McLain v. Ortmeier
| Decision Date | 16 June 2000 |
| Docket Number | No. S-99-448.,S-99-448. |
| Citation | 612 N.W.2d 217,259 Neb. 750 |
| Parties | Maurice C. McLAIN, appellant, v. Jeff ORTMEIER and Kent Adams, appellees. |
| Court | Nebraska Supreme Court |
Andrew J. Hilger, Omaha, for appellant.
Susan E. Fieber, of Nolan, Roach, Olson, Fieber & Lautenbaugh, Omaha, for appellee.
This negligence case involves a collision between two personal watercraft, a jet ski and a Polaris "Wave Runner," at Fremont Lakes State Park. Following trial, the jury returned a verdict for the defendants, Jeff Ortmeier and Kent Adams. The plaintiff, Maurice C. McLain, appealed and petitioned to bypass the Nebraska Court of Appeals. We granted McLain's petition to bypass. McLain appeals the orders of the district court for Dodge County denying his motion for summary judgment, denying his motion for directed verdict, refusing to give several requested jury instructions, and denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We affirm.
At approximately 8 p.m. on June 21, 1997, McLain was riding a jet ski at Fremont Lakes State Park. Ortmeier was traveling behind McLain on a Polaris "Wave Runner" owned by Adams. McLain and Ortmeier were both traveling east on the south side of Victory Lake. Although the testimony of McLain and Ortmeier differs as to how the collision occurred, they agree that Ortmeier's watercraft struck McLain, who was in the water, and then struck the jet ski McLain had been riding.
Ortmeier testified that as he approached McLain, the jet ski McLain was riding began to move from side to side in a "hot-dogging" fashion. Ortmeier testified that McLain sharply turned to the left without looking behind him and fell off the jet ski. Ortmeier testified that he killed his engine when he saw McLain fall off the jet ski; however, he was unable to avoid McLain, and his watercraft collided with McLain and the jet ski. Ortmeier testified that he had been traveling at approximately 20 miles per hour when he killed the engine and at some speed less than 20 but more than 5 miles per hour when his watercraft struck McLain and the jet ski. Ortmeier testified that he had not consumed alcohol on the day of the collision.
McLain admitted that he had consumed two or three beers before riding the jet ski. McLain admitted that prior to the collision, he had seen Ortmeier approximately 150 feet behind him. McLain denied moving the jet ski from side to side prior to the collision. Instead, McLain testified that he slowed the jet ski in anticipation of heading toward the shore and that he did not fall off the jet ski, but, rather, he sunk into the water as the jet ski slowed.
McLain's motion for summary judgment was heard and denied on November 30, 1998. Trial was held March 2 and 3, 1999. After the presentation of evidence by both sides, McLain moved for a directed verdict, which was denied.
McLain tendered 19 separate jury instructions. The court accepted three of McLain's requested instructions in full and one in part. The court refused two instructions in full without objection by McLain. McLain objected to the refusal in full of the remaining 13 instructions and to the partial refusal of one instruction.
The jury returned a verdict in favor of Ortmeier and Adams, and judgment was entered March 3, 1999. On March 9, McLain filed a motion to set aside the jury verdict and enter judgment in his favor, or, in the alternative, for a new trial. The motion was overruled on March 23. McLain appealed.
McLain asserts that the district court erred in (1) denying his motion for summary judgment, (2) denying his motion for a directed verdict regarding liability, (3) refusing to give "several" requested jury instructions, and (4) denying his motion for judgment notwithstanding the verdict or for a new trial.
A denial of a motion for summary judgment is not a final order and therefore is not appealable. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).
When a motion for directed verdict made at the close of all the evidence is overruled by the trial court, appellate review is controlled by the rule that a directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, and the issues should be decided as a matter of law. Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 (2000).
To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence. Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 136 (2000). It is not error for a trial court to refuse to give a requested instruction if the substance of the proposed instruction is contained in those instructions actually given. Kent v. Crocker, 252 Neb. 462, 562 N.W.2d 833 (1997). In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error. Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). Whether a jury instruction given by a trial court is correct is a question of law. Springer v. Bohling, 259 Neb. 71, 607 N.W.2d 836 (2000). In order to sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Snyder v. Contemporary Obstetrics & Gyn., supra.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606 N.W.2d 85 (2000). A trial court's denial of a motion for new trial will be affirmed when the trial court's decision is neither erroneously prejudicial nor an abuse of discretion. Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994).
On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Lackawanna Leather Co. v. Nebraska Dept. of Rev., 259 Neb. 100, 608 N.W.2d 177 (2000)
McLain's first assignment of error challenges the district court's denial of his motion for summary judgment. A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). We, therefore, reject McLain's first assignment of error.
The denial of a summary judgment motion is neither appealable nor reviewable. Whether a denial of summary judgment should have been granted generally becomes moot after a full trial on the merits. Doe v. Zedek, supra. The overruling of a motion for summary judgment does not decide any issue of fact or proposition of law affecting the subject matter of the litigation, but merely indicates that the court was not convinced by the record that there was not a genuine issue as to any material fact or that the party offering the motion was entitled to a judgment as a matter of law. Id. After trial, the merits should be judged in relation to the fully developed record, not whether a different judgment may have been warranted on the record at summary judgment. Id. McLain's first assignment of error is without merit.
McLain's second and fourth assignments of error are based on his assertion that Ortmeier was negligent as a matter of law because he violated certain navigational rules. For that reason, McLain argues that his motion for directed verdict on liability should have been granted. McLain further claims that his motion for judgment non obstante veredicto or for new trial should have been granted. We disagree with McLain's assertion that Ortmeier was negligent as a matter of law and, therefore, reject his second and fourth assignments of error.
In his second assignment of error, McLain asserts that the district court erred in denying his motion for a directed verdict. At the outset, we note that McLain moved for a "directed verdict for the Plaintiff." We understand that such a motion is a motion for a directed verdict on liability, not negligence. Because liability subsumes a finding of negligence, for Ortmeier to have been liable to McLain, Ortmeier would first have to have been negligent in some respect. Accordingly, we consider whether Ortmeier was negligent as a matter of law.
A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 136 (2000). A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law. Lackman v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999). The party against whom the verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law. Alexander v. Warehouse, 253 Neb. 153, 568 N.W.2d 892 (1997). A motion for directed verdict should state the...
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