Articles Posted in Nebraska Supreme Court

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In this negligence action brought by Plaintiff, the mother and special administrator of the estate of Chad Gesin, who committed suicide while in the Gage County jail, the Supreme Court affirmed the finding of the district court that Plaintiff's action was barred by sovereign immunity under Neb. Rev. Stat. 13-910(1), holding that the district court properly found that Plaintiff's claim was barred by section 13-910(1). Plaintiff brought this action against the County of Gage, Nebraska, the Gage County sheriff, and unknown Gage County sheriff's employees under the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. 13-901 to 13-928, alleging that Defendants failed to follow the jail's established protocol and knew, or in the exercise of reasonable care should have known, that Gesin was suicidal. The district court concluded that Defendants had exercised due care and that Defendant's action was barred by sovereign immunity. The Supreme Court affirmed, holding that the district court did not err when it concluded that Plaintiff's claim for money damages was barred under section 13-910(1) and that Defendants were entitled to judgment in their favor. View "Reiber v. County of Gage" on Justia Law

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The Supreme Court affirmed the judgment of the district court granting summary judgment in favor of Union Pacific Railroad Company on Plaintiff's complaint alleging that Union Pacific's negligence caused him to suffer emotional distress, holding that the district court did not err in disregarding Plaintiff's supplemental affidavit or in granting summary judgment to Union Pacific. Plaintiff sued Union Pacific under the Federal Employers' Liability Act alleging that, while providing aid to an injured fellow employee, he was exposed to the risk of being run over by a railcar, which caused him emotional distress. After Union Pacific moved for summary judgment Plaintiff submitted an affidavit in opposition to Union Pacific's motion. The district court disregarded the affidavit, finding that it was inconsistent with Plaintiff's deposition testimony. The court then entered summary judgment in favor of Union Pacific. The Supreme Court affirmed, holding that (1) there was no merit to Plaintiff's arguments as to why the district court erred by disregarding his supplemental affidavit; and (2) summary judgment was proper because Plaintiff failed to present evidence from which a finder of fact could determine, without guesswork or speculation, that he was subjected to an immediate risk of physical harm. View "Kaiser v. Union Pacific Railroad Co." on Justia Law

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The Supreme Court affirmed as modified the district court's entry of a judgment for the estates of Arlene L. Pantano and Anthony R. Pantano in the amount of $195,000 in this negligence case brought against American Blue Ribbon Holdings, LLC, holding that there was sufficient evidence that American Blue Ribbon was negligent but that the district court erred in instructing the jury with regard to comparative negligence. Arlene and her husband, Anthony, filed suit against American Blue Ribbon alleging damages for injuries and loss of consortium suffered when Arlene fell at a restaurant owned by American Blue Ribbon. Arlene subsequently died of natural causes, and Anthony died four months earlier. After a trial, the jury found for the estates in the total amount of $260,000 but found Arlene was twenty-five percent negligent. The Supreme Court affirmed as modified, holding (1) American Blue Ribbon's arguments on appeal were unavailing; but (2) the district court erred in instructing the jury on comparative negligence and including comparative negligence on the verdict form and in thus reducing the judgment in favor of the estates by twenty-five percent. View "Pantano v. American Blue Ribbon Holdings, LLC" on Justia Law

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The Supreme Court reversed in part the district court's order dismissing a sexual assault protection order and entering a harassment protection order in that case, holding that the entry of the harassment protection order violated A.G.'s right to procedural due process. D.W. sought an obtained an ex parte sexual assault protection order against A.G. A.G. requested a show cause hearing on whether the sexual assault protection order should remain in effect. After a hearing, the trial court concluded that the sexual assault protection order would not remain in effect but that it would enter a harassment protection order. After sua sponte filing D.W.'s original petition and affidavit under a new case number, the trial court dismissed the sexual assault protection order and entered a harassment protection order in that case. The Supreme Court held (1) there is no basis to reverse the dismissal of the sexual assault protection order; but (2) the entry of the harassment protection order did not comply with procedural due process. View "D.W. v. A.G." on Justia Law

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The Supreme Court reversed the judgment of the district court granting summary judgment in favor of Defendant on the ground that Plaintiff's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. 25-222, holding that the district court erred in concluding that a massage therapist is a professional under section 25-222 and in granting summary judgment on that ground. Plaintiff, a customer of Defendant, a massage therapy establishment, alleged that Defendant's employee, a licensed massage therapist, improperly compressed a nerve on Plaintiff's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries. Plaintiff filed suit against Defendant, alleging that her injuries were caused by Defendant's negligence as the massage therapist's employer. The district court dismissed the complaint, concluding that Plaintiff's claim was time barred by the application of section 25-222. The Supreme Court reversed, holding that the district court erred by finding that massage therapy is a "profession" within the meaning of section 25-222. The Supreme Court remanded the cause to the district court. View "Wehrer v. Dynamic Life Therapy & Wellness, P.C." on Justia Law

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The Supreme Court affirmed the judgment of the district court in favor of Defendants in this medical malpractice and loss of consortium action, holding that Plaintiffs' assignments of error were without merit and that Neb. Rev. Stat. 44-2816 does not require that informed consent be written. Plaintiffs alleged that Defendant breached the standard of care because he failed to obtain informed consent before performing an injunction and manipulation procedure on Plaintiff's shoulder and failed to diagnose and treat a subsequent infection. A jury returned a general verdict in favor of Defendants. The Supreme Court affirmed, holding (1) Plaintiffs' assignments of error challenging various rulings regarding the admission of evidence, the jury instructions, and the overruling of Plaintiffs' various posttrial motions were without merit; and (2) the court's jury instruction to the effect that section 44-2816 does not require informed consent to be written was a correct statement of the law and warranted by the evidence. View "Bank v. Mickels" on Justia Law

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The Supreme Court affirmed the district court’s order dismissing Appellant’s claim against Metropolitan Utilities District (MUD) with prejudice, holding that the district court correctly determined that Appellant’s claim was time barred under the relevant provision of the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. 13-919(1). Appellant filed a complaint alleging that MUD was negligent with respect to its duty to inspect, discover, and cure dangerous conditions of loose manhole covers. The district court granted MUD’s motion to dismiss the complaint for failure to state a claim upon which relief could be granted, concluding that Appellant failed to satisfy a condition precedent to filing suit when she did not voluntarily withdraw her claim with MUD and that Appellant’s complaint was time barred under section 13-919(1). The Supreme Court affirmed, holding that Appellant’s petition was filed outside of the timing requirements of section 13-919(1). View "Patterson v. Metropolitan Utilities District" on Justia Law

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The Supreme Court affirmed the county court’s entry of summary judgment declaring that the proceeds of the Estate of Mark Anthony Helms be distributed pursuant to a prior federal court judgment applying North Carolina law, holding that there was no genuine issue of material fact precluding summary judgment. Decades after Helms died in a terrorist bombing, the estate obtained a wrongful death judgment in federal court determining that Helms had been domiciled in North Carolina and not Nebraska and that damages would be distributed according to North Carolina law. Later the successor personal representative of the Estate filed a probate case in the county court for Butler County a petition to authorize distribution of the judgment proceeds under Neb. Rev. Stat. 30-810, a Nebraska wrongful death statute. The county court ordered distribution pursuant to the federal court judgment applying North Carolina law. The Supreme Court affirmed, holding that because of the binding effect of the federal court judgment, the Nebraska wrongful death statute did not apply. View "In re Estate of Helms" on Justia Law

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In this case stemming from an electrician’s injuries after an aerial lift malfunctioned the Supreme Court affirmed the district court’s partial grant of Defendant’s motion to exclude expert testimony and grant of Defendant’s motion for summary judgment on all claims. While Plaintiff, the electrician, was working approximately thirty feet in the air on the raised platform of the aerial lift, the lift malfunction and tipped over. Plaintiff sustained serious injuries. Plaintiff sued Defendant, the manufacturer and designer of the lift, bringing strict liability claims, negligence claims, and an implied warranty claim. The district court partially granted Defendant’s motion to exclude Plaintiff’s expert opinions on the issues of unreasonably dangerous conditions, defect, causation, and alternative design and then entered summary judgment for Defendant on all claims. The Supreme Court affirmed, holding that the district court did not err in granting summary judgment in favor of Defendant on the strict products liability design and manufacturing defects claims. View "Pitts v. Genie Industries, Inc." on Justia Law

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The Supreme Court affirmed the determination of the Nebraska Workers’ Compensation Court that it lacked jurisdiction over Appellant’s petition and dismissing his claim, holding that the compensation court correctly dismissed Appellant’s petition for injuries sustained on the job in Alaska. Appellant was a Nebraska resident when he was hired by Trident Seafoods, a State of Washington corporation without a permanent presence in Nebraska. Appellant sustained a work-related injury while working at Trident Seafoods’ Alaska plant. Appellant filed a petition in the Nebraska Workers’ Compensation Court claiming benefits under the Nebraska Workers’ Compensation Act. The compensation court dismissed the petition for lack of jurisdiction, finding that Trident Seafoods was not a statutory employer under Neb. Rev. Stat. 48-106(1). The Supreme Court affirmed, holding that Trident Seafoods was not a statutory employer, and therefore, the Nebraska Workers’ Compensation Act did not apply. View "Hassan v. Trident Seafoods" on Justia Law