Golnick v. Callender ( 2015 )

Nebraska Advance Sheets
GOLNICK v. CALLENDER 395
Cite as 290 Neb. 395
Jan J. Golnick, appellant, v.
Jack W. Callender, appellee.
___ N.W.2d ___
Filed March 20, 2015. No. S-14-032.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
3. Pleadings. A district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of
the moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
4. Negligence: Evidence. A defendant’s tortious conduct is a question of fact that a
defendant can judicially admit.
5. Negligence: Motor Vehicles: Evidence: Proximate Cause. When a defendant
in a vehicle accident case admits to negligently causing the accident but denies
the nature and extent of the plaintiff’s injuries, evidence of the collision itself is
admissible. In that circumstance, proximate causation is at issue and the evidence
is relevant to show the nature of the contact and its force.
6. Pleadings: Evidence. A court’s discretion to admit or exclude cumulative evi-
dence on an admitted fact also applies to a court’s decision to allow a pleading
amendment that results in the production of that evidence.
7. Rules of the Supreme Court: Pleadings. In exercising its discretion to permit
or deny an amendment regarding an admitted fact, a court should consider the
prevailing factors under Neb. Ct. R. Pldg. § 6-1115(a). It should also consider
whether the new allegations are relevant to a component of a party’s claim or
defense that the nonmoving party has not admitted.
8. Negligence: Damages. Nebraska law does not permit a plaintiff to obtain puni-
tive damages over and above full compensation for the plaintiff’s injuries.
9. Negligence: Evidence. In a negligence case, evidence intended to punish a
defendant’s conduct or deter similar conduct is not at issue.
10. Trial: Evidence: Juries: Final Orders. A motion in limine is a procedural step
to prevent prejudicial evidence from reaching the jury, but the court’s ruling on
the motion is not a final order.
11. Trial: Evidence: Appeal and Error. To preserve error regarding a court’s order
in limine, a party resisting the order must make an appropriate objection or offer
of proof at trial.
12. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s failure to give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3) the appellant was
prejudiced by the court’s failure to give the requested instruction.
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13. Jury Instructions: Appeal and Error. Jury instructions do not constitute preju-
dicial error if, taken as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and evidence.
14. Negligence: Jury Instructions: Damages. In a negligence case, a court should
instruct a jury on damages for the aggravation of a preexisting condition if the
evidence would support that finding.
15. Juries: Verdicts: Presumptions. When the jury returns a general verdict for one
party, an appellate court presumes that the jury found for the successful party on
all issues raised by that party and presented to the jury.
16. Damages: Words and Phrases. In Nebraska, hedonic damages—which are dam-
ages to compensate a plaintiff for the loss of enjoyment of life resulting from his
or her physical injuries—are subsumed within a plaintiff’s damages for pain and
suffering. They are not a separate category of damages.
17. Jury Instructions: Appeal and Error. A court does not err in failing to give
an instruction if the substance of the proposed instruction is contained in those
instructions actually given.
18. Jurors. There is no public right of access to the jurors’ deliberations
themselves.
19. Constitutional Law: Jurors: Rules of Evidence. Because there is no con-
stitutional right to obtain information about a jury’s deliberations, a court’s
discretion under Neb. Rev. Stat. § 25-1635 (Reissue 2008) to disclose juror
information for good cause shown after a verdict should be tempered by the
restrictions imposed under Neb. Evid. R. 606(2), Neb. Rev. Stat. § 27-606(2)
(Reissue 2008).
20. Rules of Evidence: Judgments: Jury Misconduct. Neb. Evid. R. 606(2), Neb.
Rev. Stat. § 27-606(2) (Reissue 2008), promotes the public interests of protecting
jurors’ freedom of deliberation and the finality of judgments, absent a plausible
allegation of juror misconduct.
21. Jury Misconduct: Evidence. When an allegation of jury misconduct is made and
is supported by a showing which tends to prove that serious misconduct occurred,
the trial court should conduct an evidentiary hearing to determine whether the
alleged misconduct actually occurred.
22. Rules of Evidence: Verdicts: Jurors: Affidavits. Neb. Evid. R. 606(2), Neb.
Rev. Stat. § 27-606(2) (Reissue 2008), prohibits admission of a juror’s affidavit
to impeach a verdict on the basis of the jury’s motives, methods, misunderstand-
ing, thought processes, or discussions during deliberations, which enter into
the verdict.
23. Jurors: Verdicts. Absent a reasonable ground for investigating, posttrial inter-
views with jurors cannot be used as a fishing expedition to find some reason to
attack a verdict.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Matthew A. Lathrop, of Law Office of Matthew A. Lathrop,
P.C., L.L.O., for appellant.
Nebraska Advance Sheets
GOLNICK v. CALLENDER 397
Cite as 290 Neb. 395
Joseph E. Jones and Alexander D. Boyd, of Fraser Stryker,
P.C., L.L.O., for appellee.
James E. Harris, of Harris Kuhn Law Firm, L.L.P., for
amicus curiae Nebraska Association of Trial Attorneys.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
Jan J. Golnick appeals from the district court’s judgment
in his negligence action against Jack W. Callender. Callender
amended his answer to admit that he was negligent in caus-
ing the vehicle accident that injured Golnick. Thereafter, the
court sustained Callender’s motion to preclude evidence of his
negligence at trial. The court also denied Golnick’s request to
amend his complaint to allege specific acts of tortious conduct
and rejected three of his proposed jury instructions. The jury
returned a verdict for Callender. Finding no reversible error,
we affirm.
II. BACKGROUND
In October 2009, Golnick filed a complaint alleging that
in October 2005, he and Callender were driving on the same
street in opposite directions when Callender’s vehicle crossed
the centerline and crashed head on into Golnick’s vehicle. He
alleged that he sustained injuries as a “direct and proximate
result of the crash.”
In Callender’s original answer, he denied that the accident
occurred as Golnick alleged. In 2013, Callender sought leave
to file an amended answer. He still denied that the accident
occurred as Golnick alleged, but he admitted that “he was neg-
ligent and that his negligence was the proximate cause of the
accident.” He denied the nature and extent of Golnick’s injuries
and all other allegations.
Golnick objected to the amendment and moved to file an
amended complaint, which would have alleged that when
Callender crossed the centerline, he was distracted by his cell
phone. At the hearing on the parties’ proposed amendments,
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Golnick offered a police report to show that (1) an issue of
fact existed regarding Callender’s denial that the accident hap-
pened as Golnick alleged and (2) Callender had not admitted to
the relevant facts regarding the alleged negligence. The court
received the police report for deciding whether to allow the
pleading amendments.
At the hearing, the court stated that Golnick wanted to
“put in evidence to make [Callender] more liable than just
the admitting of negligence. You want to make him derelict.”
The court concluded that the issue was whether Callender
had “proper control of his car, not whether he was on his cell
phone.” The court overruled Golnick’s objections to Callender’s
amended answer and overruled Golnick’s request to amend
his complaint.
Callender then moved for an order in limine to prohibit
Golnick from presenting any evidence about Callender’s neg-
ligence. As relevant here, Callender sought to exclude (1)
evidence that he was distracted by his cell phone and (2)
evidence that he was cited, charged, or convicted of a traffic
violation because of the accident. Callender also sought to
admit evidence of Golnick’s pleadings in a pending negli-
gence case about a 2007 vehicle accident involving Golnick.
In both cases, Callender alleged that the accident caused
Golnick to have permanent injuries to his neck, head, shoul-
der, and back. The court’s rulings on these motions are not
part of the record.
At the start of the trial, the court briefly explained to the
jurors that while Golnick and Callender were traveling on the
same street, Callender’s vehicle crossed the centerline and
struck Golnick’s vehicle. The court also explained that because
Callender admitted that his negligence caused the collision,
they would not have to decide the cause of the collision.
In Golnick’s opening statement, his attorney told the jurors
that Callender had veered into oncoming traffic and hit
Golnick’s vehicle head on when Callender saw that the
traffic in front of him had stopped. His attorney said that
Golnick’s preexisting eye problems and preexisting back
problems did not account for the eye problems and back
problems that Golnick began to experience within a month
Nebraska Advance Sheets
GOLNICK v. CALLENDER 399
Cite as 290 Neb. 395
after the accident. He also stated that Golnick’s problems
were not caused by a severe 2007 accident in which Golnick
was struck from behind. He admitted that Golnick’s problems
were permanently worsened by the 2007 accident. But he
stated that Golnick had already sustained permanent inju-
ries before 2007 and that his pain had never gone away. In
Callender’s opening statement, his attorney listed evidence
that would show the 2005 accident did not cause Golnick’s
physical problems.
At trial, the evidence showed that Golnick was age 71
and had some preexisting health problems before the 2005
accident. The court admitted a photograph of his vehicle that
showed minor damage to the front bumper and grill. Golnick
did not attempt to submit evidence on Callender’s distraction
by his cell phone or make an offer of proof on that fact. The
court admitted the pleadings in the 2007 action.
At the jury instruction conference, the court rejected
Golnick’s proposed jury instructions Nos. 2, 3, and 4. The
jury returned a unanimous verdict for Callender. After enter-
ing judgment for Callender, the court denied Golnick’s
request to obtain the name, address, and telephone number
for each juror.
III. ASSIGNMENTS OF ERROR
Golnick assigns that the court erred as follows:
(1) not allowing Golnick to amend his complaint to allege
specific acts of negligence;
(2) overruling Golnick’s objection to Callender’s motion to
amend his answer;
(3) permitting Callender to deny that the collision occurred
in the manner Golnick alleged while admitting that his negli-
gence caused the collision;
(4) sustaining Callender’s motion in limine to prohibit
Golnick from telling jurors that Callender had admitted to spe-
cific acts of negligence, including using a cell phone;
(5) rejecting Golnick’s requested jury instruction No. 4 on
the “Statement of the Case”;
(6) rejecting Golnick’s requested jury instruction No. 3 on
aggravation of a preexisting condition;
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(7) rejecting Golnick’s requested jury instruction No. 2 on
damages; and
(8) denying Golnick’s posttrial request for juror information.
IV. STANDARD OF REVIEW
[1,2] Permission to amend a pleading is addressed to the
discretion of the trial court, and an appellate court will not
disturb the trial court’s decision absent an abuse of discretion.1
Whether a jury instruction is correct is a question of law, which
an appellate court independently decides.2
V. ANALYSIS
1. Court Did Not Abuse Its Discretion
in Granting Callender Leave
to A mend H is A nswer
Golnick contends that the court erred in permitting Callender
to amend his answer to admit that he was negligent while
he was still denying that the accident occurred as Golnick
alleged. He argues that parties can only admit facts within
their knowledge, not legal conclusions. Callender counters that
negligence and proximate cause are questions of fact and that
we have previously allowed defendants to admit negligence
and causing an accident without admitting to causing the
plaintiff’s injuries.
[3] Under Neb. Ct. R. Pldg. § 6-1115(a), leave to amend
“shall be freely given when justice so requires.” A district
court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay,
bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can
be demonstrated.3 Golnick argues that the court’s ruling pre-
cluded him from producing relevant evidence on Callender’s
1
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
2
Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 828
N.W.2d 147 (2013).
3
InterCall, Inc., supra note 1.
Nebraska Advance Sheets
GOLNICK v. CALLENDER 401
Cite as 290 Neb. 395
negligence. We disagree that Callender’s amendment preju-
diced Golnick.
[4,5] Callender correctly argues that a defendant’s tortious
conduct is a question of fact4 that a defendant can judicially
admit.5 A defendant can admit to negligently causing an
accident without admitting to causing the plaintiff’s injuries.6
But when a defendant in a vehicle accident case admits to
negligently causing the accident but denies the nature and
extent of the plaintiff’s injuries, evidence of the collision
itself is admissible. In Springer v. Smith,7 we explained
that proximate causation is at issue in that circumstance
and that the evidence is “relevant to show the nature of the
contact and its force.” As the Restatement (Third) of Torts8
explains, determining whether an act is a factual cause of
an outcome requires the fact finder to make an inference
based on personal experience and some understanding of the
causal mechanism. And we have previously recognized that
proving tortious conduct is crucial to a causal inquiry.9 So,
to the extent that a defendant’s tortious conduct is relevant
to proving how the conduct caused the plaintiff’s injuries,
the production of such evidence is unaffected by an admis-
sion, standing alone, that the defendant negligently caused a
vehicle accident.
Accordingly, Callender’s admission did not preclude
Golnick from producing evidence relevant to proving the
nature and force of the accident (the causal mechanism)
resulting in Golnick’s injuries. Nor did the court’s order in
4
See Downey v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d
839 (2012).
5
See, e.g., Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
6
See Cooper v. Hastert, 175 Neb. 836, 124 N.W.2d 387 (1963).
7
See Springer v. Smith, 182 Neb. 107, 110, 153 N.W.2d 300, 302 (1967).
8
See Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 28, comment b. (2010).
9
See C.E. v. Prairie Fields Family Medicine, 287 Neb. 667, 844 N.W.2d 56
(2014), citing Restatement, supra note 8, § 26, comment h.
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limine preclude this evidence. Because Golnick was free to
present this evidence, Callender’s admission that he negli-
gently caused the accident was a conclusive fact that Golnick
could use to his advantage.10 We conclude that the court’s
granting Callender leave to amend his answer did not unfairly
prejudice Golnick. We recognize that Golnick’s argument on
this issue is intertwined with his contention that the court
should have permitted him to amend his complaint. But that
argument does not change our conclusion.
2. Court Did Not Abuse Its Discretion
in Denying Golnick’s R equest
to A mend H is Complaint
Before trial, Golnick also moved to amend his complaint to
include specific acts of Callender’s negligence—most signifi-
cantly, Callender’s distraction by his cell phone—that caused
the accident. Golnick contends that the court erred in denying
his request to amend. He argues that Callender would not have
been unfairly prejudiced by requiring him to admit to more
specific negligent conduct. The amicus curiae, the Nebraska
Association of Trial Attorneys, argues that the court’s ruling
deprived the jury of hearing the full factual basis for determin-
ing that Callender’s negligence caused Golnick’s injuries. The
association also contends that courts should not permit par-
ties to stipulate or admit their way out of the presentation of
unfavorable evidence. Callender argues that because he admit-
ted to negligently causing the accident, the only remaining
issue for trial was the nature and extent of Golnick’s injuries,
and that additional allegations of negligence were irrelevant
to damages.
As explained, Callender did not admit to causing Golnick’s
injuries, so Callender incorrectly argues that the only issue
for trial was damages. But here, allowing the amendment
would have permitted Golnick to prove Callender’s spe-
cific acts of negligence. And because Callender admitted to
10
See, e.g., Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d 786
(2000).
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negligently causing the accident, the decision whether to admit
or exclude Golnick’s evidence would have been a matter of
judicial discretion:
A fact that is judicially admitted needs no evidence
from the party benefiting by the admission. But his evi-
dence, if he chooses to offer it, may even be excluded;
first, because it is now as immaterial to the issues as
though the pleadings had marked it out of the controversy
. . . ; next, because it may be superfluous and merely
cumber the trial . . . ; and furthermore, because the added
dramatic force which might sometimes be gained from
the examination of a witness to the fact (a force, indeed,
which the admission is often designed especially to obvi-
ate) is not a thing which the party can be said to be
always entitled to.
Nevertheless, a colorless admission by the opponent
may sometimes have the effect of depriving the party of
the legitimate moral force of his evidence; furthermore,
a judicial admission may be cleverly made with grudg-
ing limitations or evasions or insinuations (especially in
criminal cases), so as to be technically but not practically
a waiver of proof. Hence, there should be no absolute
rule on the subject; and the trial court’s discretion should
determine whether a particular admission is so plenary as
to render the first party’s evidence wholly needless under
the circumstances.11
[6,7] We conclude that the same discretion to admit or
exclude cumulative evidence on an admitted fact also applies
to a court’s decision to allow a pleading amendment that
results in the production of that evidence. As stated, the
considerations under our pleading rules are undue delay, bad
faith, unfair prejudice, and futility of the amendment.12 So if
the court determines that it will not permit the party to pro-
duce a piece of evidence, then the party’s amendment of the
11
9 John Henry Wigmore, Evidence in Trials at Common Law § 2591 at 824
(James H. Chadbourn rev. ed. 1981) (emphasis in original).
12
See § 6-1115(a).
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pleading to allege this fact would be futile.13 In exercising
its discretion to permit or deny an amendment regarding an
admitted fact, a court should consider the prevailing factors
under § 6-1115(a). It should also consider whether the new
allegations are relevant to a component of a party’s claim or
defense that the nonmoving party has not admitted.
Here, because Callender had admitted to negligently caus-
ing the collision, Golnick’s proposed allegations regarding
Callender’s distraction by his cell phone and other negligent
acts were needless proof on the issue of tortious conduct. No
other tort-feasor contributed to the accident, and Callender
did not allege contributory negligence. So allocation of fault
was not at issue. Nor did the court’s order denying the amend-
ment preclude Golnick from presenting evidence to show how
Callender’s conduct caused Golnick’s injuries.
[8,9] Moreover, Nebraska law does not permit a plaintiff to
obtain punitive damages over and above full compensation for
the plaintiff’s injuries.14 This means that in a negligence case,
evidence intended to punish a defendant’s conduct or deter
similar conduct is not at issue. We have previously upheld a
district court’s mistrial order because the plaintiff suggested
that the defendant’s intoxication was the reason that he neg-
ligently caused a vehicle accident when the defendant had
admitted to negligently causing the accident and the court had
precluded the intoxication evidence.15
Finally, we reject the Nebraska Association of Trial
Attorneys’ argument that the U.S. Supreme Court’s decision
in Old Chief v. United States16 applies to this civil case. There,
13
See, Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420 (7th Cir. 1993);
Harris v. Equilon Enterprises, LLC, 107 F. Supp. 2d 921 (S.D. Ohio
2000); Hartnett v. Globe Firefighter Suits, Inc., No. 97-2156, 1998 WL
390741 (4th Cir. June 29, 1998) (unpublished disposition listed in table of
“Decisions Without Published Opinions” at 155 F.3d 559 (4th Cir. 1998)).
14
See, e.g., Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846,
443 N.W.2d 566 (1989); Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684
(1960).
15
See Huber, supra note 5.
16
Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d
574 (1997).
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the Court held that a district court abuses its discretion under
Fed. R. Evid. 403 if it spurns a defendant’s offer to concede a
prior judgment and instead admits the full judgment over the
defendant’s objection. The Court reasoned that the evidence
was unnecessary to prove a defendant’s felon status at the
time he illegally possessed a gun. There, the jury’s knowledge
of the name or nature of the prior offense raised the risk that
a guilty verdict would be tainted by improper considerations
and the evidentiary alternative did not interfere with the gov-
ernment’s presentation of its case. But the Court extensively
discussed the importance of normally allowing prosecutors
to present coherent narrative evidence in criminal cases. It
explained that interruptions for abstract admissions could make
jurors think the government is withholding material evidence
and possibly be less willing to vindicate the public’s interest in
punishing the crime.
In a negligence case, however, the plaintiff is not vindicat-
ing the public’s interest in punishing the defendant’s wrongful
conduct and is not concerned with a juror’s possible reluctance
to do so. A plaintiff’s interest in a negligence case is limited to
compensation for the harm caused by the defendant’s tortious
conduct. So the reasoning in Old Chief does not apply. We
conclude that the court did not abuse its discretion in denying
Golnick’s request to amend his complaint.
3. Golnick Failed to P reserve
Error Assigned to Court’s
Order in Limine
Golnick contends the court erred in sustaining Callender’s
motion in limine to prohibit Golnick from producing evidence
of Callender’s distraction by his cell phone. But Golnick did
not obtain a final order on this exclusion by offering proof at
trial of the evidence that he believed was admissible.
[10,11] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury, but the court’s
ruling on the motion is not a final order.17 To preserve error
regarding a court’s order in limine, a party resisting the
17
See, e.g., Christian v. Smith, 276 Neb. 867, 759 N.W.2d 447 (2008).
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order must make an appropriate objection or offer of proof at
­trial.18 Because Golnick failed to preserve his assigned error,
we do not consider the court’s order in limine beyond what
was necessary to dispose of Golnick’s assignments regard-
ing the court’s rulings on the parties’ motions to amend
their pleadings.
4. Court’s Jury Instructions Were
Correct or Not P rejudicial
Golnick contends that the court erred in failing to give three
of his proposed jury instructions.
[12,13] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.19 Jury instructions do
not constitute prejudicial error if, taken as a whole, they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and evidence.20
(a) Court Properly Rejected Golnick’s
Proposed Jury Instruction No. 4
Golnick contends that the court erred in failing to give
his proposed jury instruction No. 4. That instruction would
have informed the jury of the specific ways in which Golnick
believed that Callender was negligent while driving. Golnick
does not argue this assignment except to state that there was
evidence to sustain the allegations. We conclude that this argu-
ment is subsumed by our analysis of the court’s ruling on the
parties’ motions to amend their pleadings. As noted, the court
did not abuse its discretion in allowing Callender to admit his
negligence and denying Golnick leave to amend his complaint.
So it correctly determined that Callender’s specific acts of neg-
ligence were not factual questions for the jury to decide.
18
See id.
19
InterCall, Inc., supra note 1.
20
Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
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(b) Court’s Failure to Specifically Instruct
Jury on Golnick’s Aggravation Damages
Was Not Prejudicial Error
At trial, the court instructed the jury as follows on the effect
of Golnick’s preexisting back problems:
There is evidence that [Golnick] had spinal stenosis
prior to the collision of October 5, 2005. [Callender] is
liable only for any damages that you find to be proxi-
mately caused by the collision.
If you cannot separate damages caused by the preex-
isting condition from those caused by the collision, then
[Callender] is liable for all of those damages.
Golnick’s proposed instruction No. 3 would have added a
third paragraph: “This is true even if the person’s condition
made him more susceptible to the possibility of ill effects than
a normally healthy person would have been, and even if a
normally healthy person probably would not have suffered any
substantial injury.”
The first paragraph of the court’s instruction is the stan-
dard jury instruction No. 4.09 for determining damages when
the plaintiff has a preexisting condition.21 The second para-
graph is frequently called the “apportionment” instruction.22
It is appropriately used when the jury may be unable to pre-
cisely determine which of the plaintiff’s damages were not
preexisting.23
Golnick contends that the court erred in failing to give his
proposed third paragraph. He argues that the court’s instruc-
tion did not explain that the jury could find Callender liable
for aggravating Golnick’s preexisting condition even if the
preexisting condition made him more susceptible to a greater
injury than what might normally occur. Golnick argues that in
Ketteler v. Daniel,24 we required an instruction like the one he
proposed for a plaintiff with a preexisting condition. And he
21
See NJI2d Civ. 4.09.
22
Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561 N.W.2d 212
(1997).
23
See David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (1996).
24
Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996).
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argues that the jury may have denied him a recovery because it
concluded his back injury would not have occurred absent his
preexisting condition.
Callender argues that the court did not err in using the pat-
tern jury instruction and the additional instruction for cases in
which the jury may not be able to separate damages caused
solely by the tortious act. He argues that Golnick has pointed
to no evidence that his preexisting condition made him more
susceptible to his claimed injuries. Additionally, Callender
argues that Golnick’s proposed instruction is not the same as
the instruction in Ketteler. He argues that the Nebraska Court
of Appeals has approved of the instruction that the court gave.
Finally, because the jury returned a unanimous general verdict
form for him, Callender argues that they presumptively decided
all the issues in his favor. Because of the general verdict, he
contends that whether Golnick was more susceptible to injury
is irrelevant.
In Ketteler, an issue at trial was whether the plaintiff’s
fibromyalgia was a preexisting condition or the accident
caused it. The court instructed the jury that there was evidence
the plaintiff had neck, back, and hip problems before the acci-
dent and that the defendant was liable only for damages that
the jury found to be proximately caused by the accident. The
plaintiff proposed submitting two additional components to
this instruction, which the court rejected. The first proposed
component was the same as the apportionment instruction
given here: “‘If you cannot separate damages caused by the
pre-existing condition from those caused by the accident,
then the Defendant is liable for all of those damages.’”25 The
second proposed component was directed at the aggrava-
tion of preexisting condition: “‘The Defendant may be liable
for bodily harm to [the plaintiff] even though the injury is
greater than usual due to the physical condition which pre-
disposed [her] to the injury. In short, the Defendant takes the
Plaintiff as he finds her.’”26 The jury returned a verdict for
25
Id. at 296, 556 N.W.2d at 629.
26
Id.
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the plaintiff, but she appealed the court’s rejection of her pro-
posed instruction.
We held that the court should have submitted the plaintiff’s
entire proposed instruction. We explained that because we had
adopted the “eggshell-skull” theory of liability, a plaintiff is
entitled to recover damages for the aggravation of a preexist-
ing condition. We concluded that there was evidence to support
such damages and that the court’s refusal to submit the entire
instruction prejudiced the plaintiff.
We reached the same conclusion in Castillo v. Young,27
another case in which there was evidence to support a finding
that the defendant’s negligence had aggravated a preexisting
condition. The court gave the first two components of the
instruction for determining damages when the jury may be
unable to precisely determine which of the plaintiff’s damages
were not preexisting. The only difference in the plaintiff’s
instruction that the court rejected was the third component—
the aggravation instruction—that we had approved in Ketteler.
We reversed the trial court’s refusal to give this instruction
because the instruction given did not cover the plaintiff’s
theory of damages for aggravation of a preexisting disease.
Because there was evidence to support such damages, the
court’s failure to give the aggravation instruction prejudiced
the plaintiff.
[14] In a negligence case, these cases clearly required a
court to instruct a jury on damages for the aggravation of a
preexisting condition if the evidence would support that find-
ing. In the Court of Appeals’ case on which Callender relies,
the court reversed the trial court’s refusal to give the appor-
tionment instruction. But the absence of an instruction on the
aggravation of a preexisting condition was not at issue.28 So the
case is not authority for Callender’s position.
It is true that Golnick’s proposed instruction is not the
same as the instruction that was required in Ketteler and
Castillo. His alternative language was part of a jury instruction
27
Castillo v. Young, 272 Neb. 240, 720 N.W.2d 40 (2006).
28
See Higginbotham v. Sukup, 15 Neb. Ct. App. 821, 737 N.W.2d 910 (2007).
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discussed in Gustafson v. Burlington Northern RR. Co.,29 but
that particular language was not at issue. Under our previous
case law, however, Golnick’s proposed instruction was suf-
ficient to put the court on notice that it must instruct the jury
on his theory of damages if his evidence supported a finding
of aggravation damages. And there was sufficient evidence to
support that finding.
However, we conclude that under these circumstances,
Golnick was not prejudiced by the court’s failure to spe-
cifically instruct the jury that it could award damages for
Golnick’s injuries, even if his preexisting condition made
him more susceptible to injury. The jury’s authority to award
damages for the aggravation of a preexisting condition was at
least implied in the apportionment instruction: “If you cannot
separate damages caused by the preexisting condition from
those caused by the collision, then [Callender] is liable for
all of those damages.” And the record shows that in closing
argument, Golnick specifically asked the jury to award dam-
ages caused by the aggravation of his spinal and eye condi-
tions. So when Golnick’s closing argument is considered with
the apportionment instruction, the jury likely understood that
it could award damages for the aggravation of a preexist-
ing condition.
[15] Additionally, this case is distinguishable from Ketteler
and Castillo because in those cases, the jury awarded damages
to the plaintiff even if the plaintiff was unsatisfied with the
amount. Here, the jury returned a general verdict for Callender.
When the jury returns a general verdict for one party, we pre-
sume that the jury found for the successful party on all issues
raised by that party and presented to the jury.30 So we presume
that the jury’s verdict for Callender indicates it agreed with
his argument that the 2005 accident had not caused Golnick’s
physical injuries. This is particularly true when Golnick did not
29
Gustafson, supra note 22.
30
See Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837
N.W.2d 532 (2013).
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ask the court to give the jury a special verdict form or require
the jury to make special findings.31
(c) Court Properly Rejected Golnick’s
Proposed Jury Instruction No. 2
At the jury instruction conference, Golnick’s attorney
objected to the court’s instruction No. 7 on damages. He
asked that the court include the additional damage compo-
nents included in his proposed instruction No. 2. The court
refused his request. The court’s instruction No. 7 follows NJI2d
Civ. 4.01, the pattern instruction for damages in cases where
joint and several liability and contributory negligence are not
at issue.32
NJI2d Civ. 4.01 informs the jury that if it returns a verdict
for the plaintiff (Golnick), it must decide how much money
would fairly compensate him for his damages. The pattern
instruction states that the jury must consider only those
things proximately caused by the defendant’s (Callender’s)
negligence. And it lists several nonexclusive damage compo-
nents that a jury may consider depending on the issues raised
and the evidence.33 The court’s instruction included two of
the listed damage components: (1) “[t]he nature and extent
of the injury, including whether the injury is temporary or
permanent (and whether any resulting disability is partial or
total),” and (2) “[t]he physical and mental suffering [Golnick]
has experienced (and is reasonably certain to experience in
the future).” Golnick’s proposed instruction No. 2 would
have added several damage components to the court’s list.
On appeal, however, Golnick argues only that the court erred
in failing to include damage components for anxiety and
inconvenience.
Golnick contends that anxiety and inconvenience are spe-
cific examples of mental distress that the Legislature has
recognized as noneconomic damages under Neb. Rev. Stat.
31
See Neb. Rev. Stat. § 25-1121 (Reissue 2008).
32
See NJI2d Civ. 4.01 and Special Note.
33
See id., comment.
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§ 25-21,185.08 (Reissue 2008). Section 25-21,185.08 lists
examples of economic and noneconomic damages that a fact
finder can consider in civil actions where joint and several
liability is at issue. Golnick argues that because the Legislature
has specifically authorized damages for anxiety and incon-
venience in some cases, these damage components should be
available whenever the evidence supports them. He contends
that the evidence supported the instruction and that the court
erred in failing to give the instruction. We conclude that the
court’s instruction adequately covered the issues.
[16] The comment to NJI2d Civ. 4.00 states that the
meaning of the term “inconvenience” is unclear and that
it is included in that instruction only because it is listed in
§ 25-21,185.08 as a noneconomic damage component. We
note that serious inconvenience is a consideration in some
nuisance cases.34 Golnick, however, is using the term as a spe-
cific type of mental distress. And Golnick’s closing argument
shows that he is referring to hedonic damages for his loss of
enjoyment of life resulting from his physical injuries. But in
Nebraska, hedonic damages are subsumed within a plaintiff’s
damages for pain and suffering. They are not a separate cat-
egory of damages.35
[17] Similarly, in many cases, a plaintiff’s anxiety is
inseparable from his or her general mental suffering caused
by a physical injury.36 In a couple of cases, we have addressed
anxiety associated with parasitic damages for the plaintiff’s
“reasonable fear of a future harm attributable to a physical
injury caused by the defendant’s negligence.”37 But Golnick
34
See, Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976); 66
C.J.S. Nuisances § 37 (2009).
35
See Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 248 Neb. 651,
538 N.W.2d 732 (1995).
36
See, e.g., Southwell v. DeBoer, 163 Neb. 646, 80 N.W.2d 877 (1957)
(citing cases).
37
Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 784, 580 N.W.2d
86, 91 (1998). Accord Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393
(1964), disapproved on other grounds, Larsen v. First Bank, 245 Neb. 950,
515 N.W.2d 804 (1994).
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did not argue that he has anxiety associated with parasitic
damages. And a court does not err in failing to give an
instruction if the substance of the proposed instruction is
contained in those instructions actually given.38 In Golnick’s
closing argument, his attorney explained the things that the
jury could consider in determining damages:
The damages instruction gives you what you can consider.
And those things are what you heard from the witness
stand about . . . Golnick’s physical pain, his anxiety,
the inconvenience, the worry, the fear that he had, those
things are all physical or emotional and mental experi-
ences that resulted directly from the wreck of October
5, 2005.
We conclude that the court sufficiently informed the jury
that Golnick’s anxiety and inconvenience were a part of his
damages for pain and suffering.
5. Court Did Not Abuse Its Discretion
in Denying Golnick’s R equest
for Juror I nformation
Golnick contends that under Neb. Rev. Stat. § 25-1635
(Reissue 2008), the court erred in denying his motion for juror
contact information after the court had entered judgment for
Callender. He explains that during the jurors’ deliberations,
they asked the court if they could use a calculator. He argues
that this question suggests they were planning to determine the
amount of his damages, yet a half hour later, they returned a
verdict for Callender. He contends that this apparent change in
the jury’s direction warranted investigation.
Section 25-1635 prohibits the disclosure of juror information
without a court order for good cause shown, but it gives a court
discretion to disclose the names of persons drawn for actual
service as a juror. Golnick argues that because the names of the
jurors were announced during voir dire, obtaining their contact
information after the trial did not raise privacy concerns. He
argues that the public has a First Amendment right of access to
juror information after a trial.
38
Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
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414 290 NEBRASKA REPORTS
It is true that the U.S. Supreme Court has held that a First
Amendment right of public access applies to criminal trials,
including voir dire proceedings.39 Where this right applies,
the “presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve
that interest.”40
Federal courts of appeals have “widely agreed” that the
First Amendment right of public access “extends to civil
proceedings and associated records and documents.”41 And
we have held that a trial court abuses its discretion when
it denies a party’s request before voir dire to review juror
questionnaires and withholds the nonconfidential portion of
those forms.42
But providing the jurors’ personal information to the par-
ties before voir dire is different than disclosing it after a
verdict. A court’s disclosure of the information before voir
dire allows parties to make intelligent inquiries and deci-
sions about peremptory strikes of prospective jurors. For this
reason, we have held in criminal cases that a court’s impan-
eling an anonymous jury—meaning that the jurors’ personal
information is withheld from the public and the parties—is
a drastic measure that should only be undertaken in limited
circumstances.43
[18] These concerns are not present here. Golnick had
access to the relevant part of the jurors’ questionnaires for
conducting voir dire, and his appeal does not raise the benefits
of open trial proceedings. There is “clearly no public right
39
Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S. Ct.
819, 78 L. Ed. 2d 629 (1984).
40
Id., 464 U.S. at 510. See, also, Press-Enterprise Co. v. Superior Court, 478
U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).
41
Courthouse News Service v. Planet, 750 F.3d 776, 786 (9th Cir. 2014)
(citing cases).
42
See Huber, supra note 5.
43
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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of access to the jurors’ deliberations themselves.”44 Different
considerations are at play when a party seeks to interview
jurors about their deliberations after the jury has returned
its verdict.
[19] “[A] special historical and essential value applies to
the secrecy of jury deliberations which is not applicable to
other trial and pre-trial proceedings.”45 As federal appellate
courts have stated, a jury’s “‘[f]reedom of debate might be
stifled and independence of thought checked if jurors were
made to feel that their arguments and ballots were to be freely
published to the world.’”46 We conclude that because there
is no constitutional right to obtain information about a jury’s
deliberations, a court’s discretion under § 25-1635 to disclose
juror information for good cause shown after a verdict should
be tempered by the restrictions imposed under Neb. Evid.
R. 606(2).47
Rule 606(2) prohibits a juror from testifying about the valid-
ity of a verdict based on the jury’s deliberations or the juror’s
mental processes:
Upon an inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or
to the effect of anything upon his or any other juror’s
mind or emotions as influencing him to assent to or dis-
sent from the verdict or indictment or concerning his
mental processes in connection therewith . . . .
Rule 606(2) also prohibits a court from receiving a juror’s
“affidavit or evidence of any statement by him indicating an
effect of this kind.” Its exceptions are limited to permitting a
44
In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990). Accord, U.S.
v. Cleveland, 128 F.3d 267 (5th Cir. 1997); U.S. v. Calbas, 821 F.2d 887
(2d Cir. 1987).
45
In re Globe Newspaper Co., supra note 44, 920 F.2d at 94.
46
Cleveland, supra note 44, 128 F.3d at 270, quoting Clark v. United States,
289 U.S. 1, 53 S. Ct. 465, 77 L. Ed. 993 (1933).
47
See Neb. Rev. Stat. § 27-606(2) (Reissue 2008).
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juror to “testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear
upon any juror.” We have previously looked to federal case
law in applying rule 606(2) because it is adopted from Fed. R.
Evid. 606(b).48
[20] The federal rule “is grounded in the common-law
rule against admission of jury testimony to impeach a verdict
and the exception for juror testimony relating to extraneous
influences.”49 The common-law rule that shields jury delib-
erations, in turn, rested on substantial policy considerations to
protect the integrity and finality of jury trials. Permitting jurors
to impeach the verdict would result in defeated parties harass-
ing jurors “‘in the hope of discovering something which might
invalidate the finding [and] make what was intended to be a
private deliberation, the constant subject of public investiga-
tion—to the destruction of all frankness and freedom of discus-
sion and conference.’”50 So Nebraska’s rule 606(2) promotes
the public interests of protecting jurors’ freedom of delibera-
tion and the finality of judgments, absent a plausible allegation
of juror misconduct.
[21,22] We have held that when an allegation of jury mis-
conduct is made and is supported by a showing which tends
to prove that serious misconduct occurred, the trial court
should conduct an evidentiary hearing to determine whether
the alleged misconduct actually occurred.51 But rule 606(2)
“prohibits admission of a juror’s affidavit to impeach a verdict
on the basis of the jury’s motives, methods, misunderstanding,
48
See, Harmon Cable Communications v. Scope Cable Television, 237 Neb.
871, 468 N.W.2d 350 (1991); R. Collin Mangrum, Mangrum on Nebraska
Evidence 471 (2014).
49
Tanner v. United States, 483 U.S. 107, 121, 107 S. Ct. 2739, 97 L. Ed. 2d
90 (1987).
50
Id., 483 U.S. at 119-20, quoting McDonald v. Pless, 238 U.S. 264, 35 S.
Ct. 783, 59 L. Ed. 1300 (1915).
51
Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001)
(abrogated in part on other grounds as stated in Sutton v. Killham, 285
Neb. 1, 825 N.W.2d 188 (2013)).
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thought processes, or discussions during deliberations, which
enter into the verdict.”52
[23] Under these principles, federal courts routinely hold
that absent a reasonable ground for investigating, a party can-
not use posttrial interviews with jurors as a “fishing expedi-
tion” to find some reason to attack a verdict.53 We agree with
this reasoning and conclude that it is applicable to a court’s
exercise of discretion under § 25-1635.
Here, Golnick did not allege juror misconduct or the pres-
ence of an external influence on the jury. Instead, he explicitly
states that he wished to question the jurors about their delibera-
tions to determine whether they were improperly influenced.
His request to investigate rests solely on the jury’s request
to use a calculator, from which question he surmises that
the jurors were planning to award him damages but changed
their minds. The jury’s request, however, was not a reason-
able ground for suspecting misconduct or juror corruption.
So Golnick essentially requested a “fishing expedition” to
inquire into the jurors’ reasoning and mental processes to find
some reason to impeach the verdict. Because rule 606(2) pro-
hibits this type of evidence, the court did not err in denying
his request.
VI. CONCLUSION
We conclude that the court did not abuse its discretion in
granting Callender leave to amend his answer to admit that
he negligently caused the parties’ vehicle accident. Under
these circumstances, the court also did not abuse its discre-
tion in denying Golnick’s request to amend his complaint to
allege that Callender’s negligent driving occurred because he
was distracted by his cell phone. The cell phone evidence was
unnecessary to prove that Callender was negligent, because
he admitted his negligence. And the court’s orders did not
52
Kopecky v. National Farms, Inc., 244 Neb. 846, 863, 510 N.W.2d 41, 53
(1994).
53
See, 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 606.06[2][a] (Joseph M. McLaughlin ed., 2d ed. 2014) (citing
federal cases); 27 Charles Alan Wright & Victor James Gold, Federal
Practice and Procedure § 6076 (2d ed. 2007).
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preclude Golnick from presenting evidence relevant to how
Callender’s negligence caused Golnick’s injuries.
We further conclude that the court’s jury instructions either
were correct or did not prejudice Golnick. Finally, we con-
clude that the court did not abuse its discretion in denying
Golnick’s request for juror contact information after the jurors
completed their service. Because rule 606(2) prohibits evi-
dence of the jurors’ deliberations, the court did not err in deny-
ing Golnick’s request to investigate the jurors’ reasoning and
thought processes.
Affirmed.
David Fiala, Ltd., a Nebraska corporation, doing business
as FuturesOne, appellee, v. I an H arrison et al.,
appellees, and William Gross, appellant.
___ N.W.2d ___
Filed March 20, 2015. No. S-14-178.
1. Arbitration and Award. Arbitrability presents a question of law.
2. Contracts. The meaning of a contract and whether a contract is ambiguous are
questions of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
4. Arbitration and Award: Federal Acts: Contracts. If a contract containing an
arbitration clause involves interstate commerce, the Federal Arbitration Act gov-
erns the contract.
5. Contracts: States. Contracts involving interstate commerce include contracts for
services between parties of different states.
6. Contracts. In interpreting a contract, a court must first determine, as a matter of
law, whether the contract is ambiguous.
7. Contracts: Words and Phrases. A contract is ambiguous when a word, phrase,
or provision in the contract has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
8. Contracts. When a court has determined that ambiguity exists in a document, an
interpretative meaning for the ambiguous word, phrase, or provision in the docu-
ment is a question of fact for the fact finder.
9. Contracts: Evidence. If a contract is ambiguous, the meaning of the contract is
a question of fact and a court may consider extrinsic evidence to determine the
meaning of the contract.