Russell v. Stricker

635 N.W.2d 734, 262 Neb. 853, 2001 Neb. LEXIS 182
CourtNebraska Supreme Court
DecidedNovember 30, 2001
DocketS-00-264
StatusPublished
Cited by14 cases

This text of 635 N.W.2d 734 (Russell v. Stricker) 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
Russell v. Stricker, 635 N.W.2d 734, 262 Neb. 853, 2001 Neb. LEXIS 182 (Neb. 2001).

Opinions

Hendry, C.J.

INTRODUCTION

Kevin D. Russell brought a negligence action against Brant Strieker and Lee Swires (collectively defendants) for injuries Russell sustained as a passenger in Strieker’s truck when Strieker engaged in a speed contest with Swires. The jury found Russell 36 percent negligent, Strieker 47 percent negligent, and Swires 17 percent negligent. Russell was awarded $17,330, which was 64 percent of the $27,077 total award. The court granted Strieker’s motion for a credit against the judgment and reduced Russell’s judgment by $5,000. Russell appealed. We moved this case to our docket pursuant to our power to regulate [855]*855the Nebraska Court of Appeals’ caseload and that of this court. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).

FACTUAL BACKGROUND

On March 3, 1995, Strieker engaged in a speed contest with Swires in Scottsbluff, Nebraska, which resulted in an accident when Strieker lost control of the truck he was operating and struck a light pole. Russell, a passenger in Strieker’s truck at the time of the accident, brought this negligence action against defendants, seeking damages for his injuries. Defendants contended that Russell was contributorily negligent.

At the jury instruction conference at the close of evidence, defendants did not object to the court’s proposed instructions and Russell objected only to the extent that the instructions referred to Russell’s assumption of the risk or contributory negligence. The court gave the jury five instructions and three verdict forms. Jury instruction No. 2, under “C. Effect of Findings,” informed the jury how to utilize the verdict forms. The instruction stated:

1. If the Plaintiff failed to meet his burden of proof against the Defendants then your verdict must be for the Defendants and you will complete only Verdict Form Number 1. However, if the Plaintiff has met his burden of proof, then you must consider the defendant’s defenses.
2. If the Defendants have met their burden of proof that the Plaintiff assumed the risk, then your verdict must be for the Defendants, and this is true even if you find that one or both of the Defendants were negligent and this negligence was also a proximate cause of Plaintiff’s injury. You will complete only Verdict Form Number 1. If the Defendants have not met their burden of proof, you must disregard the defense of “assumption of risk”.
3. If the Plaintiff has met his burden of proof against Defendant Strieker or Defendant Swires or both, AND the Defendants HAVE NOT met their burden of proof that the Plaintiff was also negligent, then your verdict must be for the Plaintiff in the amount of damages you find, and you will complete only Verdict Form Number 2.
4. If the Plaintiff has met his burden of proof against Defendant Strieker or Defendant Swires or both, AND the [856]*856Defendants HAVE met their burden of proof that the Plaintiff was also negligent then you must complete only Verdict Form Number 3.

(Emphasis in original.)

After receiving these instructions, the jury deliberated and returned verdict form No. 3. Using verdict form No. 3, the jury allocated percentages of negligence to each of the parties as follows: Russell, 36 percent; Strieker, 47 percent; and Swires, 17 percent. The jury then found that Russell had incurred total damages of $27,077. The jury, finding that the sum of both defendants’ negligence totaled 64 percent, multiplied that percentage by $27,077 to determine that Russell was entitled to recover $17,330 in damages. The district court entered judgment against defendants for that amount on January 25, 2000.

Russell filed a motion for new trial on January 31, 2000. A hearing was held on February 9 regarding the motion for new trial and Strieker’s motions for credit against the judgment. The court overruled Russell’s motion for new trial and granted Strieker’s motion for credit against the judgment, reducing Strieker’s judgment by $5,000 to $12,330. Russell appealed.

ASSIGNMENTS OF ERROR

Russell asserts as error that (1) the court failed to properly instruct the jury with respect to the effects of its allocation of negligence as required by Neb. Rev. Stat. § .25-21,185.09 (Reissue 1995) and (2) the court erred in sustaining Strieker’s motion for credit against the judgment in the sum of $5,000 pursuant to the medical payments coverage provision in Strieker’s automobile insurance policy and Neb. Rev. Stat. § 25-1222.01 (Reissue 1995).

STANDARD OF REVIEW

Whether a jury instruction given by a trial court is correct is a question of law. Maxwell v. Montey, ante p. 160, 631 N.W.2d 455 (2001).

When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Smith v. Fire Ins. Exch. of Los Angeles, 261 Neb. 857, 626 N.W.2d 534 (2001); Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000).

[857]*857ANALYSIS

Jury Instructions and Verdict Forms

Russell contends the district court did not properly instruct the jury regarding the effects of its allocation of negligence as required by § 25-21,185.09. This is a question of statutory interpretation. Section 25-21,185.09 states:

Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant’s contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. The jury shall be instructed on the effects of the allocation of negligence.

(Emphasis supplied.) We have concluded previously that “it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with § 25-21,185.09.” Wheeler v. Bagley, 254 Neb. 232, 239, 575 N.W.2d 616, 620 (1998). In Wheeler, the trial court did not instruct the jury or provide a verdict form that sufficiently conveyed the effects of the allocation of negligence. The result was a jury verdict form that found 49 percent negligence on the plaintiff’s part, 51 percent negligence on the defendant’s part, and the plaintiff’s damages in the amount of $40,000.

In Wheeler, the plaintiff argued that the verdict form indicated she should receive $40,000.

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Russell v. Stricker
635 N.W.2d 734 (Nebraska Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
635 N.W.2d 734, 262 Neb. 853, 2001 Neb. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-stricker-neb-2001.