Schuemann v. Menard, Inc.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/28/2020 08:05 AM CST
- 977 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
Richard G. Schuemann and Janice Schuemann,
appellants, v. Menard, Inc., doing business
as Menards, a foreign corporation
doing business in Nebraska,
appellee.
___ N.W.2d ___
Filed January 21, 2020. No. A-18-1021.
1. Jury Instructions. Whether a jury instruction is correct is a question
of law.
2. 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.
3. 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 determining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
5. ____: ____. A trial court’s decision to admit habit evidence based on
opinion under Neb. Rev. Stat. § 27-406 (Reissue 2016) is reviewed for
an abuse of discretion.
6. Negligence: Evidence: Trial. Before the defense of assumption of risk
is submissible to a jury, the evidence must show that the plaintiff (1)
knew of the specific danger, (2) understood the danger, and (3) volun-
tarily exposed himself or herself to the danger that proximately caused
the damage.
7. Negligence. The doctrine of assumption of risk applies to known
dangers and not to those things from which, in possibility, danger
may flow.
- 978 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
8. Jury Instructions: Evidence. A tendered jury instruction is warranted
by the evidence only if there is enough evidence on the issue to produce
a genuine issue of material fact for the jury to decide.
9. Juries: Verdicts. A jury, by its general verdict, pronounces upon all or
any of the issues in favor of either the plaintiff or the defendant.
10. Juries: Verdicts: Presumptions. Because a general verdict does not
specify the basis for an award, Nebraska law presumes that the winning
party prevailed on all issues presented to the jury.
11. Rules of Evidence. The rule of completeness allows a party to admit
the entirety of an act, declaration, conversation, or writing when the
other party admits a part and when the entirety is necessary to make it
fully understood.
12. ____. The rule of completeness is concerned with the danger of admit-
ting a statement out of context, but when this danger is not present, it
is not an abuse of discretion to refuse to require the production of the
remainder or, if it cannot be produced, to exclude all the evidence.
13. Presumptions: Proof: Words and Phrases. A rebuttable presumption
is generally defined as a presumption that can be overturned upon the
showing of sufficient proof.
14. Presumptions: Words and Phrases. Nonevidentiary presumptions,
commonly referred to as “bursting bubble” presumptions, shift only
the burden of production, and if that burden is met, the presump-
tion disappears.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant 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.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Robert W. Futhey and Daniel J. Gutman, of Fraser Stryker,
P.C., L.L.O., for appellee.
Pirtle, Riedmann, and Welch, Judges.
- 979 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
Riedmann, Judge.
INTRODUCTION
Richard G. Schuemann and Janice Schuemann sued Menard,
Inc., doing business as Menards (Menards), in the district court
for Sarpy County for negligence and premises liability after
Richard sustained injuries due to the alleged negligence of
Menards. A jury found in favor of Menards. The Schuemanns
appeal. Finding no error by the district court, we affirm.
BACKGROUND
On July 1, 2010, the Schuemanns went to the Menards store
located in Bellevue, Sarpy County, Nebraska, and purchased
a storage shed packaged in a large box. A Menards employee
lifted the shed box with a forklift and placed it into the bed
of Richard’s truck. Once back at their house, the Schuemanns
left the box in the truck and took the pieces out of the box
individually in order to assemble the shed. At trial, Richard
was asked whether he tried to lift the box itself, and he said
no, but that each individual piece was heavy. He knew that the
contents of the box, before they had been unpacked, were too
heavy for him to lift.
The Schuemanns returned to the same Menards store the
following day and purchased an identical shed packaged in
the same fashion. On that occasion, Richard backed his truck
into the loading area of the store. A Menards employee, later
identified as Nicholas Moore, took Richard’s purchase ticket,
and the two men walked over to the shed boxes. Moore pulled
a large cart up next to the boxes and got on one side of the
box. Richard testified that Moore said they had to pick up
the box and put it on the cart and that Moore then started
lifting one side of the box. According to Richard, Moore
“directed” or “requested” that Richard help pick up the other
side of the box. Richard said he felt that he needed to help at
that point, because Moore was struggling with the box and
Richard thought Moore was going to hurt himself. Richard
acknowledged that he could have declined to help lift the
- 980 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
box, but that he did not do so. As Richard started lifting the
other side of the box, he suddenly experienced searing pain in
his back.
As a result of his back pain, Richard went to a hospital
and notified Menards of his injury. Thereafter, he under-
went medical treatment for his injuries. On July 1, 2014, the
Schuemanns filed a complaint against Menards. They alleged
that as a result of the negligence of Menards and its employ-
ees, Richard suffered injuries to his back, neck, and shoulder
and Janice suffered a loss of consortium for the loss of service
and companionship of Richard. Menards’ answer raised sev-
eral affirmative defenses, including assumption of risk.
The matter proceeded to a jury trial in 2018. At trial,
Menards offered into evidence an audio recording of a state-
ment Richard made to an adjuster for an insurance company
presumably for Menards. Menards offered into evidence only
the first 13 minutes 25 seconds of the recorded conversa-
tion, redacting the final 3 minutes 32 seconds of the conver-
sation. The recording was received into evidence over the
Schuemanns’ objection on the rule of completeness. Thereafter,
the Schuemanns requested a jury instruction on the rebuttable
presumption that the statement had been taken under duress
pursuant to Neb. Rev. Stat. § 25-12,125 (Reissue 2016). The
district court refused to give the instruction. The jury ulti-
mately found in favor of Menards. The Schuemanns filed a
motion for new trial and/or a motion to alter or amend. The
motions were denied. The Schuemanns now appeal.
ASSIGNMENTS OF ERROR
The Schuemanns assign that the district court erred in (1)
instructing the jury on the defense of assumption of risk,
(2) failing to file and show all refused jury instructions or
amendments to instructions resulting in the given instructions,
(3) admitting into evidence the audio recording over their
objection, (4) refusing to give their proposed jury instruction
on the presumption of duress, and (5) failing to sustain their
- 981 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
objections to Moore’s testimony on the grounds of foundation
and speculation.
STANDARD OF REVIEW
[1,2] Whether a jury instruction is correct is a question of
law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d
247 (2018). When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently
of the conclusion reached by the trial court. Id.
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. Savage, 301 Neb. 873, 920 N.W.2d 692
(2018), modified on denial of rehearing 302 Neb. 492, 924
N.W.2d 64 (2019). Where the Nebraska Evidence Rules com-
mit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evi-
dence for an abuse of discretion. Id.
[5] A trial court’s decision to admit habit evidence based
on opinion under Neb. Rev. Stat. § 27-406 (Reissue 2016) is
reviewed for an abuse of discretion. Borley Storage & Transfer
Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006).
ANALYSIS
Assumption of Risk Instruction.
The Schuemanns assign that the district court erred in
instructing the jury on the defense of assumption of risk, argu-
ing that the instruction was not supported by the evidence
because there was no evidence that Richard was apprised of
any specific risk of potential injury in helping to lift the box
onto the cart.
[6,7] Before the defense of assumption of risk is submissible
to a jury, the evidence must show that the plaintiff (1) knew of
the specific danger, (2) understood the danger, and (3) volun-
tarily exposed himself or herself to the danger that proximately
- 982 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619
N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12
(Reissue 2016). The doctrine of assumption of risk applies a
subjective standard, geared to the individual plaintiff and his
or her actual comprehension and appreciation of the nature
of the danger he or she confronts. Pleiss v. Barnes, supra.
A plaintiff does not assume a risk of harm arising from the
defendant’s conduct unless he then knows of the existence of
the risk and appreciates its unreasonable character, or the dan-
ger involved, including the magnitude thereof, and voluntarily
accepts the risk. Id. The doctrine of assumption of risk applies
to known dangers and not to those things from which, in pos-
sibility, danger may flow. Id.
In Pleiss v. Barnes, supra, the plaintiff was injured when a
ladder on which he was standing flipped, twisted, and started
to slide, causing him to fall. The plaintiff testified that he knew
that ladders could “‘get shaky and fall’” but that he had never
seen a ladder “flip, twist, and slide” prior to his injury. Id. at
775, 619 N.W.2d at 829. Applying the subjective standard set
forth above, the Nebraska Supreme Court recognized that the
question was not whether the plaintiff knew that in general lad-
ders could be dangerous, but whether he knew and understood
that this particular ladder, either because of its placement or
because it was not tied down, created a specific danger that it
could flip, twist, and slide, causing him to fall. And where the
record did not indicate any such specific knowledge or under-
standing, the Supreme Court held that the trial court erred in
instructing the jury on assumption of risk.
In Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418 (2004), an
action involving a claim that a rodeo stock provider furnished
an unusually dangerous bucking horse to a high school rodeo,
the Supreme Court noted that the plaintiff rider’s acknowl-
edged familiarity with the general risks of injury inherent in
rodeo competition could not form the basis of an assumption
of risk defense. However, the Supreme Court concluded that
the rider had actual knowledge of the specific danger posed
- 983 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
by the horse because he had observed a previous incident in
which a rider was injured when the same horse performed in
the same unusual manner which caused his injury.
In the present case, the evidence supports a finding that
given Richard’s experience with this specific type of shed box
on the day prior to his injury, he had actual knowledge of the
specific risk. Richard had purchased the same type of shed the
day before his injury, and although a Menards employee put
the shed box into Richard’s truck, Richard said that once he
got the box home, he and his wife took the individual pieces
out of the box, and that each individual piece was heavy.
He knew that the contents of the box, before they had been
unpacked, were too heavy for him to lift.
Richard admitted that the following day at Menards, Moore
requested that Richard help him lift the box onto the cart and
Richard hesitated and said, “[N]o, I don’t think I should.” In
an attempt to impeach Richard, counsel read an excerpt from
Richard’s deposition in which Richard related his statement to
Moore that “‘I have a neck injury and I don’t think I should
lift that.’” Although a subsequent objection was sustained, the
testimony was not stricken. We recognize that Richard adduced
conflicting evidence tending to prove that he was unaware of
the danger of lifting the box; however, determining which par-
ty’s evidence is credible or not is a question for the jury. See
Higginbotham v. Sukup, 15 Neb. Ct. App. 821, 737 N.W.2d 910
(2007). Richard acknowledged that he could have refused to
help lift the box, but decided to assist Moore because it looked
like Moore was struggling and Richard was afraid Moore was
going to “hurt himself.” Richard testified that he, himself, had
had “a lot of lower and middle and upper back problems in
[his] life.”
[8] Given (1) that Richard purchased the same type of shed
on July 1, 2010, and knew that because each piece was heavy,
the whole box was heavy; (2) that he was hesitant to assist
Moore and initially stated he did not think he should; and (3)
that he saw Moore struggling to lift the box and was afraid
- 984 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
Moore would hurt himself, the evidence could support a find-
ing that Richard appreciated the specific danger posed by
lifting the heavy shed box and the risk of injury. Additionally,
Richard acknowledged that he could have declined to help lift
the box, and thus, a jury could conclude that he voluntarily
exposed himself to the danger. A tendered jury instruction is
warranted by the evidence only if there is enough evidence
on the issue to produce a genuine issue of material fact for
the jury to decide. Armstrong v. Clarkson College, 297 Neb.
595, 901 N.W.2d 1 (2017). We therefore find no error in the
district court’s decision to instruct the jury on assumption
of risk.
The Schuemanns also claim that the assumption of risk
defense was improperly included in jury instruction No. 11.
Menards argues that the Schuemanns did not object on these
grounds at trial. At the jury instruction conference, the
Schuemanns acquiesced to including affirmative defenses as
part of instruction No. 11. But they reiterated their objection
that the evidence did not support an assumption of risk instruc-
tion, as discussed above. Thus, this issue has been preserved
for appeal. But because we have determined that the jury was
properly instructed on assumption of risk, we find no error in
its inclusion as part of instruction No. 11.
Menards contends that the giving of the assumption of risk
instruction was proper, but even if the court erred by instruct-
ing the jury as to this affirmative defense, the general verdict
rule bars the Schuemanns’ challenge. We agree.
[9,10] A jury, by its general verdict, pronounces upon all or
any of the issues in favor of either the plaintiff or the defend­
ant. Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298
Neb. 777, 906 N.W.2d 1 (2018). Because a general verdict
does not specify the basis for an award, Nebraska law pre-
sumes that the winning party prevailed on all issues presented
to the jury. Id.
Applying the general verdict rule here, we presume the jury
found in Menards’ favor on all issues submitted, including
- 985 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
whether it was negligent and if it maintained its premises in
a reasonably safe condition. It is within this framework that
we analyze the Schuemanns’ assignment of error that the jury
was erroneously instructed.
Here, the jury was instructed to consider Menards’ affirm­
ative defenses only if it found the Schuemanns had met
their burden of proof on their negligence and premises lia-
bility claims. Specifically, jury instruction No. 10 stated,
“[I]f the [Schuemanns] have met this burden of proof on one
of their claims, then you must consider [Menards’] affirma-
tive defenses.” Under the general verdict rule, we presume the
jury determined the negligence and premises liability issues
in favor of Menards. Thus, the jury never reached the ques-
tion of Menards’ affirmative defenses, and any alleged error in
instructing the jury on the assumption of risk defense would
necessarily be harmless. See Facilities Cost Mgmt. Group v.
Otoe Cty. Sch. Dist., supra. The Schuemanns’ assigned error
relating to the assumption of risk defense cannot form the basis
for reversible error. See id.
Failure to File and Mark
Jury Instructions.
The Schuemanns argue that the district court committed
reversible error when it failed to abide by Neb. Rev. Stat.
§§ 25-1113 and 25-1114 (Reissue 2016). Section 25-1113
requires that the court write the words “given” or “refused,” as
the case may be, on the margin of each jury instruction. Under
§ 25-1114, all instructions requested and given must be filed by
the clerk before being read to the jury and shall be preserved
as part of the record. The Schuemanns argue that there is no
such filing in the present case, and although the instructions
contained in the transcript appear to be those that were given
to the jury, they are not marked as such.
The record indicates that the Schuemanns did not raise an
objection on these statutory grounds at trial. The objection
that the instructions were not filed must be made when or
- 986 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
before the instructions are read; otherwise, the objection is
waived. See, Minzer v. Willman Mercantile Co., 59 Neb. 410,
81 N.W. 307 (1899); Fire Ass’n of Philadelphia v. Ruby, 58
Neb. 730, 79 N.W. 723 (1899). Failure to mark an instruction
“‘given’” is not available as error, in the absence of an excep-
tion on that ground. Hurlbut v. Proctor, 88 Neb. 491, 492,
129 N.W. 995, 996 (1911). Because no objection was made
to the district court, the Schuemanns are precluded from rais-
ing the issue on appeal. We therefore decline to address this
assigned error.
Recorded Conversation.
The Schuemanns assert that the district court erred in
receiving into evidence, over their objection, the audio record-
ing of the statement Richard gave to an insurance adjuster.
They claim that they were unaware that the recording Menards
was going to offer into evidence at trial was a redacted ver-
sion of the recording and argue that Menards’ failure to
offer the entire recording into evidence violates the rule of
completeness.
[11,12] The rule of completeness allows a party to admit the
entirety of an act, declaration, conversation, or writing when
the other party admits a part and when the entirety is necessary
to make it fully understood. State v. Savage, 301 Neb. 873,
920 N.W.2d 692 (2018), modified on denial of rehearing 302
Neb. 492, 924 N.W.2d 64 (2019). See Neb. Rev. Stat. § 27-106
(Reissue 2016). The rule of completeness comes into play when
a statement is admitted into evidence out of context. Nickell v.
Russell, 260 Neb. 1, 614 N.W.2d 349 (2000). Because § 27-106
is concerned with the danger of admitting certain statements
taken out of context, additional evidence is admissible only if it
qualifies or explains the previous testimony. Nickell v. Russell,
supra. When this danger is not present, it is not an abuse of
discretion to refuse to require the production of the remainder
or, if it cannot be produced, to exclude all the evidence. State
v. Savage, supra.
- 987 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
In the present case, the entire recorded conversation between
Richard and the insurance adjuster lasted 16 minutes 57 sec-
onds. Menards offered into evidence the first 13 minutes 25
seconds of the conversation. The Schuemanns objected on the
ground of rule of completeness, arguing that it was inappropri-
ate to offer a redacted version. The objection was overruled,
and the recording was received into evidence and played for
the jury. On appeal, the Schuemanns do not argue that the
portion played for the jury was taken out of context or needed
additional explanation; rather, they assert that the remaining
3 minutes 32 seconds of the conversation added additional
details and bolstered Richard’s credibility.
We have listened to the entire recorded conversation and
conclude that the admitted portion of the conversation was
not taken out of context and that the redacted portion of the
conversation does not qualify or explain the admitted portion.
Rather, in the minutes of the conversation that were omit-
ted, there is a discussion regarding insurance coverage and
Richard’s Medicare coverage, which is inadmissible at trial
not only by law, see Neb. Rev. Stat. § 27-411 (Reissue 2016)
and Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703,
677 N.W.2d 122 (2004), but, also, because the district court
granted Menards’ pretrial motion in limine which prohibited
the introduction of any evidence related to insurance cover-
age. Intertwined with this discussion, Richard made additional
statements regarding the incident such as there was no one
around to help him and he is sure there would be “videos” of
the incident. But because the danger of admitting certain state-
ments out of context is not present here, it was not an abuse of
discretion for the district court to decline to exclude the record-
ing offered by Menards.
Jury Instruction Regarding Duress.
The Schuemanns argue that the district court erred in
refusing to give their proffered jury instruction pursuant
to § 25-12,125, because the jury was entitled to know the
- 988 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
statutory presumption that the statement Richard gave to the
insurance adjuster was made under duress. We find no error in
the court’s refusal to so instruct the jury.
Section 25-12,125 provides:
(1) There shall be a rebuttable presumption that any
statement secured from an injured person by an adverse
person at any time within thirty days after such injuries
were sustained shall have been taken under duress for
purposes of a trial of any action for damages for injuries
sustained by such person or for the death of such person
as the result of such injuries.
(2) The presumption described in subsection (1) of this
section may be rebutted by evidence. The presumption
shall be deemed rebutted as a matter of law if the adverse
person taking the statement discloses to the injured per-
son prior to taking the statement:
(a) Whom he or she represents;
(b) That the injured person may make the statement in
the presence of counsel or any other representative; and
(c) That a copy of the statement is available at no cost
to the injured person.
There is no dispute that the factors required to rebut the
presumption as a matter of law under § 25-12,125(2) were
not present here. Thus, in order to rebut the presumption,
Menards was required to present evidence that the statement
that Richard gave was not made under duress. And because
the district court refused the Schuemanns’ jury instruction
on the statutory presumption, we infer that the court found
that sufficient evidence had been presented to rebut the
presumption.
[13] A rebuttable presumption is generally defined as a
presumption that can be overturned upon the showing of suf-
ficient proof. Dawes v. Wittrock Sandblasting & Painting,
266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other
grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707
N.W.2d 229 (2005). In most instances, a presumption imposes
- 989 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
on the party against whom it is directed the burden of proving
that the nonexistence of the presumed fact is more probable
than its existence. See id. See, also, Neb. Rev. Stat. § 27-301
(Reissue 2016).
In Nebraska, we have two types of true presumptions: evi-
dentiary presumptions and nonevidentiary presumptions. NJI2d
Civ. 2.14A, comment IV. Evidentiary presumptions are those
created by § 27-301, which states, “In all cases not otherwise
provided for by statute or by these rules a presumption imposes
on the party against whom it is directed the burden of proving
that the nonexistence of the presumed fact is more probable
than its existence.” Section 27-301 shifts the burden of per-
suasion and production, as to a particular issue. See Hopkins
v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). With evi-
dentiary presumptions, the jury is instructed as to the effect of
the presumption depending upon the evidence presented. See,
generally, NJI2d Civ.2.14A through 2.14D.
[14] Nonevidentiary presumptions do not shift the burden
of persuasion; rather, they shift the burden of production.
Hopkins v. Hopkins, supra; NJI2d Civ. 2.14A, comment IV(B).
They are commonly referred to as “bursting bubble” presump-
tions. Hopkins v. Hopkins, supra; NJI2d Civ. 2.14A, comment
IV(B). Once opposing counsel produces evidence to rebut the
presumed fact, the presumption disappears. NJI2d Civ. 2.14A,
comment IV(B). It is then left to the jury to determine the cred-
ibility of the evidence.
One commentator has identified the rebuttable presumption
of § 25-12,125 as not fitting into any category of presump-
tions, further explaining, “I put this in this category because
in so far as I can see this presumption is meaningless.”
G. Michael Fenner, Presumptions: 350 Years of Confusion and
It Has Come to This, 25 Creighton L. Rev. 383, 422 (1992).
It seems to us that because the presumption contained in
§ 25-12,125 can be rebutted by evidence, and can be rebutted
as a matter of law by certain evidence, it is concerned with
the burden of production, and not the burden of persuasion,
- 990 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
making it a nonevidentiary presumption, if it is a presumption
at all.
In the present case, the evidence established that the insur-
ance adjuster called Richard on July 6, 2010, 4 days after he
sustained his injuries. As can be heard on the recording of the
call, Richard was able to follow along and answer questions
appropriately. He explained what happened while he was at
Menards, volunteered information where appropriate, and did
not appear to be confused. Thus, the evidence supports the dis-
trict court’s determination that the presumption of duress had
been rebutted by the evidence.
Even though the jury was not instructed on the presumption,
the basic facts surrounding the statement were in evidence
for the jury’s consideration and credibility assessment. As
explained in the Nebraska Jury Instructions:
While the presumption vanishes, the basic facts, that
is, the facts that kicked in the presumption, remain in
the case. They remain in evidence. And the trier of fact
weighs those basic facts exactly as it weighs every other
fact in evidence. They can find the basic facts to be true
or not. And if they find the basic facts to be true, they
can infer therefrom the formerly presumed fact. That is,
the weight added when the presumption kicks in is the
shift in the burden of production; when the presumption
bursts, that weight is removed; nothing else changes.
The facts that created the presumption have not vanished
and trier-of-fact still considers them for whatever they
are worth.
NJI2d Civ. § 2.14A, comment IV(C).
In addition to the evidence detailed above, Richard testified
at trial that when the adjuster called, he had just woken up,
and that Richard told him he “was on a lot of medication and
[he] didn’t know exactly how [the call] was going to go.” He
later reiterated that although it was not included on the record-
ing played for the jury, at the beginning of the call, he told
the caller that he had taken a lot of pain pills and he “didn’t
- 991 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
know how accurate [he] would be with things.” All of these
facts were presented to the jury for its consideration in reach-
ing its verdict.
[15] 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. Rodriguez v. Surgical
Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). However,
if the instructions given, which are taken as a whole, cor-
rectly state the law, are not misleading, and adequately cover
the issues submissible to a jury, there is no prejudicial error
concerning the instructions and necessitating a reversal. Id.
Because the district court determined that evidence had been
presented to rebut the presumption of duress, the Schuemanns’
proposed jury instruction was not warranted by the evidence.
The court therefore did not err in refusing to give the ten-
dered instruction.
Objections to Moore’s Testimony.
The Schuemanns assert that the district court erred in over-
ruling their objections to Moore’s testimony on the grounds
of foundation and speculation. They claim that because
Moore admitted that he had no personal recollection of the
events involving the Schuemanns, he should have been pro-
hibited from testifying as to what he would or would not
have done relative to his interactions with Richard. We find
that Moore was properly permitted to testify as to his habit
under § 27-406.
Evidence of the habit of a person or of the routine practice
of an organization, whether corroborated or not and regardless
of the presence of eyewitnesses, is relevant to prove that the
conduct of the person or organization on a particular occa-
sion was in conformity with the habit or routine practice.
§ 27-406(1). The exercise of judicial discretion is implicit in
- 992 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
determinations of relevancy and admissibility under § 27-406,
and as a result, the trial court’s decision will not be reversed
absent an abuse of discretion. Hoffart v. Hodge, 9 Neb. Ct. App.
161, 609 N.W.2d 397 (2000). Under § 27-406, the trial court
determines whether the predicate evidence necessary to prove
conduct by habit has been introduced. Habit may be shown by
opinion or specific instances of conduct. Hoffart v. Hodges,
supra. See § 27-406(2). It is within the trial court’s discretion
to determine if there is sufficient foundation for a witness to
give his or her opinion about an issue in question. Hoffart v.
Hodge, supra.
The Nebraska appellate courts have previously allowed tes-
timony by witnesses as to their habits in order to prove con-
formity on a particular occasion. In Hoffart v. Hodge, supra,
this court upheld the admission of the testimony of a defend­
ant medical doctor in a medical malpractice action as to his
regular practice and routine of advising his patients. In doing
so, we recognized the practical reality that a doctor cannot be
expected to specifically recall the advice or explanation he or
she gives to each and every patient he or she treats. Thus, evi-
dence of habit may be the only vehicle available for a doctor
to prove that he or she acted in a particular way on a particular
occasion. Id.
Relying upon the rationale of Hoffart v. Hodge, supra, the
Supreme Court upheld the admission of the testimony of a
lawyer in a legal malpractice case regarding the advice he rou-
tinely gave to his clients under particular circumstances. See
Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710
N.W.2d 71 (2006).
In the present case, Moore testified that he began working
at Menards around 2008 or 2009. He worked in the build-
ing materials department for approximately 3 years before he
was promoted to management and was employed at Menards
for a total of 51⁄2 or 6 years. At the beginning of his employ-
ment, he received training and guidance on assisting custom-
ers and loading and unloading items. He was taught to help
- 993 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
all customers he encountered, particularly if a customer was
lifting something that appeared too heavy. He explained that
Menards referred to its customers as “guests” and that he was
taught to treat customers as if they were guests in his own
home. During his employment, he assisted hundreds, if not
thousands, of customers and established habits and routines
associated with assisting customers, which habits he would
use on a general basis.
Although it is undisputed that Moore was the Menards
employee who assisted Richard on July 2, 2010, Moore admit-
ted that he did not specifically recall his interactions with
Richard. However, he testified over objection that based on
the habits and routines that he had established, he did not
think he would have told a customer that the customer had
to help him load a shed box onto a cart, because doing so
would not be consistent with how he treated his guests.
He also testified over objection that he believed he would
recall if he had been helping a customer and the customer sud-
denly started limping and visibly experiencing pain, because
that is not something he would have typically seen from a cus-
tomer, and that he would have noticed something was wrong
if a customer started limping. He also said that if he had seen
a customer in visible pain, he would not have asked the cus-
tomer for assistance.
Moore’s testimony as to his habits when assisting his guests
while working at Menards tends to establish how he acted
when assisting Richard. Habit evidence makes it more prob-
able that the person acted in a manner consistent with that
habit. See Hoffart v. Hodge, 9 Neb. Ct. App. 161, 609 N.W.2d
397 (2000). Like the witnesses in Hoffart v. Hodge, supra,
and Borley Storage & Transfer Co. v. Whitted, supra, Moore
explained that he assisted hundreds, if not thousands, of cus-
tomers during his employment at Menards and that he could
not specifically remember the events at issue here. Thus, evi-
dence of habit may be the only vehicle available to prove that
someone acted in a particular way on a particular occasion.
- 994 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
SCHUEMANN v. MENARD, INC.
Cite as 27 Neb. Ct. App. 977
See Hoffart v. Hodge, supra. The fact that Moore did not
specifically remember assisting Richard does not render his
testimony inadmissible, because § 27-406 allows proof of
habit by opinion. See Hoffart v. Hodge, supra. As a result,
the district court did not abuse its discretion in overruling the
Schuemanns’ objections to Moore’s testimony.
CONCLUSION
Having rejected the arguments raised on appeal, we affirm
the district court’s order.
Affirmed.