Hradecky v. State

• Decision Date: 18 October 2002
• Docket Number: No. S-01-583., No. S-01-582
• Citation: 652 N.W.2d 277,264 Neb. 771
• Court: Nebraska Supreme Court
• Parties: Bernard HRADECKY, Appellant, v. STATE of Nebraska, Appellee. Laura Hradecky, Appellant, v. State of Nebraska, Defendant and Third-Party Plaintiff, Appellee and Cross-Appellee, and Bernard Hradecky, Third-Party Defendant, Appellee and Cross-Appellant.

652 N.W.2d 277

264 Neb. 771

Bernard HRADECKY, Appellant, v.STATE of Nebraska, Appellee. Laura Hradecky, Appellant, v.State of Nebraska, Defendant and Third-Party Plaintiff, Appellee and Cross-Appellee, andBernard Hradecky, Third-Party Defendant, Appellee and Cross-Appellant.

Nos. S-01-582, S-01-583.

Supreme Court of Nebraska.

October 18, 2002.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for appellants.

Jay L. Welch, of Locher, Cellilli, Pavelka & Dostal, L.L.C., and, on brief, Thomas D. Wulff, of Welch, White & Wulff, Omaha, for appelleeState of Nebraska.

Mary M. Schott and Edward F. Noethe, of Sodoro, Daly & Sodoro, for appelleeBernard Hradecky.

HENDRY, C.J., and CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Bernard Hradecky and Laura Hradecky, husband and wife, were injured on February 25, 1998, when a snowplow operated by an employee of the State of Nebraska struck a motor vehicle operated by Bernard in which Laura was a passenger.The Hradeckys filed separate personal injury actions against the State in the district court for Kimball County.In Laura's case, the State filed a third-party petition seeking contribution from Bernard.The cases were consolidated for trial, with fact issues in the third-party claim decided by a jury and all other issues decided by the court.Laura recovered damages on her claim, but Bernard did not.The State prevailed in its third-party claim against Bernard for contribution.The Hradeckys, as plaintiffs below, perfected timely separate appeals.Bernard, as the third-party defendant in Laura's case, cross-appealed.We moved the appeals to our docket and granted the Hradeckys' motions to consolidate the actions on appeal.We conclude that all assignments of error are without merit and affirm the judgments entered by the district court.

FACTS

PROCEDURAL HISTORY

After their claims were denied by the State Claims Board, the Hradeckys filed separate actions for negligence against the State pursuant to the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq.(Reissue 1996 &Cum.Supp.1998).Both alleged that they were injured when their vehicle, operated by Bernard, was struck from behind by a snowplow negligently operated by an employee of the State.The district court granted the Hradeckys' partial motions for summary judgment in each case, finding the State negligent as a matter of law.The court denied the State's motions for summary judgment in both cases, but granted the State leave to file a third-party petition against Bernard in Laura's case.

The State's operative third-party petition alleged that the collision was proximately caused by Bernard's gross negligence and that the State was entitled to "be recompensed" for any amount for which it was held liable to Laura.The third-party petition also alleged that the State was entitled to an apportionment of fault between it and Bernard pursuant to Neb.Rev.Stat. § 25-21,185.10(Reissue 1995).

Laura filed a motion requesting the severance of the third-party claim for purposes of trial.In her motion, she alleged that the issues raised by the State in its third-party action were "functionally identical" to the issues raised by the State in its answer to the petition in Bernard's case, which was consolidated with Laura's case for the purpose of trial.She further alleged that she and Bernard would be prejudiced by a failure to sever the third-party claim because a jury would be confused if, at trial, Bernard were represented by one attorney on his primary claim and another on the third-party claim.The district court ruled that the State was entitled to a jury trial on the third-party claim and denied the motion for severance.

The consolidated cases proceeded to trial, with the Hradeckys' claims tried to the court and issues of fact in the State's third-party claim against Bernard tried to a jury.The Hradeckys, as plaintiffs, were represented by the same attorney, and a different attorney represented Bernard as the third-party defendant.

TRIAL

Trial commenced on December 13, 2000.Bernard testified that on the morning of February 25, 1998, he and Laura traveled from their home in Sterling, Colorado, to Kimball, Nebraska, in order to obtain title to a used vehicle.In ordinary weather and road conditions, the distance can be driven in approximately 1 hour 15 minutes.The Hradeckys left Sterling at 7 a.m., and at that time, the weather was clear but very windy and the roads were dry.Bernard drove.

The Hradeckys concluded their business in Kimball at approximately 9:10 a.m. Bernard testified that at that time, the wind was blowing and it was beginning to snow.Bernard decided to drive home via Interstate 80 rather than on Highway 71 due to the weather conditions.Bernard testified that he entered I-80 at the Kimball exchange at approximately 9:30 a.m. and that at that time, the gate to I-80 was open.Laura also testified that the gate was open at that time.

According to Bernard, weather conditions deteriorated as he drove east.He decreased his speed and began looking for an exit.Although Laura was helping him navigate and locate the exit, they missed the first available exit and continued driving east on I-80.Bernard testified that he was traveling at 25 to 30 miles per hour in the right lane when he heard a sudden rumble and was struck from behind by the snowplow.On cross-examination, he admitted that he saw no other traffic on I-80 prior to the accident.

Steve Sterling, an employee of the Nebraska Department of Roads and the road maintenance supervisor in Kimball, was called as a witness for the State.Sterling testified that he closed both the eastbound and westbound gates to I-80 at the Kimball exchange at 8:30 a.m.When the gates are closed, a "Road Closed" sign is displayed in the center of the gate and flashing lights on a nearby sign indicate the road is closed.The gates cover the entire access ramp, and when they are closed, it is impossible for a vehicle to enter I-80 without driving off the access road and around the closed gates.After closing the gates, Sterling made a sweep east on I-80 and encountered no traffic.He testified that by shortly after 9 a.m., the wind in Kimball was blowing 30 to 40 miles per hour and visibility was getting bad.

The February 25, 1998, entry from Sterling's work diary was admitted as an exhibit at trial.The diary includes an entry that Sterling closed the eastbound I-80 entrance at Kimball at 8:30 a.m., although the "8" is written very boldly and there appears to be text underneath it.Both parties offered expert testimony on the issue of whether the ink used to make the "8" was consistent with other ink on the page and what the text underlying the "8" was.The Hradeckys' expert testified that different ink was used to make the "8" and that the underlying text was the number 10.The State's expert agreed that different ink was used on the "8" but found that different ink was also used on other entries in the diary on the same day.The State's expert disagreed that the underlying text was a 10 and opined that she could not determine what the text represented.

POSTTRIAL

At the conclusion of the testimony, the issues of whether Bernard was grossly negligent and whether any such negligence was a proximate cause of the accident were submitted to the jury.Utilizing a special verdict form returned on December 15, 2000, the jury answered both questions in the affirmative.

In an order entered in Laura's case on April 3, 2001, the district court determined that the verdict of the jury finding that Bernard was grossly negligent overcame the limitations of the Nebraska guest statute and permitted Bernard to be held liable for contribution with respect to Laura's claim.The court then apportioned 20 percent of the liability for Laura's injuries to the State and 80 percent to Bernard.The court assessed Laura's total damages at $35,000 and entered judgment against the State and Bernard accordingly.The damage award included special damages proved by Laura in the amount of $19,294.71, consisting entirely of medical expenses reasonably incurred as a result of her injuries.In assessing damages, the court found that Laura's injuries necessitated surgery and restricted her mobility.

In a separate order, also dated April 3, 2001, the court entered written findings on Bernard's action against the State.The court noted that Bernard was aware of the weather and road conditions at the time he entered I-80.The court specifically relied upon the testimony of Sterling and found that the I-80 gate was closed at 8:30 a.m. and that Bernard entered I-80 in spite of clear notice that it was closed.The court found Bernard negligent in entering a road that was closed, continuing on a closed road in zero visibility conditions, failing to exit the closed road when he had an opportunity to do so, failing to pull over when he could no longer maintain proper control, and stopping on I-80 in the left lane of traffic.The court held that Bernard's negligence was greater than that of the State and that he was thus barred from recovery on the basis of comparative negligence.SeeNeb.Rev.Stat. § 25-21,185.09(Reissue 1995).

The Hradeckys, as plaintiffs, filed motions for new trial.Bernard also filed a motion for new trial in his capacity as third-party defendant.Pursuant to a stipulation of the parties, the court modified its judgment on the third-party claim to apportion economic and noneconomic damages between the parties pursuant to § 25-21,185.10.The motions for new trial were overruled in all other respects.

ASSIGNMENTS OF ERROR

The separate appellate briefs filed by the Hradeckys set forth identical assignments of error.Each contends that the district court erred in (1) allowing the State to try its third-party action to a jury; (2) refusing to bifurcate and/or sever the trial of the State's third-p...