Nichols v. Busse
| Decision Date | 23 July 1993 |
| Docket Number | No. S-91-108,S-91-108 |
| Citation | 503 N.W.2d 173,243 Neb. 811 |
| Parties | Judy NICHOLS, Appellant and Cross-Appellee, v. Brian BUSSE, Appellee and Cross-Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.
2. Actions: Mental Distress. There are three elements for a cause of action based on the tort of intentional infliction of emotional distress: (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.
3. Actions: Mental Distress. In an action for intentional infliction of emotional distress, the plaintiff's contemporaneous observance of the injury to a third-party victim is not a requirement for recovery.
4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
5. Mental Distress: Damages: Proof. The plaintiff in an action for intentional infliction of emotional distress is required to offer sufficient proof of damages so that the jury can reach its award without awarding an uncertain, speculative recovery.
6. Damages. The amount of damages for pain, suffering, and emotional distress inherently eludes exact valuation.
7. Motions for Mistrial: Appeal and Error. A motion for mistrial is directed to the discretion of the trial court. Its ruling will not be disturbed on appeal absent a showing of abuse of that discretion.
8. Motions for Mistrial: Waiver. A motion for mistrial should be made at the first reasonable opportunity. If not timely made, it is waived.
9. Motions for Mistrial: Appeal and Error. One cannot ordinarily predicate error on the trial court's failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the court admonishes the jury not to consider such material.
10. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
11. Motions for New Trial: Appeal and Error. The district court's denial of a motion for new trial will be affirmed when the court's decision is neither prejudicial nor an abuse of discretion.
12. Jury Misconduct: Appeal and Error. The trial court's ruling on a question involving jury misconduct will not be disturbed on appeal absent an abuse of discretion.
13. Motions for New Trial: Juror Misconduct: Verdicts: Proof. In a motion for new trial, allegations of misconduct by jurors must be substantiated by competent evidence. The misconduct complained of must relate to a disputed matter that is relevant to the issues in the case and must have influenced the jurors in arriving at the verdict. Additionally, the movant must show that the alleged misconduct resulted in a prejudicial verdict.
14. Rules of Evidence: Verdicts: Jurors: Affidavits. Neb.Rev.Stat. § 27-606(2) (Reissue 1989) prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations, which entered into the verdict.
15. Rules of Evidence: Jurors: Words and Phrases. A juror's intradeliberational statements, when based on personal knowledge not directly related to the litigation at issue, do not constitute "extraneous" information within the meaning of Neb.Rev.Stat. § 27-606(2) (Reissue 1989).
16. Juror Qualifications. The proper time for a party to raise the issue of the potential impact of a juror's specialized knowledge is during voir dire, not after the party accepts the juror with full knowledge that he or she does or may possess specialized knowledge.
17. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning. In addition, this court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.
18. Statutes: Appeal and Error. To construe a statute properly, this court will look to the purpose behind the statute and will give the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.
19. Rules of Evidence: Juries: Motions to Strike: Words and Phrases. The term "extraneous," as employed in Neb.Rev.Stat. § 27-606(2) (Reissue 1989), does not encompass information that has been excluded from jury consideration by a motion to strike.
20. Verdicts: Jurors: Affidavits. The rationale behind the strictures on the use of juror affidavits to impeach verdicts is to prevent juror harassment and to free the jury to engage in frank discussions.
21. Rules of Evidence: Affidavits: Jury Instructions. Juror affidavits are inadmissible to show that the jury failed to follow the court's instructions.
22. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse a requested instruction if the substance of the proposed instruction is contained in those instructions actually given.
23. Damages: Appeal and Error. On appeal, the fact finder's determination of damages is given great deference.
24. Verdicts: Appeal and Error. This court will not disturb a jury verdict as inadequate unless it is so clearly against the weight and reasonableness of the evidence and so disproportionate to the injury proven that it appears to be the result of passion, prejudice, mistake, or disregard by the jury of the evidence or rules of law.
Neil W. Schilke of Sidner, Svoboda, Schilke, Thomsen, Holtorf & Boggy, Fremont, for appellant.
Eugene L. Hillman of McCormack, Cooney, Mooney, Hillman & Elder, Omaha, and David C. Mitchell of Yost, Schafersman, Yost, Lamme, Hillis & Mitchell, P.C., Fremont, for appellee.
Judy Nichols appeals a jury verdict of $6,200 in her suit against appellee, Brian Busse, for intentional infliction of emotional distress. Nichols appeals, inter alia, the district court's denial of her motions for mistrial and for new trial and the sufficiency of the damages award. Busse cross-appeals, asserting that his motions for directed verdict and for judgment notwithstanding the verdict should have been sustained. We affirm.
On the evening of October 20, 1989, Nichols' 18-year-old daughter, Shawna, was riding with Busse to a football game. En route, on a county road near Fremont, Busse's vehicle left the road and overturned. Evidence indicates that Shawna suffered severe injuries and died 3 to 5 minutes later.
Busse moved Shawna's body away from his pickup, placing it in a grass-filled ditch approximately 120 yards from the vehicle. The record indicates that Shawna's body was dragged for a portion of that distance. Busse then returned to Fremont, telling no one of the accident. At approximately 5:45 the next morning, Busse telephoned Nichols, claimed that Shawna had stolen his vehicle, and stated that "something horrible has happened." He also contacted the police and reported his vehicle stolen. Over the course of the morning and early afternoon, Busse repeatedly denied any knowledge of the whereabouts of Shawna or his vehicle.
Later that afternoon, following the discovery of the vehicle, Busse told police the truth. Nichols was informed of her daughter's death at approximately 3 o'clock that same afternoon.
Nichols subsequently sued Busse for intentional infliction of emotional distress. The following relevant events occurred during the litigation:
Prior to the trial of the emotional distress action, Shawna's estate, of which Nichols was the personal representative, received a $100,000 wrongful death settlement from Busse. Before the trial Nichols filed a motion in limine seeking to suppress all references to the settlement, as well as any references to Busse's criminal prosecution. The motion was overruled, but the court indicated that the amount of the settlement was not relevant.
During voir dire, the court asked whether any juror had "a close personal or business relationship" with Busse. Although she did not respond, it later became apparent that juror Weisenberg may have been acquainted with Busse.
In his opening statement, Busse's counsel referred to both the criminal prosecution and the wrongful death suit. Nichols made no objection. Later, on cross-examination, Busse's counsel inquired into the criminal charges against Busse. Nichols' objections for relevance were sustained.
On cross-examination of another witness, the following occurred: Busse's counsel: "Did [Nichols] tell you that day that she had received--or the estate has received one hundred thousand dol-" Nichols' counsel: "I object." Busse's counsel: "-lars?"
Prior to that point, the record contained no evidence of the amount of the wrongful death settlement. After the jury was recessed, Nichols' counsel's motion to strike was granted. However, counsel chose not to move for mistrial until the following morning. In the interim, three witnesses were questioned and Nichols rested. The motion for mistrial, made after counsel consulted with Nichols, was overruled. The court also refused to grant Busse's motion for a directed verdict.
Following the jury's verdict of $6,200 in her favor, Nichols moved for a new trial, citing the comments made by Busse's counsel and alleging juror...
To continue reading
Request your trial
-
Limone v. U.S., Civ. Action No. 02cv10890-NG.
...2000 WL 157483 (Wis.App.2000) ($24,000 to two parents together who witnessed son's death at hands of drunk driver); Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993) ($6,200 to mother who learned that defendant killed daughter in car accident and hid the I award $50,000 to each family m......
-
Reavis v. Slominski, S-94-288
...waives the right to assert prejudicial error on appeal. Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995); Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993). (d) Giving Reavis the benefit of every controverted fact and every inference which can reasonably be drawn from the evid......
-
Foreman v. AS Mid-America, Inc., MID-AMERIC
...and (3) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it. Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993); Gall v. Great Western Sugar Co., 219 Neb. 354, 363 N.W.2d 373 In this regard, appellants claim AS Mid-America caused them......
-
Poole v. Burlington Northern R. Co.
...endure it." Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 718, 508 N.W.2d 907, 910 (1993) (quoting Nichols v. Busse, 243 Neb. 811, 817, 503 N.W.2d 173, 179 (1993)). Poole's allegation of intentional infliction of emotional distress arises from BN's conduct in identifying Poole's......
-
Nebraska's (more or Less) Stable Approach to "extreme and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon Ex Rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.w.2d 604 (2001)
...1 Neb. Ct. App. 1141, 510 N.W.2d 550 (1993); Wadman v. State, 1 Neb. Ct. App. 839, 510 N.W.2d 426 (1993). 50. See, e.g., Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993); Gall v. Great W. Sugar Co., 219 Neb. 354, 363 N.W.2d 373 (1985); Hassing v. Wortman, 214 Neb. 154, 333 N.W.2d 765 (......