Shipler v. General Motors Corp.

Decision Date10 March 2006
Docket NumberNo. S-03-1472.,S-03-1472.
Citation710 N.W.2d 807,271 Neb. 194
PartiesPenny SHIPLER, appellee and cross-appellant, v. GENERAL MOTORS CORPORATION, a foreign corporation, appellee and cross-appellant, and Kenneth Long, appellant and cross-appellee.
CourtNebraska Supreme Court




Penny Shipler brought this action against General Motors Corporation (GM) and Kenneth Long after she was injured in a motor vehicle rollover that rendered her a quadriplegic. GM and Long filed separate notices of appeal from a final judgment of $18,583,900 entered following a jury trial in Lancaster County District Court. Shipler has cross-appealed.


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. Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005).

Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.


On September 11, 1997, Long lost control of his 1996 Chevrolet S-10 Blazer, and the Blazer rolled at least four times. Shipler, who was riding in the front passenger seat, was rendered a quadriplegic as a result of the rollover.

Shipler sued GM and Long, claiming that the roof of the Blazer was defective and had crushed inward, causing her injury. She alleged that GM, the manufacturer of the Blazer, was negligent in failing to use reasonable care in designing the Blazer's roof and in failing to adequately warn her of the dangers associated with the roof. Her second theory, based upon strict liability, alleged that the roof structure of the Blazer was defective at the time it left GM's possession. Shipler alleged that the defect made the Blazer unreasonably dangerous for its intended use and created a risk of harm beyond that which would be contemplated by the ordinary foreseeable user.

GM asserted that Long was a proximate cause of the rollover. It denied any negligence and denied that the Blazer was designed with an unreasonably weak roof structure over the front passenger seat compartment or that there were any defects in the passenger restraint system. GM denied any knowledge that the design of the Blazer exposed passengers to an unreasonable risk of injury which was foreseeable by GM. It denied that the Blazer's roof design or restraint system created a risk of harm to a passenger or made the vehicle unreasonably dangerous for its intended use as a passenger vehicle. Prior to trial, Long admitted that his negligence was the cause of the accident.

At trial, GM sought to present evidence of Shipler's alleged contributory negligence and Long's comparative fault. In an offer of proof, testimony was offered that Shipler and Long had been drinking before the accident. The trial court excluded evidence regarding alcohol consumption by Shipler and Long, concluding that such evidence was not relevant in a crashworthiness case.

When the accident occurred, Shipler's infant son was sitting in her lap, and the passenger seatbelt was fastened over both of them. The infant was ejected in the rollover, and GM offered to prove that the infant's presence under the seatbelt created slack and therefore enhanced Shipler's injury. In her initial petition, she alleged that she was restrained with both a lap belt and a shoulder belt. The trial court excluded evidence of Shipler's use of the seatbelt in this manner but reduced her damages by 5 percent under Nebraska's seatbelt law, Neb.Rev.Stat. § 60-6,273 (Reissue 2004).

The issues presented for trial were whether GM was negligent in the design of the Blazer's roof, whether GM was strictly liable for a defect in the design of the roof, whether the negligence or defect in design caused Shipler's injury, and the nature and extent of Shipler's damages.

Following a 6-week trial, the jury returned a verdict for Shipler and against GM and Long, and awarded her damages of $19,562,000. The trial court entered an amended judgment of $18,583,900, based on the court's determination that Shipler agreed to eliminate the issue of whether the seatbelt was faulty in exchange for a 5-percent reduction in the judgment amount as provided by statute. GM's motion for new trial was overruled. On January 14, 2004, the trial court entered an order finding that Shipler was entitled to prejudgment interest on the portion of the judgment that exceeded $5 million from February 21, 2001, at the rate of 7.052 percent per annum. GM and Long filed separate notices of appeal, and Shipler cross-appealed.


GM claims, summarized and restated, that the trial court erred (1) in improperly instructing the jury, in refusing to provide a defense verdict form, in giving oral instructions, and in giving a coercive Allen (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)), or "dynamite," instruction to the deadlocked jury; (2) in barring GM's contributory negligence defense and in refusing to permit the jury to allocate liability for noneconomic damages in proportion to percentage of fault; (3) in excluding evidence of Shipler's seatbelt misuse; (4) in admitting evidence of dissimilar incidents; and (5) in allowing prejudicial testimony and giving improper instructions on the federal Motor Vehicle Safety Standard 216 (hereinafter FMVSS 216), the federal roof strength standard. GM also assigns as error that the verdict was excessive.

Long claims the trial court erred (1) in giving a limitation in the jury instructions that narrowed Shipler's injuries to quadriplegia only and in refusing to permit the jury to allocate damages between GM and Long based on which injuries were caused by the conduct of each; (2) in denying Long's multiple motions to dismiss because no issues were preserved against Long in the pretrial order; (3) in erroneously instructing the jury as to the possible verdicts that could be rendered and in failing to provide the jury with a defense verdict form allowing the jury to find in favor of GM and Long; (4) in failing to strike the award for future wage loss because such claim was supported by speculative and insufficient expert testimony; (5) in giving a detailed limiting instruction regarding Shipler's collateral source benefits that incited the jury's sympathy; and (6) in upholding the jury's excessive verdict, which was the result of passion and prejudice.

Shipler cross-appeals that the trial court erred in reducing the jury's damage award by 5 percent.


GM asserts that the trial court erred in its instructions on liability; erred in refusing to provide a defense verdict form; erred in instructing orally, outside court and without notice; and erred in giving a second coercive Allen charge.

(a) Jury Instructions

GM argues the trial court erroneously instructed the jury that if Long was not found liable, GM must be held liable. It claims such instructions amounted to granting a directed verdict for Shipler.

The trial court instructed the jury that it could reach one of three possible verdicts: (1) that only GM and not Long proximately caused Shipler's quadriplegia, (2) that only Long and not GM proximately caused Shipler's quadriplegia, or (3) that GM and Long each proximately caused Shipler's quadriplegia. It is GM's position that such instructions were legally incorrect and unfair because GM's liability depended upon Shipler's proof of negligence or defective design as the cause of her injury and the instructions told the jury to hold liable either Long or GM, or both. GM claims the jury should have been given a form allowing it to find both defendants not liable, which GM argues the court incorrectly concluded was not an option. Thus, GM claims the court erroneously directed the jury to find that GM was liable if Long was not, regardless of whether Shipler had proved her case against GM.

The trial court directed the jury that before Shipler could recover against GM, she must prove either negligence or strict liability. The court instructed that in order to prove negligence, Shipler must show by the greater weight of the evidence that GM breached its duty to her by failing to use reasonable care in the design of the Blazer's roof in view of the foreseeable risk of injury and that the negligence was a proximate cause of Shipler's damages.

The jury was instructed that to prove strict...

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