Connolly, J.
Jan J. Golnick appeals from the district court's judgment in his negligence action against Jack W. Callender. Callender amended his answer to admit that he was negligent in causing the vehicle accident that injured Golnick. Thereafter, the court sustained Callender's motion to preclude evidence of his negligence at trial. The court also denied Golnick's request to amend his complaint to allege specific acts of tortious conduct and rejected three of his proposed jury instructions. The jury returned a verdict for Callender. Finding no reversible error, we affirm.
In October 2009, Golnick filed a complaint alleging that in October 2005, he and Callender were driving on the same street in opposite directions when Callender's vehicle crossed the centerline and crashed
In Callender's original answer, he denied that the accident occurred as Golnick alleged. In 2013, Callender sought leave to file an amended answer. He still denied that the accident occurred as Golnick alleged, but he admitted that "he was negligent and that his negligence was the proximate cause of the accident." He denied the nature and extent of Golnick's injuries and all other allegations.
Golnick objected to the amendment and moved to file an amended complaint, which would have alleged that when Callender crossed the centerline, he was distracted by his cell phone. At the hearing on the parties' proposed amendments, Golnick offered a police report to show that (1) an issue of fact existed regarding Callender's denial that the accident happened as Golnick alleged and (2) Callender had not admitted to the relevant facts regarding the alleged negligence. The court received the police report for deciding whether to allow the pleading amendments.
At the hearing, the court stated that Golnick wanted to "put in evidence to make [Callender] more liable than just the admitting of negligence. You want to make him derelict." The court concluded that the issue was whether Callender had "proper control of his car, not whether he was on his cell phone." The court overruled Golnick's objections to Callender's amended answer and overruled Golnick's request to amend his complaint.
Callender then moved for an order in limine to prohibit Golnick from presenting any evidence about Callender's negligence. As relevant here, Callender sought to exclude (1) evidence that he was distracted by his cell phone and (2) evidence that he was cited, charged, or convicted of a traffic violation because of the accident. Callender also sought to admit evidence of Golnick's pleadings in a pending negligence case about a 2007 vehicle accident involving Golnick. In both cases, Callender alleged that the accident caused Golnick to have permanent injuries to his neck, head, shoulder, and back. The court's rulings on these motions are not part of the record.
At the start of the trial, the court briefly explained to the jurors that while Golnick and Callender were traveling on the same street, Callender's vehicle crossed the centerline and struck Golnick's vehicle. The court also explained that because Callender admitted that his negligence caused the collision, they would not have to decide the cause of the collision.
In Golnick's opening statement, his attorney told the jurors that Callender had veered into oncoming traffic and hit Golnick's vehicle head on when Callender saw that the traffic in front of him had stopped. His attorney said that Golnick's preexisting eye problems and preexisting back problems did not account for the eye problems and back problems that Golnick began to experience within a month after the accident. He also stated that Golnick's problems were not caused by a severe 2007 accident in which Golnick was struck from behind. He admitted that Golnick's problems were permanently worsened by the 2007 accident. But he stated that Golnick had already sustained permanent injuries before 2007 and that his pain had never gone away. In Callender's opening statement, his attorney listed evidence that would show the 2005 accident did not cause Golnick's physical problems.
At trial, the evidence showed that Golnick was age 71 and had some preexisting health problems before the 2005 accident. The court admitted a photograph of his vehicle that showed minor damage to the
At the jury instruction conference, the court rejected Golnick's proposed jury instructions Nos. 2, 3, and 4. The jury returned a unanimous verdict for Callender. After entering judgment for Callender, the court denied Golnick's request to obtain the name, address, and telephone number for each juror.
Golnick assigns that the court erred as follows:
(1) not allowing Golnick to amend his complaint to allege specific acts of negligence;
(2) overruling Golnick's objection to Callender's motion to amend his answer;
(3) permitting Callender to deny that the collision occurred in the manner Golnick alleged while admitting that his negligence caused the collision;
(4) sustaining Callender's motion in limine to prohibit Golnick from telling jurors that Callender had admitted to specific acts of negligence, including using a cell phone;
(5) rejecting Golnick's requested jury instruction No. 4 on the "Statement of the Case";
(6) rejecting Golnick's requested jury instruction No. 3 on aggravation of a preexisting condition;
(7) rejecting Golnick's requested jury instruction No. 2 on damages; and
(8) denying Golnick's posttrial request for juror information.
Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court's decision absent an abuse of discretion.
Golnick contends that the court erred in permitting Callender to amend his answer to admit that he was negligent while he was still denying that the accident occurred as Golnick alleged. He argues that parties can only admit facts within their knowledge, not legal conclusions. Callender counters that negligence and proximate cause are questions of fact and that we have previously allowed defendants to admit negligence and causing an accident without admitting to causing the plaintiff's injuries.
Under Neb. Ct. R. Pldg. § 6-1115(a), leave to amend "shall be freely given when justice so requires." A district court's denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated.
Callender correctly argues that a defendant's tortious conduct is a question of fact
Accordingly, Callender's admission did not preclude Golnick from producing evidence relevant to proving the nature and force of the accident (the causal mechanism) resulting in Golnick's injuries. Nor did the court's order in limine preclude this evidence. Because Golnick was free to present this evidence, Callender's admission that he negligently caused the accident was a conclusive fact that Golnick could use to his advantage.
Before trial, Golnick also moved to amend his complaint to include specific acts of Callender's negligence — most significantly, Callender's distraction by his cell phone — that caused the accident. Golnick contends that the court erred in denying his request to amend. He argues that Callender would not have been unfairly prejudiced by requiring him to admit to more specific negligent conduct. The amicus curiae, the Nebraska Association of Trial Attorneys, argues that the court's ruling deprived the jury of hearing the full factual basis for determining that Callender's negligence caused Golnick's injuries. The association also contends that courts
As explained, Callender did not admit to causing Golnick's injuries, so Callender incorrectly argues that the only issue for trial was damages. But here, allowing the amendment would have permitted Golnick to prove Callender's specific acts of negligence. And because Callender admitted to negligently causing the accident, the decision whether to admit or exclude Golnick's evidence would have been a matter of judicial discretion:
We conclude that the same discretion to admit or exclude cumulative evidence on an admitted fact also applies to a court's decision to allow a pleading amendment that results in the production of that evidence. As stated, the considerations under our pleading rules are undue delay, bad faith, unfair prejudice, and futility of the amendment.
Here, because Callender had admitted to negligently causing the collision, Golnick's
Moreover, Nebraska law does not permit a plaintiff to obtain punitive damages over and above full compensation for the plaintiff's injuries.
Finally, we reject the Nebraska Association of Trial Attorneys' argument that the U.S. Supreme Court's decision in Old Chief v. United States
In a negligence case, however, the plaintiff is not vindicating the public's interest in punishing the defendant's wrongful conduct and is not concerned with a juror's possible reluctance to do so. A plaintiff's interest in a negligence case is limited to compensation for the harm caused by the defendant's tortious conduct. So the reasoning in Old Chief does not apply. We conclude that the court did not abuse its discretion in denying Golnick's request to amend his complaint.
Golnick contends the court erred in sustaining Callender's motion in limine to prohibit Golnick from producing evidence of Callender's distraction by his cell phone. But Golnick did not obtain a final order on this exclusion by offering proof at trial of the evidence that he believed was admissible.
A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury, but the court's
Golnick contends that the court erred in failing to give three of his proposed jury instructions.
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.
Golnick contends that the court erred in failing to give his proposed jury instruction No. 4. That instruction would have informed the jury of the specific ways in which Golnick believed that Callender was negligent while driving. Golnick does not argue this assignment except to state that there was evidence to sustain the allegations. We conclude that this argument is subsumed by our analysis of the court's ruling on the parties' motions to amend their pleadings. As noted, the court did not abuse its discretion in allowing Callender to admit his negligence and denying Golnick leave to amend his complaint. So it correctly determined that Callender's specific acts of negligence were not factual questions for the jury to decide.
At trial, the court instructed the jury as follows on the effect of Golnick's preexisting back problems:
Golnick's proposed instruction No. 3 would have added a third paragraph: "This is true even if the person's condition made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury."
The first paragraph of the court's instruction is the standard jury instruction No. 4.09 for determining damages when the plaintiff has a preexisting condition.
Golnick contends that the court erred in failing to give his proposed third paragraph. He argues that the court's instruction did not explain that the jury could find Callender liable for aggravating Golnick's preexisting condition even if the preexisting condition made him more susceptible to a greater injury than what might normally occur. Golnick argues that in Ketteler v. Daniel,
Callender argues that the court did not err in using the pattern jury instruction and the additional instruction for cases in which the jury may not be able to separate damages caused solely by the tortious act. He argues that Golnick has pointed to no evidence that his preexisting condition made him more susceptible to his claimed injuries. Additionally, Callender argues that Golnick's proposed instruction is not the same as the instruction in Ketteler. He argues that the Nebraska Court of Appeals has approved of the instruction that the court gave. Finally, because the jury returned a unanimous general verdict form for him, Callender argues that they presumptively decided all the issues in his favor. Because of the general verdict, he contends that whether Golnick was more susceptible to injury is irrelevant.
In Ketteler, an issue at trial was whether the plaintiff's fibromyalgia was a preexisting condition or the accident caused it. The court instructed the jury that there was evidence the plaintiff had neck, back, and hip problems before the accident and that the defendant was liable only for damages that the jury found to be proximately caused by the accident. The plaintiff proposed submitting two additional components to this instruction, which the court rejected. The first proposed component was the same as the apportionment instruction given here: "`If you cannot separate damages caused by the pre-existing condition from those caused by the accident, then the Defendant is liable for all of those damages.'"
We held that the court should have submitted the plaintiff's entire proposed instruction. We explained that because we had adopted the "eggshell-skull" theory of liability, a plaintiff is entitled to recover damages for the aggravation of a preexisting condition. We concluded that there was evidence to support such damages and that the court's refusal to submit the entire instruction prejudiced the plaintiff.
In a negligence case, these cases clearly required a court to instruct a jury on damages for the aggravation of a preexisting condition if the evidence would support that finding. In the Court of Appeals' case on which Callender relies, the court reversed the trial court's refusal to give the apportionment instruction. But the absence of an instruction on the aggravation of a preexisting condition was not at issue.
It is true that Golnick's proposed instruction is not the same as the instruction that was required in Ketteler and Castillo. His alternative language was part of a jury instruction discussed in Gustafson v. Burlington Northern RR. Co.,
However, we conclude that under these circumstances, Golnick was not prejudiced by the court's failure to specifically instruct the jury that it could award damages for Golnick's injuries, even if his preexisting condition made him more susceptible to injury. The jury's authority to award damages for the aggravation of a preexisting condition was at least implied in the apportionment instruction: "If you cannot separate damages caused by the preexisting condition from those caused by the collision, then [Callender] is liable for all of those damages." And the record shows that in closing argument, Golnick specifically asked the jury to award damages caused by the aggravation of his spinal and eye conditions. So when Golnick's closing argument is considered with the apportionment instruction, the jury likely understood that it could award damages for the aggravation of a preexisting condition.
Additionally, this case is distinguishable from Ketteler and Castillo because in those cases, the jury awarded damages to the plaintiff even if the plaintiff was unsatisfied with the amount. Here, the jury returned a general verdict for Callender. When the jury returns a general verdict for one party, we presume that the jury found for the successful party on all issues raised by that party and
At the jury instruction conference, Golnick's attorney objected to the court's instruction No. 7 on damages. He asked that the court include the additional damage components included in his proposed instruction No. 2. The court refused his request. The court's instruction No. 7 follows NJI2d Civ. 4.01, the pattern instruction for damages in cases where joint and several liability and contributory negligence are not at issue.
NJI2d Civ. 4.01 informs the jury that if it returns a verdict for the plaintiff (Golnick), it must decide how much money would fairly compensate him for his damages. The pattern instruction states that the jury must consider only those things proximately caused by the defendant's (Callender's) negligence. And it lists several nonexclusive damage components that a jury may consider depending on the issues raised and the evidence.
Golnick contends that anxiety and inconvenience are specific examples of mental distress that the Legislature has recognized as noneconomic damages under Neb. Rev.Stat. § 25-21,185.08 (Reissue 2008). Section 25-21,185.08 lists examples of economic and noneconomic damages that a fact finder can consider in civil actions where joint and several liability is at issue. Golnick argues that because the Legislature has specifically authorized damages for anxiety and inconvenience in some cases, these damage components should be available whenever the evidence supports them. He contends that the evidence supported the instruction and that the court erred in failing to give the instruction. We conclude that the court's instruction adequately covered the issues.
The comment to NJI2d Civ. 4.00 states that the meaning of the term "inconvenience" is unclear and that it is included in that instruction only because it is listed in § 25-21,185.08 as a noneconomic damage component. We note that serious inconvenience is a consideration in some nuisance cases.
Similarly, in many cases, a plaintiff's anxiety is inseparable from his or her general mental suffering caused by a physical injury.
We conclude that the court sufficiently informed the jury that Golnick's anxiety and inconvenience were a part of his damages for pain and suffering.
Golnick contends that under Neb. Rev.Stat. § 25-1635 (Reissue 2008), the court erred in denying his motion for juror contact information after the court had entered judgment for Callender. He explains that during the jurors' deliberations, they asked the court if they could use a calculator. He argues that this question suggests they were planning to determine the amount of his damages, yet a half hour later, they returned a verdict for Callender. He contends that this apparent change in the jury's direction warranted investigation.
Section 25-1635 prohibits the disclosure of juror information without a court order for good cause shown, but it gives a court discretion to disclose the names of persons drawn for actual service as a juror. Golnick argues that because the names of the jurors were announced during voir dire, obtaining their contact information after the trial did not raise privacy concerns. He argues that the public has a First Amendment right of access to juror information after a trial.
It is true that the U.S. Supreme Court has held that a First Amendment right of public access applies to criminal trials, including voir dire proceedings.
Federal courts of appeals have "widely agreed" that the First Amendment right of public access "extends to civil proceedings and associated records and documents."
But providing the jurors' personal information to the parties before voir dire is different than disclosing it after a verdict. A court's disclosure of the information before voir dire allows parties to make intelligent inquiries and decisions about peremptory strikes of prospective jurors. For this reason, we have held in criminal cases that a court's impaneling an anonymous jury — meaning that the jurors' personal information is withheld from the public and the parties — is a drastic measure that should only be undertaken in limited circumstances.
These concerns are not present here. Golnick had access to the relevant part of the jurors' questionnaires for conducting voir dire, and his appeal does not raise the benefits of open trial proceedings. There is "clearly no public right of access to the jurors' deliberations themselves."
"[A] special historical and essential value applies to the secrecy of jury deliberations which is not applicable to other trial and pre-trial proceedings."
Rule 606(2) prohibits a juror from testifying about the validity of a verdict based on the jury's deliberations or the juror's mental processes:
The federal rule "is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences."
We have held that when an allegation of jury misconduct is made and is supported by a showing which tends to prove that serious misconduct occurred, the trial court should conduct an evidentiary hearing to determine whether the alleged misconduct actually occurred.
Under these principles, federal courts routinely hold that absent a reasonable ground for investigating, a party cannot use posttrial interviews with jurors as a "fishing expedition" to find some reason to attack a verdict.
Here, Golnick did not allege juror misconduct or the presence of an external influence on the jury. Instead, he explicitly states that he wished to question the jurors about their deliberations to determine whether they were improperly influenced. His request to investigate rests solely on the jury's request to use a calculator, from which question he surmises that the jurors were planning to award him damages but changed their minds.
We conclude that the court did not abuse its discretion in granting Callender leave to amend his answer to admit that he negligently caused the parties' vehicle accident. Under these circumstances, the court also did not abuse its discretion in denying Golnick's request to amend his complaint to allege that Callender's negligent driving occurred because he was distracted by his cell phone. The cell phone evidence was unnecessary to prove that Callender was negligent, because he admitted his negligence. And the court's orders did not preclude Golnick from presenting evidence relevant to how Callender's negligence caused Golnick's injuries.
We further conclude that the court's jury instructions either were correct or did not prejudice Golnick. Finally, we conclude that the court did not abuse its discretion in denying Golnick's request for juror contact information after the jurors completed their service. Because rule 606(2) prohibits evidence of the jurors' deliberations, the court did not err in denying Golnick's request to investigate the jurors' reasoning and thought processes.
AFFIRMED.