Kelly v. Cutch, Inc., A-18-761.
| Decision Date | 31 December 2019 |
| Docket Number | No. A-18-761.,A-18-761. |
| Citation | 27 Neb.App. 921,938 N.W.2d 102 |
| Parties | Dock KELLY III, appellant, v. CUTCH, INC., a Nebraska corporation, doing business as Burger Star Restaurant, and Cutchall Management Company, Inc., appellees. |
| Court | Nebraska Court of Appeals |
James E. Harris and Britany S. Shotkoski, of Harris & Associates, P.C., L.L.O., Omaha, and Daniel L. Draisen, of Krause, Moorhead & Draisen, P.A., for appellant.
David D. Ernst, Omaha, and Jeffrey A. Nix, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellees.
Dock Kelly III appeals a jury verdict in his favor awarding him damages for injuries he sustained in a slip-and-fall accident. On appeal, he alleges that the district court for Douglas County erred in refusing to give his proposed jury instruction on the aggravation of a preexisting condition and failed to properly instruct the jury on the burden of proof on damages. We conclude that Kelly’s proposed jury instruction was not warranted by the evidence and that the jury was properly instructed on damages. Therefore, the district court did not err in refusing to give the proposed instruction, and we affirm.
At the time of the slip-and-fall accident, Kelly was a resident of South Carolina and the head wrestling coach at a university located there. On March 10, 2010, Kelly was in Omaha, Nebraska, for a wrestling tournament and went to eat dinner at Burger Star Restaurant, which was owned and operated by Cutch, Inc., and Cutchall Management Company, Inc. (collectively the appellees). Kelly slipped on a wet floor at the restaurant and fell, sustaining injuries to his left knee and back.
Kelly has a congenital deformity
of his right arm, and his right leg was amputated below the knee when he was a child. He was wearing a prosthetic leg at the time of the fall. Despite this, the record indicates that Kelly had no significant health problems prior to his fall, including no history of pain, injury, or limitation with his left knee or back. To the contrary, Kelly was a "NCAA Division I" wrestler and was inducted into the National Wrestling Hall of Fame in 1997. He testified that he never had any problems due to having only one leg.
After falling at the restaurant, Kelly experienced sharp, shooting pain in his lower back as well as pain, weakness, and instability in his left knee. In September 2010, Kelly fell in the shower, resulting in additional injuries to his left knee, including a torn anterior cruciate ligament
, torn lateral collateral ligament, frayed and/or torn lateral meniscus, and avulsed lateral hamstring tendon. He had surgery on his left knee in March 2015.
Kelly filed a negligence action against the appellees in 2012, asserting that the appellees created a dangerous condition at the restaurant by mopping the floor and failing to warn its customers of the condition. He filed an amended complaint in 2013.
A jury trial was held in this matter in July 2018. During trial, Kelly proposed a jury instruction on the aggravation of a preexisting condition based on a standard jury instruction. See NJI2d Civ. 4.09. The district court refused to give the instruction. The jury ultimately found in favor of Kelly and awarded him $95,000 in damages. Kelly timely appeals.
Kelly assigns that the district court erred in failing to give his proposed jury instruction on the aggravation of a preexisting condition and in failing to properly instruct the jury regarding the burden of proof on damages.
Whether a jury instruction is correct is a question of law, which an appellate court independently decides. Bank v. Mickels , 302 Neb. 1009, 926 N.W.2d 97 (2019).
To establish reversible error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the failure to give the requested instruction. Id.
Kelly argues that the district court erred in refusing to give his proposed jury instruction on the aggravation of a preexisting condition. The jury instruction that Kelly requested stated:
The first paragraph of the proposed instruction is the standard jury instruction, NJI2d Civ. 4.09, for determining damages when the plaintiff has a preexisting condition. See Golnick v. Callender , 290 Neb. 395, 860 N.W.2d 180 (2015). The second paragraph is frequently called the apportionment instruction. Id. It is appropriately used when the jury may be unable to precisely determine which of the plaintiff’s damages were not preexisting. Id.
The first two paragraphs of Kelly’s proposed instruction are a correct statement of the law. See Ketteler v. Daniel , 251 Neb. 287, 556 N.W.2d 623 (1996). A court is required to instruct a jury on damages for the aggravation of a preexisting condition where there is evidence to support a finding that the defendant’s negligence had aggravated a preexisting condition. See, Golnick v. Callender, supra ; Castillo v. Young , 272 Neb. 240, 720 N.W.2d 40 (2006).
We conclude that the evidence did not warrant instructing the jury on the aggravation of a preexisting condition, because Kelly had no preexisting condition that was aggravated by the March 2010 fall. As a result of the slip-and-fall accident, Kelly sustained injuries to his left knee and back. Although there are references in the record to a history of osteoarthritis
in the left knee and scoliosis of the spine, neither condition ever caused Kelly any pain or limitation. Kelly appeared unaware that he had scoliosis and testified that if he did, it never stopped him from doing anything he wanted to do.
In general, Kelly said that he had no history of problems with his knee or back that interfered with his life. And his medical records establish that he had no back or leg pain prior to the March 2010 fall, that his left knee was "highly functional" before the fall, and that he was able to do everything without any disability or limitation. Therefore, because the record lacks evidence of a preexisting condition in Kelly’s left knee or back, the first two paragraphs of Kelly’s proposed instruction were not warranted by the evidence, and the district court properly refused to so instruct the jury.
The notion embodied by the third paragraph of Kelly’s proposed instruction must be given when the plaintiff produces evidence to support the "eggshell-skull" theory, which generally includes evidence of a preexisting condition which predis-poses the plaintiff to injury or greater injury than would occur without the preexisting condition. See, Ketteler v. Daniel, supra ; Aflague v. Luger , 8 Neb. App. 150, 589 N.W.2d 177 (1999). While the first two paragraphs of Kelly’s proposed instruction address the question of apportionment of damages, the third paragraph addresses a different matter—"a subtle facet of causation." See Aflague v. Luger , 8 Neb. App. at 159, 589 N.W.2d at 183. This paragraph enables a jury to understand that a defendant, under Nebraska law, can be liable for the total harm to a plaintiff from an accident even though the injury was greater because of the plaintiff’s preexisting physical condition than would usually be caused by such an accident. Aflague v. Luger, supra .
In Castillo v. Young, supra , the trial court gave the jury instructions similar to the first two paragraphs of Kelly’s proposed instruction, but refused to give the third paragraph on the eggshell-skull theory. The evidence indicated that the plaintiff had broken her jaw
several years before she was injured in the operative car accident, but her jaw completely recovered and she had had no symptoms for a number of years prior to the accident. At trial, there was testimony from the plaintiff’s treating physician that the accident aggravated a preexisting condition and that the plaintiff was fragile due to her prior injury. Therefore, the Nebraska Supreme Court concluded that the proffered instruction correctly stated the law and was warranted by the evidence offered by the expert witness and that the failure to give the instruction was prejudicial to the plaintiff. It iterated that if a plaintiff has a preexisting condition and the defendant’s conduct resulted in greater damages because of that preexisting condition, the defendant is nonetheless liable for all damages proximately caused by the defendant’s conduct.
In reaching its decision in Castillo v. Young, supra , the Supreme Court relied upon Ketteler v. Daniel , 251 Neb. 287, 556 N.W.2d 623 (1996). There, the plaintiff proposed the three-paragraph instruction proffered by Kelly in the instant case, but the trial court declined to give the second and third paragraphs. In reversing that decision, the Supreme Court found that the instruction was warranted by evidence offered by two separate physicians who testified that the plaintiff suffered from a preexisting condition, fibromyalgia
, and that she suffered from back and neck conditions prior to the car accident which were aggravated by the accident.
Subsequently, in Aflague v. Luger, supra , this court found that an eggshell-skull instruction was warranted where there was expert...
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