Kopecky v. National Farms, Inc.

• Decision Date: 07 January 1994
• Docket Number: No. S-91-633,S-91-633
• Parties: Joe KOPECKY and Michele Kopecky, Husband and Wife, Appellees, v. NATIONAL FARMS, INC., a Delaware Corporation, Doing Business as NATIONAL FARM PRODUCTS, and O.N. Corporation, a Nebraska Corporation, Appellants.
• Court: Nebraska Supreme Court

Page 41

510 N.W.2d 41

244 Neb. 846

Joe KOPECKY and Michele Kopecky, Husband and Wife, Appellees, v. NATIONAL FARMS, INC., a Delaware Corporation, Doing Business as NATIONAL FARM PRODUCTS, and O.N. Corporation, a Nebraska Corporation, Appellants.

No. S-91-633.

Supreme Court of Nebraska.

Jan. 7, 1994.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous 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. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. Furthermore, all the jury instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

4. Nuisances: Real Estate. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (1) the gravity of the harm outweighs the utility of the actor's conduct, or (2) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

5. Judgments: Appeal and Error. With regard to questions of law, an appellate court is obligated to reach a conclusion independent from the trial court's conclusion.

6. Collateral Estoppel. There are four conditions that must exist for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.

7. Actions: Judicial Notice. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined in a prior proceeding involving one of the parties now before the court, the court has a right to examine its own records and take judicial notice of its own proceedings and judgment in the prior action.

8. Collateral Estoppel: Words and Phrases. For the purposes of applying the doctrine of collateral estoppel, an issue is considered to be the "identical issue" in the absence of a significant factual change.

9. Trial: Juries. A motion to inspect the premises under Neb.Rev.Stat. § 25-1108 (Reissue 1989) is, by the terms of the statute, left to the discretion of the trial court.

10. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or to refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

11. Nuisances: Jury Instructions. In a nuisance case, when the issue of unreasonableness is submitted to the jury, the jury is to be instructed pursuant to the Restatement (Second) of Torts § 826 (1979), which subsumes evidence on social utility.

12. Rules of the Supreme Court: Evidence: Parties. Neb.Ct.R. of Discovery 34 (rev. 1992) is limited in scope. It applies only to parties to the action.

13. Motions for New Trial: Appeal and Error. A district court's denial of a motion for new trial will be affirmed when the court's decision is neither prejudicial nor an abuse of discretion.

14. Verdicts: Appeal and Error. A verdict will not be set aside on appeal unless it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or it is clear that the trier of fact disregarded the evidence or rules of law.

15. Motions for New Trial: Juror Misconduct: Verdicts: Proof. In a motion for new trial, allegations of misconduct by jurors must be substantiated by competent evidence. The misconduct complained of must relate to a disputed matter that is relevant to the issues in the case and must have influenced the jurors in arriving at the verdict.

16. Rules of Evidence: Verdicts: Jurors: Affidavits. Neb.Rev.Stat. § 27-606(2) (Reissue 1989) prohibits admission of a juror's affidavit to impeach a verdict on the basis of the jury's motives, methods, misunderstanding, thought processes, or discussions during deliberations, which enter into the verdict.

David A. Domina, of Domina & Copple, P.C., Norfolk, for appellants.

Steven D. Burns, of Burns & Associates, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

LANPHIER, Justice.

National Farms, Inc., and its wholly owned subsidiary O.N. Corporation appeal the rulings and judgment of the Holt County District Court whereby, following a trial to a jury, their swine-raising operation was determined to be a private nuisance because of odor and flies, and the appellees, Joe and Michele Kopecky, were awarded damages. National Farms and O.N. claim the district court erred in refusing their offer to present evidence to the jury on the social utility of their swine-raising operation and by improperly instructing the jury on the issues of nuisance and damages. National Farms and O.N. claim the district court erred in granting partial summary judgment against them based on an earlier nuisance suit in which their swine-raising facility was determined to constitute a nuisance. National Farms and O.N. claim the district court erred in allowing evidence of a Colorado swine-raising facility operated by an affiliate corporation and in not allowing the jury to inspect the Holt County operation. National Farms and O.N. submit an affidavit and allege juror misconduct.

BACKGROUND

At the time of trial, Joe and Michele Kopecky resided about 2 1/4 miles northwest of National Farms and O.N.'s swine-raising facility. The Kopeckys complained that from August 15, 1985, to August 15, 1989, National Farms and O.N.'s means of disposing of the waste (manure and urine) from the 85,000 to 90,000 animals housed in the facility created a nuisance: an intolerable odor and an unreasonable number of flies.

National Farms and O.N. used water to flush the animal waste out of each confinement building. The waste was then passed over a system of screens which separated the solid waste from the liquid waste. A manure spreader was used to distribute the solid waste over adjacent fields owned by National Farms and O.N. The liquid waste was pumped into a series of lagoons. During the growing season, the liquid waste from the lagoons was mixed with varying amounts of water, and center-pivot irrigation systems sprayed the mixture over National Farms and O.N.'s fields. During the winter, the liquid waste was stored in the lagoons.

The Kopeckys claimed it was this method of waste utilization and removal which created an intolerable odor and an unreasonable number of flies at their home. Michele Kopecky described the odor as a "gagging smell ... a nauseating, burning odor." Joe Kopecky, who previously worked for National Farms and O.N. and was familiar with the odors associated with hog production, testified that the odor was "very strong" as compared to what he would normally expect from a typical swine-raising operation. He also testified that since National Farms and O.N.'s swine-raising facility was built, the number of flies at the Kopeckys' home had increased. Michele Kopecky testified that the odor and the number of flies interfered with the use of their home. She testified that when she smelled the odor, she would go into the house and close all the windows. However, she testified that even this did not always keep the odor out. She also testified that her children had been forced to play inside because of the odor and that the Kopeckys could no longer have family picnics.

Subsequently, the Kopeckys brought this action for nuisance. Prior to trial, the district court granted partial summary judgment, determining that a 1986 case, Kaup v. National Farms, Inc., and O.N. Corporation, Holt County District Court, case No. 18235, established (1) that during the period from August 15, 1985, to September 18, 1986, an unreasonable amount of odor and flies came from the National Farms and O.N. swine-raising facility; (2) that during the period from August 15, 1985, to September 18, 1986, National Farms and O.N. were operating the facility with the knowledge that the unreasonable odor and flies interfered with the use and enjoyment of some surrounding property; and (3) that during any period of time from August 15, 1985, to the date of the verdict in that case, National Farms and O.N. were legally responsible for any damage that any person received from unreasonable odor or flies coming from the swine-raising facility.

Also prior to trial, National Farms and O.N., pursuant to Neb.Rev.Stat. § 25-1108 (Reissue 1989), moved to allow the jury to inspect their swine-raising facility. At trial, the motion was renewed, but was denied.

Over the objection of National Farms and O.N., the court received evidence offered by the Kopeckys on a Colorado swine-raising facility operated by another wholly owned subsidiary of National Farms.

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