Scheele v. Rains , 292 Neb. 974 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/04/2016 09:16 AM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
SCHEELE v. RAINS
Cite as 292 Neb. 974
K ristina A. Scheele, appellant, v.
Darrell R ains et al., appellees.
___ N.W.2d ___
Filed March 4, 2016. No. S-15-130.
1. Directed Verdict: Evidence. A directed verdict is proper only when
reasonable minds cannot differ and can draw but one conclusion from
the evidence, that is, when an issue should be decided as a matter
of law.
2. Directed Verdict: Appeal and Error. In reviewing a directed verdict,
an appellate court gives the nonmoving party the benefit of every con-
troverted fact and all reasonable inferences from the evidence.
3. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a 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.
4. Jury Instructions: Appeal and Error. Failure to object to a jury
instruction after it has been submitted to counsel for review precludes
raising an objection on appeal absent plain error.
5. Negligence: Evidence. The violation of a regulation or statute is not
negligence per se, but may be evidence of negligence to be considered
with all the other evidence in the case.
6. Appeal and Error: Words and Phrases. Plain error is error uncom-
plained of at trial and is plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
Appeal from the District Court for Gage County: Daniel E.
Bryan, Jr., Judge. Affirmed.
Peter C. Wegman, Mark R. Richardson, and Sheila A.
Bentzen, of Rembolt Ludtke, L.L.P., for appellant.
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SCHEELE v. RAINS
Cite as 292 Neb. 974
Stephen S. Gealy and Noah J. Heflin, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellees Delles Carrier,
Inc., and Frank G. Lukach.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellee Darrell Rains.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Heavican, C.J.
I. INTRODUCTION
Kristina A. Scheele sued Darrell Rains; Delles Carrier,
Inc. (Delles); Frank G. Lukach; Sentry Insurance; and the
Evangelical Lutheran Good Samaritan Society (Good
Samaritan) for injuries she sustained in an automobile acci-
dent with a semi-trailer truck driven by Lukach. Following
a trial, the jury found for the defendants. Scheele appeals.
We affirm.
II. BACKGROUND
1. Procedural Background
Scheele filed suit against Rains, Delles, Lukach, Sentry
Insurance, and Good Samaritan for negligence. Sentry Insurance
and Good Samaritan were included for workers’ compensation
subrogation purposes. Following a jury trial, special verdict
forms were returned, finding that Scheele had not met her
burden of proof as to the negligence of either Rains or Delles
and Lukach.
2. Accident
The facts of this case are largely undisputed. Rains owns
land along Highway 77 south of Beatrice, Nebraska. As it
adjoins Rains’ land, Highway 77 is a two-lane highway, with
one northbound lane and one southbound lane. Rains was
required, per the federal Conservation Reserve Program, to
burn the vegetation off this field every 3 years.
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SCHEELE v. RAINS
Cite as 292 Neb. 974
The prescribed burn on this field and one other field was
done on April 9, 2012. Rains first burned a nearby field, which
was not located directly along Highway 77, during the morning
of April 9. That burn went off without incident, but the burning
of the second field did not.
The fire on the second field was set around 2:45 p.m. and
initially burned as planned. But at some point, the wind shifted
and smoke began to blow across Highway 77. Unable to con-
trol the fire, Rains called the fire department at approximately
3:19 p.m.
Meanwhile, Scheele had been in Beatrice on a work errand
and was driving south on Highway 77, returning to her job at
Good Samaritan in Wymore, Nebraska, when she came upon
smoke that had drifted across the roadway from Rains’ fire.
Scheele was driving a 2004 Dodge Durango. She entered the
smoke and testified that after doing so, the smoke became very
thick. She slowed her speed, but drove on until she was forced
to stop by a car ahead of her, which had come to a standstill.
Scheele testified that she could see only the brake lights of the
car ahead of her. She further testified that smoke was coming
into her vehicle through the vehicle’s vents and that she was
afraid she was going to die.
Scheele testified that she wanted to get out of the smoke,
but could not move because the car ahead of her had stopped.
According to Scheele’s testimony, she considered and rejected
both backing up—because she knew there were cars behind
her—and going onto the shoulder at her right—because she
was afraid there would be flames there. Instead, Scheele inched
slowly into the northbound lane to pass the car ahead of her.
Scheele testified that she saw an oncoming vehicle and tried
to edge back into the southbound lane, but collided with the
car ahead of her before also colliding with a semi-trailer truck
pulling an oversized load that was headed north in the north-
bound lane of traffic.
Scheele suffered injuries in the accident, including facial
lacerations, a facial fracture, rib fractures, clavicle fractures,
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and “pneumothorax.” Scheele also suffered a closed head
injury with a concussion, which ultimately evolved into a
diagnosis of traumatic brain injury with “acquired attention
deficit disorder.”
3. Preparations for Setting Fire
Rains testified in detail regarding his preparations for
setting the prescribed burn. Prior to the burn, Rains’ son,
Howard Rains (Howard), submitted a prescribed burn man-
agement plan to the U.S. Department of Agriculture Natural
Resources Conservation Service. On the day of the burn,
Rains obtained burn permits for each field from Bradley
Robinson, the fire chief of the volunteer fire department in
Blue Springs, Nebraska.
Prior to the burn, Rains cut a 30-foot strip of grass on the
east and south sides of the field, essentially creating a fire-
break. The grass was not raked, because Rains had not done so
on prior burns and did not feel raking was necessary.
Rains, Howard, and Howard’s 15-year-old son were going
to handle the burn. It is undisputed that all three were present
at the first burn, but that Howard was not present when the
second fire was set. Rather, Howard was at the first field mak-
ing sure that the fire there was fully extinguished. All three
had cell phones to communicate. On hand were two all-terrain
vehicles with 30- to 40-gallon water tanks and a tractor with a
100-gallon water tank. The three were also equipped with flat
dirt shovels, rakes, and pitchforks. Rains had a bucket with
water and a gunnysack to be used to smother flames if neces-
sary. The backup plan was to call the fire department if the fire
got out of control.
Rains testified that he decided to burn the fields on April
9, 2012, because it was a “nice day” without wind. He based
this decision on personal observation and experience and
from watching a televised weather report. Rains testified that
Howard was checking the weather conditions throughout the
day via an application on his cell phone. Howard also testified
that he used his cell phone to check weather conditions.
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Cite as 292 Neb. 974
Robinson testified that he checked the weather conditions
using an online weather service before issuing the burn per-
mits. Robinson also asked Rains to call him before burning
the second field. Rains and Robinson both testified that Rains
made this telephone call and that Robinson gave him permis-
sion to burn the second field. Robinson testified that he did so
after again checking the weather conditions using an online
weather service. On cross-examination, Robinson testified that
he felt that he might not have had all the relevant facts and
that he might not have issued the burn permits had he known a
number of things.
Among the many issues Scheele had with the second burn
was the issue of the relative humidity on April 9, 2012. Rains’
burn plan indicated that a controlled burn should be done when
the relative humidity was greater than 25 percent, but the rela-
tive humidity on April 9 never rose above 21 percent. Also at
issue was the timing of the fire. The preprinted language on
the burn plan noted that the optimum time to conduct a con-
trolled burn was between 10 a.m. and 2 p.m., but this fire was
not set until nearly 3 p.m. Scheele also contends that Rains
did not have enough water on hand and that three people were
insufficient to handle the burn when one of those persons
was only 15 years of age and another was not present for the
entire burn.
4. Delles and Lukach
Lukach was the driver of the semi-trailer truck that collided
with Scheele. At the time of the accident, he was driving an
oversized load. In the investigation following the accident,
Lukach was ticketed with several violations of the Federal
Motor Carrier Safety Regulations, including not having proper
warning flags for his load, having an inoperable electric
horn, and driving when he did not have at least a half-mile
of visibility.
Lukach testified that when he entered the smoke, he could
see though it, but the smoke became more dense as he drove
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on. As the smoke became dense, Lukach slowed down. Lukach
testified that once he realized how thick the smoke was, he
decided that he could not safely stop and so he continued
through the smoke.
There is some dispute as to how fast Lukach was going.
Lukach told the sheriff’s deputy investigating the accident that
he was “going about 50,” but testified at trial that he meant
50 kilometers, or approximately 30 miles per hour. Lukach
testified that he is Canadian and was shaken following the
accident, so he did not convert his speed from the metric
system. Lukach also testified that he could not have been
going 50 miles per hour, because he downshifted his truck
when he entered the smoke and could not have gone that fast
after downshifting.
5. Corrected Jury Instruction
Following the presentation of evidence and closing argu-
ments, the jury was instructed. The case was submitted to the
jury at 12:20 p.m. on January 16, 2015. At 2:56 p.m., proceed-
ings were held in chambers because of an error in the instruc-
tions dealing with contributory negligence. Counsel had not
previously objected to this error.
Specifically, the jury had been instructed that “[i]f you
find that both the Plaintiff Scheele and Defendant Rains and/
or Defendant Delles/Lukach were negligent and that the neg-
ligence of Plaintiff Scheele was equal to or greater than the
negligence of either Defendant Rains and/or Defendant Delles/
Lukach, then Plaintiff Scheele will not be allowed to recover.”
(Emphasis supplied.)
But at a hearing held after the case was submitted to the jury,
the parties agreed that the instruction should have provided that
“[i]f you find that both Plaintiff Scheele and Defendant Rains
and/or Defendant Delles/Lukach were negligent and that the
negligence of Plaintiff Scheele was equal to or greater than
the combined negligence of Defendant Rains and Defendant
Delles/Lukach, then Plaintiff Scheele will not be allowed to
recover.” (Emphasis supplied.)
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Cite as 292 Neb. 974
All counsel agreed to the change, and at 3:04 p.m., the
correct instruction was read to the jury by the court, without
counsel present. The jury was given a copy of the corrected
language. The jury continued deliberations at 3:05 p.m., and
returned with a verdict for the defendants at 3:34 p.m.
III. ASSIGNMENTS OF ERROR
On appeal, Scheele assigns that the district court erred in
(1) not entering a directed verdict for her and (2) giving con-
flicting versions of instruction No. 2.
IV. STANDARD OF REVIEW
[1,2] A directed verdict is proper only when reasonable
minds cannot differ and can draw but one conclusion from the
evidence, that is, when an issue should be decided as a matter
of law.1 In reviewing that determination, we give the nonmov-
ing party the benefit of every controverted fact and all reason-
able inferences from the evidence.2
[3] In an appeal based on a 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.3
[4] Failure to object to a jury instruction after it has been
submitted to counsel for review precludes raising an objection
on appeal absent plain error.4
V. ANALYSIS
1. Directed Verdict
(a) Rains
Scheele assigns that the district court erred in not granting
her a directed verdict as to Rains’ negligence. She argues that
1
Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
2
Id.
3
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
4
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
(2015).
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Rains’ action in starting the fire was negligent as a matter of
law and suggests, without using this terminology, that Rains’
failure to strictly comply with the burn management plan was
negligence per se.
A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence.5 In reviewing that determination, we give the nonmov-
ing party, here Rains, the benefit of every controverted fact and
all reasonable inferences from the evidence.6
[5] We first reject any contention that Rains’ actions con-
stituted negligence per se. This court has concluded on vari-
ous occasions that the violation of a regulation or statute is
not negligence per se, but may be evidence of negligence
to be considered with all the other evidence in the case.7
Thus, the fact that Rains did not comply with all aspects of
the burn plan might be evidence of negligence, but is not in
itself negligence.
And we cannot conclude that the district court erred in not
directing a verdict in Scheele’s favor with regard to Rains’
alleged negligence. There was evidence that Robinson, the
fire chief, gave Rains the go-ahead to set the fire which
eventually led to the accident. There was other evidence that
Rains filled out a burn plan and obtained a burn permit as
required and that he and Howard were checking the weather.
According to the evidence presented, Rains had done this
before. He had created a firebreak near Highway 77. Three
people were on hand, either onsite or nearby, to help handle
the fire. Water and other fire suppression tools were available.
Cell phones were available to contact the fire department, and
once the fire was considered out-of-control, the fire depart-
ment was contacted.
5
Id.
6
See Balames v. Ginn, supra note 1.
7
See, Orduna v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471
(2006); Raben v. Dittenber, 230 Neb. 822, 434 N.W.2d 11 (1989).
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We agree that in this case, there was evidence to support the
conclusion that Rains acted reasonably and there was evidence
to support the opposite conclusion. In sum, reasonable minds
could differ. But Rains must be given the benefit of every con-
troverted fact and all reasonable inferences from the evidence.
When we do so, we must conclude that it was not error for the
district court to decline to direct a verdict and instead allow
the jury to decide the issue.
(b) Delles and Lukach
Nor did the district court err in not directing a verdict for
Scheele against Delles and Lukach. Scheele argues that Lukach
was negligent as a matter of law, and suggests that his “failure
to stop, use extreme caution, or even slow down, so that he
could come to a safe stop indisputably breached the duties he
owed under Nebraska law, the Trip Permit, and [Federal Motor
Carrier Safety] regulations.”8
As noted above, we have held that the violation of a regula-
tion or statute is not negligence per se, but may be evidence
of negligence to be considered with all the other evidence in
the case.9 Given this, the fact that Lukach was found to have
violated Federal Motor Carrier Safety Regulations should be
considered along with the other evidence of negligence pre-
sented at trial.
And when we consider that evidence, and give Lukach the
benefit of every controverted fact and all reasonable infer-
ences from the evidence, we cannot conclude that a directed
verdict was warranted. According to his testimony, when
Lukach entered the smoke, he had the requisite visibility.
Other evidence showed that Lukach kept his truck as far
right as possible and slowed down to a speed of 30 miles
per hour.
8
Brief for appellant at 22.
9
Orduna v. Total Constr. Servs., supra note 7; Raben v. Dittenber, supra
note 7.
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Again, while there was evidence that Lukach violated regu-
lations, there was other evidence that under the circumstances,
his actions were reasonable. Determination of such a factual
dispute is not appropriate for resolution by directed verdict,
and the district court did not err in declining to grant one
for Scheele.
Scheele’s first assignment of error is without merit.
2. Jury Instruction
[6] In her second assignment of error, Scheele assigns that
the district court erred when it gave conflicting versions of
instruction No. 2 to the jury. Because Scheele failed to object
to the giving of the instruction, we review for plain error.10
Plain error is error uncomplained of at trial and is plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputa-
tion, or fairness of the judicial process.11 Scheele’s argument is
without merit.
We first note that Scheele relies on case law, including
Kaspar v. Schack,12 and Krepcik v. Interstate Transit Lines.13
In both of these cases, the instructions as originally read
to the jury included two separate, but conflicting, instruc-
tions. We held that “an instruction which misstates the law
upon a vital issue is not cured by another which states the
law correctly.”14
In this case, though, the incorrect instruction was discov-
ered after it was given, but before the jury returned with a ver-
dict. The record shows that the parties agreed on a corrected
instruction and that the jury was so instructed. Unlike Krepcik,
10
See United Gen. Title Ins. Co. v. Malone, supra note 4.
11
Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013).
12
Kaspar v. Schack, 195 Neb. 215, 237 N.W.2d 414 (1976).
13
Krepcik v. Interstate Transit Lines, 153 Neb. 98, 43 N.W.2d 609 (1950).
14
Kaspar v. Schack, supra note 12, 195 Neb. at 220, 237 N.W.2d at 417.
Accord Krepcik v. Interstate Transit Lines, supra note 13.
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the jury was not presented with conflicting instructions and
left to sort them out; rather, one incorrect instruction was
replaced with a correct version.
Scheele’s argument also fails because she cannot show, on
these facts, that she was prejudiced by the giving of the incor-
rect instruction. The instruction in question regarded compara-
tive negligence, but the jury found that Scheele did not meet
her burden of proof as to the negligence of either Rains or
Delles and Lukach. As such, the jury did not reach the question
of Scheele’s negligence.
This case is similar to Bunnell v. Burlington Northern
RR. Co.15 In Bunnell, the jury returned a special verdict for
the defendant employer and the plaintiff employee appealed,
alleging that the contributory negligence instruction was incor-
rect. We held that assuming the instruction was incorrect, it
was harmless, because the jury never reached the issue of con-
tributory negligence. And in this case, too, the jury returned
special verdict forms for Rains and for Delles and Lukach,
finding that Scheele failed to meet her burden of proof.
Hence, any error by the court in giving an incorrect instruction
was harmless.
Scheele’s second assignment of error is without merit.
VI. CONCLUSION
The judgment of the district court is affirmed.
A ffirmed.
15
Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530 N.W.2d 230
(1995).