Woollen v. State
| Decision Date | 07 May 1999 |
| Docket Number | No. S-98-127,S-98-127 |
| Citation | 593 N.W.2d 729,256 Neb. 865 |
| Parties | Rex A. WOOLLEN, Appellee and Cross-Appellant, v. The STATE of Nebraska, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Tort Claims Act: Appeal and Error. In actions brought under the State Tort Claims Act, findings of fact made by the trial court will not be set aside unless such findings are clearly incorrect.
2. Tort Claims Act: Liability: Immunity: Appeal and Error. Where the facts of a case brought pursuant to the State Tort Claims Act are undisputed, the issue of whether liability is precluded by sovereign immunity is a question of law in which an appellate court reaches a conclusion independent of the lower court's ruling.
3. Rules of Evidence. In proceedings where the Nebraska Rules of Evidence apply the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
4. Trial: Expert Witnesses: Appeal and Error. Admission of expert witness testimony is ordinarily within the discretion of the trial court, and its ruling will be upheld in the absence of an abuse of discretion.
5. Tort Claims Act: Damages: Appeal and Error. The amount of damages awarded in a case pursuant to the State Tort Claims Act is a matter solely for the finder of fact, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved at trial.
6. Statutes: Immunity: Waiver: Intent. Statutes that purport to waive the State's sovereign immunity must be clear in their intent. They are strictly construed in favor of the sovereign and against the waiver.
7. Governmental Subdivisions: Negligence: Notice. When a governmental entity has actual or constructive notice of a dangerous condition or hazard caused by or under the control of the governmental entity and the dangerous condition or hazard is not readily apparent to persons who are likely to be injured by it, the governmental entity has a nondiscretionary duty to warn of the danger or take other protective measures that may prevent injury as the result of the dangerous condition or hazard.
8. Governmental Subdivisions: Highways: Liability. The State's liability for failure to maintain highways is the same as the comparable liability of counties.
9. Negligence: Words and Phrases. A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.
10. Negligence: Proof. Foreseeability is a factor in establishing a defendant's duty.
11. Negligence. Whether a legal duty exists for actionable negligence is a question of law dependent on the facts of a particular case.
12. Governmental Subdivisions: Negligence: Notice: Proof. A governmental entity's actual or constructive knowledge of a hazard or dangerous condition coupled with the entity's failure to follow governing statutes, policies, or rules that mandate warning of or correction of the hazard may, in a proper case, provide evidence of the entity's duty to a plaintiff and breach of that duty.
13. Negligence: Trial. Determination of causation is ordinarily a matter for the trier of fact.
14. Torts: Actions: Damages: Attorney Fees. One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees, and other expenditures thereby suffered or incurred in the earlier action.
15. Damages. The measure of recovery for damage to personal property that cannot be repaired and thereby restored to substantially its condition immediately before the damage occurred is the lost market value plus the reasonable value of the loss of use of the property for the reasonable amount of time required to obtain a suitable replacement.
Don Stenberg, Attorney General, and Hobert B. Rupe, Omaha, for appellant.
Siegfried H. Brauer, Kearney, for appellee.
The State of Nebraska appeals from a judgment entered following a bench trial finding the State liable to Rex Woollen, appellee, under the State Tort Claims Act (Act), Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987 & Cum.Supp.1992), for damages Woollen sustained in a one-car accident on Highway 136 in Johnson County, Nebraska. Woollen cross-appeals, challenging the trial court's conclusion that he was responsible for 40 percent of the negligence that proximately caused the accident, various findings with respect to items of damages, and an evidentiary ruling.
With respect to the State's appeal, we affirm the trial court's finding as to the comparative negligence of the parties. With respect to the cross-appeal, we conclude the trial court erred in striking Woollen's damage claim for legal expenses he paid in proceedings prior to the trial herein that concerned medical bills incurred for the treatment of injuries he sustained in the accident. We reverse, and remand for a new trial in the trial court limited to Woollen's claim for damages in the instant action due to legal expenses incurred in these other prior proceedings, and if such damages are established, they are to be reduced by Woollen's percentage of negligence. We conclude the remainder of the assigned errors in Woollen's cross-appeal are without merit.
On February 14, 1992, at approximately 4:50 p.m., Woollen was driving his 1985 Buick Skylark west on Highway 136 in Johnson County when he was involved in a one-car automobile accident. Woollen, a 53-year old farmer, was alone in his vehicle. There was still daylight, and the temperature was approximately 45 degrees Fahrenheit. At the time of the accident, rain had been falling steadily for some time.
The surface of Highway 136 was deeply rutted, and as Woollen drove he tried to keep his car's tires on the ridges separating the ruts, for better control. Woollen was not familiar with the road conditions on Highway 136. He testified that he had driven on Highway 136 about five times in the 4 years preceding his accident but that he had never driven on Highway 136 in the vicinity of the accident in rainy or otherwise wet conditions.
Driving on the rutted surface, Woollen's car hit a pool of water that had "ponded" over the ruts and covered the entire width of the highway at the bottom of a low-grade slope. Woollen's car hydroplaned, and he lost control of it. The car veered diagonally across the highway, crossing the lane for oncoming traffic before leaving the road and striking a concrete culvert headwall located approximately 12 feet from the edge of the south side of the highway. As a result of the impact, Woollen's car flipped and rolled, and Woollen was ejected from it and sustained injuries.
Woollen sued the State for various damages under the Act. Woollen alleged, inter alia, that the State negligently failed to safely maintain the highway and negligently failed to warn motorists of the hazardous conditions at the accident site. Woollen's claim for damages for legal expenses incurred in prior proceedings brought to collect medical fees incurred for treatment of injuries he sustained in the accident were stricken before trial. Woollen filed his petition against the State in the district court for Johnson County on November 28, 1994.
When Woollen's accident occurred in February 1992, the surface of Highway 136 at the accident site was covered with asphaltic pavement. Over time, traffic had formed ruts on the highway's surface. In the westbound lane in which Woollen was traveling prior to the accident, the depth of the ruts was from one-half inch to over an inch. Trial evidence showed that some ruts were deeper than three-fourths of an inch at the point at which Woollen's car began to hydroplane. As a result of the highway's downward slope and steady rainfall on the day of the accident, water had filled and flowed out of the ruts, forming a pool across the highway. It was at this pool of water that Woollen lost control of his car when it began hydroplaning.
Fact witness Roger Batterscher testified that shortly before the accident, Woollen's car passed Batterscher's car after Batterscher had reduced his speed from 50 m.p.h to approximately 40 m.p.h. because of the highway ruts and the pooling water. Batterscher testified that in his experience, the road's rutted surface made it unsafe to drive at the 55-m.p.h. posted speed limit when the road was wet. The existence and depth of the ruts in the vicinity of the accident were not seriously disputed at trial.
In 1972 and 1973, the State resurfaced Highway 136 at the accident location, applying a new asphaltic surface. No other changes were made to the highway or to the culvert and headwall.
In 1989, the State Department of Roads commenced the "Rehabilitation, Restoration and Reconstruction Project," which came to be known as the 3R Project, for Highway 136 at and near the accident site. As part of the 3R Project, the State extensively studied the highway's condition, and thus, the State was aware prior to Woollen's accident of the highway's slope, its deep surface ruts, and other automobile accidents caused by hydroplaning which had occurred in the approximate location of Woollen's accident.
In 1971 and again in 1991, the State adopted highway design and maintenance standards which specifically addressed, inter alia, the safety risks posed by ruts in road surfaces and the proper situation of culverts in relation to the edges of roadways. The trial court accepted evidence of these and other related standards, including exhibit 18, "Minimum Design...
To continue reading
Request your trial
- State v. Harrold
-
Bronsen v. Dawes County
...i.e., the duty to conform to the legal standard of reasonable conduct in light of the apparent risk. See, e.g., Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999). If the RLA were interpreted to apply to public property serving dual purposes, it takes little effort to envision numerous c......
-
Rocky Mountain Festivals, Inc. v. Parsons Corp.
...N.W.2d 912, 917 (Iowa 1994); O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 664 N.E.2d 843, 850 (1996); Woollen v. State, 256 Neb. 865, 593 N.W.2d 729, 744-45 (1999); Barnes v. Okla. Farm Bureau Mut. Ins. Co., 11 P.3d 162, 181 (Okla.2000); Wells v. Aetna Ins. Co., 60 Wash.2d 880, 37......
-
King v. State
...its meaning. Id. Statutes that purport to waive the State's sovereign immunity must be clear in their intent. Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999). They are strictly construed in favor of the sovereign and against the waiver. Id. See, also, Hoiengs v. County of Adams, 245 N......