McVaney v. Baird, Holm, McEachen, Pedersen, Hamann & Strasheim

• Decision Date: 08 March 1991
• Docket Number: No. 88-881,88-881
• Citation: 466 N.W.2d 499,237 Neb. 451
• Parties: John J. McVANEY, Appellant, v. BAIRD, HOLM, McEACHEN, PEDERSEN, HAMANN & STRASHEIM, a Partnership, Appellee.
• Court: Nebraska Supreme Court

Page 499

466 N.W.2d 499

237 Neb. 451

John J. McVANEY, Appellant, v. BAIRD, HOLM, McEACHEN, PEDERSEN, HAMANN & STRASHEIM, a Partnership, Appellee.

No. 88-881.

Supreme Court of Nebraska.

March 8, 1991.

Syllabus by the Court

1. Directed Verdict: Appeal and Error. On appeal from the granting of a motion for a directed verdict, the Supreme Court reviews the evidence in the light most favorable to the party against whom the motion is directed, and that party is entitled to have all controverted facts resolved in his favor and to have the benefit of all inferences which can reasonably be drawn from the evidence.

2. Directed Verdict. If there is any evidence in favor of the party against whom the motion for directed verdict is made, the case may not be decided as a matter of law.

3. Trial: Juries: Directed Verdict. When reasonable minds can draw but one conclusion from the facts, the trial court must decide the issue as a matter of law and not submit it to a jury.

4. Attorney and Client: Negligence: Proof: Proximate Cause. There are three elements a plaintiff alleging attorney negligence must prove: (1) the attorney's employment, (2) the attorney's neglect of a reasonable duty, and (3) that such negligence resulted in and was the proximate cause of loss to the client.

5. Partnerships: Liability: Torts. A partnership or every member of the partnership is vicariously liable for torts committed by one of the partners acting within the scope of partnership business.

6. Contracts: Attorney and Client: Proof. An attorney-client relationship ordinarily rests on contract, but it is not necessary that the contract be express or that a retainer be requested or paid. The contract may be implied from the conduct of the parties. The relationship is created when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance. In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them, and the attorney, aware of such reliance, does nothing to negate it.

7. Contracts: Attorney and Client. No formal contract, arrangement, or attorney fee is necessary to create the relationship of attorney and client; the contract may be implied from the conduct of the parties.

8. Contracts: Malpractice: Proof. A binding mutual understanding or meeting of the minds sufficient to establish a contract requires no precise formality or express utterance from the parties themselves as to all of the details of the proposed agreement, and a contract may be implied from conduct and circumstances. However, it is necessary to establish that the relationship existed with respect to the act or omission upon which the malpractice claim is based.

9. Attorney and Client. An attorney impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.

10. Attorney and Client: Malpractice: Judgments: Proof. In a malpractice action against an attorney, a plaintiff has the burden of proving that he or she would have been successful in obtaining and collecting a judgment in the action for which he or she contracted with an attorney and that he or she was prevented from doing so by the attorney's negligence.

11. Actions: Negligence: Proximate Cause: Damages. The elements of a negligence cause of action are duty, breach, proximate cause, and damages.

12. Negligence: Proximate Cause: Proof. Standing alone, the fact that a gas explosion due to a leak has occurred is not sufficient to demonstrate that a gas distributor's negligence was the proximate cause of the explosion.

13. Trial: Negligence: Juries: Proof. A plaintiff is not bound to exclude the possibility that the accident might have happened in some other way, but is only required to satisfy the jury, by a preponderance of the evidence, that injury occurred in the manner claimed.

14. Trial: Evidence: Proof. The burden of proving a cause of action is not sustained by evidence from which a jury can arrive at its conclusion only by guess, speculation, conjecture, or choice of possibilities; there must be something more which would lead a reasoning mind to one conclusion rather than to another.

15. Negligence: Circumstantial Evidence: Proof. Negligence, like any other fact, may be proved by circumstantial evidence. This is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.

16. Negligence: Circumstantial Evidence: Proof: Proximate Cause. While circumstantial evidence may be used to prove causation, the evidence must be sufficient to fairly and reasonably justify the conclusion that the defendant's negligence was the proximate cause of the injury to the plaintiff.

17. Trial: Expert Witnesses. With respect to the requirement of expert testimony, the test is whether the particular issue can be determined from the evidence presented and the common knowledge and usual experience of the fact finders.

18. Trial: Expert Witnesses. A good faith conflict due to self-contradiction of an expert's opinions presents a question to be resolved by the trier of fact.

19. Trial: Expert Witnesses. When an expert opinion is given which is not in accordance with the actual facts, it lacks probative value.

Lawrence L. Marcucci and Edward N. McConnell, Marcucci, Wiggins & Anderson, P.C., and John M. McHale, The Peters Law Firm, P.C., for appellant.

Joseph K. Meusey and Robert M. Yates, Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., for appellee.

HASTINGS, C.J., WHITE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

FAHRNBRUCH, Justice.

John J. McVaney appeals a directed verdict adverse to him in an attorney malpractice action in which he alleged inter alia that the defendant law firm failed to timely file a negligence action against the Metropolitan Utilities District (MUD).

In directing a verdict at the close of the plaintiff's case in chief for the defendant law firm, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim (Baird), the district court for Douglas County found as a matter of law that McVaney failed to adduce sufficient evidence from which a jury could find that negligence on the part of MUD was the proximate cause of an explosion which destroyed a building McVaney owned. We affirm.

In effect, the trial court held that one of the two experts called to testify by McVaney could not testify to a reasonable degree of certainty that any of the things that MUD did or failed to do was a proximate cause of the explosion and that the second expert's opinion regarding proximate cause was based not upon facts, but impermissibly upon mere conjecture.

On the night of February 5, 1983, a veterinary hospital in Omaha owned by McVaney, who was licensed to practice veterinary medicine at that time, was destroyed by a natural gas explosion. For several days preceding the explosion, McVaney and others reported to MUD that they smelled natural gas in the vicinity of the veterinary hospital. In its normal state, natural gas is odorless, and an odor is introduced into the gas as a safety measure. This odor is commonly referred to as "gas." From January 26 to and including February 4, 1983, MUD employees made several visits to McVaney's property and to the vicinity of the hospital in an attempt to identify and repair any suspected gas leaks.

MUD provided natural gas to McVaney's hospital through a service line from a main in a street to a gas meter located on the west side of McVaney's building. Piping from the meter ran through a wall (wall pipe) and was attached to a fuel line within the hospital's basement. The internal fuel line traversed the basement to the east side, where it was connected by several pipes to a hot water heater and two furnaces. MUD owned the gas meter and the pipe extending from the main in the street to McVaney's gas meter. The remaining piping, connecting the gas meter to the hospital's internal system, was owned by McVaney.

In the basement of the hospital, there was a partial false ceiling approximately 2 feet below the first floor. The east side of the basement, housing the furnaces and water heater, had no false ceiling. The furnaces and water heater were located in the northeast section of the basement. There was a sound-deadening wall between the furnaces and a series of pens to the west. An exhaust fan, located on the basement's west wall below the false ceiling, was capable of removing 6,000 to 12,000 cubic feet of air per hour from the basement. The basement's volume was 17,400 cubic feet. McVaney testified that the fan in the basement was operating continuously during the 7-day period preceding the explosion.

On January 26, 1983, McVaney smelled gas in a first-floor reception area of his hospital. He relighted the pilot lights of the furnaces and the hot water heater, which were out, and he contacted MUD. On that date, no gas leak was found by MUD personnel, but the gas meter was replaced. On January 31, McVaney again smelled gas in the reception area of his hospital and called MUD. A responding MUD employee discovered a gas leak and tightened a loose pipefitting in the basement of McVaney's building.

On February 2, McVaney detected the odor of gas as he entered his hospital. He telephoned MUD. MUD workers found negligible gas leaks inside McVaney's hospital on February 2, which they attributed to methane gas released by animal wastes. They further reported a Class I leak in the vicinity of a stop box located approximately 100 feet from McVaney's hospital. The stop box was situated underneath the other side of the street from...