These two negligence cases filed against the State under the State Tort Claims Act for improper signage at an intersection which resulted in two separate accidents is affirmed by the Nebraska Court of Appeals. The dissent reaches the conclusion that the trial court erred in not finding that the plaintiffs were not negligent.
Kirkwood v. State, 16 Neb. App. 459 (2008)
Court of Appeals Headnotes
Trial:
1. Expert Witnesses: A trial court adequately demonstrates that it has performed its gatekeeping duty in determining the reliability of expert testimony when the record shows (1) the court’s conclusion whether the expert’s opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination. ••• Determining the weight that should be given expert testimony is uniquely the province of the fact finder.
a. Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gate-keeping function. ••• Whether a witness is qualified as an expert is a preliminary question for the trial court. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court’s finding is clearly erroneous, such a determination will not be disturbed on appeal. ••• A trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.
2. Evidence. A trial court may not abdicate it gatekeeping duty in a bench trial, but the court is afforded more flexibility in performing this function.
3. Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.
Rules of Evidence.
1. In proceedings where the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
2. Expert Witnesses. When a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, in accordance with Neb. Evid. R. 702, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. ••• An expert’s opinion is ordinarily admissible under Neb. Evid. R. 702 if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
2. Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
Tort Claims Act:
1. Appeal and Error. A district court’s findings of fact in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly erroneous.
2. Claims. Whether the allegations made by a plaintiff constitute a claim under the State Tort Claims Act or whether the allegations set forth a claim that is precluded by the exemptions set forth in the act are questions of law.
3. Proof. In order to recover in a negligence action brought under the State Tort Claims Act, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.
Negligence.
1. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. ••• Advisory safety standards may represent a consensus of what a reasonable person in a particular industry would do, and therefore may be helpful to the trier of fact in deciding whether the standard of care has been met.
2. Proximate Cause:
a. Proof. To establish proximate cause, there are three basic requirements: (1) The negligence must be such that without it, the injury would not have occurred, commonly known as the “but for” rule; (2) the injury must be the natural and probable result of the negligence; and (3) there can be no efficient intervening cause.
b. Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the causal connection between the original conduct and the injury. The causal connection is severed when (1) the negligent actions of a third party intervene, (2) the third party had full control of the situation, (3) the third party’s negligence could not have been anticipated by the defendant, and (4) the third party’s negligence directly resulted in injury to the plaintiff.
Administrative Law:
1. Judgments. The district court’s interpretation of the Manual on Uniform Traffic Control Devices presents a question of law.
Governmental Subdivisions:
1. Highways. Concerning highways in general, the State has a duty to use reasonable and ordinary care in the construction, maintenance, and repair of its highways so that they will be reasonably safe for the traveler using them while exercising reasonable and ordinary care and prudence. ••• The State is not an insurer of the safety of travelers on its roads and highways.
Proximate Cause:
1. Evidence. The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong.
2. Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.
Motor Vehicles:
1. Right-of-Way. A motorist has the duty to look both to the right and to the left and to maintain a proper lookout for the motorist’s safety and that of others.
2. Highways. Neb. Rev. Stat. § 60-6,119(1) (Reissue 2004) requires a driver to obey any traffic control devices.
Damages:
1. Evidence: Proof. Damages for permanent impairment of future earning capacity may not be based on speculation, probabilities, or uncertainty, but must be shown by competent evidence that such damages are reasonably certain as the proximate result of the pleaded injury.
2. Appeal and Error. The determination of the amount of damages is a matter which is one solely for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved.
Pretrial Procedure.
1. A litigant has the right to have interrogatories answered, and the adversary has a continuing duty to supplement prior responses. ••• Generally, the control of discovery is a matter for judicial discretion.
2. Expert Witnesses: Trial. When a party has failed to respond, or respond properly, to an interrogatory authorized by Neb. Ct. R. of Discovery 26(b)(4)(A)(i) (rev. 2000), or has failed to make supplemental responses required under rule 26(e)(1)(B), and such noncomplying party calls an expert witness to offer testimony within the scope of the interrogatory in question, the adverse party must object to a previously unidentified expert witness' testifying in general or object to testimony of an expert witness testifying about a previously undisclosed but discoverable matter sought to be disclosed by the interrogatory in question. ••• If the court, over objection, allows an expert witness called by a party who has not properly responded to an interrogatory to testify, notwithstanding nondisclosure before trial, when appropriate the adverse party must move to strike the expert witness' testimony, request a continuance to give the surprised adversary an opportunity to investigate further and secure rebuttal evidence, or, under certain circumstances, move for a mistrial.
Date Filed and Case No.: February 26, 2008. Nos. A-05-1226, A-06-630.
Court Appealed From: District Court for Lincoln County: John P. Murphy, Judge.
Attorneys for the Appeal: Jon Bruning and Matthew F. Gaffey for State of Nebraska, appellant. Martin J. Troshynski, Mark A. Christensen for William Kirkwood et al., appellees. P. Stephen Potter for Ross Ostergard, appellee.
Judges: Irwin, Sievers, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: The State of Nebraska appealed to the Nebraska Court of Appeals from judgments following separate bench trials, in favor of William Kirkwood, Robert Johnson, and Mavis Johnson (collectively Kirkwood Appellees) and in favor of Ross Ostergard on their actions under the State Tort Claims Act to recover damages sustained as a result of two separate two-vehicle collisions at an intersection where the northbound vehicles at issue did not stop. The district court determined that the State was negligent in failing to comply with the Manual on Uniform Traffic Control Devices (Manual) in placing stop signs and other warning devices at the intersection. In Kirkwood Appellees’ case, the court determined that the State’s negligence was the sole proximate cause of the damages they sustained. Approximately 7 months after the Kirkwood trial, the same district court judge held a bench trial in Ostergard’s case and subsequently found that Ostergard was 40-percent negligent and that the State was 60-percent negligent.
Did the district court fail to adequately perform its duty as a gatekeeper by overruling the State’s motion for determination of the admissibility of evidence in each case, failing to make specific findings on the record as to why the court believed the experts’ methodology was reliably applied, and admitting and relying on opinion testimony from that was unreliable and lacked a sufficient engineering basis? Here, the experts testimony dealt with standards set out in the Manual. On appeal, the State did not challenge the witness’ qualifications as an expert nor did they challenge the scientific validity and reliability of the Manual. Rather, the State’s point of contention centered on the witness’ interpretation of provisions of the Manual. For that reason, the Court concluded that no Daubert analysis was necessary. The Court said that the State’s arguments would more appropriately be characterized as an attack on the amount of weight that should be accorded to the witness’ opinions, rather than on the admissibility of such opinions. They concluded that the district court did not abuse its discretion in admitting the witness’ testimony as expert testimony.
Did the district court err in failing to determine the appropriate standard of care because the court failed to correctly apply the terms ‘Shall,’ ‘Should,’ and ‘May’ in the Manual? The Court wrote that it appeared that the State’s line of reasoning was that if it did not violate a mandatory provision of the Manual, it did not breach its duty of care. The Court concluded that compliance with the mandatory provisions of the Manual is not all that is needed for the State to meet its duty and that the State is still bound to exercise ordinary care in selecting the appropriate traffic control device for the circumstances. Reviewing the record, while finding that the district court’s factual findings were clearly erroneous the Court concluded that the district court’s findings that the State breached its duty in not placing a stop line at the intersection, in placing the right-hand stop sign too far to the right, and in not placing rumble strips before the stop ahead sign were not clearly wrong and the State breached its duty.
Did the district court clearly err in finding that the State’s breach of duty was a proximate cause of each of the accidents? The State argued that the respective negligence of Ostergard and Podoll proximately caused the accidents because those drivers did not obey the traffic control devices and did not maintain a proper lookout. The Court pointed out that Neb. Rev. Stat.§ 60-6,119(2) provides, "No provision of the rules for which traffic control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by a reasonably observant person.” Here, neither Ostergard nor Podoll received traffic tickets as a result of the accidents for disobeying the stop signs. Several witnesses testified that the right-hand stop sign was too far away or was not readily visible. The State also argued that Ostergard’s and Podoll’s negligence was an efficient intervening cause. After distinguishing the cases cited by the State, the Court noted the problems with the vision at the intersection and could not say that it was unforeseeable to the State that a reasonably attentive driver would fail to see the stop signs that were not appropriately located. “We cannot say that the district court’s factual findings on the issue of causation were clearly erroneous.”
Did the district court err in failing to find that the State retained its sovereign immunity in placing the stop ahead sign and the “STOP AHEAD” pavement marking and in constructing a viaduct that was visible from the intersection? The State’s argument on this issue is that it is immune from liability under § 81-8,219(11) because the visibility of Highway 30 was a condition that conformed to the State’s plans for construction and because the stop ahead sign and pavement marking were installed as shown on properly approved plans and designs. Here, the district court specifically found that the State had not waived its sovereign immunity in regard to the design of roadways, overpasses, or bridges, and the court stated that it did “not question in any way the design aspects of the intersection” or “the determination as to which traffic control devices were chosen for the intersection.” It stated that each of those issues “clearly falls within the discretionary function exception to the tort claims act.” That finding being made, the Court ruled that this assignment of error lacks merit.
Was the evidence was insufficient to establish that Kirkwood suffered a loss of earning capacity as a result of the accident? With regard to lost earning capacity, the district court stated that it accepted the deposition testimony of two witnesses The Court noted that the determination of the amount of damages is a matter which is one solely for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved. They concluded that competent evidence supported the district court’s determination of damages based on Kirkwood’s lost earning capacity.
Did the district court err in failing to grant the State’s motion to compel and interrogatories and requests for production on Kirkwood? Certainly, a litigant has the right to have interrogatories answered and the adversary has a continuing duty to supplement prior responses. When a party has failed to respond, or respond properly, to an interrogatory authorized by Neb. Ct. R. of Discovery 26(b)(4)(A)(i) (rev. 2000), or has failed to make supplemental responses required under rule 26(e)(1)(B), and such noncomplying party calls an expert witness to offer testimony within the scope of the interrogatory in question, the adverse party must object to a previously unidentified expert witness’ testifying in general or object to testimony of an expert witness testifying about a previously undisclosed but discoverable matter sought to be disclosed by the interrogatory in question. If the court, over objection, allows such expert witness to testify, notwithstanding nondisclosure before trial, when appropriate the adverse party must move to strike the expert witness’ testimony, request a continuance to give the surprised adversary an opportunity to investigate further and secure rebuttal evidence, or, under certain circumstances, move for a mistrial. Here, at trial, the State’s objections were overruled, however, the State never moved to strike the testimony or reports of the above doctors; nor did the State move for a continuance or for a mistrial. For those reasons, the Court reached the same conclusion as did the Nebraska Supreme Court in Norquay v. Union Pacific Railroad, 225 Neb. at 542, 407 N.W.2d at 156: “Whatever may have been an appropriate remedial measure . . . at trial we do not decide in the absence of a motion for a particular remedial measure in the trial court.”
Did the district court err in denying the State’s motion to quash? The State filed a motion to quash Kirkwood Appellees’ fifth supplemental answers to the State’s first interrogatories and Kirkwood Appellees’ seventh supplemental answers to the State’s first requests for production of documents. The State argued that Kirkwood Appellees failed to seasonably supplement their answers and that their fifth supplemental answers to interrogatories failed to comply with the requirements of Neb. Ct. R. of Discovery 33 (rev. 2000). The State asserted that it was prejudiced by (1) the disclosure on the eve of trial of five new expert witnesses. (2) Kirkwood Appellees’ attempt on the eve of trial to transform the witnesses previously identified as “treating physicians” into expert witnesses; and (3) the disclosure of witnesses whose identities had not been disclosed in any previous discovery proceeding. Kirkwood Appellees argued that the State had known about the medical witnesses and had, for months, received reports from the witnesses setting forth their opinions. The Court found no abuse of discretion by the district court for a number of reasons laid out in the opinion.
Conclusion: The Court concluded that the district court did not abdicate its gate-keeping function or abuse its discretion in admitting the expert testimony here. They concluded that the court’s factual findings that the State’s negligence proximately caused the accidents were not clearly erroneous. The district court did not find that the State waived its sovereign immunity as alleged by the State. They concluded the evidence supported the award to Kirkwood based on lost earning capacity. Finally, the Court found no abuse of discretion by the court in denying the State’s motion to compel and motion to quash. They therefore affirmed the judgments of the district court in each case. AFFIRMED.
Severs, Judge, DISSENTING disagreed with the majority’s view of the facts in the record. “Therefore, even if the State could be found negligent in its signage of the intersection, the failure of the trial court to find that the obvious negligence of the two northbound drivers was an efficient intervening cause is clearly wrong.” For the reasons set out in the dissent, Judge Severs would reverse all of the judgments entered in these two cases against the State and remand the matter to the trial court with directions to enter judgments in favor of the State and against each of the plaintiffs.
Despite a long journal entry in an effort to issue a final opinion regarding a suit for an accounting, and actions for delivery, conversion, and material misrepresentation, the Nebraska Court of Appeals finds that the district court’s summary judgment on the accounting alone (which was appealed) followed by summary judgment decisions on the other three causes (which were separately appealed) was not an appealable final order.
Jones v. Jones, 16 Neb. App. 452 (2008)
Court of Appeals Headnotes
Directed Verdict:
1. Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.
2. Evidence. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, when an issue should be decided as a matter of law.
Jurisdiction:
1. Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
2. Final Orders: Appeal and Error. An appellate court is without jurisdiction to entertain appeals from nonfinal orders.
Actions:
1. Parties: Judgments. Under Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006), the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties.
Courts:
1. Judgments. When a trial court concludes that entry of judgment under Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006) is appropriate, it should ordinarily make specific findings setting forth the reasons for its order. ••• Courts considering certification of a final judgment should weigh factors such as (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Date Filed and Case No.: February 26, 2008. No. A-05-1076.
Court Appealed From: District Court for Dundy County: John J. Battershell, Judge.
Attorneys for the Appeal: R.K. O’Donnell, Robert B. Reynolds, and James R. Korth for Courtney S. Jones, individually and as personal representative of the Estate of Richard E. Jones, Deceased, appellant. Terrance O. Waite and S. David Schreiber for Ronald l. Jones and Jean Marie Jones, appellees.
Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.
Authored By: Inbody, Chief Judge.
Summary: Courtney S. Jones, personal representative of the estate of her late husband, Richard E. Jones, filed a petition against her in-laws Ronald L. Jones and Jean Marie Jones alleging that a partnership existed between Richard and Ronald, and seeking, in its first cause of action, an accounting regarding the alleged partnership. The petition asserted three additional causes of action: delivery, conversion, and material misrepresentation. A trial was held on the cause of action for an accounting, and after the close of evidence, the trial court sustained Ronald and Jean Marie’s motion for a directed verdict. In announcing its ruling from the bench, the trial court stated:
[F]or appeal purposes, if you’re thinking about appealing this we should probably enter an order today that says that’s a final order, so that it is, because you have those other three.... I just wanted to point out that if there are any considerations regarding an appeal, that you may wish to have that clearly stated that it’s a final order so you don’t get up there and have it come back again.
In a journal entry, the trial court stated,
The Court ordered that [Courtney] is not entitled to an accounting on any theory presented and the first cause of action is dismissed.” Courtney filed a motion for new trial, and the trial court overruled the motion, stating; [T]he order overruling the Motion for New Trial should be and hereby is designated as a final order for purposes of appeal.
In a docket entry, the trial court stated that its ruling “regarding the accounting was and is a final order and there was no reason to delay that ruling.” On September 8, 2005, Courtney filed a notice of appeal from the order overruling the motion for new trial and the journal entry dismissing her accounting cause of action. In the trial court, Ronald and Jean Marie filed a motion for summary judgment as to Courtney’s remaining causes. On September 27, 2005, the trial court entered a journal entry sustaining the motion for summary judgment. On the same day, Courtney filed a notice of appeal of the trial court’s order that granted Ronald and Jean Marie’s motion for summary judgment. The Nebraska Court of Appeals dismissed the first appeal because the district court’s order was not a final and appealable order because it did not dispose of all the claims of all the parties as required by Neb. Rev. Stat. § 25-1315 (Cum.
Supp. 2004). Subsequently, the Court consolidated that case with the current appeal.
Was there jurisdiction to hear these appeals? In the case before us, the Court noted that the trial court failed to state specific findings setting forth the reasons for its order as required by Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007). The Court ruled that even if they were to assume the trial court’s “brief, unsigned docket entry” was sufficient to certify the directed verdict as a final order, it appears that the nature of Courtney’s claims is such that the trial court abused its discretion in attempting to certify the judgment as final. “Courtney’s claims are clearly interwoven” wrote the Court. “Courtney’s primary claim in her cause of action for an accounting is that a partnership existed. The existence of a partnership is also important to her remaining claims of delivery, conversion, and material misrepresentation, although the absence of a partnership would not entirely vitiate her appeal from the summary judgment on her causes of action for conversion and material misrepresentation. Indeed, the piecemeal nature of the appeals in this case has occasioned the use of more judicial resources than a single appeal would have required.” Based on Cerny v. Todco Barricade Co., supra., the Court concluded that the trial court did not certify its order for a directed verdict as a final order.
Conclusion: Based on the foregoing, the Court concluded that they did not have jurisdiction and accordingly dismissed the appeal. APPEAL DISMISSED.
State Tort Claims Act, Negligence, Improper Signage
These two negligence cases filed against the State under the State Tort Claims Act for improper signage at an intersection which resulted in two separate accidents is affirmed by the Nebraska Court of Appeals. The dissent reaches the conclusion that the trial court erred in not finding that the plaintiffs were not negligent.
Kirkwood v. State, 16 Neb. App. 459 (2008)
Court of Appeals Headnotes
Trial:
1. Expert Witnesses: A trial court adequately demonstrates that it has performed its gatekeeping duty in determining the reliability of expert testimony when the record shows (1) the court’s conclusion whether the expert’s opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination. ••• Determining the weight that should be given expert testimony is uniquely the province of the fact finder.
a. Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gate-keeping function. ••• Whether a witness is qualified as an expert is a preliminary question for the trial court. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court’s finding is clearly erroneous, such a determination will not be disturbed on appeal. ••• A trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.
2. Evidence. A trial court may not abdicate it gatekeeping duty in a bench trial, but the court is afforded more flexibility in performing this function.
3. Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.
Rules of Evidence.
1. In proceedings where the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
2. Expert Witnesses. When a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, in accordance with Neb. Evid. R. 702, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. ••• An expert’s opinion is ordinarily admissible under Neb. Evid. R. 702 if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination.
Judgments:
1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
2. Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
Tort Claims Act:
1. Appeal and Error. A district court’s findings of fact in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly erroneous.
2. Claims. Whether the allegations made by a plaintiff constitute a claim under the State Tort Claims Act or whether the allegations set forth a claim that is precluded by the exemptions set forth in the act are questions of law.
3. Proof. In order to recover in a negligence action brought under the State Tort Claims Act, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.
Negligence.
1. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. ••• Advisory safety standards may represent a consensus of what a reasonable person in a particular industry would do, and therefore may be helpful to the trier of fact in deciding whether the standard of care has been met.
2. Proximate Cause:
a. Proof. To establish proximate cause, there are three basic requirements: (1) The negligence must be such that without it, the injury would not have occurred, commonly known as the “but for” rule; (2) the injury must be the natural and probable result of the negligence; and (3) there can be no efficient intervening cause.
b. Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which itself is a proximate cause of the injury in question and breaks the causal connection between the original conduct and the injury. The causal connection is severed when (1) the negligent actions of a third party intervene, (2) the third party had full control of the situation, (3) the third party’s negligence could not have been anticipated by the defendant, and (4) the third party’s negligence directly resulted in injury to the plaintiff.
Administrative Law:
1. Judgments. The district court’s interpretation of the Manual on Uniform Traffic Control Devices presents a question of law.
Governmental Subdivisions:
1. Highways. Concerning highways in general, the State has a duty to use reasonable and ordinary care in the construction, maintenance, and repair of its highways so that they will be reasonably safe for the traveler using them while exercising reasonable and ordinary care and prudence. ••• The State is not an insurer of the safety of travelers on its roads and highways.
Proximate Cause:
1. Evidence. The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong.
2. Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.
Motor Vehicles:
1. Right-of-Way. A motorist has the duty to look both to the right and to the left and to maintain a proper lookout for the motorist’s safety and that of others.
2. Highways. Neb. Rev. Stat. § 60-6,119(1) (Reissue 2004) requires a driver to obey any traffic control devices.
Damages:
1. Evidence: Proof. Damages for permanent impairment of future earning capacity may not be based on speculation, probabilities, or uncertainty, but must be shown by competent evidence that such damages are reasonably certain as the proximate result of the pleaded injury.
2. Appeal and Error. The determination of the amount of damages is a matter which is one solely for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved.
Pretrial Procedure.
1. A litigant has the right to have interrogatories answered, and the adversary has a continuing duty to supplement prior responses. ••• Generally, the control of discovery is a matter for judicial discretion.
2. Expert Witnesses: Trial. When a party has failed to respond, or respond properly, to an interrogatory authorized by Neb. Ct. R. of Discovery 26(b)(4)(A)(i) (rev. 2000), or has failed to make supplemental responses required under rule 26(e)(1)(B), and such noncomplying party calls an expert witness to offer testimony within the scope of the interrogatory in question, the adverse party must object to a previously unidentified expert witness' testifying in general or object to testimony of an expert witness testifying about a previously undisclosed but discoverable matter sought to be disclosed by the interrogatory in question. ••• If the court, over objection, allows an expert witness called by a party who has not properly responded to an interrogatory to testify, notwithstanding nondisclosure before trial, when appropriate the adverse party must move to strike the expert witness' testimony, request a continuance to give the surprised adversary an opportunity to investigate further and secure rebuttal evidence, or, under certain circumstances, move for a mistrial.
Date Filed and Case No.: February 26, 2008. Nos. A-05-1226, A-06-630.
Court Appealed From: District Court for Lincoln County: John P. Murphy, Judge.
Attorneys for the Appeal: Jon Bruning and Matthew F. Gaffey for State of Nebraska, appellant. Martin J. Troshynski, Mark A. Christensen for William Kirkwood et al., appellees. P. Stephen Potter for Ross Ostergard, appellee.
Judges: Irwin, Sievers, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: The State of Nebraska appealed to the Nebraska Court of Appeals from judgments following separate bench trials, in favor of William Kirkwood, Robert Johnson, and Mavis Johnson (collectively Kirkwood Appellees) and in favor of Ross Ostergard on their actions under the State Tort Claims Act to recover damages sustained as a result of two separate two-vehicle collisions at an intersection where the northbound vehicles at issue did not stop. The district court determined that the State was negligent in failing to comply with the Manual on Uniform Traffic Control Devices (Manual) in placing stop signs and other warning devices at the intersection. In Kirkwood Appellees’ case, the court determined that the State’s negligence was the sole proximate cause of the damages they sustained. Approximately 7 months after the Kirkwood trial, the same district court judge held a bench trial in Ostergard’s case and subsequently found that Ostergard was 40-percent negligent and that the State was 60-percent negligent.
Did the district court fail to adequately perform its duty as a gatekeeper by overruling the State’s motion for determination of the admissibility of evidence in each case, failing to make specific findings on the record as to why the court believed the experts’ methodology was reliably applied, and admitting and relying on opinion testimony from that was unreliable and lacked a sufficient engineering basis? Here, the experts testimony dealt with standards set out in the Manual. On appeal, the State did not challenge the witness’ qualifications as an expert nor did they challenge the scientific validity and reliability of the Manual. Rather, the State’s point of contention centered on the witness’ interpretation of provisions of the Manual. For that reason, the Court concluded that no Daubert analysis was necessary. The Court said that the State’s arguments would more appropriately be characterized as an attack on the amount of weight that should be accorded to the witness’ opinions, rather than on the admissibility of such opinions. They concluded that the district court did not abuse its discretion in admitting the witness’ testimony as expert testimony.
Did the district court err in failing to determine the appropriate standard of care because the court failed to correctly apply the terms ‘Shall,’ ‘Should,’ and ‘May’ in the Manual? The Court wrote that it appeared that the State’s line of reasoning was that if it did not violate a mandatory provision of the Manual, it did not breach its duty of care. The Court concluded that compliance with the mandatory provisions of the Manual is not all that is needed for the State to meet its duty and that the State is still bound to exercise ordinary care in selecting the appropriate traffic control device for the circumstances. Reviewing the record, while finding that the district court’s factual findings were clearly erroneous the Court concluded that the district court’s findings that the State breached its duty in not placing a stop line at the intersection, in placing the right-hand stop sign too far to the right, and in not placing rumble strips before the stop ahead sign were not clearly wrong and the State breached its duty.
Did the district court clearly err in finding that the State’s breach of duty was a proximate cause of each of the accidents? The State argued that the respective negligence of Ostergard and Podoll proximately caused the accidents because those drivers did not obey the traffic control devices and did not maintain a proper lookout. The Court pointed out that Neb. Rev. Stat.§ 60-6,119(2) provides, "No provision of the rules for which traffic control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by a reasonably observant person.” Here, neither Ostergard nor Podoll received traffic tickets as a result of the accidents for disobeying the stop signs. Several witnesses testified that the right-hand stop sign was too far away or was not readily visible. The State also argued that Ostergard’s and Podoll’s negligence was an efficient intervening cause. After distinguishing the cases cited by the State, the Court noted the problems with the vision at the intersection and could not say that it was unforeseeable to the State that a reasonably attentive driver would fail to see the stop signs that were not appropriately located. “We cannot say that the district court’s factual findings on the issue of causation were clearly erroneous.”
Did the district court err in failing to find that the State retained its sovereign immunity in placing the stop ahead sign and the “STOP AHEAD” pavement marking and in constructing a viaduct that was visible from the intersection? The State’s argument on this issue is that it is immune from liability under § 81-8,219(11) because the visibility of Highway 30 was a condition that conformed to the State’s plans for construction and because the stop ahead sign and pavement marking were installed as shown on properly approved plans and designs. Here, the district court specifically found that the State had not waived its sovereign immunity in regard to the design of roadways, overpasses, or bridges, and the court stated that it did “not question in any way the design aspects of the intersection” or “the determination as to which traffic control devices were chosen for the intersection.” It stated that each of those issues “clearly falls within the discretionary function exception to the tort claims act.” That finding being made, the Court ruled that this assignment of error lacks merit.
Was the evidence was insufficient to establish that Kirkwood suffered a loss of earning capacity as a result of the accident? With regard to lost earning capacity, the district court stated that it accepted the deposition testimony of two witnesses The Court noted that the determination of the amount of damages is a matter which is one solely for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved. They concluded that competent evidence supported the district court’s determination of damages based on Kirkwood’s lost earning capacity.
Did the district court err in failing to grant the State’s motion to compel and interrogatories and requests for production on Kirkwood? Certainly, a litigant has the right to have interrogatories answered and the adversary has a continuing duty to supplement prior responses. When a party has failed to respond, or respond properly, to an interrogatory authorized by Neb. Ct. R. of Discovery 26(b)(4)(A)(i) (rev. 2000), or has failed to make supplemental responses required under rule 26(e)(1)(B), and such noncomplying party calls an expert witness to offer testimony within the scope of the interrogatory in question, the adverse party must object to a previously unidentified expert witness’ testifying in general or object to testimony of an expert witness testifying about a previously undisclosed but discoverable matter sought to be disclosed by the interrogatory in question. If the court, over objection, allows such expert witness to testify, notwithstanding nondisclosure before trial, when appropriate the adverse party must move to strike the expert witness’ testimony, request a continuance to give the surprised adversary an opportunity to investigate further and secure rebuttal evidence, or, under certain circumstances, move for a mistrial. Here, at trial, the State’s objections were overruled, however, the State never moved to strike the testimony or reports of the above doctors; nor did the State move for a continuance or for a mistrial. For those reasons, the Court reached the same conclusion as did the Nebraska Supreme Court in Norquay v. Union Pacific Railroad, 225 Neb. at 542, 407 N.W.2d at 156: “Whatever may have been an appropriate remedial measure . . . at trial we do not decide in the absence of a motion for a particular remedial measure in the trial court.”
Did the district court err in denying the State’s motion to quash? The State filed a motion to quash Kirkwood Appellees’ fifth supplemental answers to the State’s first interrogatories and Kirkwood Appellees’ seventh supplemental answers to the State’s first requests for production of documents. The State argued that Kirkwood Appellees failed to seasonably supplement their answers and that their fifth supplemental answers to interrogatories failed to comply with the requirements of Neb. Ct. R. of Discovery 33 (rev. 2000). The State asserted that it was prejudiced by (1) the disclosure on the eve of trial of five new expert witnesses. (2) Kirkwood Appellees’ attempt on the eve of trial to transform the witnesses previously identified as “treating physicians” into expert witnesses; and (3) the disclosure of witnesses whose identities had not been disclosed in any previous discovery proceeding. Kirkwood Appellees argued that the State had known about the medical witnesses and had, for months, received reports from the witnesses setting forth their opinions. The Court found no abuse of discretion by the district court for a number of reasons laid out in the opinion.
Conclusion: The Court concluded that the district court did not abdicate its gate-keeping function or abuse its discretion in admitting the expert testimony here. They concluded that the court’s factual findings that the State’s negligence proximately caused the accidents were not clearly erroneous. The district court did not find that the State waived its sovereign immunity as alleged by the State. They concluded the evidence supported the award to Kirkwood based on lost earning capacity. Finally, the Court found no abuse of discretion by the court in denying the State’s motion to compel and motion to quash. They therefore affirmed the judgments of the district court in each case. AFFIRMED.
Severs, Judge, DISSENTING disagreed with the majority’s view of the facts in the record. “Therefore, even if the State could be found negligent in its signage of the intersection, the failure of the trial court to find that the obvious negligence of the two northbound drivers was an efficient intervening cause is clearly wrong.” For the reasons set out in the dissent, Judge Severs would reverse all of the judgments entered in these two cases against the State and remand the matter to the trial court with directions to enter judgments in favor of the State and against each of the plaintiffs.
