Erickson v. U-Haul Intern.

767 N.W.2d 765, 278 Neb. 18
CourtNebraska Supreme Court
DecidedJuly 2, 2009
DocketS-08-759
StatusPublished
Cited by16 cases

This text of 767 N.W.2d 765 (Erickson v. U-Haul Intern.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erickson v. U-Haul Intern., 767 N.W.2d 765, 278 Neb. 18 (Neb. 2009).

Opinion

767 N.W.2d 765 (2009)
278 Neb. 18

Shari ERICKSON and George Erickson, Appellants,
v.
U-HAUL INTERNATIONAL, doing business as U-Haul Company, a corporate defendant, and U-Haul Center of N.W. Omaha, Appellees.

No. S-08-759.

Supreme Court of Nebraska.

July 2, 2009.

*769 P. Shawn McCann, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellants.

Ronald F. Krause, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, and K. Lee Marshall and Stephen G. Strauss, of Bryan Cave, L.L.P., St. Louis, MO, for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

This is the second time this case has come before us.[1] It remains a case about a moving day accident. Dale and Judith Carstens were moving from Walnut, Iowa, to Herman, Nebraska, and had enlisted the help of their daughter, Shari Erickson. To facilitate the move, Judith rented a U-Haul truck. While operating the truck, Dale accidentally pinned Shari's foot between the truck's ramp and a concrete step. As a result of the accident, Shari and her husband, George Erickson, sued U-Haul International, Inc.; U-Haul Center of N.W. Omaha (U-Haul Center); and Dale. The district court granted the defendants' motion for partial summary judgment as to the plaintiffs' statutory liability claims and directed a verdict against George's loss of consortium claim. The jury returned a verdict in favor of the defendants on the plaintiffs' remaining negligence claims.

The plaintiffs appeal, arguing that the court should not have entered judgment on their statutory liability and loss of consortium claims and that the court erred in excluding certain photographic evidence at trial. We affirm.

FACTS

Shari's mother, Judith, rented the truck from U-Haul Center, a Nebraska corporation, to move from Iowa to Nebraska. The truck, known as a 17-foot easy-loading mover, was titled in the name of "U Haul Co." Shari, a resident of Nebraska, agreed to help her parents move. While operating the truck in Iowa, Shari's father, Dale, attempted to back it up to a porch, but the loading ramp was a few inches short of the top step. Shari held the ramp up while Dale attempted to reverse the truck a few more inches. When the truck was engaged, however, it first jumped forward, throwing Shari off balance, and as Dale backed up the truck, it pinned Shari's foot between the concrete step and the truck's ramp. As a result of the injury, Shari had reconstructive surgery on her foot and was hospitalized for approximately 3 weeks.

Shari and George sued U-Haul International, U-Haul Center, and Dale for negligence. Dale has since died, and his estate is no longer a party. The Ericksons also brought claims against U-Haul International for vicarious liability and statutory negligence pursuant to Neb.Rev.Stat. *770 § 25-21,239 (Reissue 2008) or, in the alternative, Iowa Code Ann. § 321.493 (West Cum. Supp. 2008). The district court had previously entered summary judgment in favor of U-Haul International and U-Haul Center, based, respectively, on a lack of tort duty and insufficient minimum contacts with the State of Nebraska. On appeal, we reversed both findings and remanded the cause for trial.[2]

Before trial, U-Haul International filed a motion for partial summary judgment as to the statutory negligence cause of action. After a hearing, the district court granted U-Haul International's motion for partial summary judgment, concluding that U-Haul International was not statutorily negligent because it was not the owner of the truck. The district court did not resolve the issue of whether Nebraska or Iowa law applied, but determined that Erickson could not prevail under the relevant statutes of either state.

A jury trial was held to determine the negligence claims against U-Haul International and U-Haul Center. Judith testified that she did not see any legible warning decals on the truck instructing that the ramp should not be extended while the truck was in motion. The Ericksons also introduced a number of exhibits, including exhibits 30 and 31, which were photographs of a standard U-Haul truck bumper displaying a warning decal. The general manager of the U-Haul Center identified exhibit 30 as "the warning decal above the ramp" and exhibit 31 as a "little bit sharper view of Exhibit No. 30." He testified that both exhibits were photographs of a U-Haul truck, but not the truck in question. Instead, the truck pictured in exhibits 30 and 31 was a different truck, with a different ramp, than the truck which was involved in the accident.

U-Haul objected to the exhibits on foundation and relevance grounds. In response, the Ericksons' counsel argued that although the exhibits were "not probative of at the time of the accident how the particular truck was," the exhibits were "probative of the fact that U-Haul has ramps with defective stickers on them and labels that haven't been replaced." But the district court sustained the foundation and relevance objections.

The district court received into evidence, however, a color copy of the U-Haul ramp warning decal depicted in exhibits 30 and 31. The warning sticker below the latch to the truck's rear door states, "DANGER DO NOT extend or hold ramp while vehicle is in motion. Failure to follow this warning could result in serious or fatal injury." (Emphasis in original.) The district court also received into evidence copies of photographs of the actual truck, including photographs of the truck's bumper with a warning decal affixed.

U-Haul Center's shop manager testified that the truck, at all times and including the day of the accident, had an empty vehicle weight of 8,140 pounds. In addition, the assistant corporate secretary of U-Haul International testified that with each rental of a truck, such as the truck here, an insurance policy is included, providing coverage for at least the minimum financial limits for the state where the vehicle is rented.

George did not attend trial and did not testify regarding any alleged loss of consortium. Shari, however, testified that the accident affected her intimacy and relationship with George. She testified that since the accident, her husband "probably has to do more chores" and he "takes it personally" if they sleep in separate bedrooms. At the close of the Ericksons' *771 evidence, the district court sustained U-Haul International's motion for a directed verdict on the loss of consortium claim.

The jury returned a verdict in favor of U-Haul International and U-Haul Center, upon which the court entered judgment. The Ericksons appeal.

ASSIGNMENTS OF ERROR

The Ericksons assign, restated and renumbered, that the district court erred in (1) granting U-Haul International's motion for partial summary judgment dismissing the statutory liability claim against U-Haul International; (2) dismissing, on a directed verdict, George's loss of consortium claim; and (3) excluding photographic evidence of the warning label affixed to a U-Haul loading ramp.

STANDARD OF REVIEW

Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.[3]

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Cite This Page — Counsel Stack

Bluebook (online)
767 N.W.2d 765, 278 Neb. 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erickson-v-u-haul-intern-neb-2009.