Havlicek v. Desai
| Decision Date | 10 April 1987 |
| Docket Number | No. 85-718,85-718 |
| Citation | 403 N.W.2d 386,225 Neb. 222 |
| Parties | Lois HAVLICEK, Appellee, v. Yogesh DESAI, Appellant, Desai Corporation et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Directed Verdict. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can be deduced therefrom.
2. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal unless it is clearly wrong.
3. Negligence. Where the negligence charged furnishes only a condition by which the injury is made possible, and a subsequent independent act of a third party causes the injury, the two acts are not concurrent, and the existence of the condition is not the proximate cause of the injury.
4. Invitor-Invitee: Negligence. A failure to provide a business invitee with adequate lighting on a stairway may support an action for negligence.
5. Invitor-Invitee: Negligence. The proprietor of a business establishment generally has a legal duty to exercise ordinary care to keep his or her premises reasonably safe for use by a business invitee.
6. Invitor-Invitee: Liability: Negligence: Proof. In cases when liability for injuries suffered on business premises is being predicated on the owner's or operator's failure to remove or remedy a hazardous condition, unless the evidence shows that the alleged hazardous condition existed and was known to exist by the defendant, the party injured must prove either that the condition was created by the defendant or that it had existed a long enough time prior to the accident to charge the defendant or the defendant's servants with notice to afford them a reasonable opportunity to remedy such condition. However, when a business proprietor is under an affirmative obligation to provide proper lighting to reveal a hazardous condition, such proprietor has in effect created the condition and it is not necessary to prove that he or she had actual or constructive knowledge of the situation.
7. Invitor-Invitee: Negligence: Proof. Where a business proprietor has an affirmative duty to provide adequate lighting, and there is some reasonable explanation why such was not accomplished, it is incumbent upon that proprietor to produce that evidence as part of his or her defense.
8. Verdicts: Damages: New Trial. A jury verdict which is wholly inadequate as to amount of damages, and therefore is not supported by the evidence, must be set aside and a new trial granted.
Thomas C. Sattler of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellant.
Hal Bauer of Bauer, Galter & O'Brien, Lincoln, for appellee Havlicek.
This is an appeal from the district court for Lancaster County in which the plaintiff received a jury verdict for "$0" in her personal injury case. The plaintiff brought a motion for a new trial on the basis that the court had accepted a verdict for "$0," which motion the court sustained. The defendant brought a motion for judgment notwithstanding the verdict, which was overruled. The defendant Yogesh Desai appeals.
Although the defendant's first assignment of error is general, his arguments make it clear he contends the court erred in overruling his motion for judgment notwithstanding the verdict because the court failed to find that (1) plaintiff was contributorily negligent as a matter of law; (2) inadequate lighting is a mere condition and not a proximate cause; and (3) the plaintiff failed to present evidence of the defendant's constructive notice of any inadequate lighting. The defendant also insists that the court erred in sustaining plaintiff's motion for a new trial because a verdict for "$0" is a valid verdict in this case. We find the district court did not err.
The evening of March 4, 1983, the plaintiff and her husband, son, and granddaughter went to the Congress Inn located at 2001 West O Street in Lincoln, Nebraska, to eat dinner. Plaintiff and her granddaughter were dropped off at the north entrance of the restaurant. Plaintiff's husband then drove the car around to the south parking lot and he and the son joined plaintiff and her granddaughter in the restaurant. When the family finished eating, everyone but the plaintiff walked to the car while she finished filling two foam containers, which were used as doggie bags.
When plaintiff left the restaurant through the south exit, it was past sundown, overcast, and sprinkling or raining. She testified on direct examination that she walked out the door, stopped, and looked because she did not know where her husband was parked. She was impeached on cross-examination with a prior deposition in which she stated that she did not pause or hesitate at all. In any event, by the time she got outside, her husband had turned on the car lights so she could see where the car was. On direct examination she testified that the car was to the west and she started heading toward it. With foam containers in her hands and a purse slung over her shoulder, she went west down the sidewalk close to the building, which was protected from the rain by an overhang. On cross-examination she testified that she was not walking particularly faster than usual, but in her prior deposition she agreed she probably was walking a little faster than usual.
On cross-examination plaintiff further testified that she could see outlines of things, but in her deposition she stated that she did not believe she could see the ground in front of her, that it was very dark. There were recessed light fixtures in the soffit of the overhang, but they were not lit at the time. There was a neon sign, over the exit door, which was on and emanating light. That neon sign illuminated a short sidewalk which went directly south into the parking lot. As she moved west, she was moving away from that light. On cross-examination she testified it was not necessary to take the sidewalk to the west, and in her deposition she agreed she was taking a shortcut by going to the west. As she walked down the sidewalk, she suddenly stepped off into "nothingness." She had fallen down an unlighted stairway.
After she fell, plaintiff's husband and son carried her to their pickup and took her to Lincoln General Hospital. The x-ray report indicated a hairline fracture in the midbody of the sacrum, with no displacement. Dr. Sposato, the neurologist to whom the plaintiff was referred by her primary physician, diagnosed the plaintiff's injury as a fractured sacrum with injury to nerves in that area, which was consistent with a fall like the one the plaintiff took. For a while after the accident, the plaintiff lost control of both bladder and bowel. She was also numb in the rectal and vaginal areas. She could not go to work for 6 weeks because of the pain. At the time of the accident she earned $228 per week. Also, she still lacked the sensation of having to go to the bathroom.
The defendant first assigns as error the overruling of his motion for judgment notwithstanding the verdict. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can be deduced therefrom. Farm Bureau Life Ins. Co. v. Luebbe, 218 Neb. 694, 358 N.W.2d 754 (1984). A jury verdict will not be disturbed unless it is clearly wrong. Id.
Our review of the facts shows that the trial court was correct in overruling the defendant's motion for judgment notwithstanding the verdict. The jury's verdict as to liability was not clearly wrong.
To support his first assignment of error the defendant argues that the plaintiff was contributorily negligent as a matter of law. With this argument we cannot agree. The facts were disputed as to how dark it was outside, how quickly the plaintiff was walking, and whether she paused or hesitated as she left the restaurant. Whether it was unreasonable for the plaintiff to have taken the sidewalk to the west instead of the one to the south was a question of fact for the jury. In the former case, the plaintiff could walk along a paved sidewalk protected from the rain, while in the latter case, she could walk for a short distance to the south on the pavement which was illuminated by the neon sign, but then would have to walk in the rain away from the light again to get to her vehicle. The failure to take alternative courses of action suggested by defendant's counsel--using a lighter or matches to light her way, calling out to her family for help, stopping, and going back...
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