Storjohn v. Fay

• Decision Date: 22 July 1994
• Docket Number: No. S-92-1123,S-92-1123
• Citation: 246 Neb. 454,519 N.W.2d 521
• Parties: Dorothy STORJOHN, Appellant, v. William J. FAY, Appellee.
• Court: Nebraska Supreme Court

Page 521

519 N.W.2d 521

246 Neb. 454

Dorothy STORJOHN, Appellant, v. William J. FAY, Appellee.

No. S-92-1123.

Supreme Court of Nebraska.

July 22, 1994.

Syllabus by the Court

1. Jury Instructions: Proof: Appeal and Error. In an appeal based on the 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.

2. 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.

3. Jury Instructions: Appeal and Error. An instruction which misstates the issues or defenses and has a tendency to mislead the jury is erroneous.

4. Jury Instructions: Negligence: Proximate Cause: Proof: Appeal and Error. Where a jury is properly instructed concerning the plaintiff's burden to prove that the defendant's negligence was the proximate cause of the injury, it is ordinarily not error to give or refuse to give an instruction on unavoidable accident.

5. Jury Instructions: Appeal and Error. It is error to give an unavoidable accident instruction where there is no evidence in the record to give legal support to the defense that the accident was unavoidable.

6. Words and Phrases. An unavoidable accident has been defined as an unexpected 7. Negligence: Motor Vehicles. A sudden or momentary loss of consciousness while driving is a complete defense to an action based on negligence if such a loss of consciousness was not foreseeable.

catastrophe which occurs without any of the parties thereto being to blame for it.

8. Negligence: Proof. A loss of consciousness defense is an affirmative defense, and where the plaintiff has established a prima facie case of negligence, the burden of proof, or more accurately the burden of going forward with the evidence, shifts to the defendant to establish the loss of consciousness defense.

9. Negligence: Proof. Where a sudden loss of consciousness is an affirmative defense, a defendant's burden is twofold. First, the defendant must present sufficient evidence to establish that he suffered a sudden loss of consciousness prior to the accident, and second, that the loss of consciousness was not foreseeable.

10. Trial: Negligence: Motor Vehicles: Evidence. In determining whether an issue presents a question of law for the court or a question of fact for the jury, it has been held that where the evidence is conflicting as to whether the accident was caused by the driver's sudden loss of consciousness and whether the loss of consciousness was unforeseen, it is a question of fact to be determined by the jury.

11. Trial: Evidence. If the evidence points to only one reasonable conclusion, it is a question of law for the court.

12. Negligence: Proof. When a defendant pleads the affirmative defense of assumption of risk in a negligence action, the defendant has the burden to establish the elements of assumption of risk before that defense, as a question of fact, may be submitted to the jury.

13. Expert Witnesses. In personal injury cases where injuries are objective and the conclusion to be drawn from proved basic facts does not require special technical knowledge or science, use of expert testimony is not legally necessary to establish the cause and extent of such injuries.

14. Expert Witnesses. Unless the character of the injury is objective, there must be expert medical testimony to establish the causation and the extent and nature of the injuries.

15. Negligence. Generally, where it is undisputed that the defendant knew that he or she was subject to attacks which could result in a sudden loss of consciousness, the evidence is such that the defendant's loss of consciousness was foreseeable.

16. Negligence: Motor Vehicles. One who is ill must conform to the standard of a reasonable person under a like disability and may be negligent in driving at all when he or she knows that he or she is subject to such attacks.

Thomas A. Wagoner, Grand Island, for appellant.

Kenneth H. Elson, Grand Island, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

HASTINGS, Chief Justice.

Plaintiff Dorothy Storjohn appeals from a jury verdict and judgment in favor of defendant William J. Fay. Her sole consolidated assignment of error is that the district court erred in giving a jury instruction on unavoidable accident.

In an appeal based on the 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. McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994); Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994); Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994).

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. Wilson v. Misko, 244 Neb. 526, 508 N.W.2d An instruction which misstates the issues or defenses and has a tendency to mislead the jury is erroneous. Wilson, supra; Omaha Mining Co. v. First Nat. Bank, 226 Neb. 743, 415 N.W.2d 111 (1987).

238 (1993); Krehnke v. Farmers Union Co-Op. Assn., 199 Neb. 632, 260 N.W.2d 601 (1977).

On the evening of October 24, 1987, at approximately 7 p.m., the plaintiff was a passenger in the family pickup truck being driven by her daughter, Linda. While northbound on Elm Street in Grand Island, their vehicle was involved in a head-on collision when a southbound vehicle driven by the defendant entered the northbound lane. The plaintiff suffered personal injuries.

The plaintiff brought an action against the defendant alleging that the collision was caused by the defendant's carelessness, negligence, and recklessness in failing to yield the right-of-way to the vehicle being operated by the plaintiff's driver. In addition, the plaintiff alleges that the defendant failed to maintain a proper lookout and failed to keep his vehicle under proper control. In his answer, the defendant denied any negligence and pled that the collision was the result of an unavoidable accident.

The defendant testified that in about 1968 or 1969, he was told that he probably had epilepsy and had been taking medication ever since. The defendant further testified that 15 years prior to the accident, he had an attack, while driving down the highway. He stated that since the time of that attack, he had never passed out while driving a car; however, he had passed out at work. According to the defendant, he told a police officer after the accident that he did not remember what had happened and that he was epileptic and must have blacked out.

Over an objection by the plaintiff, the district court gave the jury an instruction on the defense of unavoidable accident. The pertinent portion of instruction No. 2 given by the court is as follows:

In defense to the plaintiff's claim the defendant claims that the collision between the vehicles was a result of an unavoidable accident. If you find from the evidence before you that the defendant was rendered incapacitated by a sudden and unanticipated illness and that such illness causing the incapacity was the proximate cause of the accident, then the defendant was not negligent and your verdict should be for the defendant. A sudden and unanticipated illness must be one defendant did not know of or should not have known of the fact that he might be subject to such illness. If the defendant had such knowledge or should have had such knowledge of the illness which caused the incapacitation then the defendant is required to take more precautions under such circumstances than persons not subject to such illness. If you find that defendant failed to act as a reasonably prudent person under the circumstances and with such knowledge, and that such failure was a proximate cause of the accident then your verdict should be for the plaintiff and against the defendant.

The jury returned a verdict for the defendant.

The plaintiff argues that the defendant failed to meet his burden to establish the requisite elements of an unavoidable accident defense. The plaintiff's argument is based on two assertions: one, that the defendant failed to present expert testimony regarding his claim of epilepsy and the causative link between the claimed epilepsy and his loss of consciousness, and two, that the defendant failed to present evidence that his loss of consciousness was not foreseeable.

This court has held in several cases, most recently in Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985), that where, as in the present case, a jury is properly instructed concerning the plaintiff's burden to prove that the defendant's negligence was the proximate cause of the injury, it is ordinarily not error to give or refuse to give an instruction on unavoidable accident. See, also, Schmidt v. Johnson, 184 Neb. 643, 171 N.W.2d 64 (1969). However, this court has stated that it is error to give an unavoidable accident instruction where there is no evidence in the record to give legal support to the defense that the accident was unavoidable.

Owen, Administrator v. Moore, 166 Neb. 226, 88 N.W.2d 759 (1958).

The unavoidable accident doctrine is well established in Nebraska and has been defined by this court as an unexpected catastrophe which occurs without any of the parties thereto being to blame for it. Id.; Wright v. Lincoln City Lines, Inc., 163 Neb. 679, 81 N.W.2d 170 (1957). In his answer, the defendant alleged that the accident was unavoidable. However, from the record and the argument of counsel it is clear that the defendant has not based his defense upon an unavoidable accident in the ordinary negative sense where all parties prove themselves to be free from...