Lackman v. Rousselle, A-97-489

CourtCourt of Appeals of Nebraska
Citation585 N.W.2d 469,7 Neb.App. 698
Docket NumberNo. A-97-489,A-97-489
PartiesClinten LACKMAN, Appellee, v. Roger ROUSSELLE and Virginia Rousselle, defendants and third-party plaintiffs, appellants and cross-appellees, and Jack Lackman, third-party defendant, appellee and cross-appellant.
Decision Date29 September 1998

Page 469

585 N.W.2d 469
7 Neb.App. 698
Clinten LACKMAN, Appellee,
Roger ROUSSELLE and Virginia Rousselle, defendants and third-party plaintiffs, appellants and cross-appellees, and Jack Lackman, third-party defendant, appellee and cross-appellant.
No. A-97-489.
Court of Appeals of Nebraska.
Sept. 29, 1998.

Page 472

Syllabus by the Court

1. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate as to indicate that it was the result of passion, prejudice, mistake, or some other means not apparent in the record, or that the jury disregarded the evidence or rules of law.

2. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below.

3. Directed Verdict: Waiver: Appeal and Error. There is no waiver of any error in the ruling on a motion for directed verdict when such motion is renewed at the close of all evidence.

4. Joint Ventures. A joint venture can exist only by voluntary agreement of the parties and cannot arise by operation of law. There must be an agreement to enter into an undertaking; the parties must have a community of interest in the object of the undertaking and a common purpose in performance; each of the parties must have an equal voice in the manner of performance and control over the agencies used. The mere pooling of property, money, assets, skill, or knowledge does not create the relationship. And there must be something more than mere sharing of profits; there must be some active participation in the enterprise and some control of the subject matter thereof or property engaged therein.

5. Joint Ventures: Partnerships. The absence of mutual interest in the profits or benefits is conclusive that a partnership or joint venture does not exist.

[7 Neb.App. 699] 6. Joint Ventures. The primary criterion for a joint venture is that the parties enter into an agreement as owners or principals in the endeavor. Therefore, even a close relationship between two parties does not create an implied joint venture.

7. Joint Ventures: Evidence. There must be evidence of a common pecuniary interest between parties alleged to be involved in a joint enterprise.

Page 473

8. Negligence: Marriage. Generally, the mere existence of a marriage relationship does not have the effect of making the negligence of one spouse imputable to the other, but the existence of such a relationship will not preclude the negligence of one spouse from being imputed to the other.

9. Negligence: Damages. Contributory negligence chargeable to a claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence but shall not bar recovery, unless the contributory negligence is equal to or greater than the total negligence of all persons against whom recovery is sought.

10. Negligence: Joint Ventures: Liability: Damages. In an action involving more than one defendant when two or more defendants as part of a common enterprise or plan act in concert and cause harm, the liability of each such defendant for economic and noneconomic damages shall be joint and several. In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.

11. Jury Instructions: Appeal and Error. Whether requested to do so or not, a trial court has the duty of instructing on issues presented by the pleadings and the evidence, and the failure to do so constitutes prejudicial error.

12. Appeal and Error. Appellate courts reserve the right to note plain error which was not complained of at trial.

13. Appeal and Error: Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

14. Jury Instructions: Appeal and Error. In instances of plain error, appellate courts will reach errors in jury instructions, despite counsel's lack of objection to, request for, or tender of a proper instruction.

15. Liability: Contribution. The prerequisite for contribution is that the party seeking contribution and the party from whom it is sought must share a common liability.

16. Liability: Contribution. Contribution is the sharing of the cost of an injury as opposed to a complete shifting of the cost from one to another, which is indemnification.

17. Liability: Contribution. A common liability to the same person must exist in order for there to be contribution.

18. Jury Instructions: Negligence: Contribution. A jury must be fully and openly informed before making its determinations with respect to contributory negligence and the attendant allocation of negligence.

19. Negligence: Tort-feasors: Liability. A system of allocation of fault that ignores patently responsible tort-feasors is needlessly impractical if a single action can include and adjudicate all parties potentially liable for a plaintiff's injuries.

[7 Neb.App. 700] 20. Negligence: Tort-feasors: Contribution. Efficient and equitable enforcement of contribution among multiple tort-feasors requires enforcement of contribution in the same proceeding.

P. Shawn McCann, of Sodoro, Daly & Sodoro, Omaha, for appellants.

Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellee Clinten Lackman.

Leland K. Kovarik, of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellee Jack Lackman.


Page 474


This case stems from a low-speed collision of two pickup trucks on what is best described as a dirt road in a farm field. The appeal concerns whether a farmer husband and his homemaker wife are involved in a joint enterprise so as to impute the husband's negligence to the wife. Second, we discuss the failure to instruct the jury that it must separately assess any economic and noneconomic damages sustained by the plaintiff.


This accident occurred on June 29, 1992, when a 1979 blue Ford pickup owned by Roger Rousselle and Virginia Rousselle and driven by Roger collided with a 1979 maroon GMC pickup driven by Jack Lackman, the father of the plaintiff, Clinten Lackman, who was a passenger in his father's pickup. The Lackman pickup was traveling northbound, and the Rousselle pickup was headed south. Both drivers had an unobstructed view as they approached each other on this essentially flat dirt road located near the Nebraska-Wyoming border in a farm field 2 miles north and one-fourth mile west of Lyman, Nebraska. On the west side of the road was a cornfield with 2- to 3-foot-tall corn, and to the east was a beanfield with a gravity irrigation pipe running parallel to the road to irrigate the beanfield. We shall use the term "field road" as the most accurate description of the locale of the collision.

[7 Neb.App. 701] There was a headgate for the irrigation ditch approximately 100 to 200 feet south of the accident site. Jack and Clinten had been at the headgate and were northbound from there on the field road as Roger proceeded southbound toward the headgate. According to Roger, Clinten was on the passenger side looking straight ahead, and Jack was looking straight at Roger. Roger observed the Lackman vehicle slowing down, and he applied his brakes. The vehicles hit each other at a low-speed impact. Neither Roger nor Jack were injured, and both vehicles sustained damage only to their bumpers. The vehicles came together in an offset position, with the Lackman vehicle generally in the middle of the road and the Rousselle vehicle on the right side of the road. A postcrash photograph of the vehicles on the field road before they were moved is in the record. The offset was described by Roger as 21 inches off of the center of the road. Three different experts testified as to the velocity at the time of impact and placed it at 6 m.p.h., 7 to 9 m.p.h., and 8.6 m.p.h. The testimony of the Lackmans was that they were checking the pipeline for leaks as they proceeded northbound and that Clinten was on the passenger side with his arm, head, and upper body out of the window looking for leaks in the pipe. Clinten testified that his father was driving slowly and close to the pipeline. Clinten testified that the vehicles could have actually passed on the road without hitting each other.

Jack testified that he was driving on the hill "[n]ot very fast." Jack testified that he was not looking down the road, rather, he was looking at the irrigation pipes and gates prior to impact. Jack testified he saw the Rousselle pickup out of the corner of his eye, looked up, and stopped prior to impact. Jack said that at impact, he was jarred back a little, and that he had grabbed the steering wheel to brace himself.

At the time of the accident, Clinten was working for his father's farming operation doing such things as cutting and baling hay, cultivating corn, driving equipment, setting gravity irrigation tubes, and whatever else his father told him to do in the farming operation on a day-to-day basis. Clinten stated that he had been farming full time since the summer of 1989 after he graduated from high school but that he did not file an income tax return until 1995. Clinten has never been paid a wage, a [7 Neb.App. 702] bonus, or a share in the crops. Instead, his father simply provided for his needs, including putting money in his checking account. Clinten claimed a...

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    ...multiple parties, all of whom are potentially at fault, the fault of all parties must be decided in one trial. Lackman v. Rousselle, 7 Neb.App. 698, 585 N.W.2d 469, 481 (1998). "[A] system of allocation of fault that ignores patently responsible tort-feasors is needlessly impractical if a s......
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    ...of an injury as opposed to a complete shifting of the cost from one to another, which is indemnification. Lackman v. Rousselle, 7 Neb.App. 698, 712, 585 N.W.2d 469, 480 (1998), aff'd, 257 Neb. 87, 596 N.W.2d 15 (1999). Indemnity is available to one who engaged in merely passive neglect, but......
  • Lackman v. Rousselle
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    ...where an issue should be decided as a matter of law. Id. FACTS A more detailed statement of facts is set forth in Lackman v. Rousselle, 7 Neb.App. 698, 585 N.W.2d 469 (1998). In summary, Clinten Lackman was a passenger in a vehicle driven by his father, Jack Lackman, when Jack's vehicle col......
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