McDonald v. Miller

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; WRIGHT; BOSLAUGH
• Citation: McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (Neb. 1994)
• Decision Date: 10 June 1994
• Docket Number: No. S-92-1015,S-92-1015
• Parties: Julie A. McDONALD, Appellee, v. Cheryl MILLER, Appellant.

Page 80

518 N.W.2d 80

246 Neb. 144

Julie A. McDONALD, Appellee, v. Cheryl MILLER, Appellant.

No. S-92-1015.

Supreme Court of Nebraska.

June 10, 1994.

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not by judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.

2. 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.

3. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

4. Trial: Witnesses: Appeal and Error. The trial court is given discretion in determining whether a witness is qualified to state his opinion, and such determination will not be disturbed on appeal absent an abuse of discretion.

5. Evidence: Appeal and Error. Testimony objected to which is substantially similar to evidence admitted without objection results in no prejudicial error.

6. Trial: Expert Witnesses. The admissibility of expert testimony depends on whether specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. It is for the trial court to make the initial decision on whether the testimony will assist the trier of fact.

7. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

8. Damages: Appeal and Error. The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved.

9. Jury Instructions: Proof: Appeal and Error. In an appeal based on a 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.

10. Appeal and Error. To be considered by an appellate court, an error must be assigned and discussed in the brief of one claiming that prejudicial error has occurred.

Alan L. Plessman, Lincoln, for appellant.

Gordon R. Hauptman and Matthew A. Lathrop, Hauptman, O'Brien, Wolf & Lathrop, P.C., Omaha, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

WRIGHT, Justice.

Julie A. McDonald sued Cheryl Miller for injuries sustained by McDonald in a boating accident on July 4, 1989. A jury awarded McDonald $73,000, and Miller appeals. We affirm.

SCOPE OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not by judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994).

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. Sanwick v. Jenson, 244 Neb. 607, 508 N.W.2d 267 (1993).

FACTS

On October 18, 1991, McDonald commenced an action against Miller in which McDonald sought damages for injuries she suffered as the result of a July 4, 1989, boating accident. McDonald was a passenger in a boat (Marquardt boat) which was struck by a boat operated by Miller. McDonald alleged that Miller failed to maintain a proper lookout; failed to yield the right-of-way; failed to maintain reasonable control of the boat; and failed to turn aside, swerve, or otherwise avoid striking the boat which was carrying McDonald. She claimed serious and permanent injuries as a result of the accident.

Before trial, the parties stipulated that Miller was operating a boat on Thomas Lake on July 4, 1989; that McDonald was in another boat at that time; and that a collision occurred. They stipulated that the hospital and medical expenses were fair and reasonable for the services provided.

The Marquardt boat was driven by Irvin Vrana. Dan Marquardt was water-skiing behind the boat, which was owned by his father. As the boat passed through a channel, Marquardt fell. Vrana throttled back and dragged the ski rope around to Marquardt. During this time, Vrana noticed the Miller boat approaching and decided not to proceed until it had passed.

Miller testified that as she navigated about the lake, she was originally traveling at approximately 30 m.p.h. and that the boat was level to the water. When the water became choppy, she slowed the boat to approximately 15 m.p.h., which, according to Miller, raised the front of the boat and limited her vision. She continued around the lake in this manner while visiting with passengers in the boat.

Vrana testified that while the Marquardt boat was stationary, the Miller boat drew closer and closer. The bow of the Miller boat was raised in the air, and Vrana could not see the driver of the boat. As the Miller boat approached, Vrana became concerned, stood up, and began shouting, but he failed to attract Miller's attention. He then moved toward the front of the boat, stood on the seats in the bow, and began yelling and waving.

Bradley Pfeiffer was on the beach and heard Vrana yelling. Pfeiffer testified that the Marquardt boat was stopped, that the women in the boat driven by Miller were talking back and forth, and that the driver of the Miller boat was facing sideways, as if talking to someone next to her.

Miller testified that she became aware of the Marquardt boat when she was approximately 20 feet away and that she heard a man yelling at approximately the same time. McDonald testified that prior to the collision, she was facing the back of the boat and talking with Marquardt, who was in the water. After Vrana indicated the Miller boat was approaching, McDonald turned to look as Vrana began waving his hands. Next, according to McDonald, "it hit." McDonald testified that the Miller boat slid up on her back, pushed her head and face down into the Marquardt boat, and "clamped" her head down on the boat.

Pfeiffer testified that as the boats collided, half of the Miller boat went up onto the Marquardt boat, slid across the top of the Marquardt boat, and then slid back down into the water. Pfeiffer, an emergency medical technician, swam to the Marquardt boat, applied a stabilizing hold to McDonald's neck, and immobilized McDonald's back until a rescue squad arrived. The rescue squad placed McDonald on a backboard and applied a "C-collar."

McDonald testified that the day after the accident, she had a black eye and swelling over her other eye and her cheekbones. She had stiffness and soreness in her shoulders and back, had a severe headache, and had red marks on her back. Her recovery progressed slowly, and at the end of July, she consulted John Hannam, an Omaha neurologist.

Hannam took a thorough history of McDonald's symptoms and complaints. He was informed by McDonald that she was in a good state of health prior to the boating accident. Hannam was told by McDonald that another boat rode up over the top of the boat in which she was riding and struck her in the back of the head, that the force of the collision caused her to fall forward, and that she struck her face against the boat in which she was riding. She complained of severe headaches and pain upon passive flexion of her neck. Based upon his examination, Hannam diagnosed McDonald's condition as posttraumatic headaches. Hannam continued to treat McDonald, and in August 1990, he prescribed physical therapy for McDonald's neck pain because patients with soft-tissue injuries develop muscle spasms.

McDonald again sought medical assistance in August 1992 because of intense pain in her shoulders and neck. After undergoing physical therapy, she visited Hannam in late August, and her condition had improved. Hannam concluded that McDonald suffered from chronic cervical strain, and he testified with a reasonable degree of medical certainty that the cervical strain was permanent and was caused by the accident of July 4, 1989.

John Dobler, McDonald's physical therapist, described the pain McDonald experienced in the back of her neck. Based upon his examination, he testified to a degree of certainty within his profession that sitting and looking down "would tend to aggravate a condition that Julie has." In his opinion, McDonald's physical therapy treatments were medically necessary.

In January 1992, McDonald consulted Thomas Huerter, an orthodontist, complaining of pain in both joints of her jaw and headaches. Upon examination, Huerter noted that McDonald was experiencing pain in both of her temporomandibular joints and had referred neck pain and tightness and that he could feel "popping" in both joint areas. He diagnosed her condition as temporomandibular joint dysfunction syndrome (TMJ).

ANALYSIS

Miller assigns 11 errors. The first five assignments of error concern the court's overruling of objections to testimony by Duane Arp, a conservation officer with the Nebraska Game and Parks Commission. After interviewing Miller, Arp concluded that "she was probably going too slow at the time which would...