§ 25-1334 — Form of affidavits; further testimony

Nebraska § 25-1334

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

Legislative History

Source: Laws 1951, c. 65, § 5, p. 200. Annotations: The key inquiry under this section, insofar as an expert's opinion and foundational evidence is concerned, is whether such evidence would be admissible at trial, and thus, an expert's opinion may meet the requirements of this section. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999). It was error for court to base decision on affidavits when there was no showing that affidavits were made based on affiant's personal knowledge of the facts set forth therein. First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994). Affidavits in support of or in opposition to a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988). Statements in affidavits as to opinion, belief, or conclusions of law are of no effect. In re Estate of Villwok, 226 Neb. 693, 413 N.W.2d 921 (1987). Administrative manager held competent to testify by affidavit to matters concerning records over which he was in charge. Kosowski v. City Betterment Corp., 197 Neb. 402, 249 N.W.2d 481 (1977). Affidavit opposing summary judgment must set forth facts. Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643 (1957). The trial court's consideration of a nursing home director's affidavit, when deciding a motion for summary judgment, was not plain error in a negligence action arising from a nursing home resident's death after an alleged fall from bed, where the director had sufficient personal knowledge, the affidavit set forth facts that would be admissible, and the director was competent to testify to the matters stated. Apkan v. Life Care Centers of America, 26 Neb. App. 154, 918 N.W.2d 601 (2018). The affidavit of a county's planning director, which attached the zoning regulations at issue, was material and relevant, even if the portion of the affidavit containing the affiant's interpretation of the regulation and its applicability was inadmissible. Dowd Grain Co. v. County of Sarpy, 19 Neb. App. 550, 810 N.W.2d 182 (2012). Under the terms of this section, affidavits offered for the truth of a particular fact (1) shall be made on personal knowledge, (2) shall set forth such facts as would be admissible into evidence, and (3) shall show affirmatively that the affiant is competent to testify to the matters stated therein. Richards v. Meeske, 12 Neb. App. 406, 675 N.W.2d 707 (2004). Unsworn summaries of facts or arguments and of statements which would be inadmissible in evidence are of no effect in a motion for summary judgment. Kulhanek v. Union Pacific RR. Co., 8 Neb. App. 564, 598 N.W.2d 67 (1999). To be effective, evidence opposing the rendition of a summary judgment must be made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated therein. Statements in affidavits as to opinion, belief, or conclusions of law are of no effect. Holt Cty. Sch. Dist. No. 0025 v. Dixon, 8 Neb. App. 390, 594 N.W.2d 659 (1999).