King v. Crowell Memorial Home
| Citation | 622 N.W.2d 588,261 Neb. 177 |
| Decision Date | 02 February 2001 |
| Docket Number | No. S-99-1307.,S-99-1307. |
| Parties | John KING, Special Administrator of the Estate of Lois King, deceased, Appellant, v. CROWELL MEMORIAL HOME, Appellee. |
| Court | Supreme Court of Nebraska |
Gary F. Smolen, Omaha, for appellant.
Thomas J. Culhane and Patrick R. Guinan, of Erickson & Sederstrom, P.C., Omaha, for appellee.
Lois King (the decedent) was a resident of the Crowell Memorial Home (the Home) in Blair, Nebraska. The decedent died on October 11, 1995, at the age of 84. John King (King), the decedent's son and the special administrator of her estate, brought suit against the Home on behalf of the decedent's estate.
King's operative second amended petition, filed on February 18, 1998, alleged that the Home was negligent in several respects. The petition alleged that the Home was negligent in failing to prevent the decedent from choking to death by having adequate support staff available, by having planning or procedures in place to prevent the death, or by preparing liquified food. The petition further alleged that the Home was negligent in incorrectly classifying the decedent as a "No CPR" patient, despite King's request that lifesaving measures be taken, and that the Home consequently failed to resuscitate the decedent when she stopped breathing.
Prior to trial, the Home filed a motion to strike the allegations in the petition relating to inadequate support staff and failure to resuscitate. The motion was sustained with respect to the support staff allegations, but overruled as to the resuscitation allegations. The district court then ordered all pretrial motions to be filed by March 16, 1999. Despite this, the Home filed a motion in limine on September 27, seeking to exclude evidence of King's holding a health care power of attorney for the decedent, or King's allegations relating to resuscitation. After a telephonic hearing, the motion in limine was overruled, but the district court directed the parties not to raise the power of attorney or resuscitation issues during voir dire or opening statements.
The matter came on for trial on October 18, 1999. King did not attempt to present, or otherwise raise, the issues of power of attorney or resuscitation during voir dire or opening statements.
King was the sole witness to testify during the plaintiff's case in chief. King testified that he visited the decedent in the Home once or twice a week. King proffered exhibits 8 and 9, which were, respectively, a general power of attorney and a durable power of attorney for health care, both held by King for the decedent. The Home objected on the bases of foundation and relevance, and the district court reserved ruling on the objections.
King testified that in October 1994, he observed the decedent's medical records at the Home and saw that she was designated "No CPR," which he understood to refer to cardiopulmonary resuscitation. King then proffered exhibit 10, which was a copy of a letter from King to the Home instructing the Home to use "any and all medical measures" on the decedent. The Home objected on the bases of foundation and relevance, and the objection was sustained. King reproffered exhibits 8 and 9, and the Home's objections to those exhibits were also sustained.
King testified that it was "[his] understanding... that [CPR] was not [performed]" on the decedent. The basis for this understanding was not explained at trial. Other than this testimony, no evidence was presented regarding what measures were taken to prevent the decedent's death. No evidence was presented that at the time of the decedent's death, she was still a "No CPR" patient or that King's instructions regarding the decedent's care had not been followed. No evidence was presented at trial, from a medical expert or otherwise, that any efforts to resuscitate the decedent would have been in any way successful. In fact, no evidence was presented at trial to even establish the decedent's medical cause of death.
The Home did not cross-examine King, and after he was excused, the plaintiff rested. The Home made a motion for directed verdict, arguing that there was no evidence presented supporting any of the allegations contained in the second amended petition. The Home's motion for directed verdict was sustained, and King's petition was dismissed. King appeals.
King assigns, restated and reordered, that (1) the district court erred in allowing the Home's motion in limine to be argued in light of the court's prior ruling on the Home's motion to strike and the progression order establishing a deadline for pretrial motions; (2) the district court erred in not preserving and producing a record of the hearing on the Home's motion in limine; (3) the district court erred in prohibiting the use of the issues of power of attorney and cardiopulmonary resuscitation during voir dire and opening statements; (4) the district court's interpretation of the "Nebraska Health Care Power of Attorney" statutes, Neb.Rev.Stat. ch. 30, art. 34 (Reissue 1995), unconstitutionally infringed upon the decedent's rights of substantive due process; (5) the district court erred in sustaining the Home's motion for a directed verdict; and (6) the district court abused its discretion in sustaining the Home's objections to exhibits 8, 9, and 10.
In considering an appeal from an order granting a motion for a directed verdict at the close of the plaintiff's case, an appellate court must determine whether the cause of action was proved and in so doing must consider the plaintiff's evidence as true and give the plaintiff the benefit of reasonable conclusions deducible from that evidence. Cole v. Loock, 259 Neb. 292, 609 N.W.2d 354 (2000); Cloonan v. Food-4-Less of 30th, 247 Neb. 677, 529 N.W.2d 759 (1995). 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. Cole v. Loock, supra; Lackman v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999).
King's first and second assignments of error argue that the district court erred in permitting the Home's motion in limine to be argued and in not preserving a record of the hearing. However, the Home's motion in limine was overruled. The overruling of a motion in limine is not reviewable on appeal. Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997). Moreover, error without prejudice provides no ground for appellate relief. Willers v. Willers, 255 Neb. 769, 587 N.W.2d 390 (1998). As King prevailed on the Home's motion in limine, he was not prejudiced by the consideration of the motion or the failure to preserve a record of the hearing. We need not determine if the district court erred regarding the motion in limine, as such error, if any, did not prejudice King and provides no basis for reversing the judgment of the district court.
King's third assignment of error is that the district court erred in limiting his voir dire and opening statements. Again, we need not decide whether the district court erred in this regard, because King was not prejudiced by the district court's ruling. The judgment on appeal is the result of a directed verdict entered by the district court, and not the determination of a jury. Consequently, errors in the selection of the jury, if any, had no effect on the ultimate judgment. See id.
Similarly, King was not prejudiced by the district court's restriction on his opening statement because the district court directed a verdict against him based upon his failure to prove his case. Declarations made in opening statements may not be used as evidence in determining the issues in a case. See Twenty Club v. State, 167 Neb. 37, 91 N.W.2d 64 (1958). King's opening statement, then, had no relation to the directed verdict that was entered at the conclusion of his case in chief. As King was not prejudiced by the restrictions placed on voir dire and opening statements, his assignment of error provides no basis for appellate relief. See Willers v. Willers, supra.
King's fourth assignment of error is not properly before this court, as it was not presented in the district court. An appellate court will not consider a constitutional...
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