Dolberg v. Paltani

• Decision Date: 14 June 1996
• Docket Number: No. S-94-605,S-94-605
• Citation: 549 N.W.2d 635,250 Neb. 297
• Parties: Joann DOLBERG, Appellant, v. Molly PALTANI and Erickson & Sederstrom, a corporation, Appellees.
• Court: Nebraska Supreme Court

Page 635

549 N.W.2d 635

250 Neb. 297

Joann DOLBERG, Appellant, v. Molly PALTANI and Erickson & Sederstrom, a corporation, Appellees.

No. S-94-605.

Supreme Court of Nebraska.

June 14, 1996.

Syllabus by the Court

1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law.

2. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

3. Negligence: Liability. Deciding that a party is negligent as a matter of law does not equate to a finding that the defendant is liable.

4. Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence: Proximate Cause: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

6. Negligence: Juries: Appeal and Error. When contributory negligence is pled as a defense and there is no competent evidence to support it, it is prejudicial error to submit to the jury issues involving contributory and comparative negligence.

7. Motor Vehicles: Highways: Right-of-Way. Intersection right-of-way is a qualified, not absolute, right to proceed through an intersection, exercising due care, in a lawful manner in preference to another vehicle.

8. Motor Vehicles: Highways: Right-of-Way. Under Neb.Rev.Stat. § 60-6,123 (Reissue 1993), a driver with a green light must yield the right-of-way to other vehicles and pedestrians lawfully within the intersection.

9. Motor Vehicles: Highways: Negligence. Absent exceptional circumstances, a motorist on a favored street with a green light does not have the duty to anticipate the negligence of a motorist on a cross street who runs a red light.

10. Jury Instructions. It is more than mere probability that an instruction on a matter not an issue in the litigation distracts a jury in its effort to answer legitimate, factual questions raised during trial.

11. Jury Instructions: Appeal and Error. Conflicting instructions are erroneous unless it appears that the jury was not misled.

Julianne M. Dunn, Omaha, for appellant.

Dan H. Ketcham and Amy Sherman LaFollette, of Hansen, Engles & Locher, P.C., Omaha, for appellee Paltani.

Christopher J. Tjaden, of Gross & Welch, P.C., Omaha, for appellee Erickson & Sederstrom.

WHITE, C.J., and FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

Joann Dolberg brought a negligence action against Molly Paltani and her employer, Erickson & Sederstrom, for injuries that Dolberg received in a car accident with Paltani. The jury rendered a verdict in favor of both defendants. Dolberg appeals. Because we conclude that Dolberg was prejudiced by the trial court's submission of the issue of contributory negligence and erroneous instructions to the jury, we reverse.

FACTUAL BACKGROUND

This case involves an automobile collision that occurred on April 3, 1992, at the intersection of 25th and Douglas Streets in Omaha, Nebraska. At this intersection, Douglas Street is a four-lane eastbound one-way road, while 25th Street is a three-lane southbound one-way road. The intersection is controlled by a traffic light. Immediately preceding the accident, Dolberg was driving east on Douglas Street in the middle lane left of center, approaching the intersection with 25th Street. Paltani was proceeding south in the middle lane of 25th Street, approaching Douglas Street. On the northwest corner of the intersection of 25th and Douglas Streets is a parking lot; however, there is no testimony in the record to establish whether there were cars parked there at the time of the accident.

Jack Cook, who was operating a pickup truck approximately 1 1/2 to 2 car lengths behind Dolberg, testified that as he began to approach the intersection at 25th Street, he saw the car operated by Paltani and ascertained that she was not going to stop at the traffic light. Cook applied his brakes and avoided entering the intersection, but witnessed the collision between Dolberg and Paltani. Cook testified that Paltani must have run a red light because the traffic light for Douglas Street was green.

Neither Dolberg nor Paltani saw the other before their collision. Dolberg testified that the light controlling traffic on Douglas Street was green, while Paltani testified that she did not remember the color of the light controlling traffic on 25th Street. When they collided in the intersection, the front end of Dolberg's car struck the right rear wheel area of Paltani's car. Dolberg testified that after the collision, she had a headache and her neck and shoulders hurt. Although she was offered the services of a rescue squad, she refused.

At trial, Dolberg and Paltani adduced conflicting medical testimony on the extent of Dolberg's injuries, which is not relevant to the disposition of this case. At the conclusion of the evidence, the court determined as a matter of law that Paltani was negligent and was acting within the scope of her employment with Erickson & Sederstrom, her employer at the time of the accident. During the instruction conference, Dolberg raised an objection to two instructions, Nos. 7 and 10. However, the court overruled these objections and gave the instructions. The jury rendered a verdict in favor of both defendants.

ASSIGNMENTS OF ERROR

Dolberg assigns 13 errors. In light of our decision, we will discuss only four of Dolberg's assigned errors: The district court erred in (1) refusing to direct a verdict against the defendants, (2) submitting the issue of contributory negligence to the jury, (3) instructing the jury on the effect of the violation of a statute or ordinance, and (4) failing to define "efficient intervening cause" when that term was included in the instructions.

STANDARD OF REVIEW

A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law. Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995).

In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Hamernick v. Essex Dodge Ltd., 247 Neb. 392, 527 N.W.2d 196 (1995); Scharmann v. Dayton Hudson Corp., 247 Neb. 304, 526 N.W.2d 436 (1995); Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994).

ANALYSIS

FAILURE TO DIRECT VERDICT AGAINST DEFENDANTS

Dolberg assigns that the court erred in failing to direct a verdict of liability against each defendant. Dolberg argues that the court found Paltani to be negligent as a matter of law and that therefore the defendants were liable. However, deciding that a party is negligent as a matter of law does not equate to a finding that the defendant is liable. See Davis v. Phillips, 215 Neb. 184, 337 N.W.2d 754 (1983) (finding court's refusal to direct verdict on liability proper when issue of contributory negligence is before jury).

In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages. Hill v. City of Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996); Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 248 Neb. 651, 538 N.W.2d 732 (1995); S.I. v. Cutler, 246 Neb. 739, 523 N.W.2d 242 (1994). A finding of negligence as a matter of law equates to a finding that the plaintiff has established the first two of those four elements. However, the issues of causation and damages remain for the jury's determination. See Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993).

It is undisputed that Paltani violated her obligation to stop at the red light and to yield the right-of-way to Dolberg. The court decided this issue as a matter of law. What remains for resolution is whether Paltani's negligent act resulted in any harm to Dolberg. We have held that determination of causation is, ordinarily, a matter for the trier of fact. Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994). As the issues of causation and damages must go to the jury, the trial court did not err in failing to direct a verdict of liability, which would require the court to usurp the fact finder's role.

SUBMITTING CONTRIBUTORY NEGLIGENCE TO JURY

Dolberg assigns that the court erred in submitting the issue of contributory negligence to the jury. As Dolberg asserts, when contributory negligence is pled as a defense and there is no competent evidence to support it, it is prejudicial error to submit to the jury issues involving contributory and comparative negligence. Center State Bank v. Dana, Larson, Roubal & Assoc., 226 Neb. 408, 411 N.W.2d 635 (1987).

Dolberg essentially claims that there was no possibility that she was contributorily negligent because she had a green light at the time of the collision. Neb.Rev.Stat. § 60-6,123(1)(a) (Reissue 1993) provides:

Vehicular traffic facing a circular green indication may proceed straight through or turn right or left unless a sign at such place prohibits either such turn, but vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such indication is exhibited.

Pursuant to § 60-6,123, a driver approaching a green traffic light is in the privileged position. However, we have previously held that intersection right-of-way is a...