This negligence case arose after to drinkers rode off together and were in an accident. The Nebraska Court of Appeals affirms over claims that the assumption of risk defense was improperly applied.
Daubenmier v. Spence, 16 Neb. App. 435 (2008)
Court of Appeals Headnotes
Negligence:
1. The doctrine of assumption of risk applies a subjective standard, geared to the individual plaintiff and his or her actual comprehension and appreciation of the nature of the danger he or she confronts.
2. Words and Phrases. The defense of assumption of risk is derived from the maxim “volenti non fit injuria,” which means that where one, knowing and comprehending the danger, voluntarily exposes himself to it, although not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. ••• As currently codified, “assumption of risk” as an affirmative defense means that (1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person’s injury or death or the harm to property occurred as a result of his or her exposure to the danger.
Constitutional Law:
1. Courts: Jurisdiction: Statutes. Cases involving the constitutionality of a statute bypass the Nebraska Court of Appeals and are taken directly to the Nebraska Supreme Court. ••• The mere assertion that a statute may be unconstitutional does not automatically deprive the Nebraska Court of Appeals of jurisdiction over the case. ••• Where the constitutional challenge being raised has previously been resolved by the Nebraska Supreme Court, the case merely requires an application of unquestioned and unambiguous constitutional provisions, and jurisdiction to so hold lies in the Nebraska Court of Appeals. ••• When necessary to a decision in the case before it, the Nebraska Court of Appeals does have jurisdiction to determine whether a constitutional question has been properly raised.
2. Statutes:
a. Appeal and Error. For the constitutionality of a statute to be genuinely involved in an appeal, the constitutional issue must be real and substantial, not merely colorable. ••• In addition to raising a real and substantial constitutional issue, a litigant seeking to challenge the constitutionality of a statute is required to comply with other clearly established procedural steps.
b. Service of Process. If a statute is alleged to be unconstitutional, the Attorney General must be served with a copy of the proceeding and be entitled to be heard.
3. Rules of the Supreme Court: Statutes: Appeal and Error. To properly raise a challenge to the constitutionality of a statute, a litigant is required to strictly comply with Neb. Ct. R. of Prac. 9E (rev. 2006) and to properly raise and preserve the issue before the trial court.
Jury Instructions:
1. Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
2. Appeal and Error. Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party.
Date Filed and Case No.: February 19, 2008. No. A-06-433.
Court Appealed From: District Court for Douglas County: James T. Gleason, Judge.
Attorneys for the Appeal: Christopher D. Jerram for Philip Daubenmier, appellant. Robert S. Keith and Kellie R. Harry for Charles S. Spence, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Irwin, Judge.
Summary: This case originated as a result of a single vehicle accident on April 5, 2003, in which Philip Daubenmier was a passenger and Charles S. Spence was the driver. The record indicates that both Daubenmier and Spence spent several hours at various bars in downtown Omaha, purchasing alcohol for each other and drinking, before the two got into Spence’s vehicle, began to leave the area, and Spence hit a light pole. Daubenmier suffered injuries as a result of the accident and brought suit against Spence. Spence pled, as affirmative defenses, that Daubenmier assumed the risk and that he failed to mitigate his injuries by wearing a seat belt. Spence admitted liability for the accident, and the issue at trial was what, if any, monetary damages Daubenmier should be awarded. The jury found in favor of Spence, returning a verdict for $0. Daubenmier appealed to the Nebraska Court of Appeals.
Did the district court err in instructing the jury on Spence’s defense that Daubenmier assumed the risk of injury in this case? Daubenmier asserted that the evidence was insufficient to support instructing the jury on assumption of risk; that the instructions actually given were cumulative, confusing, and misleading to the jury; and that the statute authorizing assumption of risk as an affirmative defense violates equal protection. The Court found that sufficient evidence was provided at trial to demonstrate all of the required elements of assumption of risk, and they found this argument to be without merit. The doctrine of assumption of risk applies a subjective standard, geared to the individual plaintiff and his or her actual comprehension and appreciation of the nature of the danger he or she confronts. The record in the present case demonstrated that Daubenmier knew that it was dangerous to get into a car with somebody who had been drinking and knew that doing so could lead to death or serious injury. Daubenmier knew that both he and Spence had “more than average” to drink and had been drinking “fairly heavy.” Daubenmier knew of the specific danger that caused his injury in this case: a driver who has had too much to drink might have an accident, resulting in death or serious injury. Just as the evidence supported a finding that the plaintiff in Burke v. McKay knew of the specific danger that caused his injury, the evidence supported such a finding in the present case. As such, the evidence was sufficient to support the giving of an assumption of risk instruction.
Were the district courts assumption of risk instructions, cumulative, confusing, and misleading? The Court noted that the instructions given to the jury included two instructions that explained the assumption of risk defense. These two instructions followed the recommended pattern jury instructions and only repeated the burden placed upon Spence to prove all three elements of the assumption of risk defense. The instructions also correctly set forth Nebraska law concerning assumption of risk, consistent with the defense. The Court found the instructions were not cumulative, were not confusing and misleading, and were not erroneous.
Does the statute authorizing and defining assumption of risk as an affirmative defense violate plaintiffs’ equal protection rights therefore being unconstitutional? The Court concluded that Daubenmier failed to properly raise this claim involving the constitutionality of the statute. Although the record in the present case indicated that Daubenmier asserted his challenge to the constitutionality of § 25-21,185.12 at the trial level and the trial court ruled on the challenge, and that Daubenmier complied with the requirements of rule 9E, the record does not indicate that Daubenmier served the Attorney General with a copy of the proceeding at the trial level. As a result, the Court concluded that Daubenmier’s constitutional question has not been properly raised.
Did the district court err in instructing the jury on Spence’s defense that Daubenmier failed to mitigate his damages because he failed to wear his seatbelt? Daubenmier argued that the evidence was insufficient to support giving the instruction because the evidence did not establish that Daubenmier failed to wear his seatbelt and because the evidence indicated that he could have suffered the injuries even if he had been wearing a seatbelt. The Court concluded that it did not need to address whether the evidence was sufficient to warrant this instruction because the record demonstrated that the jury did not reach this issue. “The record makes it clear in this case that the jury never reached the issue of the seatbelt defense. As such, we need not consider Daubenmier’s arguments concerning the validity of the instruction.”
Were the verdict forms given by the district court confusing? Specifically, Daubenmier argues that the combination of the seatbelt instruction and verdict form No. 2 was confusing to the jury because verdict form No. 2 failed to mention the seatbelt instruction or its calculation for reducing the damages award. In the opinion, the Court noted, the jury in this case used verdict form No. 1, found that Spence had proven his assumption of risk defense, and awarded no monetary damages to Daubenmier. The jury did not reach verdict form No. 2 and never considered how to reduce a damages award, pursuant to the seatbelt instruction or otherwise. As such, the potential confusion argued by Daubenmier could not have occurred in this case.
Conclusion: The Court found no merit to Daubenmier’s assignments of error. They found that the evidence was sufficient to support instructing the jury on assumption of risk and that the instructions given were not cumulative, confusing, or misleading. The Court said it could not address the constitutional issue raised by Daubenmier. We also find that any potential errors concerning the seatbelt instruction or verdict form No. 2 would have been harmless error because the jury never reached the seatbelt defense. AFFIRMED.
The Nebraska Court of Appeals, in reviewing a sentence for being excessively lenient affirms the sentence imposed.
State v. Antoniak, 16 Neb. App. 445 (2008)
Court of Appeals Headnotes
Sentences:
1. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.
2. Appeal and Error. Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court’s discretion. ••• In excessively lenient sentence cases, an appellate court does not review the sentence de novo and the standard is not what sentence the appellate court would have imposed.
3. Probation and Parole: Appeal and Error. When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
Date Filed and Case No.: February 19, 2008. No. A-07-457.
Court Appealed From: District Court for Douglas County: Joseph S. Troia, Judge.
Parties and Attorneys: Jeffrey J. Lux for State of Nebraska, appellant. Emil M. Fabian for Scott A. Antoniak, appellee.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On July 10, 2005, while Scott A. Antoniak was on duty and dressed in his uniform as an Omaha police officer, he approached the victim, a prostitute. Antoniak ran the victim’s name for outstanding warrants, discovered an active warrant for her arrest, and had the victim sit in the front seat of the police cruiser. Antoniak drove the cruiser a short distance and told the victim that she could point out the drug dealers, go to jail, or perform oral sex on him. The victim chose the last option and preserved some of Antoniak’s semen. The State charged Antoniak with first degree sexual assault. Following a bench trial, the district court convicted Antoniak of the charge and sentenced him to 5 years’ probation. The State of Nebraska appeals the sentence imposed on Antoniak as excessively lenient. The Nebraska Court of Appeals reviewed the appeal.
Was the sentence excessively lenient? The Court wrote that at the time of sentencing, Antoniak was 29 years old. He was living with his wife and child and another child was expected in May 2007. He had obtained a bachelor’s degree in criminal justice and had worked for the Omaha Police Department from November 2001 until he was fired in August 2005. The probation officer who prepared the PSI stated there were two aggravating facts against Antoniak regarding sentencing. One is the seriousness of this charge (a Class II felony.) The other has to do with the circumstances, in that he used his position of authority as a police officer, and as such was held to a higher standard of conduct. The officer felt it was because of these aggravating factors, in that it would depreciate the seriousness of the offense, that he did not recommend probation. During the sentencing hearing, the district court received a psychological evaluation of Antoniak which showed him to be at low risk for violence or reoccurrence of another sexual crime. The report also stated that Antoniak was “manifesting appropriate anxiety, depression and guilt regarding the incident at hand and is seen to be an individual who could benefit from extended probation in an outpatient rehabilitation process.” The State acknowledged that Antoniak has a low probability to reoffend, lacks a prior criminal record, and had been a positive member of the community, but argues that “[t]he nature and circumstances of this particular crime warrants [sic] a period of incarceration to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for committing a first degree sexual assault while in uniform.” The State cites to cases from other jurisdictions in urging that a police officer who breaches the public trust by criminal acts should be denied probation. The Court noted that none of those cases held that failing to impose a prison sentence for an offense involving breach of the public trust by a police officer constituted an abuse of discretion. Here, the Court said that the record amply demonstrates that the sentencing judge expressly considered and weighed this factor. In cases such as this, the Court did not review the sentence de novo and the standard is not what sentence they would have imposed. Reviewing the sentencing court’s comments during sentencing, the Court concluded that there was a reasonable factual basis for the sentence imposed and that the sentence did not constitute an abuse of the district court’s discretion.
Conclusion: Because the Court concluded that the district court did not abuse its discretion in sentencing Antoniak, they affirmed the sentence. AFFIRMED.
This case involves the interpretation of a will, 9 codicils and a trust set up under the will and codicils. The Nebraska Court of Appeals finds that the county court erred in its determination of how those codicils should be applied.
In re Trust of Alexis, 16 Neb. App. 416 (2008)
Court of Appeals Headnotes
Trusts:
1. Interpretation of the language of a trust is a matter of law. ••• With certain exceptions, the Nebraska Uniform Trust Code, Neb. Rev. Stat. § 30-3801 et seq. (Cum. Supp. 2006), applies to all trusts created before, on, or after January 1, 2005, and to all judicial proceedings concerning trusts commenced on or after January 1, 2005. ••• Neb. Rev. Stat. § 30-3879(b)(l) (Cum. Supp. 2006) requires certain trustees who are also beneficiaries to make certain discretionary distributions only in accordance with an ascertainable standard. ••• Neb. Rev. Stat. § 30-3879(b)(l) (Cum. Supp. 2006) applies only to trusts which become irrevocable on or after January 1, 2005. ••• Neb. Rev. Stat. § 30-3879(a) (Cum. Supp. 2006) requires that notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as “absolute,” “sole,” or “uncontrolled,” the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. ••• Under Neb. Rev. Stat. § 30-3849(d) (Cum. Supp. 2006), § 30-3849, which imposes limitations on the right of the creditor of a beneficiary to compel a distribution, does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution. ••• Neb. Rev. Stat. § 30-3812 (Cum. Supp. 2006) does not limit to trustees the right to seek instructions from the court.
2. Equity: Appeal and Error. Appeals involving the administration of a trust are equity matters and are reviewable in an appellate court de novo on the record.
3. Intent. The rules of construction for interpreting a trust are applied when the language of the trust is not clear; but if the language clearly expresses the settlor’s intent, the rules do not apply. ••• The primary rule of construction for trusts is that a court must, if possible, ascertain the intention of the testator or creator. ••• When there are two or more instruments relating to a trust, they should be construed together to carry out the settlor’s intent.
4. Courts: Jurisdiction. Under Neb. Rev. Stat. § 30-3812 (Cum. Supp. 2006), the court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law, and a judicial proceeding involving a trust may relate to any matter involving the trust’s administration, including a request for instructions and an action to declare rights. ••• The comment to Unif. Trust Code § 201, 7C U.L.A. 455 (2006), allows, but does not require, invocation of the court’s jurisdiction absent an actual dispute.
5. Declaratory Judgments. Nebraska’s declaratory judgment statutes allow trustees and persons interested in the administration of a trust to seek a declaration regarding any question arising in the administration of a trust.
Decedents’ Estates:
1. Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court.
2. Wills: Words and Phrases. "By right of representation” means a devisee is entitled to take or receive a share of the estate on a per stirpes basis. ••• A distribution per stirpes is one in which the beneficiaries take proportionate shares of the share of the ancestor through whom they claim as his or her representatives, and as such representatives, they will be entitled to take just as much as such ancestor would have taken and no more.
Judgments:
1. Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. ••• In instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record. ••• An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. ••• Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
Wills.
1. Clear and unambiguous provisions of the original will cannot be controlled by a subsequent codicil, the terms of which are confusing and ambiguous.
2. Intent. The intention of the testator is to be ascertained from a liberal interpretation and comprehensive view of all of the provisions of the will, and the court must base its interpretation upon the literal and grammatical meaning of the words and phrases as they appear in the will itself and take into account all the provisions set forth in the will.
Declaratory Judgments.
1. As a general rule, there must be an actual case or controversy for a party to obtain a declaratory judgment.
Courts:
1. Justiciable Issues. A court decides real controversies and determines rights actually controverted.
Date Filed and Case No.: February 19, 2008. Nos. A-06-408, A-06-409.
Court Appealed From: County Court for Lancaster County: Laurie J. Yardley, Judge.
Attorneys for the Appeal: Patrick D. Timmer for Carl E. Alexis, appellant. David W. Rowe and Julianne M. Spatz for Josephine Molloy et al., trustees, appellees.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Inbody, Chief Judge.
Summary: Joseph E. A. Alexis and Marjorie E. Alexis (collectively Testators), now deceased, were husband and wife and had four children. Testators each executed their last wills (on January 4, 1958) which were essentially identical, disposing of their personal property and household items, making a marital bequest, and devising the residue to their trustees. After the execution of their last wills, Testators executed nine codicils to their last wills. Those last wills and the nine codicils were admitted to probate following the respective deaths of Joseph and Marjorie. All four of Testators’ children acted as trustees until one of the children died in 2005, leaving his surviving siblings, the appellees, as trustees. Until the death of the one sibling, Carl Odman Alexis, the trustees directed the annual distribution of the farm income equally among themselves. After the death of Carl Odman Alexis, the surviving trustees directed the distribution of farm income from the trusts equally among themselves, with no distribution to the issue of the sibling that died and to his former wife, Maybritt Alexis. Appellant, Carl E. Alexis, and his sister, subsequently initiated trust administration proceedings. At the trust administration proceedings, the parties did not dispute that the original last wills granted all of Testators’ grandchildren a right to succeed to a present interest in the distribution of income and principal upon the death of their respective parents and that the grandchildren were granted the right to share in the distribution of the remainder of the trust assets upon termination of the trusts after the death of the last of Testators’ children. The parties further stipulated that (1) the distribution of trust income is discretionary in the trustees; (2) whether to encroach upon or distribute the trust principal is discretionary with the trustees; (3) the trusts terminate when the last of Testators’ children dies; and (4) upon termination of the trusts, the remaining assets shall be distributed in equal shares to Testators’ grandchildren, with the share of any then-deceased grandchild distributed to such grandchild’s surviving issue by right of representation. The parties made further stipulations. The issues before the county court were (1) what the beneficial interest of Testators’ grandchildren was and (2) whether the county court should review the extent of the trustees’ exercise of discretion. The county court found that the fourth, fifth, and seventh codicils entirely eliminated Appellant’s contingent right to succeed to a present interest in distributions of trust income and principal but left Appellant’s remainder interest unchanged. The county court further found that the ninth codicil changed the rights of all the other grandchildren and treats them equally with Appellant and his sister by directing the trustees to distribute income and principal primarily to Testators’ children while Testators’ children are still living, and only as a final distribution to the grandchildren as remaindermen upon the death of the last of Testators’ children. Appellant appealed to the Nebraska Court of Appeals.
Did the county court err in finding that the fourth, fifth, and seventh codicils of the testators last will and testaments, eliminated Appellant’s right to succeed to a present interest in the distribution of trust income and principal upon the death of his father? The Court first determined whether the language of the trusts and Testators’ intent is unclear with respect to the present interest of Appellant and his sister, such that the rules of construction for interpreting the trusts apply. Because the status of Appellant’s and his sister’s present interest following the seventh codicil, which reinstated their father’s interest, is not explicitly stated, the Court said that the codicils are not clear, and they had to apply the rules of construction. Reviewing the codicil, the Court concluded that absent express language in the fifth and seventh codicils affecting Appellant’s and his sister’s present interest and in light of Testators’ apparent intent, after the seventh codicil, Appellant and his sister were entitled to succeed to their present interest, subject to the limitations in the fourth codicil and the trustees’ right to encroach upon the principal of the trust, while the trusts remained in effect.
Did the county court err in finding that the ninth codicil changed the rights of all of Testators’ grandchildren such that the grandchildren are only entitled to a remainder interest? The ninth codicil expressly directs the trustees to take action regarding distributions to one of the testators’ children, Josephine Alexis Molloy, to avoid any distributions being diverted to strangers. The Court said it is the language of the first paragraph that requires construction. The will, trust and codicils were examined at length by the Court, which determined that while the clear and definite language of a will should prevail over an obscure codicil, and a doubtful expression in a codicil will not alter a plain provision of the will, where the testator’s purpose is clear, the court cannot restrict the codicil by any rule of construction to a meaning which would frustrate its intendment. “As we have already observed, the ninth codicil was not clearly contradictory to the last wills” wrote the Court. “In the absence of a clear intent to alter the last wills except with respect to Josephine Alexis Molloy, we conclude that the ninth codicil did not affect the grandchildren’s present interest as set forth in the last wills, subject to the trustees’ discretion.”
Did the county court err in finding that it was not proper to review the extent of the trustees’ discretion and in not determining that the extent of the trustees’ discretion was limited? Looking to the law and statutes regarding trusts, the Court found that the trustees in the case before them were bound to exercise their discretionary powers in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. Further, § 30-3849(d) states that § 30-3849, which imposes limitations on the right of the creditor of a beneficiary to compel a distribution, “does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.” The Nebraska Uniform Trust Code also authorizes a procedural method for court review of a beneficiary’s substantive claim. Nebraska’s declaratory judgment is one of such means for review. As a general rule, there must be an actual case or controversy for a party to obtain a declaratory judgment and there is no dispute that there was an actual controversy concerning the beneficial interest of Appellant and his sister in light of the fact that their father, Carl Odman Alexis, was deceased. The Court had concluded above that Appellant’s and his sister’s present interest was reinstated by the seventh codicil and that the ninth codicil did not extinguish the grandchildren’s present interest; and an additional actual controversy naturally arises from their conclusion: whether the trustees, in excluding Appellant and his sister, have been appropriately distributing proceeds from the sale of trust property. The county court, having concluded that Appellant’s and his sister’s interest was terminated, did not have this controversy before it. That is, because the county court found that Appellant and his sister were not entitled to succeed to their father’s interest, there was no need to interpret the extent of the trustees’ discretion. However, in light of the Court’s analysis above, a controversy exists regarding that discretion. “Therefore, the county court is obligated to make that determination, and we direct the county court to determine the extent of the trustees’ discretion on remand.”
Conclusion: For the foregoing reasons, the Court concluded that the county court misinterpreted the last wills and codicils and is obligated to determine the extent of the trustees’ discretion. REVERSED AND REMANDED WITH DIRECTIONS.
