Coburn v. Reiser
| Decision Date | 23 April 1998 |
| Docket Number | Nos. S-96-654,S-96-655,s. S-96-654 |
| Parties | Marcia COBURN, as mother and next friend of Dustin Coburn, Appellee, v. Martin F. REISER, Personal Representative of the Estate of James L. Reiser, deceased, Third-Party Plaintiff, Appellant, Douglas R. Coburn and Boyd County, Nebraska, a body politic and corporate, Third-Party Defendants, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Appeal and Error. When there are no specific findings before an appellate court, the court must review the grounds of the demurrer to determine if any one objection, or any objections taken together, support the trial court's decision to sustain the demurrer and dismiss the action.
2. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but the court is not required to accept as true the conclusions of the pleader.
3. Demurrer: Pleadings. In determining whether a cause of action has been stated, the petition is to be construed liberally. If, as so construed, the petition states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.
4. Demurrer: Pleadings: Words and Phrases. A statement of "facts sufficient to constitute a cause of action," as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1995), means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Pleadings: Negligence: Demurrer. A petition based on alleged gross negligence is sufficient to survive a demurrer if the pleading describes the alleged acts of negligence and alleges that the negligence is gross.
Thomas A. Grennan and Alison L. McGinn, of Gross & Welch, P.C., Omaha, for appellant.
David D. Ernst and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellee Douglas R. Coburn.
This case involves an automobile accident between James L. Reiser and Douglas R. Coburn (Coburn), which resulted in the death of James Reiser.
When the accident occurred, James Reiser was driving northbound on a county road approximately 5 miles west of Spencer, Nebraska. At the same time, Coburn was driving eastbound on a county road approximately 5 miles west of Spencer. As Coburn traveled east on the county road toward Spencer, he approached an unmarked and uncontrolled intersection. As Coburn entered the intersection, his truck collided with James Reiser's truck, killing Reiser and causing personal injuries to the passengers in the Coburn vehicle. The passengers in Coburn's vehicle included Coburn's wife, Marcia Coburn, and their son, Dustin Coburn.
Marcia Coburn filed suit in Boyd County District Court against Martin F. Reiser (Reiser), James Reiser's personal representative, both individually and on behalf of Dustin Coburn. In response, Reiser filed an "amended third-party petition" against Coburn in each of the pending cases. Coburn demurred to Reiser's third-party petitions, which demurrers the district court sustained.
Reiser filed his second amended third-party petitions and Coburn again demurred, contending the petitions failed to state a cause of action or to allege facts constituting gross negligence. The district court sustained Coburn's demurrers without stating the grounds for so doing. Reiser elected to stand on his second amended third-party petitions, and in turn, the district court dismissed the third-party petitions. Reiser then filed a notice of appeal in each case.
As previously stated, the district court did not state the reasons for sustaining Coburn's demurrers. In this respect, we have consistently stated that when a demurrer is interposed stating several grounds, the court sustaining the demurrer should specify the grounds upon which the demurrer is sustained. Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 (1997). If the court sustaining the demurrer does not specify the grounds for sustaining the demurrer, an appellate court is not informed in regard to wherein the complaint was determined to be deficient. Id.
We should not be required to examine all of the grounds in order to see if one or more of the grounds were well taken. Clyde v. Buchfinck, 198 Neb. 586, 254 N.W.2d 393 (1977). However, when there are no specific findings before the court, the court must review the grounds of the demurrer to determine if any one objection, or any objections taken together, support the trial court's decision to sustain the demurrer and dismiss the action. Pratt, supra. That is, if the ground or grounds upon which the demurrer was sustained do not authentically appear, considering all the grounds assigned becomes necessary. Martin v. City of Lincoln, 155 Neb. 845, 53 N.W.2d 923 (1952).
Coburn's demurrers alleged that Reiser's second amended third-party petitions did not state facts sufficient to constitute a cause of action upon which relief could be granted and that the petitions failed to allege facts constituting gross negligence. In his second amended third-party petitions, Reiser alleged (1) the collision and damages involved were caused by Coburn's negligence; (2) the collision and damages were caused by Coburn's gross negligence; (3) the Nebraska guest statute had been impliedly repealed by operation of the Nebraska comparative negligence statutes; (4) the Nebraska guest statute violates Neb. Const. art. I, §§ 13, 16, and 25; Neb. Const. art. III, § 18; and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution; and (5) Coburn's negligence should be apportioned by the jury via the Nebraska comparative negligence statutes, or contribution should be awarded in an amount reflecting Coburn's negligence.
The rules regarding demurrers are well settled. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but the court is not required to accept as true the conclusions of the pleader. See Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997). In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997). In addition, a demurrer reaches only defects which appear on the face of a petition and admits all allegations of fact which are relevant, material, and well pled, but does not admit the pleader's conclusions of law. Pratt, supra.
In determining whether a cause of action has been stated, the petition is to be construed liberally. Giese, supra. If, as so construed, the petition states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled. Id. A statement of "facts sufficient to constitute a cause of action," as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1995), means a narrative of events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff. Giese, supra; Pratt, supra.
In the case at bar, Marcia Coburn filed suit against Reiser. Reiser responded by filing a third-party suit against Coburn, requesting apportionment or contribution. In Teegerstrom v. H.J. Jeffries Truck Line, 216 Neb. 917, 920-21, 346 N.W.2d 411, 414 (1984), we denied such a claim and specifically held that
it appears that most, if not all, courts which have considered the matter have rejected a claim for contribution where the guest statute would preclude recovery by the guest from the host. The reasoning generally has been that in such a case the common liability required to support contribution does not exist between the host and other driver or that one not directly liable to his passenger should not be liable by indirection. See cases collected in Annot., 26 A.L.R.3d 1283 (1969), which uniformly hold that where a guest statute precludes recovery by the guest from the host, contribution will not lie. We have previously determined that, generally, a common liability must exist in order for there to be contribution. That is to say, each party must be liable to the same person.
The Nebraska guest statute, Neb.Rev.Stat. § 25-21,237 (R...
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