Loving v. Baker's Supermarkets, Inc.

Decision Date26 July 1991
Docket NumberNo. 88-1014,88-1014
Citation472 N.W.2d 695,238 Neb. 727
PartiesKathryn N. LOVING, Appellant, v. BAKER'S SUPERMARKETS, INC., a Nebraska Corporation, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court. In the absence of an abuse of discretion, a trial court's disposition of a motion for new trial will be upheld on appeal.

2. Jury Misconduct: Words and Phrases. "Misconduct of the jury," used in Neb.Rev.Stat. § 25-1142(2) (Reissue 1989), does not necessarily mean a jury's bad faith or malicious motive, but means a jury's violation of, or departure from, an established rule or procedure for production of a valid verdict.

3. Rules of Evidence: Jurors: Affidavits. Neb.Evid.R. 606(2) permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial.

4. Rules of Evidence: Jurors: Affidavits. Neb.Evid.R. 606(2) prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations, which enter into the verdict.

5. Rules of Evidence: Jury Misconduct. Neb.Evid.R. 606(2) does not equate with, or govern, grounds for a new trial, but indicates and governs the character or type of information properly used in determining whether juror misconduct has occurred in reference to a verdict.

6. Jury Misconduct: Proof. As a ground for setting aside a verdict in view of alleged misconduct by a juror, one must show that the questioned conduct entered into a verdict prejudicial or adverse to the party alleging such misconduct.

7. Rules of Evidence: Jury Misconduct: Proof. Since Neb.Evid.R. 606(2) precludes and excludes testimony, including a juror's affidavit, concerning motives, methods, misunderstanding, thought processes, or discussions by a jury in reaching a verdict, Rule 606(2) also precludes juror testimony to establish that extraneous prejudicial information actually entered into the verdict.

8. Jury Misconduct: Proof. Prejudice from jury misconduct in considering extraneous information, as a ground for setting aside a verdict, may be inferentially established.

9. Jury Misconduct: Proof. Extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant.

Steven M. Renteria, of Welsh & Sibbernsen, Omaha, for appellant.

Thomas J. Culhane and Deborah D. McLarney, of Erickson & Sederstrom, P.C., Omaha, for appellee.


SHANAHAN, Justice.

In her negligence action against Baker's Supermarkets, Inc. (Baker's), Kathryn N. Loving claimed damages from her fall on the floor of a Baker's supermarket. After a verdict for Baker's, the court overruled Loving's motion for new trial; hence this appeal in which Loving's primary contention is misconduct by the jury in reaching the verdict.


While Timothy Jones, a Baker's employee, was carrying out groceries for a supermarket patron, he dropped some glass bottles of beer on the floor near the supermarket's checkout area. To clean up the beer and broken bottles, Jones got a mop, bucket, and two yellow signs with the inscription "caution wet floor." Jones put one "caution" sign in the center of the spill and the other at the edge of the spill. In leaving the store, several customers walked around Jones at the spill area.

Meanwhile, Loving and her sister, Tomi Thomas, purchased groceries at a cash register in the "express lane" near the spill area. After Loving and her sister left the express lane cash register, they saw Jones standing with his back to Loving and Thomas. As the sisters passed Jones, Loving twisted her right ankle and fell onto her knee in a "big puddle" which Loving had not seen until she was "in it." Loving then looked back at Jones, who she discovered was mopping, and saw a warning sign. According to Jones, however, he was holding the mop and facing Loving and Thomas as the two women approached the spill area. He moved aside to allow the pair to walk through the area, which he believed to be free from any residue of the dropped bottles.

Shortly after this incident, while she was still at the supermarket, Loving gave Baker's store manager her name, telephone number, and an account of the accident. From the information supplied by Loving, the manager prepared one of Baker's "public liability claim" forms concerning Loving's accident. Loving subsequently underwent surgery for a chondral fracture of her left patella.


In cross-examining Loving, Baker's counsel read a part of Loving's petition in which she alleged lost wages as a result of her injury, although Loving, on cross-examination, admitted that she was unemployed for the 10 years preceding the accident at Baker's. Also, Baker's counsel read into evidence interrogatory No. 13 answered by Loving:

Please state in your own words how this accident happened. Answer: Plaintiff and her sister were walking south towards the exit. A man was mopping the floor. When plaintiff approached the man stepped back so plaintiff assumed it would be clear to walk. Plaintiff stepped down with her right foot onto a piece of glass and continued down to twist her right ankle and fell down onto the left knee.

To counteract her answer to the interrogatory, Loving testified that only after she had fallen and looked at Jones did she know that he was mopping the floor. A large diagram, exhibit 4, reflecting the floor plan at the spill area was received in evidence and marked by Loving and Jones to show their locations when Loving slipped and fell. A diagram similar to exhibit 4 appeared in the accident report which Loving had submitted to Baker's and which was marked exhibit 10 and received in evidence, but the diagram in exhibit 10 did not depict the same location of the spill or the locations of Loving and Jones. Loving testified that she attended at least three sessions for physical therapy at Immanuel Hospital. Later, a typed list of medical expenses claimed by Loving was received in evidence and showed:


4"23"88 IMMANUEL 161.25.

At the conclusion of Loving's testimony, the court commented to the jury, "[W]e do have some witnesses coming in apparently tomorrow and no one else is available right now, so we're going to take our evening recess...." The court admonished the jury and recessed the trial until 9:30 the next morning, when Loving's sister, Tomi Thomas, was the first witness to testify and generally corroborated Loving's testimony concerning the accident and supplied a description of Loving's disability and pain after the accident. In cross-examination of Thomas, Baker's lawyer asked whether Loving had told Thomas "what she said yesterday in court." Thomas responded: "No, she didn't." Baker's lawyer then asked Thomas: "Did you talk to her attorney?" Thomas answered: "This morning, yes." Baker's lawyer: "Did he tell you what she testified to?" Thomas: "No, he didn't." Cross-examination ended shortly thereafter. The subject of any conversation between Thomas and Loving or her lawyer was not pursued on redirect examination.

At the conclusion of the evidence, the court instructed the jury:

[Y]ou should be governed solely by the evidence introduced before you.... [I]f any of you be personally acquainted with any material or particular fact not supported by the evidence, you should not consider your personal knowledge of such fact or mention it to your fellow jurors.


... The law demands of you a just verdict uninfluenced by ... considerations outside the evidence....

The jury returned a verdict for Baker's.


After the verdict, the court and counsel learned that when the bailiff brought to the jury room those exhibits which had been received in evidence, the bailiff inadvertently included four documents which had not been received in evidence, namely, photocopies of three items--Loving's petition, Loving's answers to interrogatories, and the accident report prepared by Baker's manager--and a "Legal Pad," a note pad containing handwritten notes by Baker's lawyer. Parts of the photocopies had been bracketed, circled, or underlined in blue ink before delivery to the jury room.

The most significant markings on the first three documents included inked underscoring in Loving's petition of the statement "because of her injuries plaintiff has lost a sum in wages and her earning capacity has been permanently decreased and impaired"; bracketing of Loving's answer to interrogatory No. 13, containing her description of the accident; and a hand-drawn illustration of the spill site, inserted on the accident report.

The fourth item delivered to the jury, the note pad, contained handwritten notes made by counsel for Baker's regarding testimony from various witnesses. Apparently outlining his intended cross-examination of Loving, Baker's counsel wrote on the note pad a list of points actually mentioned during his cross-examination of Loving, for example, "wages" in reference to the petition, "man mopping floor," "Tim [Jones] back--yet steps aside ... place was busy," and "says nothing about lack of signs." In other notes pertaining to Loving, but without reference to testimony from Loving or any other witness, Baker's counsel wrote "take extra caution," "plan lawsuit," "exagerate [sic]--p.t. [physical therapy]--$120." Regarding Loving's sister, Baker's counsel wrote:

Tomi Thomas--

-never discussed w/sister

- " " " atty--Steve a better atty.


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    • Hawaii Supreme Court
    • July 16, 2014
    ...a violation of, or departure from, an established rule or procedure for production of a valid verdict. Loving v. Baker's Supermarkets, Inc., 238 Neb. 727, 732, 472 N.W.2d 695 (1991). In Hawai‘i, juror misconduct may include bias, prejudice, passion, or misunderstanding of the charge of the ......
  • Nichols v. Busse
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    • Nebraska Supreme Court
    • July 23, 1993
    ...and there is a reasonable possibility that the information affected the verdict to a litigant's detriment. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991). Our inquiry then, is whether a juror's statements during deliberations, based on personal knowledge gained through ......
  • State v. Jacob
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    • Nebraska Supreme Court
    • February 13, 1998
    ...the trial court properly instructed that the jury must be governed solely by the evidence introduced. See Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991). In short, the trial court's ex parte instruction prejudicially deprived Jacob of his 6th and 14th Amendment right to......
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    • Nebraska Court of Appeals
    • August 3, 1993
    ...of an abuse of discretion, a trial court's disposition of a motion for new trial will be upheld on appeal. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991). IV. 1. PRETRIAL MOTIONS Assignment of error: The court erred in overruling Owen's pretrial motions without first co......
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1 books & journal articles
  • Influence on Nebraska Supreme Court
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 76, 2021
    • Invalid date
    ...- 2 State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377, 379 (1991)(citing 61 NEB. L. REV. 409 (1982)). Loving v. Baker's Supermarkets, Inc., 238 Neb. 727, 735, 472 N.W.2d 695, 700 (1991)(citing 57 NEB. L. REV. 920, 963 1992 - 0 1993 - 1 Christianson v. Education Serv. Unit No. 16, 243 Neb. 55......

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