Haag v. Bongers
| Decision Date | 12 February 1999 |
| Docket Number | No. S-97-1243,S-97-1243 |
| Citation | 589 N.W.2d 318,256 Neb. 170 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,473 Joseph A. HAAG, appellee, v. Alfred M. BONGERS and Delores D. Kuhl, Personal Representatives of the Estate of Leo J. Bongers, deceased, appellees and cross-appellants, William J. Dolan, doing business as Dolan Realty and Auction Co., and Bauer-Moravec Auctioneers and Clerks, appellees, and Putnam Hitch Products, Inc., appellant and cross-appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for a directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.
2. 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.
3. Directed Verdict. A motion for a directed verdict should state the specific grounds therefor.
4. Products Liability: Proof. To recover against a defendant on a claim of strict liability, a plaintiff must prove by a preponderance of the evidence that (1) the defendant placed the product on the market for use and knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant's possession; (3) the defect is the proximate or a proximately contributing cause of the plaintiff's injury sustained while the product was being used in a way and for the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) the plaintiff's damages were a direct and proximate result of the alleged defect.
5. Products Liability. A product may be defective and unreasonably dangerous because the manufacturer sold the product without sufficient warnings or instructions.
6. Products Liability: Words and Phrases. Unreasonably dangerous means that a product has the propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with ordinary knowledge common to the foreseeable class of users as to its characteristics.
7. Products Liability: Proof. Whether a product is unreasonably dangerous is generally a question of fact.
8. Trial: Appeal and Error. Conduct of final argument is within the discretion of the trial court, and absent an abuse of that discretion, the trial court's ruling regarding final argument will not be disturbed.
9. 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.
10. Jury Instructions: Appeal and Error. Regarding a claim of prejudice from an instruction given or a court's refusal to give a tendered instruction, the given instructions must be read conjunctively rather than separately in isolation. If the instructions given, which are taken as whole, correctly state the law, are not misleading, and adequately cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.
11. Jury Instructions: Appeal and Error. While ordinarily the failure to object to instructions after they have been submitted for review will preclude raising an objection thereafter, a trial judge is nonetheless under a duty to correctly instruct on the law without any request to do so, and an appellate court may take cognizance of plain error and thus set aside a verdict because of a plainly erroneous instruction to which no previous objection was made.
12. Negligence: Liability: Independent Contractor. Generally, the employer of an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or his servants. There are two recognized exceptions to the general rule. The employer of an independent contractor may be vicariously liable to a third party (1) if the employer retains control over the contractor's work or (2) if, by rule of law or statute, the employer has a nondelegable duty to protect another from harm caused by the contractor.
13. Employer and Employee: Independent Contractor. There are 10 factors which are considered in determining whether a person is an employee or an independent contractor: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. The right of control is the chief factor distinguishing an employment relationship from one of an independent contractor. In examining the extent of the employer's control over the worker in this context, it is important to distinguish control over the means and methods of the assignment from control over the end product of the work to be performed.
14. Pleadings: Negligence: Proof: Appeal and Error. Contributory negligence is an affirmative defense, which must be proved by the party asserting such defense. An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the merits of a claim asserted in the petition. An affirmative defense must be specifically pled to be considered. An affirmative defense not raised or litigated in the trial court cannot be urged for the first time on appeal.
Brien M. Welch, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.
Kevin R. McManaman and Thomas J. Culhane, of Erickson & Sederstrom, P.C., Omaha, for appellees Bongers and Kuhl.
M.J. Bruckner and John W. Ballew, Jr., of The Bruckner/ Ballew Law Firm, P.C., Lincoln, for appellee Haag.
WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
Putnam Hitch Products, Inc. (Putnam), appeals and Alfred M. Bongers (Bongers) and Delores D. Kuhl (Kuhl), personal representatives of the estate of Leo J. Bongers (collectively, the Estate), cross-appeal from a jury verdict in the amount of $600,000 in favor of Joseph A. Haag (Haag) and against the Estate, Dolan Realty and Auction Co. (Dolan), Bauer-Moravec Auctioneers and Clerks (Bauer-Moravec), and Putnam for injuries Haag sustained on January 30, 1993, while attending an antique vehicles auction on the Estate's premises. Haag was injured when a hitch ball used in towing a vehicle flew off the towing rig and hit Haag on the right side of his skull and his right eye. For the reasons stated below, we affirm the trial court's order entering judgment on the jury's verdict.
Leo Bongers died intestate on October 8, 1992. Subsequently, Bongers and Kuhl, Leo Bongers' nephew and niece, were appointed as personal representatives of his estate. Upon his death, Leo Bongers left substantial real and personal property, including more than 120 antique cars, trucks, and motorcycles.
In late October 1992, Russ Moravec of Bauer-Moravec contacted the Estate and offered his services as auctioneer. Upon doing so, Moravec learned that Bill Dolan of Dolan had also contacted the Estate. On November 2 or 3, the Estate concluded that Bauer-Moravec and Dolan should conduct the auction of the vehicles jointly and split all of the expenses and commissions relating to the sale. On November 3, the Estate, Bauer-Moravec, and Dolan signed a written agreement to this effect. Therefore, in this opinion, Bauer-Moravec and Dolan will be referred to collectively as "the auctioneers."
Moravec recommended that the auction be held in May, June, or July 1993, at an airstrip in Butler County. This arrangement would have allowed the parties to line up the vehicles in a row outside in good weather so that people attending the auction could go from car to car and the vehicles would not need to be moved during the auction. Moravec was concerned that some of the older vehicles would not be in operating condition if the sale were held earlier, and Moravec favored having the auction at this site in this fashion because it would allow the parties to conduct the auction in a safe manner. The Estate rejected Moravec's recommendation and insisted that the sale be conducted in January 1993.
The auction was held on property owned by the Estate, a farm located 1 1/2 miles south of David City on the west side of Highway 15. The Estate and the auctioneers decided that the auction would be held inside because of probable bad weather, in a building owned by the Estate that opens at both ends.
In order to prepare for the sale, the Estate was to put the vehicles in running order, while the auctioneers attempted to locate all of the titles for the vehicles and to arrange for...
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