Arp to communicate with Frost about RFI’s specific biosecu-
rity protocols.
                    1. Biosecurity Protocols
   Swine producers monitor biosecurity closely to prevent
the spread of disease, and biosecurity protocols are generally
more stringent at sow facilities than at hog finishing facilities.
Biosecurity protocols at sow facilities are “ever-changing” and
differ from facility to facility. The person in charge of biosecu-
rity at RFI’s sow facility explained, “Everybody’s different. If
I told you what the gold standard was, the next guy would tell
you it’s totally different.”
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                    RONNFELDT FARMS V. ARP
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   Because specific biosecurity expectations vary from one
facility to the next, it is customary for producers and contract
manure companies to communicate proactively about biosecu-
rity expectations at each facility. Educational materials relied
upon by all parties in this case describe the following typical
communication practices for producers:
         If a custom pumping crew is handling a farm’s manure,
      communicating clearly up front to convey expectations
      and concerns to them is key for the farm owner or opera-
      tor. A producer should feel free to ask [the pumping crew]
      where they’ve been prior to coming to [the producer’s]
      site and discuss [the producer’s] expectations related to
      biosecurity. It’s best to be present when they show up to
      pump so that the area where they should travel, protective
      clothing they should use, and methods for cleaning equip-
      ment before and after pumping can be conveyed.
The same educational materials describe the customary com-
munication practices for contract manure pumpers:
         Custom manure haulers have the opportunity to be very
      proactive about biosecurity, too. If a producer doesn’t
      offer up information about their biosecurity practices and
      requirements, it’s a good idea to ask what they require of
      visitors to maintain their farm’s biosecurity. Be prepared
      to tell [the producer] where you’ve been, when you were
      there, how you cleaned and disinfected equipment, and
      what the disease status of previous sites might have been.
      Confirm the [producer’s] preferred routes for you to enter
      and exit their site, ask where their line or lines of separa-
      tion are, and wear protective coveralls, boots, etc. that
      you can leave at the site when you depart. And finally,
      you should have a protocol in place for cleaning and
      disinfecting equipment between sites, which may include
      some scheduled downtime for equipment to ensure that
      disease-causing organisms are not persisting in or on
      equipment.
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                   RONNFELDT FARMS V. ARP
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   RFI’s representative testified that in November 2020, the
specific biosecurity protocols at its sow facility (1) required
contract manure pumpers to follow the “normal” procedures of
cleaning, disinfecting, and drying all equipment between jobs;
(2) prohibited pumping crews from entering the sow barns;
and (3) prohibited pumping at the sow facility after pumping
at another hog facility. According to RFI, if a crew had previ-
ously pumped hog manure, it was not allowed to enter RFI’s
sow facility unless it first pumped cattle manure; RFI consid-
ered pumping cattle manure to be the most effective way to
“flush” hog manure and related diseases from the pumping
equipment. RFI’s biosecurity protocols did not require any
downtime between pumping jobs if the crew and equipment
were coming directly from a cattle facility. The specific bio­
security protocols for RFI’s sow facility were unwritten, but
RFI representatives testified that Arp was verbally advised of
the protocols in 2016 and was reminded of them each year
thereafter.
   Arp agreed that when he began pumping for RFI in 2016,
he was given verbal instructions on the specific biosecurity
protocols to be followed at the sow facility. But Arp expressly
denied that RFI ever informed him of a protocol that pro-
hibited pumping hog manure before coming to RFI’s sow
facility. Instead, Arp claims he was told that RFI required
contract manure pumpers at the sow facility to (1) stay out
of the barns; (2) clean, disinfect, and dry all equipment; and
(3) observe 48 hours of downtime between pumping jobs.
Arp described these protocols as “usual” in the industry and
testified that he generally followed such protocols whether he
was pumping manure for a swine producer, a cattle feedlot,
or a dairy. Arp testified that he verbally communicated these
biosecurity requirements to Frost several days before pumping
started at RFI.
   Frost testified that when Arp asked him to assist with
pumping at RFI’s sow facility, Frost told Arp that his crew
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                    RONNFELDT FARMS V. ARP
                       Cite as 

was pumping manure at a hog finishing facility and Frost
asked Arp “what needed [to be] done prior to coming” to
RFI’s sow facility. According to Frost, Arp told him that all
equipment had to be “cleaned, dried, and disinfected,” the
crew should observe a downtime period of either 24 or 48
hours, and the pumping crew had to stay out of the barns.
Frost testified he typically followed similar protocols when
pumping manure for other customers and when pumping for
his own hog finishing operation. Before arriving at RFI’s sow
facility, Frost cleaned all the equipment, disinfected it twice,
and waited at least 48 hours before his crew began pumping.
Frost testified he was being “extra vigilant” in disinfecting
twice because he knew the crew was “going to a sow farm.
That was the only reason.”
   Before pumping began at RFI’s sow facility in November
2020, there was no direct communication between RFI rep-
resentatives and Frost regarding RFI’s specific biosecurity
expectations or anything else. Instead, RFI relied on Arp to
communicate with Frost about all aspects of assisting with
pumping at RFI’s sow facility, including biosecurity. Similarly,
Frost relied on Arp to communicate directly with RFI, and
Frost believed Arp had informed RFI that Frost’s crew was
coming directly from a hog finishing facility. But the undis-
puted evidence shows that although Arp told RFI that Frost
was coming to the sow facility directly from another pumping
job, Arp did not tell RFI that Frost was pumping at a hog fin-
ishing facility, and RFI did not ask.

             2. Pumping and Disease Outbreak
   From approximately November 6 to 9, 2020, Arp’s crew
and Frost’s crew pumped approximately 2.3 million gallons
of manure from the pits under the gestation barn at RFI’s sow
facility and injected the manure into neighboring fields. On
the day pumping was scheduled to begin, Arp’s crew arrived
first. An RFI representative met the crew at the gate and
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                    RONNFELDT FARMS V. ARP
                       Cite as 

asked where they had last pumped; Arp’s crew said they had
last pumped at a dairy farm. RFI representatives did not meet
Frost’s crew at the gate and instead allowed Arp’s crew to do
so. But RFI representatives testified that if they had known
Frost’s crew would be coming directly from pumping at a hog
finishing facility, they would have denied the crew entry.
   A few days after pumping was complete, some of the sows
in the farrowing barn at RFI’s sow facility began to show signs
of illness and tested positive for a serious respiratory disease
called porcine reproductive and respiratory syndrome (PRRS).
Evidence showed that PRRS can be transmitted through physi-
cal or airborne contact and can be carried into swine barns by
humans, animals, rodents, birds, insects, vehicles and equip-
ment, supplies, semen, and dust in the air. There was also evi-
dence the virus can be spread through manure pumping.
   RFI conducted an audit to identify the source of the PRRS
outbreak. After the audit, RFI’s veterinary expert testified there
was a “high likelihood” the manure pumping crew introduced
the virus.
   After learning of the PRRS outbreak at RFI, Frost obtained
a sample from the manure pit where his crew had pumped
immediately before pumping at RFI. When Frost had the
sample tested, the PRRS virus was detected, but the particular
strain was not sequenced, so it is not known whether it was
similar to the strain involved in the outbreak at RFI. It is
undisputed that Frost had no knowledge of any illness at the
hog finishing facility before he began pumping at RFI’s sow
facility. Evidence in the record shows that a random sampling
of swine barns in northeastern Nebraska would likely show
PRRS in anywhere from 10 to 50 percent of barns, whether
or not the swine were showing symptoms. In the fall of
2019, RFI experienced a PRRS outbreak in some of its other
swine facilities and attributed that outbreak to “area spread”
from another swine producer pumping infected manure into
nearby fields.
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                    RONNFELDT FARMS V. ARP
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                        3. Complaint and
                      Summary Judgment
                           (a) Complaint
   In February 2021, RFI filed suit against Arp and Frost in the
district court for Burt County. The complaint was styled as two
causes of action, one alleging breach of contract and the other
alleging negligence.
   Regarding breach of contract, the complaint alleged that
Frost was acting as a subcontractor of Arp, an allegation that
both Arp and Frost expressly denied. The complaint alleged
that Arp and Frost orally agreed to pump manure at RFI’s sow
facility, and to follow RFI’s specific biosecurity protocols.
The complaint alleged the contract was breached when Arp
and Frost failed to follow RFI’s specific biosecurity protocols
prohibiting crews from pumping at RFI’s sow facility immedi-
ately after pumping at another hog finishing facility.
   Regarding negligence, the complaint alleged that both Arp
and Frost owed RFI a duty to follow RFI’s specific biosecurity
protocols when pumping at its sow facility. It also alleged,
more generally, that Arp and Frost “owed a duty to [RFI] to
conduct manure pumping operations . . . in accordance with
safe biosecurity practices.” As relevant to the issues raised
on appeal, the complaint alleged that Frost breached those
duties by
• pumping manure at a hog finishing facility immediately before
  pumping at RFI’s sow facility and using the same equipment
  and employees at both facilities; and
• failing to inform RFI that the manure pumping crew had
  pumped at a hog finishing facility before pumping at RFI’s
  sow facility.
   Arp and Frost filed separate answers. Both parties admit-
ted they had a duty to exercise reasonable care and to comply
with generally accepted industry standards when pumping
manure, and both alleged they had done so when pumping
at RFI’s sow facility. Both denied liability for the PRRS
outbreak and alleged several affirmative defenses, including
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                         RONNFELDT FARMS V. ARP
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that RFI’s contributory negligence proximately caused the
PRRS outbreak.
   After conducting discovery, Frost moved for summary judg-
ment on all claims. Shortly thereafter, Arp and RFI reached
a settlement, and all claims against Arp were dismissed with
prejudice. The lawsuit proceeded against only Frost and his
company.
            (b) Frost’s Summary Judgment Motion
   At the summary judgment hearing, more than 60 exhibits
were offered and received, including pleadings, written dis-
covery responses, and discovery depositions of Frost, Arp,
RFI’s representatives, and RFI’s experts. Both parties gener-
ally relied on the same exhibits to support and oppose sum-
mary judgment.
                (i) Breach of Contract Theory
   Frost argued he was entitled to judgment as a matter of law
on the breach of contract theory because the evidence conclu-
sively showed he had no contractual or business relationship
with RFI. In response, RFI initially argued there was a factual
dispute about whether Frost was Arp’s subcontractor, but dur-
ing the summary judgment proceedings, RFI abandoned that
theory and agreed there was no evidence to support it. In its
place, RFI argued that Arp and Frost were engaged in a joint
venture and that therefore, Arp’s conduct could be imputed to
Frost under both theories of recovery. 3
                    (ii) Negligence Theory
   Frost also argued he was entitled to judgment as a matter
of law on the negligence claims. Regarding the allegation that
Frost breached the applicable standard of care by pumping
manure at RFI’s sow facility immediately after pumping at a
3
    See, generally, Kohout v. Bennett Constr., 

, 

 (2017) (joint venture “is in the nature of a partnership”); Soulek
    v. City of Omaha, 

, 

 (1941) (in joint
    ventures, “the negligence of one will be imputed to both”).
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hog finishing facility, Frost argued the evidence demonstrated
either that he owed no such duty to RFI or that he did not
breach such duty as a matter of law. Among other things, Frost
argued there was no evidence that he was told RFI had a spe-
cific biosecurity protocol prohibiting crews from pumping at
another swine facility before coming to its sow facility, and
there was no evidence that such a biosecurity protocol was
customary in the industry.
   Regarding the allegation that Frost breached the applicable
standard of care by not informing RFI that his crew had just
pumped at a hog finishing facility, Frost again argued that
either he owed no such duty to RFI or, alternatively, he did
not breach such duty because the undisputed evidence showed
that he informed Arp about his pumping history and under-
stood that Arp had communicated that information to RFI.
Among other things, Frost argued it was not reasonably fore-
seeable that Arp would fail to tell RFI about Frost’s pump-
ing history.
   In response, RFI argued that Frost owed RFI a duty of rea-
sonable care when pumping manure at its sow facility. And
it argued that even if the evidence showed that Frost was not
told about all of RFI’s specific biosecurity expectations, there
were still genuine issues of material fact bearing on whether
Frost breached the duty of reasonable care by pumping at
RFI’s sow facility immediately after pumping at a hog finish-
ing facility and/or failing to inform RFI he had just pumped
at a hog finishing facility. We discuss the evidence relied upon
by RFI for these arguments later in our analysis.

                     (iii) Proximate Cause
  Finally, on the issue of proximate cause, Frost argued that
even if there was a genuine factual dispute as to whether
Frost breached a duty of care owed to RFI, the record showed
Frost was still entitled to summary judgment because RFI
could not, as a matter of law, prove the PRRS outbreak was
proximately caused by manure pumping. Frost’s causation
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argument was twofold. First, he argued that RFI’s causation
evidence was based on nothing more than a circumstantial
temporal correlation and thus was insufficient as a matter of
law to create a genuine issue of material fact for purposes of
summary judgment. 4 But Frost’s primary causation argument
related to a claim of spoliation. He argued that RFI failed
to preserve onsite security camera footage showing activity
at the sow facility immediately before, during, and after the
pumping. Frost claimed the video footage contained relevant
evidence showing other potential biosecurity failures that may
have caused the PRRS virus to be introduced, and he argued
that RFI’s spoliation warranted an inference that the video
evidence would have been favorable to Frost.
   In response, RFI argued that its expert’s causation opinion
was based on more than just a temporal correlation and thus
created a material factual dispute about the cause of the PRRS
outbreak that precluded summary judgment on the issue of
causation. Additionally, RFI argued there was insufficient evi-
dence to support a finding of intentional spoliation, and thus no
adverse inference was warranted.
               (c) Order on Summary Judgment
   The trial court granted Frost’s motion for summary judg-
ment on both theories of recovery. Regarding the breach of
contract claim, the trial court reasoned that Frost could not be
liable to RFI because the evidence was undisputed there was
no contractual relationship between Frost and RFI and there
was no competent evidence to support a reasonable inference
that Frost was acting as a subcontractor of Arp or engaged in a
joint venture with Arp.
4
    See, generally, McGill Restoration v. Lion Place Condo. Assn., 

, 

 (2021) (“[i]t is well settled that a causation
    opinion based solely on a temporal relationship is unreliable, because it is
    not derived from the scientific method [and] it is not based upon sufficient
    facts or data”); Roskop Dairy v. GEA Farm Tech., 

, 

 (2015), disapproved on other grounds, Weyh v. Gottsch, 

, 

 (2019).
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   Regarding the negligence claim, the trial court reasoned
that although RFI and Arp had an established business rela-
tionship, RFI had no business relationship with Frost, and that
therefore, it was “not reasonable to expect Frost to go beyond
Arp and coordinate directly with [RFI].” The court ultimately
concluded that “any duty owed by [Frost] in this matter is
limited to their duty owed to [Arp] and does not extend to
[RFI] in this matter.” Because the district court resolved the
negligence claim on the issue of duty, it did not address any of
Frost’s other arguments.
                     4. Court of Appeals
   RFI appealed the summary judgment, assigning 12 errors.
Frost cross-appealed, assigning that the district court erred in
failing to find that RFI could not establish that Frost’s negli-
gence, if any, was a proximate cause of its damages.
   Many of RFI’s assigned errors related to the trial court’s
rulings on the breach of contract claim. The Court of Appeals
affirmed the grant of summary judgment on that claim. This
aspect of the Court of Appeals’ decision is not challenged on
further review, and we do not discuss it further.
                   (a) Arguments on Appeal
   Regarding the negligence claims, RFI characterized the trial
court’s ruling as a finding that Frost “owed no duty to [RFI]
under any circumstances.” 5 RFI argued that the no-duty deter-
mination was erroneous, because Frost’s conduct in pumping
manure at RFI created a risk of physical harm to RFI’s sows,
and that Frost thus owed RFI a duty of reasonable care under
the duty framework of the Restatement (Third) of Torts. 6
5
    Brief for appellant at 31.
6
    See Bell v. Grow With Me Childcare & Preschool, 

, 

 (2018) (recognizing that under duty framework of Restatement
    (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010),
    duty of reasonable care is expressly conditioned on actor’s having engaged
    in conduct that creates risk of physical harm). Accord A.W. v. Lancaster
    Cty. Sch. Dist. 0001, 

, 

 (2010).
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Additionally, RFI argued there were genuine issues of material
fact as to whether Frost breached the duty of reasonable care
by pumping at RFI’s sow facility immediately after pumping at
a hog finishing facility, and/or by failing to inform RFI that his
crew had just pumped at a hog finishing facility.
   In response, Frost’s appellate brief generally argued the dis-
trict court’s duty analysis was correct and should be affirmed.
Alternatively, Frost argued that even if he owed RFI a duty of
reasonable care, RFI could not establish that Frost breached
that duty in any of the ways alleged in the operative complaint.
And in his cross-appeal, Frost argued that even if there was a
factual dispute as to whether any duty of reasonable care was
breached, the district court erred in failing to grant summary
judgment on the alternative theory that RFI could not establish
causation as a matter of law.
          (b) Court of Appeals Reverses on Duty and
           Finds Factual Disputes Regarding Breach
   The Court of Appeals agreed with RFI that the district court
erred in ruling that Frost owed no duty to RFI. Citing A.W. v.
Lancaster Cty. Sch. Dist. 0001, 7 the Court of Appeals reasoned
that “[a]s an actor at [RFI’s] facility, Frost had a general duty
to exercise reasonable care when its conduct created a risk
of physical harm.” 8 The court also noted that Frost’s answer
admitted owing a duty to exercise reasonable care when pump-
ing manure for third parties and thus concluded “the district
court erred in ruling Frost owed no duty to [RFI].” 9
   The Court of Appeals described RFI’s primary claim against
Frost as a “limited claim of independent negligence” 10 pre-
mised on the allegation that Frost “breached [the] duty of
care when pumping at [RFI’s sow facility] immediately after
7
   A.W., supra note 6.
8
   Ronnfeldt 

, 

, 1 N.W.3d at 555.
 9
   Id. at 509, 1 N.W.3d at 555.
10
   Id. at 511, 1 N.W.3d at 557.
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pumping at a different hog farm.” 11 Regarding such claim,
the Court of Appeals stated, “The standard of care owed by
a manure pumping company to the owner of a facility being
pumped and whether the pumper’s actions satisfied that stan-
dard are issues of fact for the jury to resolve.” 12 Then, without
referring to any particular evidence in the record, the Court of
Appeals concluded there were genuine factual disputes pre-
cluding summary judgment on that claim, reasoning:
         Frost [argues] that even if [he] owed [RFI] a duty, no
      breach of the standard of care occurred. But in order to
      determine whether appropriate care was exercised, the
      fact finder must assess the foreseeable risk at the time
      of the defendant’s negligence. . . . Courts should leave
      such determinations to the trier of fact unless no reason-
      able person could differ on the matter. . . . We find that
      reasonable minds could differ on whether Frost exercised
      appropriate care, and as such, we leave this issue to be
      resolved by a fact finder. 13
   However, the Court of Appeals expressly agreed with the
district court that “Frost did not necessarily have a duty to
inquire of [RFI] as to its biosecurity protocols,” reasoning:
      Relying on Arp alone for that information was sufficient
      unless the general standard of care would demonstrate
      that Frost knew or should have known that additional
      steps should have been taken as part of a general standard
      of care in the industry as it relates to the pumping of
      manure at a sow barn. 14
   The Court of Appeals ultimately affirmed the district
court’s grant of summary judgment on the breach of con-
tract claim and on what it described as the negligence claims
11
   Id. at 509, 1 N.W.3d at 556.
12
   Id. at 508, 1 N.W.3d at 555.
13
   Id. at 510, 1 N.W.3d at 556 (emphasis in original).
14
   Id. at 509, 1 N.W.3d at 555-56.
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seeking to hold Frost “liable for Arp’s . . . alleged negli-
gent behavior.” 15 But it reversed that “portion of the court’s
order granting summary judgment on [RFI’s] independent
negligence claim against Frost,” 16 reasoning that determina-
tions of “[w]hat standard of care was required of Frost and
whether Frost’s actions or inactions constituted a breach of
that standard are questions for the finder of fact.” 17 The Court
of Appeals remanded the cause “for further consideration of
the remaining issues . . . related to [RFI’s] independent neg-
ligence claim.” 18
                  (c) Court of Appeals Declines
                     to Address Cross-Appeal
   After reversing summary judgment on the “independent neg-
ligence claim” 19 and remanding the cause for further proceed-
ings, the Court of Appeals declined to address Frost’s cross-
appeal, which asserted that the district court erred in failing
to grant summary judgment on the alternative theory that RFI
could not establish causation as a matter of law. The Court of
Appeals explained its reasoning as follows:
         The district court did not reach the issue of causation
      or the issue of evidence preservation in its order granting
      summary judgment. Based on the conclusion the court
      made, it was not necessary for the court to consider these
      issues. We decline to consider these issues that were not
      addressed by the district court. An appellate court will not
      consider an issue on appeal that was not passed upon by
      the trial court. Hinson v. Forehead, 

, 

 (2021). 20
15
   Id. at 512, 1 N.W.3d at 557.
16
   Id.
17
   Id. at 511, 1 N.W.3d at 557.
18
   Id. at 512, 1 N.W.3d at 557.
19
   Id.
20
   Id. at 511, 1 N.W.3d at 557.
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   We granted Frost’s petition for further review, and both par-
ties submitted additional briefs addressing the issues raised in
Frost’s petition. 21 RFI did not seek further review to challenge
any other aspect of the Court of Appeals’ decision.
                II. ASSIGNMENTS OF ERROR
   On further review, Frost assigns and argues that the Court
of Appeals erred in (1) treating issues of duty and standard
of care as factual questions rather than legal questions, (2)
applying an “ordinary” duty of reasonable care, (3) concluding
there were genuine issues of material fact regarding whether
Frost breached the standard of care, and (4) declining to reach
Frost’s cross-appeal on causation.
   Based on these assignments, we understand Frost to chal-
lenge only that portion of the Court of Appeals’ decision that
reversed summary judgment on the “independent negligence
claim” 22 against Frost. It appears from the briefing on further
review that the parties read the Court of Appeals’ opinion to
have reversed summary judgment on two of RFI’s negligence
claims: the claim that Frost breached the standard of care by
pumping manure at a sow facility immediately after pump-
ing manure at hog finishing facility and the claim that Frost
breached the standard of care by failing to inform RFI that it
had just pumped at a hog finishing facility. We limit our analy-
sis accordingly.
                III. STANDARD OF REVIEW
   [1] An appellate court reviews rulings on a motion for 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. 23
21
   See Neb. Ct. R. App. P. § 2-102(H) (rev. 2022) (authorizing additional
   briefs when further review is granted).
22
   Ronnfeldt 

, 

, 1 N.W.3d at 557.
23
   See Simpson v. Lincoln Public Schools, 

, 

   (2024).
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                         IV. ANALYSIS
   [2,3] Because this appeal involves rulings on summary
judgment, we begin by recalling the standards that govern our
de novo review. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affida-
vits 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. 24 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 uncontroverted at trial. 25 If the burden of
proof at trial would be on the nonmoving party, then the party
moving for summary judgment may satisfy its prima facie
burden either by citing to materials in the record that affirma-
tively 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 estab-
lish an essential element of the nonmoving party’s claim. 26 If
the moving party makes a prima facie case, the burden shifts
to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter
of law. 27
   [4] An appellate court may affirm summary judgment on any
ground available to the trial court, even if it is not the same
reasoning the trial court relied upon. 28
                            1. Duty
   In his first two assignments of error, Frost asserts the Court
of Appeals misstated and misapplied certain duty principles.
24
   

.
25
   Id.; Clark v. Scheels All Sports, 

, 

 (2023).
26
   

27
   

28
   See, Schuemann v. Timperley, 

, 

 (2023);
   Choice Homes v. Donner, 

, 

 (2022).
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In the sections that follow, we address each of these assign-
ments and conclude neither has merit.

                  (a) Court of Appeals Did Not
                     Misstate Duty Principles
   Frost argues the Court of Appeals “inappropriately char-
acterized [the] standard of care as a fact question” 29 when
it stated: “The standard of care owed by a manure pumping
company to the owner of a facility being pumped and whether
the pumper’s actions satisfied that standard are issues of fact
for the jury to resolve.” 30 Frost contends the applicable stan-
dard of care is not an issue of fact, but, rather, is a question of
law, and he cites to Reiber v. County of Gage 31 for the proposi-
tion that “the existence of a duty and the identification of the
applicable standard of care are questions of law.”
   But Frost quotes only part of the principle we recited in
Reiber, where we explained:
      While the existence of a duty and the identification of the
      applicable standard of care are questions of law, the ulti-
      mate determination of whether a party deviated from the
      standard of care and was therefore negligent is a question
      of fact. To resolve the issue, a finder of fact must deter-
      mine what conduct the standard of care would require
      under the particular circumstances presented by the evi-
      dence and whether the conduct of the alleged tort-feasor
      conformed with the standard. 32
   [5-8] Reiber combines several settled principles: (1) whether
a legal duty exists for actionable negligence is a question of
29
   Brief for appellee Frost in support of petition for further review at 7
   (emphasis omitted).
30
   Ronnfeldt 

, 

, 1 N.W.3d at 555.
31
   Reiber v. County of Gage, 

, 

   (2019).
32
   

, 

 (emphasis supplied).
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law dependent on the facts in a particular situation, 33 (2)
determining the standard of care to be applied in a particular
case is a question of law, 34 (3) the ultimate determination of
whether a party deviated from the standard of care and was
therefore negligent is a question of fact, 35 and (4) a finder of
fact must determine what conduct the standard of care would
require under the particular circumstances presented by the
evidence and whether the conduct of the alleged tort-feasor
conformed with the standard. 36
   [9,10] We have stated, as a general proposition, that the
duty in a negligence case is always the same—to conform to
the legal standard of reasonable conduct in the light of the
apparent risk. 37 And we have explained that the applicable
standard of care “is necessarily articulated in general terms
[because] ‘it is impossible to prescribe definite rules of con-
duct in advance for every combination of circumstances that
may arise.’” 38 As such, “‘the law resorts to formulae which
state the standard [of care] in broad terms without attempt
to fill [in the] detail.’” 39 The standard of care “is typically
general and objective and is often stated as the reasonably
33
   See, Porter v. Knife River, Inc., 

, 

 (2022);
   A.W., supra note 6.
34
   Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 

, 

   (2001). See Murray v. UNMC Physicians, 

, 

   (2011).
35
   See 

; Green v. Box Butte General Hosp., 

, 

 (2012), abrogated on other grounds, 

. See, also, Murray, supra note 34; 

.
36
   See, 

; 

. Accord Green, supra
   note 35, 284 Neb. at 256, 818 N.W.2d at 599 (“[i]t is for the finder of
   fact to resolve what conduct the standard of care would require under
   the particular circumstances presented by the evidence and whether the
   conduct of the alleged tort-feasor conformed with that standard”).
37
   See A.W., supra note 6.
38
   

, 

, 

.
39
   

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prudent person standard, or some variation thereof; i.e., what
a reasonable person of ordinary prudence would have done in
the same or similar circumstances.” 40
   So although Frost is correct that the applicable standard of
care presents a question of law, it is also true that “a finder of
fact must determine what conduct the standard of care would
require under the particular circumstances presented by the
evidence and whether the conduct of the alleged tort-feasor
conformed with the standard.” 41 As such, when there is con-
flicting evidence as to what conduct the standard of care would
require under the particular circumstances, it presents an issue
for the fact finder to resolve. 42
   We do not read the Court of Appeals’ opinion to have mis-
stated these settled duty principles. The opinion described the
applicable standard of care in general terms when it said “Frost
owed a duty of reasonable care to [RFI].” 43 And when the
opinion stated that “[t]he standard of care owed by a manure
pumping company to the owner of a facility being pumped
and whether the pumper’s actions satisfied that standard are
issues of fact for the jury to resolve,” 44 we read it to reflect the
Court of Appeals’ conclusion that the record contains material
factual disputes regarding what conduct the standard of care
would require under the particular circumstances.
   As we explain later, our de novo review of the record leads
us to a different conclusion about whether material factual
40
   Id. at 73, 

.
41
   

, 303 Neb. at 336-37, 

. Accord,
   Green, supra note 35; 

.
42
   See Murray, supra note 34, 282 Neb. at 272, 806 N.W.2d at 126 (noting
   applicable standard of care is established by Nebraska Hospital-Medical
   Liability Act but when conflicting evidence is presented regarding
   customary practice in community, that is “a jury question”). Accord,
   Green, supra note 35; 

.
43
   Ronnfeldt 

, 

, 1 N.W.3d at 555.
44
   Id.
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disputes exist. But we reject Frost’s assertion that the Court of
Appeals’ opinion misstated the applicable duty principles under
Nebraska law.

             (b) Court of Appeals Did Not Misapply
                    Duty of Reasonable Care
   In his second assignment, Frost argues, “The Court of
Appeals erred in concluding the ordinary duty to exercise
reasonable care applied to [RFI’s] attempt to hold [Frost]
liable for following Arp’s instructions.” 45 We understand Frost
to contend that because RFI entrusted Arp to instruct Frost
regarding RFI’s specific biosecurity protocols, and because
Frost complied with Arp’s instructions, Frost necessarily acted
reasonably, and there is no need to determine whether his
conduct otherwise conformed to the customary biosecurity
standards that a reasonable manure pumping professional with
similar training and experience would follow when pumping
at a sow facility. According to Frost, applying a “ordinary”
duty of reasonable care under such circumstances would “sub-
ject [defendants] to liability for simply following the instruc-
tions of the person they agreed to help.” 46
   [11] We reject Frost’s broad assertion that the duty of rea-
sonable care does not apply merely because a defendant was
following instructions. The duty to use reasonable care does
not exist in the abstract, but must be measured against a par-
ticular set of facts and circumstances. 47 We find no support
for Frost’s contention that when considering what conduct
the duty of reasonable care required in this case, the Court
of Appeals should have focused exclusively on the fact that
Frost was following instructions and need not have consid-
ered other facts and circumstances bearing on the applicable
45
   Brief for appellee Frost in support of petition for further review at 8.
46
   Id. at 10.
47
   See 

.
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standard of care and whether Frost’s conduct conformed to
such standard. 48
   The specific biosecurity instructions that Arp gave to Frost
are merely one of many facts and circumstances to be con-
sidered when determining what conduct the standard of care
required under the particular circumstances and whether Frost’s
conduct conformed to that standard. On this record, Frost’s
argument that the duty of reasonable care should automatically
be “scal[ed] back” 49 because he was merely following instruc-
tions is misplaced.
   For the sake of completeness, we acknowledge that both
Frost and RFI present various arguments focused on how the
duty of reasonable care might be impacted by a determination
that Arp and Frost entered into a formal legal relationship
of one sort or another. We do not address these arguments
because they are merely theoretical. 50 Although the trial court
and the Court of Appeals agreed that RFI abandoned its sub-
contractor theory and failed to prove a joint venture theory,
there has been no determination that Arp and Frost entered
into any formal legal relationship. 51 Similarly, because the
record and the parties’ appellate briefing is silent on the issue,
we express no opinion about whether there may be statutes,
ordinances, regulations, or conditional use permits that impact
the standard of care required under the particular circum-
stances of this case.
48
   See id. at 73, 

 (when determining standard of care,
   circumstances to be considered include whether “alleged tort-feasor
   possesses special knowledge, skill, training, or experience pertaining to
   the conduct in question that is superior to that of the ordinary person”).
49
   Brief for appellee Frost in support of petition for further review at 10.
50
   See, e.g., State v. Castillo-Rodriguez, 

, 

 (2023)
   (not function of appellate courts to render advisory opinions).
51
   See Saint James Apt. Partners v. Universal Surety Co., 

, 

 (2024) (appellate court has discretion to decline to review all
   possible reasons supporting result if it concludes remand would be better
   means of resolving issues).
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                           2. Breach
   In his third assignment of error, Frost argues that “[e]ven
assuming the Court of Appeals’ duty analysis was correct,
it erred in concluding there was a genuine issue of mate-
rial fact on whether [Frost] breached the duty to exercise
reasonable care.” 52 Frost is critical of the Court of Appeals’
opinion in this regard, suggesting it “addressed breach with a
handwave” 53 and it “failed to explain what evidence created a
genuine issue of material fact.” 54 Since our review is de novo,
we need not address this criticism. Instead, we conduct our
own review of the record to determine whether there are genu-
ine issues of material fact bearing on whether Frost breached
the duty of reasonable care in any of the ways alleged in the
operative complaint. First, we review the legal principles that
govern our analysis.
                (a) Legal Principles Governing
                        Breach of Duty
   [12] To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a
breach of such duty, causation, and resulting damages. 55 As
already explained, although the existence of a duty and the
applicable standard of care are questions of law, “a finder of
fact must determine what conduct the standard of care would
require under the particular circumstances presented by the
evidence and whether the conduct of the alleged tort-feasor
conformed with the standard.” 56
   [13-17] When determining whether appropriate care was
exercised, the fact finder must assess the foreseeable risk at
52
   Brief for appellee Frost in support of petition for further review at 10.
53
   

54
   Id. at 11.
55
   

.
56
   

, 303 Neb. at 336-37, 

.
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the time of the defendant’s alleged negligence. 57 Deciding
what is reasonably foreseeable generally “involves common
sense, common experience, and application of the standards
and behavioral norms of the community.” 58 Because the extent
of foreseeable risk depends on the specific facts of the case,
it cannot be usefully assessed for a category of cases; small
changes in the facts may make a dramatic change in how
much risk is foreseeable. 59 Analyzing foreseeability requires
consideration of what the defendants knew, when they knew
it, and whether a reasonable person would infer from those
facts that there was a danger. 60 And because foreseeability
depends on the specific facts of the case, courts should leave
such determinations to the trier of fact unless no reason-
able person could differ on the matter. 61 Stated differently,
foreseeability determinations can properly be made on sum-
mary judgment as a matter of law, 62 but only when reasonable
minds “could not disagree about the unforeseeability of the
risk of the harm incurred.” 63
               (b) De Novo Review of Evidence
   [18] Because the pleadings frame the issues to be con-
sidered on a motion for summary judgment, 64 we limit our
analysis to the allegations of RFI’s complaint. As relevant
to the issues raised on further review, the complaint alleged
two ways in which Frost’s independent conduct breached the
duty of reasonable care: (1) pumping manure at a sow facility
57
   See Pittman v. Rivera, 

, 

 (2016).
58
   A.W., supra note 6, 

, 

.
59
   See 

.
60
   See Thomas v. Board of Trustees, 

, 

 (2017).
61
   See Jacobs Engr. Group v. ConAgra Foods, 

, 

   (2018).
62
   See Latzel v. Bartek, 

, 

 (2014).
63
   

, 296 Neb. at 736, 

. Accord Riggs
   v. Nickel, 

, 

 (2011).
64
   

.
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immediately after pumping at a hog finishing facility while
using the same crew and equipment and (2) failing to inform
RFI that Frost’s crew had just pumped manure at a hog finish-
ing facility.
   Although the Court of Appeals’ opinion appears to have
addressed these allegations collectively, we analyze them indi-
vidually. In the sections that follow, we review the evidence
regarding both alleged breaches, and we ultimately conclude
that no genuine issue of material fact exists as to either. As
such, although our reasoning differs from that relied upon by
the district court and the Court of Appeals, we ultimately agree
with the district court that Frost is entitled to summary judg-
ment as a matter of law on all the negligence claims alleged
by RFI.
          (i) Pumping at Sow Facility After Pumping
                   at Hog Finishing Facility
   Frost admits he used the same crew and equipment to pump
at RFI’s sow facility after pumping at a hog finishing facility,
but he argues there are several reasons why such conduct did
not breach the applicable standard of care. We address only one
of his arguments, because we find it dispositive.
   Frost argues he could not have breached the standard of
care by pumping manure at a sow facility immediately after
pumping at a hog finishing facility, because the “requirement
that manure contractors not come from another swine barn is
a protocol [RFI] came up with; there is no evidence it was a
general industry standard.” 65 He contends that “to the extent an
industry standard can be ascertained” 66 from the evidence
on summary judgment, it showed the usual or customary prac-
tice for contract manure pumpers is to clean, disinfect, and
dry their equipment and observe a period of downtime before
pumping at another facility. Frost argues the evidence is
undisputed that his conduct met or exceeded these customary
65
     Brief for appellee Frost at 11.
66
     Id. at 44.
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industry standards, and RFI failed to produce any evidence
of an industry standard prohibiting contract manure pumpers
from pumping at a sow facility after pumping at a hog finish-
ing facility.
   [19,20] At trial, it would be RFI’s burden to prove what
type of conduct the applicable standard of care required under
the particular circumstances of this case. 67 And when the cus-
tomary standard of care in a particular industry is outside the
common knowledge and experience of ordinary persons, it
will generally need to be established by expert testimony. 68
Evidence of the ordinary practice or uniform custom of persons
performing acts like those alleged to be negligent is generally
considered to be competent evidence of the relevant standard
of care. 69
   Our de novo review of the record shows Frost is correct
that there is no evidence, expert or otherwise, of a common
practice or uniform custom in the industry prohibiting con-
tract manure pumpers from pumping at a sow facility imme-
diately after pumping at a hog finishing facility. Instead, the
evidence shows that the biosecurity practices in the industry
vary widely and that the only uniform custom or practice
is to clean and disinfect equipment and observe a period of
67
   See Curran v. Buser, 

, 

 (2006) (observing
   it is plaintiff’s burden to prove what conduct is required by applicable
   standard of care).
68
   See McGill 

, 

, 

 (“[o]rdinarily, the standard of care for the rendering of services in the
   practice of a trade is outside the common knowledge and experience of
   ordinary persons and must, therefore, be established by expert testimony”).
   Accord Anderson v. Babbe, 

, 

 (2019) (to
   establish customary standard of care in particular case, expert testimony
   of customary practice among those in same industry is normally required).
69
   See Wilbur v. Schweitzer Excavating Co., 

, 

 (1967) (to establish standard of care “evidence of the ordinary
   practice or of the uniform custom of persons in the performance of acts
   . . . like those alleged to be negligent is competent evidence”).
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downtime between pumping jobs. On this record, Frost pre-
sented a prima facie case showing he would be entitled to
judgment on this claim if the evidence were uncontroverted
at trial, 70 and the burden shifted to RFI to produce evidence
showing the existence of a material issue of fact that would
prevent judgment as a matter of law. 71
   But RFI does not direct us to any evidence in the record of
an industry standard or a uniform custom or practice prohibit-
ing contract manure pumpers from pumping at a sow facility
after pumping at a hog finishing facility. Instead, RFI argues
that reasonable inferences from testimony about Frost’s per-
sonal practice creates “a dispute of material fact regarding
whether it is [an] industry standard to pump sow units before
finishing barns.” 72 RFI cites to Frost’s deposition testimony
that, with his own customers, he starts the pumping season at
a sow facility. But, as we explain, even giving RFI all reason-
able inferences from such evidence, we cannot agree this tes-
timony creates a material factual dispute about the applicable
standard of care.
   [21] First, evidence of a defendant’s personal practice or
routine does not necessarily establish the customary practice
or standard of care in the industry. 73 In the absence of evidence
suggesting that Frost’s personal practice is also the customary
practice in the industry, such evidence is simply not relevant
to establishing the conduct required by the applicable stan-
dard of care. 74 Moreover, Frost did not testify about whether
70
   See 

; 

.
71
   See 

72
   Reply brief for appellant at 13-14.
73
   See, e.g., 

 (applicable standard of care not determined
   by defendant physician’s personal or customary routine, but by ordinary
   practice among physicians in similar community engaged in similar
   practice); Eccleston v. Chait, 

, 

   (1992) (defendant physician’s personal practice or routine “irrelevant” as
   standard for determining customary practice among similar professionals).
74
   See 

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his personal practice was prompted by biosecurity concerns,
logistical concerns, customer preference, or something else.
So, on this record, evidence that it is Frost’s personal practice
or routine to start his pumping season at a sow facility does
not support a reasonable inference that there is an industry
standard prohibiting contract manure pumpers from pumping
at a sow facility after pumping at a hog finishing facility.
   Because RFI produced no evidence of an industry custom
or standard prohibiting contract manure pumpers from pump-
ing at a sow facility after pumping at a hog finishing facility,
Frost was entitled to judgment as a matter of law on RFI’s
claim that such conduct breached the standard of care. To the
extent the Court of Appeals’ opinion concluded otherwise, it
is reversed.

                     (ii) Failing to Inform RFI
                         of Pumping History
   Frost argues he is also entitled to summary judgment on
RFI’s claim that he breached the standard of care by failing to
inform RFI that his equipment and crew had just come from
pumping manure at a hog finishing facility. Frost does not
dispute that it is customary for swine producers to ask contract
manure pumpers where their crew and equipment have been
and to communicate about any specific biosecurity protocols
the producer wants the pumper to follow. Giving RFI every
reasonable inference, we conclude, after a de novo review
of the evidence, that it is also customary for contract manure
pumpers to tell swine producers where they have been pump-
ing and what steps they have taken to clean and disinfect their
equipment, as well as to ask what the producer requires as far
as biosecurity. Frost argues he is entitled to summary judg-
ment because the undisputed evidence shows he did not breach
such standards.
   Frost points to uncontroverted evidence that (1) RFI and
Arp had an established business relationship, (2) RFI entrusted
Arp to communicate with Frost about RFI’s biosecurity
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expectations, and (3) Frost informed Arp several days before
pumping at RFI’s sow facility that he and his crew were
pumping manure at a hog finishing facility, and Frost asked
Arp what sort of biosecurity protocols RFI would require him
to follow under the circumstances. The evidence is also undis-
puted that Frost believed Arp had communicated this informa-
tion to RFI. Based on this evidence, Frost argues it was not
reasonably foreseeable that Arp would fail to tell RFI about
Frost’s pumping history. 75
   We agree that this evidence, if uncontradicted at trial, would
entitle Frost to judgment as a matter of law on RFI’s claim that
Frost breached the standard of care by failing to inform RFI
that his pumping crew had been at a hog finishing facility. The
burden thus shifted to RFI to produce evidence showing the
existence of a material issue of fact that prevents judgment as
a matter of law. 76
   But RFI produced no evidence contradicting Frost’s tes-
timony that Frost informed Arp he was pumping at a hog
finishing facility and no evidence suggesting that Frost had
any reason to foresee that Arp would fail to communicate that
information to his customer. Nor was there any evidence sug-
gesting it was a customary practice, when assisting another
pumping crew, to communicate directly with that pumper’s
customer about biosecurity expectations. Indeed, although
there was evidence that Arp and Frost regularly assisted one
another on large or time-sensitive pumping jobs, there was no
evidence they ever communicated directly with one another’s
customers about biosecurity.
   On this record, RFI failed to produce evidence showing
the existence of a material issue of fact precluding summary
75
   See, e.g., Matson v. Dawson, 

, 

   (1970) (“person has no duty to anticipate negligence on the part of others,
   and, in the absence of notice or knowledge to the contrary, is entitled to
   assume, and to act on the assumption, that others will exercise ordinary
   care”).
76
   See 

.
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judgment on RFI’s claim that Frost breached the standard of
care by failing to inform RFI that he and his crew had pumped
manure at a hog finishing facility. Frost was entitled to sum-
mary judgment on this claim, and to the extent the Court of
Appeals’ opinion can be read to have concluded otherwise, it
is reversed.

           3. Declining to Consider Cross-Appeal
   In his final assignment of error, Frost argues the Court of
Appeals erred by declining to address his cross-appeal. He con-
tends that since the cross-appeal was asserting an alternative
ground for granting summary judgment, the Court of Appeals
should have examined the merits of the cross-appeal before it
reversed the summary judgment and remanded the cause for
further proceedings.
   The only reason given by the Court of Appeals for declin-
ing to address the cross-appeal was that “[t]he district court
did not reach the issue of causation or the issue of evidence
preservation in its order granting summary judgment” and
appellate courts “will not consider an issue on appeal that was
not passed upon by the trial court.” 77 Frost argues this prin-
ciple did not provide a sufficient basis for declining to review
the cross-appeal because the issues of causation and spoliation
were raised in the summary judgment motion and argued in
the related briefing before the trial court. The court simply
failed to reach the issues because it chose a different disposi-
tional path. And Frost points out that because summary judg-
ment rulings are reviewed de novo, 78 an appellate court may
affirm an order granting summary judgment on any ground
available to the trial court, even if it is not the same reasoning
the trial court relied upon. 79
77
   Ronnfeldt 

, 

, 1 N.W.3d. at 557.
78
   See e.g., Thiele v. Select Med. Corp., 

, 

 (2024).
79
   E.g., 

.
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   [22] Although the principle is well settled that an appel-
late court will not consider an issue on appeal that was not
presented to or passed upon by the trial court, 80 we agree with
Frost that under the circumstances presented here, where the
issues were presented to the district court on summary judg-
ment, this principle did not prevent the Court of Appeals from
reviewing an alternative ground for granting summary judg-
ment that was presented to the trial court but not passed upon.
   [23] Other principles may arguably have supported the
Court of Appeals’ decision not to address the cross-appeal, 81
but our disposition on further review makes it unnecessary
to analyze whether the Court of Appeals erred by declining
to review Frost’s cross-appeal before remanding the cause
for further proceedings. 82 An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate
the case and controversy before it. 83 Because our de novo
review persuades us the grant of summary judgment should be
affirmed, it is not necessary to resolve Frost’s last assignment
of error on further review.
                      V. CONCLUSION
   Although our reasoning on further review differs from that
applied in the courts below, we agree with the district court
that Frost was entitled to summary judgment as a matter of
law on the negligence claims alleged in the complaint. To
80
   E.g., de Vries v. L & L Custom Builders, 

, 

   (2021).
81
   See, e.g., Saint James Apt. 

 (appellate court has
   discretion to decline to review all possible reasons supporting result if
   it concludes remand would be better means of resolving issue); Lindsay
   Mfg. Co. v. Universal Surety Co., 

, 

 (1994) (appellate court can decline to address assignments of error
   “either because [its] holding obviates the need to address the issues raised
   or because they are entirely without merit”).
82
   See In re Interest of Jordon B., 

, 

 (2024).
83
   

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the extent the Court of Appeals’ decision can be read to have
concluded otherwise, it is reversed. We otherwise affirm the
Court of Appeals’ decision and remand the cause with direc-
tions to affirm the grant of summary judgment.
                   Affirmed in part, and in part reversed
                   and remanded with directions.
   Miller-Lerman, J., participating on briefs.
   Heavican, C.J., not participating.