Reavis v. Slominski, S-94-288

• Decision Date: 09 August 1996
• Docket Number: No. S-94-288,S-94-288
• Citation: 250 Neb. 711,551 N.W.2d 528
• Court: Nebraska Supreme Court
• Parties: Mary REAVIS, Appellee and Cross-appellant, v. James SLOMINSKI, D.D.S., Appellant and Cross-appellee.

Page 528

551 N.W.2d 528

250 Neb. 711

Mary REAVIS, Appellee and Cross-appellant, v. James SLOMINSKI, D.D.S., Appellant and Cross-appellee.

No. S-94-288.

Supreme Court of Nebraska.

Aug. 9, 1996.

Syllabus by the Court

1. Torts: Battery: Assault: Intent: Words and Phrases. Battery and assault are separate torts resulting from a defendant's intentional actions directed toward another; a battery requires an actual infliction of an unconsented injury upon or unconsented contact with another. In contrast, the intentional tort of assault is a wrongful offer or attempt with force or threats, made in a menacing manner, with intent to inflict bodily injury upon another with present apparent ability to give effect to the attempt, without requiring that the one assaulted be subjected to any actual physical injury or contact.

2. Directed Verdict: Evidence: Appeal and Error. 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.

3. 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.

4. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court.

5. Torts: Liability. Except in the case of persons whom the law protects for reasons of policy, such as those who are mentally immature or otherwise incompetent, no one suffers a legal wrong as the result of an act to which, unaffected by fraud, mistake, or duress, he freely consents or to which he manifests apparent consent, as expressed in the ancient legal maxim "volenti non fit injuria," meaning that no wrong is done to one who consents.

6. Torts: Words and Phrases. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

7. Torts: Intent: Words and Phrases. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

8. Directed Verdict. 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.

9. Directed Verdict. The party against whom a 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.

10. Torts: Liability. To avoid liability, consent must be effective; consent is ineffective if the person lacks capacity to consent to the conduct.

11. Torts: Liability. One who has reached the age of majority can give an effective consent to all kinds of conduct, unless the defendant knows or has reason to know of some kind of abnormality, temporary or permanent, of the consenting person.

12. Criminal Law: Sexual Assault: Torts. Nebraska criminal law, pursuant to Neb.Rev.Stat. §§ 28-319 and 28-320 (Reissue 1995), provides that an abnormality on the part of a person consenting to a sexual act deprives such consent of effectiveness when the consenting person lacks an ability to resist or an understanding of the nature of sexual relations; this analysis is equally applicable in tort law.

13. Trial: Appeal and Error. Generally, an appellate court will dispose of a case on the theories which were presented to the trial court.

14. Trial: Directed Verdict: Expert Witnesses. Triers of fact are not required to take opinions of experts as binding upon them. Determining the weight that should be given expert testimony is uniquely the province of the fact finder, and where there is evidence from an expert, a directed verdict should not be granted.

15. Evidence. According to Neb.Rev.Stat. § 27-104(2) (Reissue 1995), when the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

16. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

17. Jury Instructions: Appeal and Error. Jury instructions are generally subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects substantial rights of the complaining party.

18. 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.

19. Jury Instructions: Appeal and Error. It is not error to refuse to give a requested instruction if the substance of the request is in the instructions actually given.

20. Jury Instructions. The proper method of presenting a case to a jury in its instructions is by a clear and concise statement by the trial court of the issues which find support in the evidence.

21. Jury Instructions: Pleadings: Evidence. Where an instruction is properly requested upon some special feature of the case presented by the pleading and the evidence, it should be given, unless covered by other instructions.

Michael J. Mooney and Susan E. Norris, of Gross & Welch, P.C., Omaha, for appellant.

Thom K. Cope, of Bailey, Polsky, Cope, Knapp & Nelson, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

LANPHIER, Justice.

Alleging she was sexually assaulted, Mary Reavis filed a civil action against the alleged attacker, James Slominski, D.D.S. The petition stated two causes of action--one for the tort of sexual assault and one for the tort of intentional infliction of emotional distress. Slominski denied those allegations and further alleged that any contact with Reavis was consensual. Trial before a jury commenced in the district court for Richardson County on January 12, 1994. At the close of Reavis' case, Slominski's motion for a directed verdict was overruled. At the close of all the evidence, Slominski renewed his motion for a directed verdict, which was again overruled. The jury returned a verdict in favor of Reavis on the sexual assault cause of action and in favor of Slominski on the intentional infliction of emotional distress cause of action. Slominski timely appealed, and Reavis cross-appealed.

In his appeal, Slominski asserts that the district court erred in refusing to direct a verdict in his favor, in admitting certain evidence, in instructing the jury as it did regarding consent, in refusing to instruct the jury regarding capacity to consent and economic duress, and in failing to set aside the verdicts as inconsistent. In her cross-appeal, Reavis asserts that the district court erroneously instructed the jury on the elements of the tort of intentional infliction of emotional distress. A majority of this court concurs that the district court properly refused to grant Slominski's motions for a directed verdict. A majority also concurs that the jury's verdict regarding the sexual assault claim must be reversed and that that matter be remanded for a new trial.

I. BACKGROUND

Reavis was employed by Slominski as a receptionist in his dental clinic located in Falls City, Nebraska. Reavis alleges that Slominski sexually assaulted her on December 31, 1991, after a New Year's Eve office party.

Reavis first worked for Slominski at his dental clinic from 1969 to 1975 as a chair-side assistant, with one brief absence. Reavis testified that there were many occasions during the early 1970's when Slominski fondled her. Reavis stated that she felt that she could not say anything to him because she needed to work. When she did ask Slominski to stop touching her, he would laugh and say, " 'You know you like it.' "

Reavis married her husband, Frank, in February 1972. Reavis testified that Slominski continued to touch her. Although Slominski never told Reavis that he would fire her if she objected, Reavis stated that Slominski said she would lose her job and her marriage if she told anyone.

In or around 1973, Slominski and Reavis began to engage in sexual intercourse. Although Reavis said no, she claims she felt that she had no choice but to engage in relations. Reavis admitted that Slominski never physically forced her to have sex with him. Reavis testified that she could not quit her job because she needed the money to support her family. However, Reavis admitted that there were times when she was able to successfully refuse Slominski's advances.

In 1975, Reavis' husband obtained employment in Lincoln, and Reavis left Slominski's employment. The Reavises returned to Falls City in 1978, and Reavis worked for another dentist.

In the summer of 1988, Reavis was unemployed and Slominski offered her a job. Reavis testified that she told Slominski that before she would accept the position, he had to promise to leave her alone. Reavis testified that Slominski did not try to engage in sexual intercourse with her from 1988 until December 31, 1991. However, Reavis stated that Slominski touched her several times during...