Schuemann v. Menard, Inc.
| Decision Date | 21 January 2020 |
| Docket Number | No. A-18-1021.,A-18-1021. |
| Citation | 27 Neb.App. 977,938 N.W.2d 378 |
| Parties | Richard G. SCHUEMANN and Janice Schuemann, appellants, v. MENARD, INC., doing business as Menards, a foreign corporation doing business in Nebraska, appellee. |
| Court | Nebraska Court of Appeals |
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellants.
Robert W. Futhey, Omaha, and Daniel J. Gutman, of Fraser Stryker, P.C., L.L.O., for appellee.
Richard G. Schuemann and Janice Schuemann sued Menard, Inc., doing business as Menards (Menards), in the district court for Sarpy County for negligence and premises liability after Richard sustained injuries due to the alleged negligence of Menards. A jury found in favor of Menards. The Schuemanns appeal. Finding no error by the district court, we affirm.
On July 1, 2010, the Schuemanns went to the Menards store located in Bellevue, Sarpy County, Nebraska, and purchased a storage shed packaged in a large box. A Menards employee lifted the shed box with a forklift and placed it into the bed of Richard’s truck. Once back at their house, the Schuemanns left the box in the truck and took the pieces out of the box individually in order to assemble the shed. At trial, Richard was asked whether he tried to lift the box itself, and he said no, but that each individual piece was heavy. He knew that the contents of the box, before they had been unpacked, were too heavy for him to lift.
The Schuemanns returned to the same Menards store the following day and purchased an identical shed packaged in the same fashion. On that occasion, Richard backed his truck into the loading area of the store. A Menards employee, later identified as Nicholas Moore, took Richard’s purchase ticket, and the two men walked over to the shed boxes. Moore pulled a large cart up next to the boxes and got on one side of the box. Richard testified that Moore said they had to pick up the box and put it on the cart and that Moore then started lifting one side of the box. According to Richard, Moore "directed" or "requested" that Richard help pick up the other side of the box. Richard said he felt that he needed to help at that point, because Moore was struggling with the box and Richard thought Moore was going to hurt himself. Richard acknowledged that he could have declined to help lift the box, but that he did not do so. As Richard started lifting the other side of the box, he suddenly experienced searing pain in his back.
As a result of his back pain, Richard went to a hospital and notified Menards of his injury. Thereafter, he underwent medical treatment for his injuries. On July 1, 2014, the Schuemanns filed a complaint against Menards. They alleged that as a result of the negligence of Menards and its employees, Richard suffered injuries to his back, neck, and shoulder and Janice suffered a loss of consortium for the loss of service and companionship of Richard. Menards’ answer raised several affirmative defenses, including assumption of risk.
The matter proceeded to a jury trial in 2018. At trial, Menards offered into evidence an audio recording of a statement Richard made to an adjuster for an insurance company presumably for Menards. Menards offered into evidence only the first 13 minutes 25 seconds of the recorded conversation, redacting the final 3 minutes 32 seconds of the conversation. The recording was received into evidence over the Schuemanns’ objection on the rule of completeness. Thereafter, the Schuemanns requested a jury instruction on the rebuttable presumption that the statement had been taken under duress pursuant to Neb. Rev. Stat. § 25-12,125 (Reissue 2016). The district court refused to give the instruction. The jury ultimately found in favor of Menards. The Schuemanns filed a motion for new trial and/or a motion to alter or amend. The motions were denied. The Schuemanns now appeal.
The Schuemanns assign that the district court erred in (1) instructing the jury on the defense of assumption of risk, (2) failing to file and show all refused jury instructions or amendments to instructions resulting in the given instructions, (3) admitting into evidence the audio recording over their objection, (4) refusing to give their proposed jury instruction on the presumption of duress, and (5) failing to sustain their objections to Moore’s testimony on the grounds of foundation and speculation.
Whether a jury instruction is correct is a question of law. Rodriguez v. Surgical Assocs. , 298 Neb. 573, 905 N.W.2d 247 (2018). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules and judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Savage , 301 Neb. 873, 920 N.W.2d 692 (2018), modified on denial of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. Id.
A trial court’s decision to admit habit evidence based on opinion under Neb. Rev. Stat. § 27-406 (Reissue 2016) is reviewed for an abuse of discretion. Borley Storage & Transfer Co. v. Whitted , 271 Neb. 84, 710 N.W.2d 71 (2006).
The Schuemanns assign that the district court erred in instructing the jury on the defense of assumption of risk, arguing that the instruction was not supported by the evidence because there was no evidence that Richard was apprised of any specific risk of potential injury in helping to lift the box onto the cart.
Before the defense of assumption of risk is submissible to a jury, the evidence must show that the plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes , 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 (Reissue 2016). 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. Pleiss v. Barnes, supra.
A plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he then knows of the existence of the risk and appreciates its unreasonable character, or the danger involved, including the magnitude thereof, and voluntarily accepts the risk. Id. The doctrine of assumption of risk applies to known dangers and not to those things from which, in possibility, danger may flow. Id.
In Pleiss v. Barnes, supra , the plaintiff was injured when a ladder on which he was standing flipped, twisted, and started to slide, causing him to fall. The plaintiff testified that he knew that ladders could " ‘get shaky and fall’ " but that he had never seen a ladder "flip, twist, and slide" prior to his injury. Id. at 775, 619 N.W.2d at 829. Applying the subjective standard set forth above, the Nebraska Supreme Court recognized that the question was not whether the plaintiff knew that in general ladders could be dangerous, but whether he knew and understood that this particular ladder, either because of its placement or because it was not tied down, created a specific danger that it could flip, twist, and slide, causing him to fall. And where the record did not indicate any such specific knowledge or understanding, the Supreme Court held that the trial court erred in instructing the jury on assumption of risk.
In Burke v. McKay , 268 Neb. 14, 679 N.W.2d 418 (2004), an action involving a claim that a rodeo stock provider furnished an unusually dangerous bucking horse to a high school rodeo, the Supreme Court noted that the plaintiff rider’s acknowledged familiarity with the general risks of injury inherent in rodeo competition could not form the basis of an assumption of risk defense. However, the Supreme Court concluded that the rider had actual knowledge of the specific danger posed by the horse because he had observed a previous incident in which a rider was injured when the same horse performed in the same unusual manner which caused his injury.
In the present case, the evidence supports a finding that given Richard’s experience with this specific type of shed box on the day prior to his injury, he had actual knowledge of the specific risk. Richard had purchased the same type of shed the day before his injury, and although a Menards employee put the shed box into Richard’s truck, Richard said that once he got the box home, he and his wife took the individual pieces out of the box, and that each individual piece was heavy. He knew that the contents of the box, before they had been unpacked, were too heavy for him to lift.
Richard admitted that the following day at Menards, Moore requested that Richard help him lift the box onto the cart and Richard hesitated and said, "[N]o, I don't think I should." In an attempt to impeach Richard, counsel read an excerpt from Richard’s deposition in which Richard related his statement to Moore that " ‘I have a neck injury and I don't think I should lift that.’ " Although a subsequent objection was sustained, the testimony was not stricken. We recognize that Richard adduced conflicting evidence tending to prove that he was unaware of the danger of lifting the box; however, determining which party’s evidence is credible or not is a question for the jury. See Higginbotham v. Sukup , 15 Neb. App. 821, 737 N.W.2d 910 (2007). Richard acknowledged that he could have refused to help lift the box, but decided to assist Moore because it looked like Moore was struggling and Richard was afraid...
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