Daubenmier v. Spence

• Decision Date: 19 February 2008
• Docket Number: No. A-06-433.,A-06-433.
• Citation: 745 N.W.2d 348,16 Neb. App. 435
• Parties: Philip DAUBENMIER, appellant, v. Charles S. SPENCE, appellee.
• Court: Nebraska Court of Appeals

745 N.W.2d 348

16 Neb. App. 435

Philip DAUBENMIER, appellant, v. Charles S. SPENCE, appellee.

No. A-06-433.

Court of Appeals of Nebraska.

February 19, 2008.

Christopher D. Jerram, of Kelley & Lehan, P.C., Omaha, for appellant.

Robert S. Keith and Kellie R. Harry, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellee.

IRWIN, SIEVERS, and MOORE, Judges.

IRWIN, Judge.

I. BACKGROUND

This case originated as a result of a single vehicle accident on. April. 5, 2003, in which Philip Daubenmier was a passenger and Charles S. Spence was the driver. The record indicates that both Daubenmier and Spence spent several hours at various bars in downtown Omaha, purchasing alcohol for each other and drinking, before the two got into Spence's vehicle, began to leave the area, and Spence hit a light pole. Daubenmier suffered injuries as a result of the accident and brought suit against Spence. Spence pled, as affirmative defenses, that Daubenmier assumed the risk and that he failed to mitigate his injuries by wearing a seat belt. Spence admitted liability for the accident, and the issue at trial was what, if any, monetary damages Daubenmier should be awarded. The jury found in favor of Spence, returning a verdict for $0. This appeal followed. The primary question presented on appeal concerns the application of the assumption of risk doctrine. More detailed facts will be set forth, as necessary, in the discussion section below.

II. ASSIGNMENTS OF ERROR

Daubenmier has assigned the following errors: that the district court erred in instructing the jury on Spence's assumption of risk defense, that the district court erred in instructing the jury on Spence's defense that Daubenmier failed to mitigate his damages by wearing a seatbelt, that the district court gave erroneous verdict forms, and that the district court erred in sustaining objections to Daubenmier's questioning of Spence.

We note that although Daubenmier has assigned error to the district court's sustaining of objections to Daubenmier's questioning of Spence, he failed to specifically argue this assignment of error in his brief. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007). We therefore will not consider this assigned error.

III. ANALYSIS

1. ASSUMPTION OF RISK INSTRUCTION

Daubenmier first asserts that the district court erred in instructing the jury on Spence's defense that Daubenmier assumed the risk of injury in this case. Daubenmier asserts that the evidence was insufficient to support instructing the jury on assumption of risk; that the instructions actually given were cumulative, confusing, and misleading to the jury; and that the statute authorizing assumption of risk as an affirmative defense violates equal protection.

(a) Sufficiency of Evidence

First, Daubenmier argues that the evidence was insufficient to support instructing the jury on assumption of risk. Daubenmier primarily argues that there was insufficient evidence to demonstrate that Daubenmier had knowledge of the specific danger of getting into Spence's vehicle after Spence had consumed an excessive amount of alcohol. We find sufficient evidence to demonstrate all of the required elements of assumption of risk, and we find this argument to be without merit.

The defense of assumption of risk is derived from the maxim "`volent[i] non fit injuria," which means that "`where one, knowing and comprehending the danger, voluntarily exposes himself to it, although not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom.'" Burke v. McKay, 268 Neb. 14, 20-21, 679 N.W.2d 418, 424 (2004), quoting Hollamon v. Eagle Raceway, Inc., 187 Neb. 221, 188 N.W.2d 710 (1971). As currently codified, "assumption of risk" as an affirmative defense means that "(1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person's injury or death or the harm to property occurred as a result of his or her exposure to the danger." Neb. Rev. Stat. § 25-21,185.12 (Reissue 1995). Accord Burke v. McKay, supra. See, Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002); Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000).

Spence argues that "[t]he Supreme Court of Nebraska has ruled, on several occasions, an intoxicated guest passenger can assume the risk of riding with a drunk driver." Brief for appellee at 9. Spence cites, in support of this statement, the cases of Fortin v. Hike, 205 Neb. 344, 287 N.W.2d 681 (1980); Sandberg v. Hoogensen, 201 Neb. 190, 266 N.W.2d 745 (1978); Circo v. Sisson, 193 Neb. 704, 229 N.W.2d 50 (1975); Raskey v. Hulewicz, 185 Neb. 608, 177 N.W.2d 744 (1970); and Brackman v. Brackman, 169 Neb. 650, 100 N.W.2d 774 (1960). Spence further asserts that "[i]n Brackman, supra, the court held the plaintiff passenger assumed the risk of his. injury because he rode in the car with a driver who[m] he knew, or in the exercise of ordinary care and diligence should have known, was intoxicated. Id. at 659, 100 N.W.2d 774." Brief for appellee at 10.

Our review of Brackman v. Brackman, supra, however, indicates that the case does not involve an intoxicated guest passenger, a drunk driver, or the use of alcohol at all. Rather, the case involved an injury sustained by the operator of a cornpicker and a suit against the operator's employer. Although the case includes a discussion of assumption of the risk, the case neither stands for the proposition set forth by Spence nor includes the holding indicated by Spence and supported by Spence with a pinpoint cite. Similarly, Fortin v. Hike, supra, also cited by Spence as a case wherein the Supreme Court found a guest passenger had assumed the risk of riding with a drunk driver, involved neither a guest passenger nor any assertion of assumption of risk rather, the case involved questions of intoxication as evidence of negligence, not assumption of risk.

The inexplicable references to and erroneous discussion of Brackman v. Brackman, supra, and Fortin v. Hike, supra, notwithstanding, Spence is correct in asserting that the Nebraska Supreme Court has previously held that a guest passenger may be held to have assumed the risk of riding with a drunk driver. In Sandberg v. Hoogensen, supra, Dean M. Sandberg was a guest passenger in a vehicle driven by DeVern Hoogensen after the two men had been drinking together for several hours and an intoxicated Hoogensen had an accident that resulted in the death of both Hoogensen and Sandberg. The Supreme Court specifically held that a guest may be guilty of contributory negligence or assumption of risk by riding or continuing to ride with a driver whom the guest knows or, in the exercise of ordinary care and diligence, should know is so intoxicated that the driver is unable to operate the vehicle with proper prudence or skill. The court found the evidence sufficient to demonstrate that Sandberg knew or should have known that Hoogensen's state of intoxication was such that it would be dangerous to ride with him, and the court held that it was appropriate for it to instruct the jury on Hoogensen's estate's affirmative defense of assumption of risk. See, also, Raskey v. Hulewicz, supra (evidence warranted assumption of risk instruction in case involving guest passenger and drunk driver).

It is worth noting that since the Nebraska Supreme Court's decisions in Sandberg v. Hoogensen, supra, and Raskey v. Hulewicz, supra, the statute authorizing and defining assumption of risk has undergone one minor change. As Spence recognizes in his brief, Nebraska implemented its current form of comparative negligence in 1992. See Neb.Rev.Stat. § 25-21,185.07 et seq. (Reissue 1995). In so doing, the Legislature used § 25-21, 185.12 to add the word "specific" to the element that assumption of risk requires the person to have known and understood the specific danger. See, also, Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). As such, a review of the Supreme Court's assumption of risk cases since this statutory change is necessary to determining the application of the assumption of risk statute to a case involving a guest passenger riding with a drunk driver.

In Pleiss v. Barnes, supra, the plaintiff brought a negligence action against a homeowner for injuries the plaintiff suffered as a result of a fall from a ladder while assisting in shingling the home-owner's roof. The evidence demonstrated that the fall occurred when the ladder "`flipped, twisted, and started to slide,' causing [the plaintiff] to fall from the ladder." Id. at 771, 619 N.W.2d at 827. The plaintiff argued that an assumption of risk instruction was not warranted because the homeowner had failed to show that the plaintiff understood the specific danger which caused him to fall. Although there was evidence that the plaintiff knew ladders could "`get shaky and fall,'" there was no evidence that the plaintiff was aware that the 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 the plaintiff to fall. Id. Because the evidence failed to demonstrate any knowledge on the part of the plaintiff concerning the specific danger that caused his injury—the ladder flipping, twisting, and sliding, causing him to fall—an instruction on assumption of risk was not warranted.

Conversely, in Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418 (2004), the Supreme. Court found that the plaintiff had assumed the risk as a matter of law. In Burke v. McKay, the plaintiff was injured while competing in a high school rodeo when the horse he was riding "`stood up on his back legs and threw himself to the rear in such a way that [the horse] fell over backwards,...