Christensen v. Sherbeck

• Decision Date: 12 May 2020
• Docket Number: No. A-19-124.,A-19-124.
• Citation: 28 Neb.App. 332,943 N.W.2d 460
• Parties: Michael T. and Cathy D. CHRISTENSEN, individually and as the parents and next friends of Chad M. Christensen, and as the Coguardians and Coconservators of Chad M. Christensen, a protected person, appellants, v. Beverly L. SHERBECK, Personal Representative of the Estate of Albert F. Sherbeck, deceased, and Beverly L. Sherbeck, individually, appellees.
• Court: Nebraska Court of Appeals

28 Neb.App. 332

943 N.W.2d 460

Michael T. and Cathy D. CHRISTENSEN, individually and as the parents and next friends of Chad M. Christensen, and as the Coguardians and Coconservators of Chad M. Christensen, a protected person, appellants,

v.Beverly L. SHERBECK, Personal Representative of the Estate of Albert F. Sherbeck, deceased, and Beverly L. Sherbeck, individually, appellees.

No. A-19-124.

Court of Appeals of Nebraska.

Filed May 12, 2020.

David S. Houghton, Omaha, and Keith A. Harvat, North Platte, of Houghton, Bradford & Whitted, P.C., L.L.O., and John O. Sennett and James V. Duncan, Broken Bow, of Sennett, Duncan, Jenkins & Wickham, P.C., L.L.O., for appellants.

Daniel M. Placzek, and Jared J. Krejci, of Smith, Johnson, Baack, Placzek, Allen, Connick & Hansen, Grand Island, for appellees.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Michael T. and Cathy D. Christensen appeal from a judgment entered by the district court for Custer County which found in favor of Beverly L. Sherbeck and against the Christensens on the Christensens’ claim for damages arising out of a motor vehicle accident involving their son, Chad M. Christensen, and Beverly’s husband, Albert F. Sherbeck. Based on the jury’s verdict that Albert suffered a sudden loss of consciousness prior to the collision, no damages were awarded to the Christensens. For the reasons set forth herein, we affirm.

II. BACKGROUND

This action arises out of a motor vehicle accident that occurred in Custer County, Nebraska, on June 1, 2012. The following facts are not disputed: On the day of the accident, Albert was operating a pickup truck owned by himself and Beverly. He was driving toward his home and was headed eastbound on Highway 2 when he drove left of center and collided head on with a 10-passenger van traveling westbound. The van was transporting eight students from Broken Bow High School who were returning from a basketball clinic held in Kearney, Nebraska. The van was being driven by a basketball coach for the high school. As a result of the collision, Albert, the basketball coach, and the front seat passenger of the van, who was also a basketball coach for the high school, died at the scene. One of the students, Chad, was seriously injured.

1. PLEADINGS

In March 2013, the Christensens filed an amended complaint against Beverly, both in her individual capacity and in her capacity as the personal representative of Albert’s estate. The amended complaint alleged that Albert was negligent in operating his vehicle and that Beverly was negligent in failing to prevent Albert from driving the vehicle or, in the alternative, was vicariously liable for Albert’s negligence because he was operating the vehicle in order to further a family purpose. The Christensens sought general damages for Chad’s "permanent[ ] disab[ility]" and future medical expenses for Chad’s ongoing care. The Christensens filed a separate lawsuit against Broken Bow Public Schools.

In her second amended answer, Beverly asserted numerous affirmative defenses to the allegations contained in the complaint, including that "[t]he accident alleged in [the Christensens’] Amended Complaint occurred after Albert ... suffered a sudden loss of consciousness that was not foreseeable." Beverly also filed a third-party complaint alleging that Broken Bow Public Schools was negligent in its operation of the van prior to the accident and that such negligence was a proximate cause of the injuries to Chad. We note that the claims against Broken Bow Public Schools are not discussed in this appeal.

2. THE CHRISTENSENS’ MOTION IN LIMINE

Prior to trial, the Christensens filed a motion in limine seeking to exclude Beverly’s proposed medical expert witnesses who were to testify that Albert suffered sudden cardiac death prior to the collision and was not conscious at the time of impact. In the motion, the Christensens alleged that the expert opinions should be excluded pursuant to the principles outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop , 268 Neb. 138, 681 N.W.2d 47 (2004). A hearing was held on the motion in limine. At the hearing, the Christensens offered into evidence numerous exhibits, including an accident report completed by the Nebraska State Patrol, depositions from witnesses to the collision, and depositions of four different medical experts.

(a) Evidence Offered at Motion in Limine Hearing

The accident report, which was authored by Dion Neumiller, a trooper with the Nebraska State Patrol, detailed the results of the accident reconstruction analysis. The report indicated that Albert’s pickup truck, which was facing eastbound, "had come to final rest" with its front axle in the westbound lane of Highway 2 and its rear axle on the westbound paved shoulder. The truck had "severe contact damage to the front of the vehicle[, which had] fold[ed] the hood rearward." The school van, which was facing westbound, "had come to final rest" also in the westbound lane. While the rear of the van was angled toward the shoulder, it still remained entirely within the westbound lane. The van "also had severe contact damage to the front, [which had] fold[ed] the hood rearward into the windshield." In his deposition, Neumiller explained that the accident resulted in a "nearly ... head-on collision" such that the vehicles were lined up "license plate to license plate" when they came to a stop.

The accident report revealed that the airbag control module from the school van indicated that in the 5 seconds leading up to the collision, the van was slowing down. In fact, the antilock brakes on the van were engaged half a second prior to the collision. To the contrary, the airbag control module from Albert’s pickup truck indicated that the truck continued at a consistent speed of 63 miles per hour in the 5 seconds leading up to the collision. Neumiller testified that there was no indication that the pickup truck’s brakes were deployed at any point in the seconds leading up to the collision. Another trooper testified in his deposition that it is likely the pickup truck had its cruise control engaged at the time of impact. No preimpact or postimpact marks were located on the roadway.

The steering wheel of Albert’s pickup truck was "fixed and rotated" to the right at approximately 20 degrees. Neumiller explained that this could indicate that "the last steering input made by the driver may have been to the right." However, Neumiller also indicated that there could be other reasons for the steering wheel to have been slightly rotated during or after the collision.

Although Albert did not have his seatbelt on, he was sitting upright in the driver’s seat of the pickup truck at the time of the collision. His airbag was deployed and had "no significant blood" on it. Neumiller opined that the minimal amount of blood on the airbag could indicate that Albert was deceased prior to the collision.

Approximately 10 minutes prior to the collision, Albert initiated a telephone call using his cellular telephone. He spoke to a member of his church and inquired what songs the choir would be singing that Sunday. The telephone call lasted just over 5 minutes, and the recipient of the call later reported that Albert sounded "fine." After the collision, Albert’s cellular telephone was located in his left shirt pocket. Albert’s family, who spent the day with him prior to the collision, also indicated that Albert seemed fine, although he had mentioned feeling tired.

There were two witnesses to the collision, John Scott and Lavera Scott, who were in a vehicle which was traveling directly behind Albert’s pickup truck. Both John and Lavera provided deposition testimony regarding their observations.

John testified that on the afternoon of the accident, he and his wife, Lavera, were driving eastbound on Highway 2, which was a two-lane highway. While he was driving, John observed a pickup truck approximately two blocks ahead of him on the highway. John estimated that the pickup truck must have been traveling between 55 and 60 miles per hour because John had his cruise control set at 60 miles per hour and "was beginning to gain a little on [the pickup truck]." John indicated that he could not see inside the pickup truck from his vantage point two blocks behind it.

Prior to the collision, John did not observe the pickup truck swerve either onto the shoulder or into the oncoming traffic lane. In fact, John indicated that he did not observe anything unusual about the pickup truck prior to the collision. John did observe the collision. He testified that the pickup truck suddenly "jumped over" in front of the van. He described the movement of the truck as not "slow," but "fast" and "[s]udden." John testified that the pickup truck moved directly over into the oncoming traffic lane. John indicated that he never saw the pickup truck’s brake lights engage.

Although John did not know who was driving the pickup truck prior to the collision, when he approached the pickup truck after the collision, he learned that the driver was Albert. John testified that Albert was slumped down to the left after the collision. John was familiar with Albert and knew that some of Albert’s farmland was adjacent to where the accident occurred.

Lavera testified similarly to John’s testimony. She testified that she and her husband were driving "a couple of blocks" behind the pickup truck on the highway. From her vantage point, she could see that there was just one person in the pickup truck, but she was unable to observe specific movements of the sole occupant. Prior to the accident, she did not observe any unusual movement by the pickup truck. The pickup truck did not swerve onto the shoulder, did not move into the oncoming traffic lane, and did not swerve within its own lane. Lavera observed the collision. She described that "suddenly the pickup was there and then it...