Vilas v. Steavenson, s. S-90-730
| Decision Date | 12 March 1993 |
| Docket Number | Nos. S-90-730,S-90-969,s. S-90-730 |
| Citation | 242 Neb. 801,496 N.W.2d 543 |
| Parties | Jorge VILAS, Jr., Appellee and Cross-Appellee, v. Bill STEAVENSON, et al., Appellees and Cross-Appellants, State of Nebraska, Appellant, and W.A. Biba Engineering Company, a Corporation, Appellee. Jorge VILAS, Jr., Appellee and Cross-Appellee, v. Bill STEAVENSON, et al., Appellants, Sean D. Oelkers, et al., Appellees and Cross-Appellants, and W.A. Biba Engineering Company, a Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment: Records: Appeal and Error. Affidavits, depositions, and other evidence considered at a hearing on a motion for summary judgment must be preserved in a bill of exceptions filed in the court before an order on such a motion may be reviewed.
2. Tort Claims Act: Appeal and Error. The findings of fact of the trial court in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly incorrect.
3. Trial: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong.
4. Trial: Appeal and Error. In reviewing the findings of the trial court, we presume that the court resolved any controverted facts in favor of the successful party, and we consider the evidence and permissible inferences therefrom most favorably to that party.
5. Negligence: Motor Vehicles. The driver of an automobile is legally and mandatorily obligated to keep such a lookout that he can see what is plainly visible before him and to operate his automobile in such a manner that he can stop it and avoid a collision with any object in front of him.
6. Negligence: Proximate Cause. There are three basic requirements in establishing proximate cause. The first requirement is that the negligence be such that without which the injury would not have occurred, commonly known as the "but for" rule. The second requirement is that the injury be the natural and probable result of the negligence. The third requirement is that there be no efficient intervening cause.
7. Proximate Cause: Trial. The determination of causation is, ordinarily, a matter for the trier of fact.
8. Motor Vehicles: Minors: Negligence: Liability: Damages. An owner of a motor vehicle, who knowingly entrusts it to an under-age, unlicensed minor in violation of statute, is guilty of negligence and liable for damages proximately resulting from the negligent operation of the motor vehicle.
9. Motor Vehicles: Negligence: Proximate Cause: Pleadings: Proof. The plaintiff must also allege and prove that defendant's negligence was the proximate cause of the accident and injury. In order to establish that proximate causation, the plaintiff must allege and prove that the driver operated the automobile negligently, and that his negligence was a proximate cause of that accident.
10. Motor Vehicles: Negligence: Liability. The initial permission of an automobile owner to members of his family to use a family-purpose car does not include authority to delegate the driving of the automobile to a third person not a member of the family. Consequently, liability does not attach to the owner for the negligence of such third person.
11. Proximate Cause: Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which itself is the proximate cause of the injury in question and breaks the causal connection between original conduct and the injury.
Robert M. Spire, Atty. Gen. and Lynne R. Fritz, Lincoln, for appellant State.
Joseph W. Grant of Gaines, Mullen, Pansing & Hogan, Omaha, for appellants Steavenson and Hilgenkamp.
Thomas K. Harmon and John J. Respeliers of Respeliers and Harmon, P.C., Omaha, for appellee Vilas.
Edward G. Warin and Michael C. Schilken of Gross & Welch, P.C., Omaha, for appellees Oelkers.
This is an action for damages for injuries caused by an automobile accident that occurred on May 16, 1987.
The plaintiff, Jorge S. Vilas, Jr., was a passenger in an automobile, which was owned by Bill Steavenson and operated by Matthew Hilgenkamp, when it collided with a pickup truck owned by Michael Hampton. As a result of an injury to his right leg, the plaintiff now has a permanent limp and a 10 percent permanent disability to his right leg.
The defendants in this action are Bill Steavenson, Billy Steavenson, Matthew Hilgenkamp, Sean Oelkers, David Oelkers, the State of Nebraska, and W.A. Biba Engineering Company. After a bench trial, the district court found generally in favor of the plaintiff against all defendants except the engineering company and awarded the plaintiff damages in the amount of $50,000. All defendants except the engineering company have appealed from the judgment. There is no issue concerning the injuries to the plaintiff or the amount of damages which he recovered.
The record shows that a series of collisions occurred on May 16, 1987, at about 11:30 p.m. on Highway 30, approximately seven-tenths of a mile west of Ames, Nebraska. At the time of the accident, W.A. Biba Engineering Company, a private contractor engaged by the State, was resurfacing Highway 30. The road surface was fresh asphaltic concrete. There was a 4 to 5 inch "drop-off" from the edge of the pavement to the unpaved dirt shoulder.
The initial collision occurred when both the right front and rear wheels on the passenger side of an automobile driven by Sean Oelkers, and owned by David Oelkers, encountered the pavement "drop-off" and left the paved portion of the highway going on to the unpaved shoulder. As the Oelker vehicle returned to the paved portion of the highway, it swerved across the center line and was struck by the pickup truck owned and operated by Michael Hampton. The Hampton vehicle spun clockwise and came to rest in the eastbound lane of the highway facing in a westerly direction. Later, the automobile in which Vilas was a passenger collided with the Hampton vehicle. Subsequently a fourth vehicle also collided with the Hampton vehicle.
Nebraska State Patrol Officer Gurney Pittenger, who investigated the accident, testified that the speed of the Oelkers' vehicle upon returning to the paved portion of the highway was 66 miles per hour. Pittenger further testified that prior to colliding with the Hampton vehicle, the vehicle driven by Hilgenkamp left skid marks approximately 97 feet in length. The force of the impact from the collision between the two vehicles moved the Hampton pickup approximately 55 feet farther down the roadway.
On September 26, 1989, the plaintiff moved for summary judgment on the issue of liability against the State of Nebraska. In support of the motion, the plaintiff referred to the trial court's finding in Mandel v. State, a similar case arising out of the same facts, that the State was negligent. In Mandel a motion for summary judgment on the issue of the State's liability was granted based upon the trial court's finding of the State's negligence in a similar case, Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992).
The trial court sustained the plaintiff's motion for summary judgment against the State of Nebraska on October 31, 1989. The court's order provided:
On October 10, 1989, this matter came on for hearing upon the plaintiff's Motion for Summary Judgment against the defendant, State of Nebraska. Argument was had and the matter taken under advisement.
The Court now being fully advised in the premises does Find and Order that said Motion for Summary Judgment against the defendant, State of Nebraska, on the issue of liability should be and the same is hereby sustained.
The State of Nebraska has assigned numerous errors with regard to the order sustaining the plaintiff's motion for summary judgment as to the State of Nebraska's liability.
Although the trial court's order indicated that a hearing was held on the motion for summary judgment, no record was made and there is no record of what evidence was offered and considered with regard to the motion. Presumably, the trial court took notice of the proceedings in the Maresh case, as the Maresh record accompanies the record of this case. However, there is nothing in the record of this case that shows that the Maresh record was offered at the hearing or that the trial court did in fact take notice of the Maresh record.
In the present state of the record we do not consider any of the evidence from the Maresh case. Affidavits, depositions, and other evidence considered at a hearing on a motion for summary judgment must be preserved in a bill of exceptions filed in the court before an order on such a motion may be reviewed. Keystone Ranch Co. v. Central Neb. Pub. Power & Irr. Dist., 237 Neb. 188, 465 N.W.2d 472 (1991); Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959); Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973).
Since the state failed to preserve and present a record of the hearing on the motion for summary judgment, this court is unable to review the order sustaining the plaintiff's motion for summary judgment. In the absence of a bill of exceptions concerning the evidence which may have been offered at the hearing on the motion for summary judgment, there is nothing to review, and this court cannot determine whether error occurred. Consequently, the State's assignments of error relating to the motion for summary judgment are without merit.
The findings of fact of the trial court in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly incorrect. Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992). Likewise, in a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong. Broekemeier...
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