Maresh v. State
| Decision Date | 18 September 1992 |
| Docket Number | No. S-89-762,S-89-762 |
| Citation | 489 N.W.2d 298,241 Neb. 496 |
| Parties | Ronald J. MARESH, Personal Representative of the Estate of John Michael Maresh, Deceased, Appellee, v. STATE of Nebraska, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Tort Claims Act: Appeal and Error. In a review of a proceeding under the State Tort Claims Act, the findings of fact of the trial court will not be set aside unless such findings are clearly incorrect.
2. Pleadings: Proof. The burden of proving an affirmative defense rests upon the defendant.
3. Rules of Evidence: Hearsay. Neb.Rev.Stat. § 27-802 (Reissue 1989) prohibits hearsay "except as provided by [the Nebraska Evidence Rules] or by other rules adopted by the statutes of the State of Nebraska."
4. Rules of Evidence: Rules of the Supreme Court: Constitutional Law: Hearsay. The Nebraska hearsay rule, Neb.Rev.Stat. § 27-802 (Reissue 1989), does not provide for exceptions created by rules of court. This is consistent with Neb. Const. art. V, § 25, which states that "the supreme court may promulgate rules of practice and procedure for all courts ... not in conflict with laws governing such matters."
5. Rules of the Supreme Court. The Nebraska Supreme Court shall promulgate rules of procedure for discovery in civil cases, which rules shall not be in conflict with laws governing such matters. Neb.Rev.Stat. § 25-1273.01 (Reissue 1989).
6. Rules of Evidence: Rules of the Supreme Court: Depositions. The admission of deposition testimony under Neb.Ct.R. of Discovery 32 (rev.1992) may be barred by Neb.Rev.Stat. § 27-804(1)(e) (Reissue 1989) where "other reasonable means" are available to secure the attendance at trial of the proposed deponent.
7. Witnesses: Depositions. In determining whether "other reasonable means" are available to secure the appearance of a witness so as to admit or not admit the deposition testimony of the witness, the court may consider the stakes in the litigation, the relative resources of the parties, the importance of the declarant's statement in the suit, the foreseeability of need for the statement, the relative expense and difficulties which would be encountered in securing the declarant's trial or deposition testimony, the financial hardship on the proponent to secure the witness' personal appearance, and the hostility or animosity of the witness whose testimony is sought.
8. Rules of Evidence: Depositions: Proof. The burden to establish the declarant's unavailability is on the party seeking to introduce evidence by deposition testimony, pursuant to Neb.Rev.Stat. § 27-804 (Reissue 1989).
9. Trial: Witnesses: Depositions: Appeal and Error. Whether "other reasonable means" to obtain the appearance of a witness at trial are available so as to permit the use of the witness' deposition is within the discretion of the trial court, whose ruling normally will be upheld on appeal in the absence of an abuse of that discretion.
10. Trial: Evidence: Appeal and Error. In a civil case, to constitute reversible error, admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded.
11. Trial: Evidence: Appeal and Error. Generally, erroneous admission of evidence provides no prejudice in a bench trial if there is sufficient competent and relevant evidence in the record to sustain the judgment.
12. Highways: States. The duty of a county or a state to warn against dangerous places or hazards beyond the limits of the highway extends to such places as substantially join the highway, or are in such close proximity thereto as to be in themselves dangerous, under ordinary circumstances.
13. Highways: Motor Vehicles. A sharp edge dropoff on a highway generally is a condition of which the State has a duty to warn the traveling public.
14. Negligence: Evidence. Ordinarily, a violation of a statute or regulation is not negligence per se, but is only evidence of negligence.
15. Negligence: Proximate Cause: Proof. There are three basic requirements in establishing proximate cause. The first requirement is that the negligence be such that "without which the injury would not have occurred," commonly known as the "but for" rule. The second requirement is that the injury be the natural and probable result of the negligence. The third requirement is that there be no efficient intervening cause.
16. Negligence: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.
17. Negligence: Proximate Cause: Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which itself is the proximate cause of the injury in question and breaks the causal connection between the original conduct and the injury.
18. Negligence: Proximate Cause. Where the defendant's action is itself a cause of the injury and the third party's negligent act is reasonably foreseeable, the third party's negligence is not an efficient intervening cause as a matter of law.
19. Tort Claims Act: Negligence: Liability. Any claim based upon an act or omission of an employee of the state, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not that discretion be abused, is exempt from the State Tort Claims Act, pursuant to Neb.Rev.Stat. § 81-8,219(1)(a) (Reissue 1987).
20. Tort Claims Act: Negligence: Liability. The discretionary function exception is inapplicable to a claim under the State Tort Claims Act if a statute, regulation, or policy specifically prescribes a course of governmental action or conduct. In other words, generally, the State is liable for negligence of its employees at the operational level, where there is no room for policy judgment.
Robert M. Spire, Atty. Gen., and Douglas J. Peterson, Lincoln, for appellant.
J. Michael Fitzgerald, Carpenter, Rowen & Fitzgerald, and R. Collin Mangrum, Omaha, for appellee.
The defendant, the State of Nebraska, appeals a judgment in favor of the plaintiff, Ronald J. Maresh, personal representative of the estate of John Michael Maresh, deceased. This was an action for damages alleged to have been suffered by reason of an automobile accident which occurred when the driver of the automobile in which decedent was riding drove off the shoulder of U.S. Highway 30 while it was under construction. The action was brought under the State Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 to 81-8,235 (Reissue 1987). The district court, sitting without a jury as required by § 81-8,214, awarded damages of $124,273.
The State on appeal assigns and argues as error the actions of the trial court in (1) failing to find that the State's discretionary function immunity, § 81-8,219(1)(a), precluded this lawsuit; (2) admitting into evidence the deposition testimony of plaintiff's expert witness William Berg, Ph.D.; and (3) determining that the manner in which the State attempted to mark the edge of the highway during the construction project constituted a breach of duty which was a proximate cause of the decedent's death.
In our review of a proceeding under the State Tort Claims Act, the findings of fact of the trial court will not be set aside unless such findings are clearly incorrect. Koncaba v. Scotts Bluff County, 237 Neb. 37, 464 N.W.2d 764 (1991). We affirm.
On May 16, 1987, at about 11:30 p.m., there was a four-vehicle accident on Highway 30, approximately seven-tenths of a mile west of Ames, Nebraska. The plaintiff's decedent was a passenger in one of the involved automobiles, which was driven by Sean Oelkers. The decedent was thrown from the automobile during the accident and died of the injuries which he sustained.
Sgt. Gurney K. Pittenger of the Nebraska State Patrol testified from his investigation notes of this accident, without objection, that the automobile in which the plaintiff's decedent was riding was westbound on the highway. The vehicle veered and appeared to go off the road onto the north shoulder, and following an attempt to steer hard to the left to pull back onto the highway, the driver overcorrected and lost control of the vehicle. The vehicle veered across the highway into the path of an oncoming pickup truck, which struck Oelkers' car broadside on the passenger side, spinning the car around. The spin ejected Oelkers' passengers, including the plaintiff's decedent. The skid marks left on the pavement indicated that at the time Oelkers reentered the highway from the shoulder, he was traveling at 66 miles per hour.
Oelkers was unable to recall the accident or the events immediately preceding it without the aid of hypnosis. However, without hypnosis, he testified that on the day of the accident and on previous occasions he had driven through the Highway 30 construction area during daylight hours. Oelkers also testified that he "assumed" there was a dropoff at the edge of the pavement. He was aware of the danger of veering into the lane of oncoming traffic when reentering the roadway after dropping off a pavement edge. Oelkers' driver's education instructor testified that he had taught his students, including Oelkers, techniques for safely reentering the roadway after a pavement edge dropoff.
At the time of the accident, a private contractor engaged by the State was resurfacing Highway 30. At the site of the accident, the road surface was fresh asphaltic concrete, totaling 29 feet in width. Each traffic lane was 12 feet wide, with a 2 1/2-foot paved shoulder. There was a 4- to 5-inch dropoff from the edge of the pavement shoulder to the unpaved dirt shoulder. Raised plastic markers delineated the centerline of the highway, but there were...
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