Carnes v. Weesner

• Citation: 428 N.W.2d 493,229 Neb. 641
• Decision Date: 02 September 1988
• Docket Number: No. 86-422,86-422
• Parties: Judy CARNES, Appellee, v. James E. WEESNER, D.D.S., et al., Appellants.
• Court: Supreme Court of Nebraska

Page 493

428 N.W.2d 493

229 Neb. 641

Judy CARNES, Appellee, v. James E. WEESNER, D.D.S., et al., Appellants.

No. 86-422.

Supreme Court of Nebraska.

Sept. 2, 1988.

Syllabus by the Court

1. Directed Verdict. The parties against whom a verdict is directed are entitled to have every controverted fact resolved in their favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the parties against whom the motion is made, the case may not be decided as a matter of law.

2. Judgments: Verdicts: Appeal and Error. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can be deduced therefrom. A jury verdict will not be disturbed unless it is clearly wrong.

3. Jury Instructions: Appeal and Error. Jury instructions must be read together, and if they taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.

4. Jury Instructions: Appeal and Error. It is not error to refuse to give a requested instruction if the substance of the request is in the instructions actually given.

Alan L. Plessman, Lincoln, for appellants.

David H. Hahn, of Hahn Law Office, Lincoln, and Brian C. Bennett, of Dunlap & Bennett, Milford, for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BURKHARD, District Judge.

GRANT, Justice.

Plaintiff, Judy Carnes, brought this action in the district court for Lancaster County against defendants, James E. Weesner, D.D.S., Henry Cech, D.D.S., and Weesner and Cech partnership, alleging that defendants' negligence proximately caused bodily injury to Carnes when she slipped and fell on the ice and snow in defendants' parking lot while attempting to enter her automobile after leaving defendants' office.

The record shows the following. On January 23, 1984, plaintiff took her 12-year-old daughter to the office of defendants in Lincoln, Nebraska, for a monthly orthodontic appointment with Dr. Cech. Plaintiff testified that on the day of her fall, the weather was cold and cloudy, but there was no precipitation. Plaintiff parked her car in one of the parking stalls in defendants' lot, which was adjacent to defendants' orthodontic office. As plaintiff was getting out of her car, she noticed that the lot was icy and slippery, and warned her daughter to be careful. Testimony of plaintiff and her daughter indicates that the condition of the parking lot was snowpacked and icy. As they walked across the parking lot to the office stairway, plaintiff and her daughter locked their arms with each other to provide support and stability on the slippery surface. The two entered the office, where the daughter kept her scheduled orthodontic appointment with Dr. Cech. Plaintiff remained in the waiting room during the appointment.

Following the appointment, plaintiff and her daughter left the office, descended the exterior stairs, and walked arm in arm across defendants' lot to their car by the same route they had taken on their way into the office. When they reached the back of their car, they separated, with plaintiff walking to the driver's door and the daughter walking to the passenger door. Plaintiff testified that she unlocked the door with her right hand. She then lifted up on the door handle, and, as she opened the door, her feet came out from under her and she fell to a sitting position. Immediately after falling, plaintiff experienced severe lower back pain and numbness in her left leg. The daughter and a woman who had been passing by helped plaintiff into plaintiff's car. Plaintiff drove herself to her husband's place of employment in Milford, Nebraska. Her husband drove her to their family physician in Seward, Nebraska, and then to the emergency entrance of Seward Memorial Hospital.

Plaintiff spent the next 5 days in the hospital. After her release from the hospital, daily physical therapy sessions were required. In the following months, plaintiff suffered severe lower back pain and numbness in her left leg. This pain along with her decrease in mobility eventually forced her to change to a less physical job. On June 7, 1985, as a result of the severe back pain, plaintiff became too ill to remain at work. She had not returned to work at the time of trial, which began on December 11, 1985. On July 10, 1985, plaintiff underwent surgery on her lower back to fuse the bone of two vertebras.

At trial, the person hired by defendants to remove snow from defendants' parking lot testified that he removed the snow on November 28, 1983, and January 3, 1984. Testimony was received from a climatologist regarding snowfalls, temperatures, and other weather patterns during the winter of 1983-84. During January 1984, there were no significant snowfalls prior to January 23, 1984. The climatologist testified that the effect of the January 1984 pattern would be to transform existing snow into ice.

After the evidence was completed, the jury returned a verdict in favor of plaintiff and against defendants in the amount of $50,114.16. Defendants' motion for judgment notwithstanding the verdict or for new trial was overruled. Defendants timely appealed. They set out 12 assignments of error in their brief. Those assignments may be consolidated into three: The court erred (1) in failing to sustain defendants' motion for directed verdict made at the conclusion of all the evidence and motion for judgment notwithstanding the verdict; (2) in giving instructions Nos. 2, 3, 13, and 14; and (3) in refusing to give NJI 8.22, NJI 4.09, and NJI 3.31. We affirm.

With regard to the first assignment of error, we review defendants' appeal from the denial of motion for dismissal and directed verdict in light of the rule enunciated in Lambelet v. Novak, 225 Neb. 229, 231, 404 N.W.2d 28, 29-30 (1987). In Lambelet, we held:

[A] directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence. VIce v. Darm Corp., 224 Neb. 1, 395 N.W.2d 524 (1986); Greening v. School Dist. of Millard, 223 Neb. 729, 393 N.W.2d 51 (1986). Further, the parties against whom the verdict is directed are entitled to have every controverted fact resolved in their favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the parties against whom the motion is made, the case may not be decided as a matter of law. Kahrhoff v. Kohl, 219 Neb. 742, 366 N.W.2d 128 (1985); Whitaker v. Burlington Northern, Inc., 218 Neb. 90, 352 N.W.2d 589 (1984).

Our review of the record shows controverted facts which, if resolved in favor of the plaintiff, would support a verdict in her favor. Testimony by plaintiff, her daughter, and other witnesses produced sufficient evidence for the jury to find that defendants were negligent, that their negligence was the proximate cause of plaintiff's injuries, and that no affirmative defenses were available to defendants. There was evidence that the parking lot was icy and snowpacked on the date that plaintiff slipped and fell and that this condition had developed over a period of time. There was also evidence that this ice and compacted snow could have been removed; that the application of salt, sand, or other abrasives would have improved traction in the lot; and that such abrasives were not applied. With regard to defendants' knowlege of the lot's condition, evidence was adduced to show that one of the defendants walked across the lot from his car to the building each workday and thus was on notice of the slippery conditions. Plaintiff testified that she used caution when attempting to enter her automobile.

Plaintiff presented testimony to show that her damages were caused by the fall. In addition to plaintiff's own testimony regarding her symptoms both before and after the fall, the deposition testimony of plaintiff's expert witness, a physician, indicated that the force of the impact suffered by plaintiff caused her injuries. This evidence was sufficient to submit the case to the jury for resolution of any fact questions. Therefore, a directed verdict would have been improper.

In reviewing an appeal from the denial of a motion for judgment notwithstanding the verdict, the same rule applies. In Havlicek v. Desai, 225 Neb. 222, 225, 403 N.W.2d 386, 389 (1987), we said:

On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can be deduced therefrom. Farm Bureau Life Ins. Co. v. Luebbe, 218 Neb. 694, 358 N.W.2d 754 (1984). A jury verdict will not be disturbed unless it is clearly wrong. Id.

The trial court did not err in denying defendants' motion for directed verdict and motion for judgment notwithstanding the verdict.

In connection with defendants' assignments of error concerning the instructions, we review the trial court's jury instructions in light of the general rule that all jury instructions must be read together, and if they taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error. Gilbert v. Archbishop Bergan Mercy Hospital, 228 Neb. 148, 421 N.W.2d 760 (1988).

At trial, defendants objected to the giving of jury instruction No. 2. This instruction, which instructed the jury on the issues, burden of proof, and effect of findings for both plaintiff's claims and defendants' defenses, was...