Russell v. Stricker

• Decision Date: 30 November 2001
• Docket Number: No. S-00-264.,S-00-264.
• Citation: 262 Neb. 853,635 N.W.2d 734
• Parties: Kevin D. RUSSELL, Appellant, v. Brant STRICKER and Lee Swires, Appellees.
• Court: Nebraska Supreme Court

635 N.W.2d 734

262 Neb. 853

Kevin D. RUSSELL, Appellant, v. Brant STRICKER and Lee Swires, Appellees.

No. S-00-264.

Supreme Court of Nebraska.

November 30, 2001.

James L. Zimmerman, of Sorensen & Zimmerman, P.C., Scottsbluff, for appellant.

John F. Simmons, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee Stricker.

Leland K. Kovarik, of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellee Swires.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

Kevin D. Russell brought a negligence action against Brant Stricker and Lee Swires (collectively defendants) for injuries Russell sustained as a passenger in Stricker's truck when Stricker engaged in a speed contest with Swires. The jury found Russell 36 percent negligent, Stricker 47 percent negligent, and Swires 17 percent negligent. Russell was awarded $17,330, which was 64 percent of the $27,077 total award. The court granted Stricker's motion for a credit against the judgment and reduced Russell's judgment by $5,000. Russell appealed. We moved this case to our docket pursuant to our power to regulate the Nebraska Court of Appeals' caseload and that of this court. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

FACTUAL BACKGROUND

On March 3, 1995, Stricker engaged in a speed contest with Swires in Scottsbluff, Nebraska, which resulted in an accident when Stricker lost control of the truck he was operating and struck a light pole. Russell, a passenger in Stricker's truck at the time of the accident, brought this negligence action against defendants, seeking damages for his injuries. Defendants contended that Russell was contributorily negligent.

At the jury instruction conference at the close of evidence, defendants did not object to the court's proposed instructions and Russell objected only to the extent that the instructions referred to Russell's assumption of the risk or contributory negligence. The court gave the jury five instructions and three verdict forms. Jury instruction No. 2, under "C. Effect of Findings," informed the jury how to utilize the verdict forms. The instruction stated:

1. If the Plaintiff failed to meet his burden of proof against the Defendants then your verdict must be for the Defendants and you will complete only Verdict Form Number 1. However, if the Plaintiff has met his burden of proof, then you must consider the defendant's defenses.

2. If the Defendants have met their burden of proof that the Plaintiff assumed the risk, then your verdict must be for the Defendants, and this is true even if you find that one or both of the Defendants were negligent and this negligence was also a proximate cause of Plaintiff's injury. You will complete only Verdict Form Number 1. If the Defendants have not met their burden of proof, you must disregard the defense of "assumption of risk".

3. If the Plaintiff has met his burden of proof against Defendant Stricker or Defendant Swires or both, AND the Defendants HAVE NOT met their burden of proof that the Plaintiff was also negligent, then your verdict must be for the Plaintiff in the amount of damages you find, and you will complete only Verdict Form Number 2.

4. If the Plaintiff has met his burden of proof against Defendant Stricker or Defendant Swires or both, AND the Defendants HAVE met their burden of proof that the Plaintiff was also negligent then you must complete only Verdict Form Number 3.

(Emphasis in original.)

After receiving these instructions, the jury deliberated and returned verdict form No. 3. Using verdict form No. 3, the jury allocated percentages of negligence to each of the parties as follows: Russell, 36 percent; Stricker, 47 percent; and Swires, 17 percent. The jury then found that Russell had incurred total damages of $27,077. The jury, finding that the sum of both defendants' negligence totaled 64 percent, multiplied that percentage by $27,077 to determine that Russell was entitled to recover $17,330 in damages. The district court entered judgment against defendants for that amount on January 25, 2000.

Russell filed a motion for new trial on January 31, 2000. A hearing was held on February 9 regarding the motion for new trial and Stricker's motions for credit against the judgment. The court overruled Russell's motion for new trial and granted Stricker's motion for credit against the judgment, reducing Stricker's judgment by $5,000 to $12,330. Russell appealed.

ASSIGNMENTS OF ERROR

Russell asserts as error that (1) the court failed to properly instruct the jury with respect to the effects of its allocation of negligence as required by Neb.Rev.Stat. § 25-21,185.09 (Reissue 1995) and (2) the court erred in sustaining Stricker's motion for credit against the judgment in the sum of $5,000 pursuant to the medical payments coverage provision in Stricker's automobile insurance policy and Neb.Rev.Stat. § 25-1222.01 (Reissue 1995).

STANDARD OF REVIEW

Whether a jury instruction given by a trial court is correct is a question of law. Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001).

When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Smith v. Fire Ins. Exch. of Los Angeles, 261 Neb. 857, 626 N.W.2d 534 (2001); Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000).

ANALYSIS

Jury Instructions and Verdict Forms

Russell contends the district court did not properly instruct the jury regarding the effects of its allocation of negligence as required by § 25-21,185.09. This is a question of statutory interpretation. Section 25-21,185.09 states:

Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. The jury shall be instructed on the effects of the allocation of negligence.

(Emphasis supplied.) We have concluded previously that "it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with § 25-21,185.09." Wheeler v. Bagley, 254 Neb. 232, 239, 575 N.W.2d 616, 620 (1998). In Wheeler, the trial court did not instruct the jury or provide a verdict form that sufficiently conveyed the effects of the allocation of negligence. The result was a jury verdict form that found 49 percent negligence on the plaintiff's part, 51 percent negligence on the defendant's part, and the plaintiff's damages in the amount of $40,000.

In Wheeler, the plaintiff argued that the verdict form indicated she should receive $40,000. The defendant, however, asserted that the verdict form indicated the plaintiff's total damages were $40,000 and should be reduced by the plaintiff's percentage of negligence, which would result in a $20,400 award for the plaintiff. The trial court granted a new trial because it concluded that the jury instruction given did not comply with the requirements of § 25-21,185.09. In Wheeler, we affirmed the decision of the trial court and provided a jury instruction and a verdict form as guidelines to be used in single-defendant negligence cases and "adjusted as the circumstances of a particular case merit." 254 Neb. at 239, 575 N.W.2d at 621.

The district court's jury instructions in this case are not consistent with the instructions we provided in Wheeler. The district court's instruction No. 2, part C, speaks only in terms of whether plaintiff and defendants have met their burden of proof, but it never addresses what the result will be if "`the negligence of the plaintiff was equal to or greater than the negligence of the defendant'" or how "`[i]f the plaintiff is allowed to recover, you will then reduce the total damages by the percentage of the plaintiff's negligence,' " as Wheeler requires. 254 Neb. at 240,575 N.W.2d at 620-21. Therefore, the district court did not give the jury instruction required by § 25-21,185.09. Defendants assert that even in the absence of a formal jury instruction, the jury was adequately instructed in this case pursuant to § 25-21,185.09 by the verdict form the district court provided. This raises the issue of whether a verdict form may serve as a substitute for the instruction required by § 25-21,185.09.

Section 25-21,185.09 states, "The jury shall be instructed on the effects of the allocation of negligence." (Emphasis supplied.) This court has consistently understood the plain meaning of the word "instructed" in § 25-21,185.09 to require formal jury instructions. See, e.g., Wheeler, supra.

Allowing a verdict form to substitute for a proper jury instruction is inconsistent with the historical underpinnings of § 25-21,185.09. As we discussed in Wheeler, courts and legislatures across the nation have adopted various rules regarding informing juries of the effects of their allocation of negligence. Some courts enforce the so-called blindfold rule, which requires that jurors deliberate with no knowledge of the effect of the allocation of negligence between plaintiffs and defendants. In these jurisdictions, it is reversible error to inform the jury of the effects of its allocation of negligence. See, e.g., McGowan v. Story, 70 Wis.2d 189, 234 N.W.2d 325 (1975). The blindfold rule is based on the concern that jurors might "attempt to manipulate the apportionment of negligence to achieve a result that may seem socially desirable." Id. at 198, 234 N.W.2d at 329.

As we noted in Wheeler, there has been a "strong, if not overwhelming, recent trend away from the blindfold rule in comparative negligence states." Wheeler v. Bagley, 254 Neb. 232, 237, 575 N.W.2d 616, 619 (1998). See, also, Sollin v. Wangler,...