Maxwell v. Montey
| Decision Date | 13 July 2001 |
| Docket Number | No. S-99-708.,S-99-708. |
| Citation | 262 Neb. 160,631 N.W.2d 455 |
| Parties | Jennifer J. MAXWELL, Appellee and Cross-Appellee, v. Kristy J. MONTEY and Marvin L. Montey, Appellees and Cross-Appellants, Zebadiah Kain Stebbins, Appellant, and Diana Lynn Stebbins, natural parent of Zebadiah Kain Stebbins, Appellee. |
| Court | Nebraska Supreme Court |
Stephen S. Gealy and Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellant.
Stephen L. Ahl and Thomas B. Wood, of Wolfe, Snowden, Hurd, Luers & Ahl, Omaha, for appellees Kristy J. Montey and Marvin L. Montey.
Herbert J. Friedman and Gregory R. Coffey, of Friedman Law Offices, Lincoln, for appellee Jennifer J. Maxwell.
Jennifer J. Maxwell filed a lawsuit against Kristy J. Montey (Montey), and her father, Marvin L. Montey, and Zebadiah Kain Stebbins (Stebbins) and his mother, Diana Lynn Stebbins, for injuries she sustained in an automobile accident. Maxwell alleged that Montey and Stebbins, who were minors at the time of the accident, were engaged in a speed contest when Montey's vehicle struck Maxwell's, thereby causing Maxwell injury. Maxwell's suit named Marvin Montey and Diana Stebbins as defendants under the family purpose doctrine. The district court granted Stebbins' motion for directed verdict at the close of Maxwell's case in chief, and the jury returned a verdict in favor of Maxwell and against the Monteys in the amount of $250,000. After trial, the district court granted Maxwell's motion for a new trial against Stebbins but denied the Monteys' motion for a new trial. Stebbins appealed, and the Monteys cross-appealed. Stebbins and Maxwell subsequently settled their dispute prior to oral argument in the Nebraska Court of Appeals. The Court of Appeals affirmed the judgment of the district court, and we granted the Monteys' petition for further review. We are left to decide the Monteys' appeal and the issues whether the district court erred in giving jury instructions on a speed contest and whether a new trial should have been granted with both the Monteys and Stebbins as defendants so that the jury could allocate damages between them.
Maxwell's operative petition alleged that Montey and Stebbins were racing in the eastbound lanes of O Street in Lincoln, Nebraska, on June 30, 1993, and that Montey's vehicle collided with Maxwell's vehicle while Stebbins' vehicle veered into the median of the street. Maxwell further asserted that the joint and several negligence of the defendants caused the accident which resulted in injuries to Maxwell's neck, shoulder, arm, and thoracic system. The Monteys and Stebbins answered and acknowledged that the accident occurred but denied that they were negligent and further alleged that Maxwell was contributorily negligent.
At the jury trial, Maxwell testified that she turned left from 48th Street into the eastbound lane of O Street in Lincoln. Maxwell stated that once she was eastbound on O Street, she noticed in her rearview mirror two cars in the eastbound lanes driving side by side and quickly approaching her. Maxwell testified that she was driving at a speed of about 35 miles per hour at the time and that she tapped her brakes so the drivers would see her in front of them. Maxwell then continued on her way, and when she looked in her mirror again, she noticed the vehicles were almost upon her, so she sped up to about 38 or 39 miles per hour. Maxwell testified that she realized the vehicles were approaching too rapidly, that they were side by side, and that the vehicle directly behind her could not move into the other lane in time. The vehicle which was traveling behind Maxwell, later identified as the Montey vehicle, struck Maxwell's vehicle. At this time, Maxwell says she turned her head to see the other vehicle, later identified as the Stebbins vehicle, go "whoosh" past her. Maxwell lost control of her vehicle and sustained injuries to her neck, shoulder, arm, and thoracic system.
During Maxwell's testimony, the district court repeatedly sustained foundational objections to questions asked by Maxwell's attorney as to the distance between Maxwell's vehicle and the Montey and Stebbins vehicles prior to the accident, as well as how fast Maxwell thought Stebbins' vehicle was traveling at the time it passed her. However, Maxwell was allowed to testify that she thought the Stebbins' vehicle was exceeding the speed limit when he passed her and that Stebbins "whooshed" past her.
Montey and Stebbins both testified that Maxwell had pulled out in front of them. Montey claimed that Maxwell turned on to O Street and, as a result, Montey did not have enough time to slow down before colliding with Maxwell's vehicle. Further, Montey testified that there was a car in the lane next to her which prevented her from moving into that lane and that she struck the rear of Maxwell's vehicle as a result. Stebbins' deposition testimony, which was read at trial, also indicated that Maxwell pulled in front of Montey and that he saw the accident in his rearview mirror. However, during Stebbins' live testimony at trial, he indicated that he did not pass Maxwell's car and did not see Maxwell's car at all until after he had passed Montey and after the accident happened.
At the close of Maxwell's case in chief, the district court granted Stebbins' motion for a directed verdict and excused him from the case. The Monteys did not object to Stebbins' motion or his dismissal. Additionally, the court admonished the jury to not speculate as to why Stebbins was no longer in the courtroom.
The Monteys presented their defense, and prior to submitting the case to the jury, the court conducted a formal jury instruction conference. Included in the jury instructions were instructions relating to a speed contest and verdict forms which included only Maxwell and the Monteys as parties to whom negligence could be allocated. Stebbins was neither mentioned in any of the jury instructions nor on any of the verdict forms. Additionally, in response to the district court's inquiry as to whether the Monteys had objections to any of the jury instructions, the Monteys did not object. The jury ultimately returned a verdict in favor of Maxwell and against the Monteys in the amount of $250,000.
In posttrial proceedings, the district court granted Maxwell's motion for a new trial against Stebbins because the district court found that it erred in directing a verdict in favor of Stebbins at the close of Maxwell's case in chief. The Monteys also made a motion for a new trial but did not specifically cite Stebbins' dismissal or the fact that the jury was not instructed to allocate damages between the Monteys and Stebbins as reasons for granting the new trial. The Monteys did, however, specifically cite the jury instructions relating to a speed contest as a reason for granting a new trial. The district court denied the Monteys' motion.
The Monteys and Stebbins each filed documents styled "Motion for Clarification," requesting that the district court clarify whether the new trial granted to Maxwell against Stebbins was to include the Monteys and Stebbins as defendants. In the Monteys' filing, they requested a determination as to whether the Monteys and Stebbins would be included for apportionment purposes under the Nebraska comparative negligence statutory scheme. The district court held fast to its determination that the new trial would include Stebbins as the sole defendant and the Monteys would not be included in the trial. The court's reasoning was that the parties had not based their motions for new trial on the argument that the Monteys should be involved in the new trial for purposes of allocating damages.
Stebbins appealed and the Monteys cross-appealed the district court's decisions to the Court of Appeals. Prior to oral arguments, Stebbins and Maxwell settled their dispute and the Court of Appeals was left with the Monteys' appeal. On appeal, the Monteys assigned that the district court (1) erred in dismissing Stebbins from the trial, (2) erred in overruling the Monteys' motion for a new trial, (3) erred in granting Maxwell's motion for a new trial against only Stebbins, and (4) committed plain error in submitting a jury instruction on a speed contest after determining that no evidence existed on the issue. The Court of Appeals affirmed the order of the district court in a memorandum opinion and judgment on appeal filed July 21, 2000. The court determined that the district court did not err in giving the jury instructions regarding a speed contest because the evidence supported the instruction. The court cited Maxwell's testimony that she saw the cars in her rearview mirror traveling side by side quickly approaching her and her testimony that Stebbins "whooshed" past her as enough evidence to support the instruction. The Court of Appeals then consolidated the Monteys' remaining assignments of error into one issue: Whether the Monteys were denied their right to have the jury allocate the liability between the Monteys and Stebbins under Nebraska's comparative negligence system. The court found that The Monteys subsequently filed a petition for further review, which we granted.
In their petition for further review, the Monteys assign, restated, that the Court of Appeals erred (1) in finding enough evidence of a speed contest to justify submitting jury instructions on a speed contest, (2) in finding that the Monteys are not entitled to a new trial involving them and Stebbins as defendants, and (3) in failing to find that Maxwell had failed...
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