Henderson v. Smallcomb

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Litigants must adhere to the spirit of the pretrial procedure
and are bound by a pretrial order to which no exception has
been taken. Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d
130 (1996).
We agree with Schulte that the certificate attached to the war-
rant was dated March 6, 2013, the day trial began. However,
the warrant itself was issued on January 10, nearly 2 months
before trial began. Thus, Schulte had plenty of time prior to
the day of trial to notify Aguilar of the existence of the warrant
and her intention to offer it at trial. Accordingly, we find no
error in the district court’s decision to exclude the exhibit from
evidence at trial.
CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in awarding the parties joint custody of their minor
child. We also find no abuse of discretion in the court’s deci-
sion allowing Aguilar to travel to Mexico with the child, and
Schulte was properly ordered to cooperate in obtaining a pass-
port and the necessary travel documents for the child. Finally,
the district court did not err in sustaining Aguilar’s objection to
the certified copy of the arrest warrant. Accordingly, we affirm
the decision of the district court.
Affirmed.
Gary Henderson, appellant, v. Heath Smallcomb and
Night Life Concepts, Inc., doing business as The Loft,
Night Life Concepts, Inc., doing business as
Cunningham’s Journal, appellees.
___ N.W.2d ___
Filed June 17, 2014. No. A-13-093.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
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2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
3. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
4. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
5. Municipal Corporations: Streets and Sidewalks: Property: Liability.
Historically, under the common law, cities were responsible for the care and
condition of sidewalks within municipal boundaries, and no duty devolved upon
an abutting owner to keep the sidewalk adjacent to such owner’s property in a
safe condition.
6. Streets and Sidewalks: Property: Liability: Notice: Words and Phrases.
Under the “sidewalk rule,” the owner of property which abuts a public sidewalk
is liable for injuries that are caused by a condition on the sidewalk, if the owner
has been notified by the city of the dangerous sidewalk condition and fails
to act.
7. Trial: Evidence: Words and Phrases. The concept of “opening the door” is a
rule of expanded relevancy which authorizes admitting evidence which other-
wise would have been irrelevant in order to respond to (1) admissible evidence
which generates an issue or (2) inadmissible evidence admitted by the court
over objection.
8. Trial: Evidence. The “opening the door” rule is most often applied to situations
where evidence adduced or comments made by one party make otherwise irrel-
evant evidence highly relevant or require some response or rebuttal.
9. Trial: Evidence: Words and Phrases. “Opening the door” is a contention that
competent evidence which was previously irrelevant is now relevant through the
opponent’s admission of other evidence on the same issue.
10. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is
generally reviewed for an abuse of discretion.
11. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Buffalo County: John P.
Icenogle, Judge. Affirmed.
Vincent M. Powers, of Vincent M. Powers & Associates,
for appellant.
Daniel M. Placzek and, on brief, Sonya K. Koperski, of
Leininger, Smith, Johnson, Baack, Placzek & Allen, for appel-
lee Heath Smallcomb.
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Nicholas R. Norton and Jeffrey H. Jacobsen, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee Night
Life Concepts, Inc.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Inbody, Chief Judge.
INTRODUCTION
This case involves an accident which occurred when Gary
Henderson fell and sustained an injury as he left an estab-
lishment known as Cunningham’s Journal, owned by Night
Life Concepts, Inc., doing business as The Loft, Night Life
Concepts, Inc., doing business as Cunningham’s Journal (Night
Life). Night Life leased the building from Heath Smallcomb.
Henderson filed a negligence action against both Night Life
and Smallcomb, and during a jury trial on the matter, the
Buffalo County District Court granted Night Life’s motion
for directed verdict and the jury returned a verdict in favor
of Smallcomb.
STATEMENT OF FACTS
Henderson, who was 75 years old at the time of trial,
testified that in 2006, he was retired and living in Kearney,
Nebraska, maintaining a rental property that he rented out to
college students. Henderson testified that he had had several
medical procedures prior to the incident in question and had
undergone several surgeries and medical appointments prior
to the incident, including a right knee replacement in the late
1970’s or early 1980’s, a spleen removal, a right-shoulder
rotator cuff repair and neck fusion, open heart surgery, a lami-
nectomy, a low-back fusion, and an appointment at an arthritis
treatment center.
Every Tuesday evening, he and a group of friends met
at a local Kearney establishment for dinner and then would
go downstairs to Cunningham’s Journal to play pool and
have a drink. Henderson testified that he had played pool at
Cunningham’s Journal for a year or two. Henderson indicated
that on April 18, 2006, the group followed its normal routine.
Henderson parked his car in the Kearney city lot on the west
side of Cunningham’s Journal, entering the building through
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the front door on 23d Street. Henderson testified that he
entered the building by stepping up onto an elevated concrete
landing or walking area and then taking additional wooden
steps. Henderson had a drink and played pool at Cunningham’s
Journal until about 1 a.m. on April 19. As Henderson was leav-
ing Cunningham’s Journal, he descended the wooden stairs to
the concrete landing and tripped on the last step “where you
go down to the city sidewalk.” Henderson testified that he
tripped on a lip in the concrete landing and fell, hitting the
concrete with his knees, elbow, wrists, and face. Henderson
testified that he did not recall some of what happened after he
fell. Henderson got a ride home and testified that he did not
recall what happened until he awoke at around 7 a.m., at which
point he first actually thought that he had fallen down his base-
ment stairs.
Smallcomb testified that in 1995, he purchased the build-
ing where Cunningham’s Journal is located, and that he ran
Cunningham’s Journal until 2003, when he sold that business
to Night Life, but still retained ownership of the building.
Smallcomb explained that Night Life now rents the space
where Cunningham’s Journal is and has maintained the busi-
ness. Smallcomb explained that there is an elevated sidewalk
or landing that is used to reach the wooden stairs which lead
up to the building. Smallcomb testified that he knew that the
concrete on the landing was not flush, that he did not repair
the concrete, and that he did not ask Night Life to repair the
concrete. Smallcomb estimated that the gap in the concrete
was about 2 inches deep. Smallcomb testified that he did
not know the deviation in the concrete was a problem or
a hazard.
Smallcomb testified that he believed the sidewalk, raised
concrete landing, and wooden steps belonged to the city of
Kearney and that he had not received any notice from the
city that repairs were necessary. Smallcomb testified that
the property had changed little since he purchased the build-
ing in 1995. Smallcomb explained that he was familiar with
the building before he owned it and that the raised concrete
landing and wooden stairs had been there since the 1980’s.
Smallcomb did not know by whom, or for what reason, the
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concrete landing was constructed. Smallcomb testified that
since the lease of the property in 2003 to Night Life, repairs
were made to the front steps and “handicap ramp” and inte-
rior improvements had been made. Smallcomb testified that
Night Life had exclusive control of the property at the time
of Henderson’s fall and that he visited the property only every
few months. Smallcomb also indicated that the landing leading
up to the stairs benefited the property in that customers were
able to enter the building, but that sidewalks in front of any
business were a benefit.
Mike Anderson, the owner of Night Life, testified that he
bought the Cunningham’s Journal business from Smallcomb in
2003. Anderson testified that customers step onto the landing
or elevated sidewalk and then ascend the wooden steps into the
building. Anderson testified that he did not make any repairs
to the concrete from the time that he leased the building until
the date of Henderson’s fall and did not ask Smallcomb to
make any repairs at any time. Anderson further testified that
he had never received any notice from the city of Kearney
that sidewalk repairs were necessary. Anderson testified that
exterior repairs had been made to the building, such as repairs
to the wooden stairs and changes to the front facade and to the
“handicap ramp.”
Anderson testified that on the night of the fall, he was
closing the establishment when someone indicated that a
man had fallen. Anderson explained that Henderson was alert
and standing on the sidewalk when Anderson went outside,
but did have some blood on his face. Anderson testified
that Henderson explained to him that he had missed a step
and fallen.
At the conclusion of Anderson’s testimony, counsel for
Henderson made an offer of proof regarding Anderson’s depo-
sition testimony that since Henderson’s fall, Anderson had
hired someone to add concrete to the landing and it was now
even. Counsel argued:
[The offer of proof] would be the evidence, and I
believe that when . . . counsel asked the question as to
any repairs being made to the exterior, the full complete
answer would include that repair, that he had knowledge
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of that repair being made. It didn’t matter if the landlord
made it.
Objections were made to the offer of proof, and the district
court sustained those objections based upon a previous motion
in limine which addressed and excluded any testimony regard-
ing repairs made to the landing since Henderson’s fall.
Thereafter, Night Life and Smallcomb made motions for
directed verdicts. The district court found that the evidence
reflects that the property where Henderson fell, which included
the steps and the landing, “is property that is actually located
on [c]ity of Kearney sidewalks.” The court concluded that
Night Life did not owe a duty to Henderson to make sure that
the sidewalk was in proper repair and dismissed Night Life
from the proceedings. The motion for directed verdict as to
Smallcomb was overruled.
Smallcomb presented evidence and again made a motion
for directed verdict which was overruled by the district court.
At the jury instruction conference, Henderson objected to the
district court’s jury instruction on a preexisting condition and
offered a proposed jury instruction in its place, marked as an
exhibit. The district court did not accept the proposed jury
instruction and overruled all objections to the exhibit. The
case was submitted to the jury, which unanimously found that
Henderson had not met his burden of proof to establish that
Smallcomb was negligent in causing Henderson to fall, and the
court entered judgment in favor of Smallcomb.
ASSIGNMENTS OF ERROR
Henderson assigns that the district court erred in grant-
ing Night Life’s motion for directed verdict, in failing to
find that Smallcomb “opened the door” with respect to ques-
tioning regarding repairs made to the concrete landing after
Henderson’s fall, and in failing to give his proposed jury
instruction regarding preexisting conditions.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
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behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Wulf v. Kunnath, 285 Neb.
472, 827 N.W.2d 248 (2013); Lesiak v. Central Valley Ag
Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).
[2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. Simon v. Drake, 285 Neb. 784, 829 N.W.2d
686 (2013).
[3] Whether jury instructions given by a trial court are cor-
rect is a question of law. Kuhnel v. BNSF Railway Co., 20 Neb.
App. 884, 834 N.W.2d 803 (2013), reversed on other grounds
287 Neb. 541, 844 N.W.2d 251 (2014).
ANALYSIS
Motion for Directed Verdict.
Henderson assigns that the district court erred by granting
Night Life’s motion for directed verdict.
[4] A directed verdict is proper at the close of all the evi-
dence 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. American Central City
v. Joint Antelope Valley Auth., 281 Neb. 742, 807 N.W.2d
170 (2011).
[5,6] Historically, under the common law, cities were
responsible for the care and condition of sidewalks within
municipal boundaries, and no duty devolved upon an abut-
ting owner to keep the sidewalk adjacent to such owner’s
property in a safe condition. See Rod Rehm, P.C. v. Tamarack
Amer., 261 Neb. 520, 623 N.W.2d 690 (2001). In contrast,
the “sidewalk rule” recognizes that this common-law rule
has been abrogated by city ordinance or by statute. See Neb.
Rev. Stat. § 15-734 (Reissue 2012). Section 15-734 further
provides, however, that an abutting property owner is liable
for injuries sustained as a result of such owner’s failure to
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keep and maintain the sidewalk in a safe condition only upon
the owner’s failure to act after receiving notice from the city
that the owner needs to remedy a dangerous condition present
on the sidewalk. Thus, under the sidewalk rule, the owner of
property which abuts a public sidewalk is liable for injuries
that are caused by a condition on the sidewalk, if the owner
has been notified by the city of the dangerous sidewalk con-
dition and fails to act. Rod Rehm, P.C. v. Tamarack Amer.,
supra. See, generally, Hill v. City of Lincoln, 249 Neb. 88,
541 N.W.2d 655 (1996); Stump v. Stransky, 168 Neb. 414, 95
N.W.2d 691 (1959). See, also, Restatement (Second) of Torts
§ 349 (1965).
In the case Andresen v. Burbank, 157 Neb. 909, 62 N.W.2d
135 (1954), an action was brought against an abutting property
owner for injuries sustained in a fall caused by a deteriorated
sidewalk. The Nebraska Supreme Court held:
The fee of the street is in the city, and the sidewalk is part
of the street. It is the duty of the city to keep its sidewalks
in repair and in a safe condition for public use. A lot
owner is not required to repair an adjacent sidewalk until
he has been notified by the city to do so, and in absence
of such notice he is not liable to pedestrians for damages
for personal injuries.
Id. at 910, 62 N.W.2d at 136. See, also, Sipprell v. Merner
Motors, 164 Neb. 447, 82 N.W.2d 648 (1957); McAuliffe v.
Noyce, 86 Neb. 665, 126 N.W. 82 (1910).
In Henderson’s case, the district court found that the evi-
dence reflected that the property where Henderson fell, which
included the steps and the landing of the sidewalk, was “prop-
erty that is actually located on [c]ity of Kearney sidewalks.”
The court concluded that Night Life did not owe a duty to
Henderson to make sure that the sidewalk was in proper
repair and granted Night Life’s motion for directed verdict.
Our review of that evidence indicates that neither Night Life
nor Smallcomb had ever received any notice from the city to
make repairs to the sidewalk, and thus, neither Night Life nor
Smallcomb could be liable for injuries caused by a condition
on the sidewalk as neither had been notified by the city of the
dangerous sidewalk condition.
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In his brief, Henderson does not address or discuss the appli-
cation of the sidewalk rule, any of the aforementioned cases,
or the application of § 15-734, but instead argues that the court
should have imposed liability upon Night Life on the basis of the
“‘special use doctrine.’” Brief for appellant at 9.
The special use doctrine is the exception to the general
rule that where the sidewalk was constructed or altered for
the special benefit of the abutting property owner and served
a use independent of the ordinary use for which sidewalks
are designed, or where a sidewalk, though not specifically
constructed or altered for the special benefit of the abutting
property, has been used for such benefit, the owner or occupant
of the property, regardless of whether he or she constructed or
altered the sidewalk, owes a duty to the public to maintain the
sidewalk in a reasonably safe condition, and hence, he or she
may be held liable for injuries resulting from a defective or
dangerous condition created by such special use of the side-
walk, particularly where such use is improper, extraordinary,
or excessive under the circumstances. Annot., 88 A.L.R. 2d 331
(Cum. Supp. 2014). See, also, Restatement (Second) of Torts
§ 350 (1965).
Henderson argues that because Night Life obtained the ben-
efit of the use of the concrete landing to provide ingress and
egress for its customers, it was in exclusive possession of the
premises and had the authority to make repairs. In support of
his argument for the application of the special use doctrine,
Henderson relies upon the case Crosswhite v. City of Lincoln,
185 Neb. 331, 175 N.W.2d 908 (1970).
In Crosswhite v. City of Lincoln, an action was filed against
the City of Lincoln and owners of property adjoining the
street and sidewalk by a pedestrian who sustained injuries
after tripping on a stop box, which was a water pipe that pro-
truded above the concrete sidewalk. The stop box, installed by
the City of Lincoln, was utilized to shut off the flow of water
from the city water main to the property of the water con-
sumer. The main issue in the case was whether the city or the
adjoining property owners, or both, had control over the stop
box and a duty to maintain it and the sidewalk in a safe condi-
tion. Id. The Nebraska Supreme Court first found that the city
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was not permitted to delegate its duty to the public in regard
to the waterworks system. Id. With respect to the adjoining
property owners, the court held that an “abutting landowner
may be subject to liability for the dangerous condition of
portions of the public sidewalk which have been altered or
constructed for the benefit of his property and which serve a
use independent of and apart from the ordinary and customary
use for which sidewalks are designed.” Id. at 335, 175 N.W.2d
at 911.
Thereafter, the court further held:
[W]here persons are injured by a dangerous sidewalk
condition created and maintained subject to the joint con-
trol of the city and an abutting landowner, and where the
condition is maintained for the benefit of a proprietary
business operated by the city, and is also for the benefit
of the property of the abutting landowner, the city and
the abutting landowner are joint or concurrent tort-feasors
and each is directly liable for his own wrong.
Id. at 336, 175 N.W.2d at 911.
Crosswhite v. City of Lincoln and its holding revolve around
a “dangerous sidewalk condition created and maintained sub-
ject to the joint control of the city and an abutting landowner
. . . where the condition [was] maintained for the benefit of a
proprietary business operated by the city, and [was] also for the
benefit of the property of the abutting landowner” and does not
involve the liability of a tenant of abutting property. 185 Neb.
at 336, 175 N.W.2d at 911.
Other examples of the application of the special use doctrine
include McKenzie v. Columbus Centre, LLC, 40 A.D.3d 312,
835 N.Y.S.2d 190 (2007) (under special use doctrine, owner
of premises being demolished owed duty to pedestrians to
provide safe walkway under sidewalk protective shed erected
at demolition site); Margulies v. Frank, 228 A.D.2d 965, 644
N.Y.S.2d 596 (1996) (generally, special use cases involve
installation of some object in sidewalk or some variance in
construction thereof, such as concrete step mounted upon
sidewalk immediately beneath elevated doorway of restau-
rant, installation of terrazzo tile underneath theater’s marquee,
installation of rails in sidewalk to facilitate removal of refuse,
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placement of pipe for heating oil, or installation of driveway
cutout); Cool v. Vesey, 31 Colo. App. 1, 499 P.2d 642 (1972)
(stop box installed by defendant in city right-of-way which
benefited defendant’s property gave rise to duty of care);
Mathison v. Newton, 251 Or. 362, 446 P.2d 94 (1968) (main-
tenance of elevator with sidewalk grating constituted special
use of sidewalk by defendant for his sole benefit); Quinn v.
I. C. Helmly Furniture Company, 141 So. 2d 302 (1962) (dis-
charge of water from abutting property owner’s downspout);
Sill v. Lewis, 140 Colo. 436, 344 P.2d 972 (1959) (defendant
liable for injuries caused by ice when he discharged water
onto sidewalk); and Hippodrome Amusement Co. v. Carius,
175 Ky. 783, 195 S.W. 113 (1917) (water service box existing
in sidewalk). Cf., Williams v. KFC Nat. Management Co., 391
F.3d 411 (2d Cir. 2004) (dragging Dumpster over sidewalk
was not special use by restaurateur because there were no
special features constructed on sidewalk for benefit and use
was routine); Jordan v. City of New York, 23 A.D.3d 436, 807
N.Y.S.2d 595 (2005) (landowner’s commercial tenant’s use
of sidewalk to gain access to nearby basement door is insuf-
ficient to establish existence of special use); Weil v. Rigali,
980 S.W.2d 89 (Mo. App. 1998) (snowplow driving across
sidewalk to remove snow does not constitute special use of
public sidewalk).
Specifically, in the case Granville v. City of New York, 211
A.D.2d 195, 627 N.Y.S.2d 4 (1995), the special use doctrine
was addressed in regard to injuries sustained when an individ-
ual tripped and fell on a raised portion of a sidewalk in front of
a building owned by the defendant, who leased the premises to
a corporation which operated a restaurant therein. In Granville,
the court noted that the “photographic record reveals a con-
crete step mounted upon the sidewalk immediately beneath
the elevated doorway of the restaurant which step protrudes
from the doorway for a short distance beyond the building’s
boundary.” 211 A.D.2d at 197, 627 N.Y.S.2d at 5. The court
found that the “concrete step, which runs the entire width of
the entranceway of the restaurant, clearly constitutes a special
use for [the] landlord’s benefit which facilitates access to the
restaurant premises.” Id. The court determined that the issue
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concerning the causal connection between the owner’s special
use and the defective condition of the public walkway was an
issue for the trier of fact and precluded the granting of sum-
mary relief. Id.
In the present case, the photographic evidence illustrates
that the concrete landing in question is a raised one mounted
on the sidewalk set beside the entire length of the build-
ing. That concrete landing leads up to a set of wooden stairs
located immediately beneath the elevated entrance to the
building. We are aware of the line of cases which indicate
that the special use doctrine is not applicable merely because
a sidewalk provides a method of ingress and egress into a
business, which in turn benefits the business, but find that
those cases are distinguishable from the instant case due to
the addition of the raised concrete landing to the sidewalk
in front of the property. See, Christian v. U.S., 859 F. Supp.
2d 468 (E.D.N.Y. 2012) (applying New York law to find that
use of public sidewalk to enter and exit building does not
constitute special use unrelated to public use); Roe v. City
of Poughkeepsie, 229 A.D.2d 568, 645 N.Y.S.2d 856 (1996)
(mere fact that patrons of defendants’ restaurant used abutting
sidewalk did not establish special use imposing obligation
on defendants to maintain that sidewalk); Whitlow v. Jones,
134 Or. App. 404, 895 P.2d 324 (1995) (finding that although
business establishment derives special advantage from use
of sidewalk by its business invitees for ingress to and egress
from business, that is not special use for liability purposes).
Thus, in accordance with Crosswhite v. City of Lincoln, 185
Neb. 331, 175 N.W.2d 908 (1970), we find that under the
circumstances of this case, an abutting landowner may be
subject to liability for the dangerous condition of portions of
the public sidewalk which have been altered or constructed for
the benefit of the landowner’s property and which serve a use
independent of and apart from the ordinary and customary use
for which sidewalks are designed.
That, however, does not end the inquiry in this case, because
the issue which Henderson assigns as error concerns the
directed verdict in favor of Night Life, the tenant of the abut-
ting property, not the actual owner of the abutting property.
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We are required to treat Night Life’s motion for directed ver-
dict as an admission of the truth of all competent evidence
submitted on behalf of the party against whom the motion is
directed; such being the case, Henderson is entitled to have
every controverted fact resolved in his favor and to have the
benefit of every inference which can reasonably be deduced
from the evidence. See, Wulf v. Kunnath, 285 Neb. 472, 827
N.W.2d 248 (2013); Lesiak v. Central Valley Ag Co-op, 283
Neb. 103, 808 N.W.2d 67 (2012). The fact remains that Night
Life is the tenant of the property, not the owner, and Henderson
has not provided us with any authority which suggests that the
liability of the property owner under the special use doctrine
is imputed to a tenant in the same manner. No evidence was
provided showing that under the terms of the lease between
Night Life and Smallcomb, Night Life was responsible for
the maintenance of the steps or raised concrete landing. The
issue of the landowner’s liability was submitted to the jury,
which returned a verdict in favor of the landowner and not
Henderson, a determination which we shall not second-guess.
See Wulf v. Kunnath, supra (jury verdict will not be set aside
unless clearly wrong, and it is sufficient if there is any com-
petent evidence presented to jury upon which it could find for
successful party). Therefore, we find that Night Life’s motion
for directed verdict was properly granted.
“Opening the Door.”
Henderson assigns that the trial court erred in failing to
find that Smallcomb opened the door with respect to ques-
tioning regarding repairs made to the concrete landing after
Henderson’s fall.
Prior to trial, Night Life and Smallcomb filed a joint motion
in limine to specifically exclude any testimony or evidence
regarding any repairs made to the landing after the accident,
which motion was granted. However, Henderson contends that
trial counsel for both Night Life and Smallcomb opened the
door at trial by questioning Anderson about repairs made to
the premises prior to the fall and then following up by asking
Anderson if he had “made other repairs to the exterior of the
property.” Shortly thereafter, outside of the presence of the
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jury, Henderson made an offer of proof from Anderson’s depo-
sition testimony that if Anderson would have made a full and
complete answer to the question, the jury would have been able
to hear the evidence that repairs were made to the landing since
Henderson’s fall. The district court found that the testimony
was specifically covered in the motion in limine previously
granted and was, thereby, excluded.
[7-10] The concept of “opening the door” is a rule of
expanded relevancy which authorizes admitting evidence which
otherwise would have been irrelevant in order to respond to (1)
admissible evidence which generates an issue or (2) inadmis-
sible evidence admitted by the court over objection. Huber v.
Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010); Sturzenegger
v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008). The rule is most often applied to situations where
evidence adduced or comments made by one party make oth-
erwise irrelevant evidence highly relevant or require some
response or rebuttal. Huber v. Rohrig, supra. Opening the door
is a contention that competent evidence which was previously
irrelevant is now relevant through the opponent’s admission
of other evidence on the same issue. See id. The admission or
exclusion of evidence is generally reviewed for an abuse of
discretion. See id.
In this case, the motion in limine was very specific and
addressed only the exclusion of “[a]ny testimony or evidence
with regard to the repairs made to the concrete landing, which
landing, walkway, or step regardless of the terminology, near
the entrance to the building . . . subsequent to the accident
claimed . . . .” The district court did not allow the admission
of evidence deemed inadmissible over objection. See, id.;
Sturzenegger v. Father Flanagan’s Boys’ Home, supra. Thus,
if this evidence were to be allowed, it would be in order for
Henderson to respond to admissible evidence which generates
an issue. See id.
Upon our review of the case, we find that the door was not
opened as to Henderson’s testimony regarding repairs to the
exterior of the property. Testimony that repairs to the outside
of the building were made does not render the issue of repairs
made specifically to the concrete landing after the date of
Decisions of the Nebraska Court of Appeals
104 22 NEBRASKA APPELLATE REPORTS
Henderson’s fall now relevant. The testimony that repairs were
made after the fall to the place where Henderson fell is irrel-
evant to a determination of whether or not Smallcomb had a
duty to repair the landing before the fall occurred. The district
court did not abuse its discretion by not allowing the testimony
before the jury regarding the repairs made after the fall. This
assignment of error is without merit.
Jury Instruction.
Henderson argues that the trial court failed to give the
appropriate jury instruction on the aggravation of a preex-
isting condition and should have given his proposed jury
instruction.
[11] In Henderson’s case, in a unanimous decision, the jury
found for Smallcomb and returned a jury verdict form which
set forth, “We the jury find that [Henderson] has not met his
burden of proof, and we enter judgment for [Smallcomb].” By
its returning that form, we know that the jury determined that
Henderson failed to meet his burden of proof, from which we
can conclude that the jury never reached the issue of preexist-
ing conditions and damages. Therefore, we need not address
this assignment of error, as it is not necessary to the disposition
of this appeal. An appellate court is not obligated to engage in
an analysis that is not necessary to adjudicate the case and con-
troversy before it. Holdsworth v. Greenwood Farmers Co-op,
286 Neb. 49, 835 N.W.2d 30 (2013).
CONCLUSION
In conclusion, we find that the district court properly granted
Night Life’s motion for directed verdict. The district court
also did not abuse its discretion by finding that the door had
not been opened to include testimony that there had been
repairs made to the concrete landing after the fall. Therefore,
we affirm.
Affirmed.