Sacco v. Carothers, S-95-1257

• Decision Date: 15 August 1997
• Docket Number: No. S-95-1257,S-95-1257
• Citation: 253 Neb. 9,567 N.W.2d 299
• Parties: Michael SACCO, Appellant, v. Gary CAROTHERS, d/b/a the Round Table, Appellee.
• Court: Nebraska Supreme Court

Page 299

567 N.W.2d 299

253 Neb. 9

Michael SACCO, Appellant, v. Gary CAROTHERS, d/b/a the Round Table, Appellee.

No. S-95-1257.

Supreme Court of Nebraska.

Aug. 15, 1997.

Syllabus by the Court

1. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

2. Negligence: Words and Phrases. An efficient intervening cause is a new, independent force intervening between the defendant's negligent act and the plaintiff's injury by the negligence of a third person who had full control of the situation, whose negligence the defendant could not anticipate or contemplate, and whose negligence resulted directly in the plaintiff's injury.

3. Negligence. An efficient intervening cause must break the causal connection between the original wrong and the injury.

4. Negligence: Tort-feasors: Liability. The doctrine that an intervening act cuts

off a tort-feasor's liability comes into play only when the intervening cause is not foreseeable.

5. Negligence: Proximate Cause. Foreseeability that affects proximate cause relates to the question of whether the specific act or omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from the defendant's alleged breach of duty.

6. Negligence. An action that was foreseeably within the scope of the risk occasioned by the defendant's negligence cannot be said to supersede that negligence.

7. Negligence: Liability. If the likelihood of the intervening act was one of the hazards that made defendant's conduct negligent--that is, if it was sufficiently foreseeable to have this effect--then defendant will generally be liable for the consequences.

8. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

9. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence.

10. Jury Instructions. An instruction on a matter not an issue in the litigation distracts the jury from its effort to answer legitimate, factual questions raised during the trial.

11. Jury Instructions: Evidence: New Trial. Submission of an issue on which the evidence is insufficient to sustain an affirmative finding is generally prejudicial and results in a new trial.

12. Courts: Jury Instructions: Negligence. The practice of instructing juries regarding "efficient intervening" cause should henceforth be discontinued by the trial courts of this state.

13. Negligence: Proof. In order to succeed in an action based on negligence, the plaintiff must establish the defendant's duty not to injure the plaintiff, breach of that duty, proximate causation, and damages.

14. Negligence: Proximate Cause. A defendant's negligence is not actionable unless it is a proximate cause of the plaintiff's injuries or is a cause that proximately contributed to them.

15. Negligence: Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and 16. Negligence: Liability. Where separate and independent acts of negligence by different persons combine to produce a single injury, each participant is liable for the damage, although one of them alone could not have caused the result.

continuous sequence, and without which the result would not have occurred.

17. Negligence: Liability. If the effects of a defendant's negligence actively and continuously operate to bring about harm to another, the fact that the active negligence of a third person is also a substantial factor in bringing about the harm does not protect the defendant from liability.

Vincent M. Powers, Lincoln, for Appellant.

J. Arthur Curtiss and David D. Zwart, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for Appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ.

GERRARD, Justice.

Michael Sacco sustained serious injuries in a fight in the parking lot of the Round Table tavern on December 24, 1991. Sacco alleged that Gary Carothers, the owner of the Round Table tavern in Grand Island, Nebraska, or his employee was negligent in failing to contact law enforcement, failing to have proper security, failing to provide proper training for employees, ordering the parties to "take it outside," and failing to stop the altercation. Sacco appeals from a jury verdict in favor of Carothers. Because we conclude that the district court erred in instructing the jury as to efficient intervening cause, we reverse, and remand for a new trial. For the reasons that follow, we further instruct the trial courts of this state to discontinue the practice of separately instructing juries regarding efficient intervening cause.

FACTUAL BACKGROUND

On December 24, 1991, Sacco and his brother Dominic Sacco (Dominic) went to the Round Table around noon. For the remainder of the day, the two drank and played pool. Perry Roeber arrived at the Round Table at approximately 5:30 or 6 p.m. and drank throughout the evening.

Between 9 and 9:30 p.m., the bartender, Jeanette Zahm, was the only one on duty; the bar was busy, serving between 50 and 70 people. Zahm was assisted by Craig Douglas, a customer who helped her serve drinks, picked up glasses, and broke up fights, and by Frank Matthews, a frequent customer who had broken up scuffles in the bar on previous occasions.

At approximately 9 p.m., Dominic left the Round Table and was gone for approximately 20 to 30 minutes. In the interim, Sacco and Roeber got into a scuffle over payment of a pool bet. Matthews heard that a fight was going on in the back room. He went back, broke it up, and told Sacco and Roeber to take it outside. Zahm also heard raised voices and saw pushing and shoving. She went over to the pool table and told Sacco and Roeber that if they were going to fight, they had to take it outside or she would call the police. Roeber does not remember Matthews telling them to go outside, but testified that Douglas told them to take it outside. Zahm did not call the police at this point because Douglas had gotten between Sacco and Roeber, there was no more pushing or shoving, and "it was pretty well broken up," although the two men were still exchanging hostile words.

Roeber said that he was going to leave and walked out the back door. Roeber told Sacco that he would be outside if Sacco wanted to finish the fight. Roeber's friend, Brian Putscher, followed Roeber out the back door, as did Matthews. Roeber waited outside for Sacco, then sent Putscher in to retrieve his coat so that he could leave. As Putscher was going in, Sacco came out of the back door. In a quick walk, he approached Roeber, swung at him, and hit him in the shoulder or the chest. Roeber swung back at Sacco, hitting him in the face or jaw. When the two men fell on the ice in the parking lot, Sacco hit his head on the ground.

Matthews pulled the men apart, and Roeber left the tavern's parking lot. Matthews initially told Zahm not to call the Zahm had worked in the food and beverage industry since 1978 or 1979 and had worked at the Round Table since 1989. Carothers had not provided her with formal training as to her responsibilities regarding the property adjacent to the tavern or in how to recognize when a customer has had too much to drink and should be cut off. Zahm stated that she would have called the police immediately if there had been a fight inside the tavern, but that she felt no obligation to prevent the men from having a scuffle in the parking lot. Zahm testified that she was not concerned that either of the men would be injured in a fight because, while she knew a fight could possibly occur, 8 or 9 times out of 10 the parties would go out, scream at each other, and then come back in. Moreover, Zahm testified that she knew that if something happened, Matthews would make sure that no one else became involved.

emergency number, 911, because Sacco was breathing. Ten or fifteen minutes later, Matthews told Zahm to call 911. At this point, Dominic returned to the Round Table, told them not to call anyone, and asked for help loading Sacco into his truck. Dominic took Sacco to his apartment rather than to the hospital because he did not think that he was seriously hurt; he thought that Sacco had passed out because he had had too much to drink. Later that night, Dominic noticed blood coming out of Sacco's mouth and called an ambulance.

Sacco alleged that Carothers, the owner of the Round Table, or his employee was negligent in failing to contact law enforcement, failing to have proper security, failing to properly train his employees, ordering the parties to take it outside, and failing to stop the altercation. Carothers denied that he was negligent and alleged that Sacco was contributorily negligent in a degree more than slight in conducting himself in an aggressive and hostile manner, failing to keep himself under reasonable control, failing to heed instructions to cease and desist in his hostile and aggressive conduct, leaving the bar by the back door with the intention of engaging in physical aggression, and provoking, instigating, and escalating a physical altercation with another patron. Carothers also alleged that Sacco had voluntarily assumed the known risk of personal injury resulting from a physical confrontation.

The district court overruled Sacco's motion for a directed verdict on the issue of Carothers' negligence and overruled Carothers' motion to dismiss the petition or for a directed verdict. Sacco objected, among other things, to the giving of a jury instruction as to efficient intervening cause. The parties' counsel had the following exchange at the instruction conference:

THE...