STATE OF NEBRASKA COMPENDIUM OF LAW 

Prepared by Gretchen L. Twohig and Kenneth W. Hartman 

Baird Holm LLP 1500 Woodmen Tower Omaha, NE  68102 (402) 344‐0500 

www.bairdholm.com 

PRE-SUIT AND INITIAL CONSIDERATIONS Pre-Suit Notice Requirements/Prerequisites to Suit A) Contracts. The prerequisites for filing a claim regarding a contract dispute with the

county are governed by NEB. REV. STAT. § 23-135 (Cum. Supp. 2006). Prior to filing such a claim in the district court, the claim must be filed with the county clerk within 90 days after the claim accrues. This enables the county to properly investigate the claims against it and to settle baseless claims without incurring the costs of litigation. Olson v. County of Lancaster, 230 Neb. 904, 908, 434 N.W.2d 307 (1989).

B) Governments. Under the Nebraska Political Subdivisions Tort Claims Act, NEB. REV.

STAT. § 13-910 (Supp. 2007), one must make a written notice of complaint to the respective governing body within one year after the claim accrues, and the suit must commence within two years.

C) State contracts. NEB. REV. STAT. § 81-8,297 (Reissue 2003) grants the State Claims

Board the power and authority to receive, investigate, and otherwise act with regard to claims made under the State Contract Claims Act. All such claims must be filed with the Risk Manager and must include the following information: (1) a copy of the contract allegedly breached, (2) the manner in which the contract was breached, and (3) the damages incurred as a result of the alleged breach. Immediately upon receipt of a contract claim, NEB. REV. STAT. § 81-8,305 (2008) requires the Risk Manager to notify the claimant and the contracting agency of the option of submitting the dispute to the State Claims Board.

Relationship to the Federal Rules of Civil Procedure Nebraska’s rules regarding civil procedure are contained in Chapter 25 of the Nebraska Revised Statutes and in the Nebraska Rules of Pleading in Civil Actions. Some portions of the Nebraska rules overlap the Federal rules. Description of the Organization of the State Court System A) Judicial selection. The appointment of judges in Nebraska is governed by a merit

selection system. Upon the resignation, retirement, death, or removal of a judge, the vacant position is filled through a process by which a judicial nomination commission screens judicial candidates and forwards qualified candidates to the Governor for selection. The commissions are composed of four lawyers selected by the Nebraska State Bar Association, four non-lawyers appointed by the governor, and a nonvoting Supreme Court justice who acts as a chairperson. The commission is not allowed to have more than two lawyers or two non-lawyers from either political party. The judicial nominating commission conducts a public hearing to interview candidates who have submitted their names for the position. Following the hearing, the commission submits to the Governor the names of at least two qualified attorneys. Typically, the new judge is selected by the Governor; however, if within 60 days after receiving the names of the nominees the

2

Governor does not make an appointment, the Chief Justice of the Supreme Court appoints a judge from the nominee list. See generally NEB. REV. STAT. § 24-801 et seq. (2008).

B) Structure. The Nebraska judiciary is composed of: the Supreme Court, the Court of Appeals, the district courts, and the county courts. The Supreme Court provides administrative direction for all of the state courts. The Nebraska court system also includes separate juvenile courts located in Douglas, Lancaster, and Sarpy counties as well as statewide Workers’ Compensation Court. See generally NEB. REV. STAT. § 24-201 et seq. (2008); NEB. REV. STAT. § 24-301 et seq. (2008); NEB. REV. STAT. § 24-1101 et seq. (2008).

C) Dispute resolution. In Nebraska, the Office of Dispute Resolution (“ODR”) is

responsible for coordinating the development of mediation centers across the state. NEB. REV. STAT. § 25-2904 (Reissue 1995) establishes the ODR in the office of the State Court Administrator. Mediation serves as an alternative or as a supplement to the courts as a means of dispute resolution and is governed by NEB. REV. STAT. § 25-2901 through § 25-2921 (Reissue 1995, as amended Cum. Supp. 2006 and Supp. 2007), which together are known as the Dispute Resolution Act. In mediation proceedings, neutral individuals serve as mediators and assist adversarial parties in reaching a mutual resolution of their problems.

Under NEB. REV. STAT. § 25-2911 (Supp. 2007), the following types of cases may be accepted for dispute resolution at an approved center: civil claims and disputes, including but not limited to consumer and commercial complaints, disputes between neighbors, disputes between business associates, disputes between landlords and tenants, and disputes within communities. Mediation is also available when there are disputes concerning child custody and visitation rights and other areas of domestic relations, or when the disputes involve juvenile offenses and disputes involving juveniles. Approved mediation centers may accept cases that are referred by a court, an attorney, a law enforcement officer, a social service agency, a school, or any other interested person or agency or upon the request of the parties involved. The referral must be consented to by all of the parties involved. When a court refers a case to an approved center, the center is obligated to provide to the court information about whether the parties reached an agreement. Should the court request a copy of the agreement, the center must provide it. Under NEB. REV. STAT. § 25-2916 (Reissue 1995), if the parties reach an agreement through alternative dispute resolution, it may be reduced to writing and signed by the parties. The agreement should outline the settlement of the issues and the future responsibilities of the parties. If a court referred the case, the agreement may be presented to the court as a stipulation, and if the court approves it, it becomes enforceable as a court order.

3

Service of Summons: A) Person. Service of summons upon a person is covered by NEB. REV. STAT. § 25-508.01

(Reissue 1995) and § 25-505.01 (Reissue 1995). Acceptable methods of serving an individual include the following: (1) personal service; which is made by leaving the summons with the individual to be served; (2) residential service, which is made by leaving the summons at the usual place of residence of the individual to be served, with a person of suitable age and discretion who resides there; and (3) certified mail service, which is made by sending the summons to the defendant by certified mail with a return receipt requested, showing both the date of delivery and to whom and where the summons was delivered.

1) Minors. If the party to be summoned is under fourteen years of age, he or she

may be served by personal, residence, or certified mail service upon an adult with whom the minor resides and who is the minor’s parent, guardian, or person caring for the minor. If no such adult can be found, personal service upon the party is acceptable. NEB. REV. STAT. § 25-508.01.

2) Incapacitated persons. For incapacitated individuals for whom a conservator or

guardian has been appointed, or for institutionalized individuals, notice of the service shall be given to the conservator, guardian, or superintendent of the institution. However, failure to give notice does not invalidate the service on the incapacitated person. Id.

B) Corporations. NEB. REV. STAT. § 25-509.01 (Reissue 1995) governs service upon a

corporation, which may be accomplished by serving any officer, director, managing agent, or registered agent by personal, residence, or certified mail service. Alternatively, a corporation may be served by leaving the summons at the corporation’s registered office with a person who is employed there, or by certified mail service to the corporation’s registered office.

C) Waiver. Under NEB. REV. STAT. § 25-520.01 (Reissue 1995), it is unnecessary to serve

the notice prescribed by § 25-520.01 (Reissue 1995) upon any competent person, fiduciary, partnership, or corporation who waived notice in writing, entered a voluntary appearance, or has been personally served with summons or notice in such proceedings.

Statutes of Limitations A) Wrongful death. Under NEB. REV. STAT. § 30-810 (Reissue 1995), a wrongful death

action accrues on the date of death and must be filed within two years of that date. B) Written contracts. NEB. REV. STAT. § 25-205 (Cum. Supp. 2006) states that the statute

of limitations for an action based on a written contract is five years. C) Land. NEB. REV. STAT. § 25-202 (2008) establishes a ten-year statute of limitations for

actions for the recovery of the title or possession of lands, tenements, or hereditaments, or

4

for the foreclosure of mortgages. The statute of limitations begins to run after the cause of action accrues.

D) Four-year statutes. NEB. REV. STAT. § 25-207 (Reissue 1995) establishes a four-year

statute of limitations for the following actions: (1) trespass upon real property; (2) taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; (3) injury to the rights of the plaintiff, not arising on contract, and not elsewhere mentioned under the rules; and (4) fraud. In cases of fraud, the cause of action does not accrue until the discovery of fraud, except as provided in Sections 30-2206 (Reissue 1995), 76-288 (Cum. Supp. 2006), and 76-298 (Reissue 2003) of the Nebraska Revised Statutes.

E) Libel and malpractice. NEB. REV. STAT. § 25-208 (Cum. Supp. 2006) provides a one-

year statute of limitations for libel and slander actions and a two-year period of limitations for malpractice actions that are not specifically limited by statute.

F) Express or implied contracts. NEB. REV. STAT. § 25-211 (Reissue 1995) provides a

four-year statute of limitations for actions brought for damages stemming from the failure or want of consideration of contracts, express or implied, or for the recovery of money paid upon an express or implied contract for which the consideration has wholly or partially failed.

G) Miscellaneous actions. NEB. REV. STAT. § 25-212 (Reissue 1995) sets forth the statute

of limitations for all actions not explicitly provided for by statute is four years after the cause of action accrues.

H) Professional negligence or breach of warranty. NEB. REV. STAT. § 25-222 (Reissue

1995) requires that actions based on alleged professional negligence or alleged breach of warranty in rendering or failure to render professional services must be commenced within two years of the alleged act or omission. However, if the cause of action is not discovered and could not be reasonably discovered within two years, the action may be brought within one year after the date of such discovery or from the date of discovery of facts that would reasonably lead to such discovery, whichever is earlier. Furthermore, in no case may an action be brought for professional negligence or breach of warranty in rendering or failure to render professional services after ten years.

I) Real property improvements. NEB. REV. STAT. § 25-223 (Reissue 1995) requires that

actions based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, be brought four years after any alleged act or omission constituting such breach of warranty or deficiency. If the cause of action is not discovered, and could not be reasonably discovered, within four years, or within one year preceding the expiration of the four-year period, the cause of action is allowable within two years from the date of such discovery, or from the date of discovery of facts that would reasonably lead to such a discovery, whichever is earlier.

5

J) Product liability. NEB. REV. STAT. § 25-224 (Cum. Supp. 2006) provides that product liability actions must be commenced within four years of the date on which the death, injury, or damage complained of occurs.

K) Political subdivisions. NEB. REV. STAT. § 13-919 (Reissue 1997) provides that claims

against political subdivisions, which are permitted under the Political Subdivisions Tort Claims Act, are forever barred unless they are commenced within two years after the claim accrues.

L) Breach of warranty for professional services. NEB. REV. STAT. § 44-2828 (Reissue

2004) sets forth a two year statute of limitations for actions to recover damages based on alleged malpractice or professional negligence or upon alleged breach of warranty in rendering or failing to render professional services. However, if the cause of action is not discovered, and could not be reasonably discovered within a two-year period, the action can be commenced within one year from the date of discovery or from the date of discovery of facts that would reasonably lead to such discovery, whichever is earlier.

M) Tolling due to minority, mental disability or imprisonment. Except as provided in

Sections 76-288 to 76-298 (Reissue 2003, as amended Cum. Supp. 2006) of the Nebraska Revised Statutes, if a person is within the age of 20 at the time the cause of action accrues, or the person has a mental disorder, or the person is imprisoned, and that person is entitled to bring any action mentioned in Chapter 25, the Political Subdivisions Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims Act, the State Tort Claims Act, or the State Miscellaneous Claims Act, then he is entitled to bring an action within the time limits set forth in Chapter 25 after the disability is removed. NEB. REV. STAT. § 25-213 (Reissue 1995).

N) Tolling against absent parties. If a cause of action accrues against a person while he or

she is not in Nebraska or has absconded or concealed himself or herself, the statute of limitations for the action does not begin to run (1) until he or she enters the state, or (2) while he or she is absconded or concealed. Should the person depart the state or abscond or conceal himself after the cause of action accrues, the time of his absence is not computed as part of the statute of limitations. NEB. REV. STAT. § 25-214 (Reissue 1995).

Statutes of Repose A) Product liability. NEB. REV. STAT. § 25-224 (Cum. Supp. 2006) establishes the statute

of repose for product liability. For products manufactured in Nebraska, no action may be brought after ten (10) years have elapsed from the date the product that allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption. For products manufactured outside of Nebraska, the statute of repose in the state or country where the product was manufactured applies, but in no event can it be less than ten (10) years.

B) Real property. NEB. REV. STAT. § 25-223 (Reissue 1995) establishes a ten-year statute

of repose for actions to recover damages for an alleged breach of warranty for

6

improvements to real property or deficiency in the design, planning, supervision, or observation of construction of an improvement to real property.

C) Professional negligence. The statute of repose for actions on professional negligence,

under NEB. REV. STAT. § 25-222 (Reissue 1995), is ten years. In no event may any action based on professional negligence be commenced more than ten years after the date of rendering, or failing to render, professional service which is the source of the cause of action.

Venue Rules A) Nebraska’s venue rules are contained in NEB. REV. STAT. § 25-401 through § 25-403.02

(Reissue 1995). Generally, any action may be brought (1) in the county where any defendant resides, (2) in the county where the cause of action arose, (3) in the county where the transaction or some part of the transaction occurred out of which the cause of action arose, or (4) if all defendants are nonresidents of Nebraska, in any county. NEB. REV. STAT. § 25-403.01. NEB. REV. STAT. § 25-403.02 (Reissue 1995) governs the determination of residency for venue purposes.

B) Real estate. NEB. REV. STAT. § 25-401 (Reissue 1995) governs local actions involving

real estate, which should be brought only in the county where the real estate, or some part of the real estate, is situated. However, there are some exceptions to the rule involving actions against corporations, which are outlined in § 25-401 (Reissue 1995) of the Nebraska Revised Statutes.

C) Specific performance of land contracts. Pursuant to NEB. REV. STAT. § 25-403

(Reissue 1995) an action for the specific performance of a land contract may be brought in the county where any of the defendants reside. If none of the defendants are Nebraska residents, the action may be brought in the county where the real estate or some part of the real estate is situated.

D) Forum non conveniens. In Qualley v. Chrysler Credit Corp., 191 Neb. 787, 788 (1974),

the Nebraska Supreme Court applied the doctrine of forum non conveniens, which refers to a court’s discretionary power to decline jurisdiction when another forum would be more convenient and would better serve the ends of justice. In determining whether a situation warrants the use of forum non conveniens, the trial court considers factors like convenience, public interest, and the welfare of the court. Id. at 789. The trial court has full discretion over whether a suit should ultimately be entertained or dismissed under the doctrine. Id. at 788.

NEGLIGENCE

For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from the undischarged duty. See Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994).

7

Please note that the following statutory provisions govern cases where the cause of action accrued on or after February 8, 1992. Comparative Fault/Contributory Negligence

A) When more than one party is liable for an accident, comparative negligence divides responsibility for an accident among the parties. The Nebraska Revised Statutes provide that

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.

NEB. REV. STAT. § 25-21,185.09 (Reissue 1995).

B) Determination of apportionment. Because comparative negligence is intended to allow

triers of fact to compare relative negligence and to apportion damages on that basis, the determination of apportionment is a task solely for the fact finder. Fickle v. State, 273 Neb. 990, 1003, 735 N.W.2d 754, 768 (2007).

C) Contributory negligence defense. As a defense, a defendant can assert that the plaintiff

is contributorily negligent. Plaintiffs are contributorily negligent if: “(1) they fail to protect themselves from injury, (2) their conduct concurs and cooperates with the defendant’s actionable negligence, and (3) their conduct contributes to their injuries as a proximate cause.” Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).

D) Affirmative defense. Under Nebraska law, assumption of risk is an affirmative defense.

Assumption of risk means that: “(1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person’s injury or death or the harm to property occurred as a result of his or her exposure to the danger.” NEB. REV. STAT. § 25-21,185.12 (Reissue 1995). When analyzing the assumption of risk, courts apply the subjective standard by examining what the particular plaintiff sees, knows, understands, and appreciates. Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 736 N.W.2d 793 (2007).

E) Last clear chance. In a negligence action, the doctrine of “last clear chance” applies

where the defendant commits a negligent act subsequent to the plaintiff’s negligent act and the defendant’s negligence is a proximate cause of the injury. Maricle v. Spiegel, 213 Neb. 223, 329 N.W.2d 80 (1983). This doctrine is applicable only to excuse the contributory negligence of the plaintiff. Id.

Exclusive Remedy – Workers’ Compensation Protections

A) The Nebraska Workers’ Compensation Act is found at NEB. REV. STAT. § 48-101 et seq. (Reissue 2004). The Act provides that when an employee’s personal injury is caused by an accident or an occupational disease which arises out of and in the course of the

8

employee’s employment, compensation is due to the employee. NEB. REV. STAT. § 48-101. The Act’s purpose is to insure employees against accidental injury arising out of and in the course of their employment. Union Packing Co. v. Klauschie, 210 Neb. 331, 336, 314 N.W.2d 25, 29 (1982). As such, courts note that the Act should be construed liberally. Id.

1) Accident. An accident is an event that has an unexpected or unforeseen effect and happened suddenly and violently. NEB. REV. STAT. § 48-151(2) (Reissue 2004). The injury does not need to be caused by a single traumatic event but can consist of exertion that contributes in some material and substantial degree to cause the injury. Crosby v. Am. Stores, 207 Neb. 251, 254, 298 N.W.2d 157, 159 (1980).

2) “Arising out of.” The term “arising out of” describes the accident and its origin, cause, and character; courts examine whether the accident resulted from the risks arising within the scope or sphere of the employee’s job. Union Packing, 210 Neb. at 336, 314 N.W.2d at 29. The term “in the course of” refers to the time, place, and circumstances surrounding the accident. Id. When presenting a worker’s compensation claim, the claimant must establish by a preponderance of the evidence that both conditions exist. Id.

B) Application. The Nebraska Workers’ Compensation Act applies to every governmental agency and to every resident employer in Nebraska and nonresident employer performing work in Nebraska who employs one or more employees in the regular trade, business, profession, or vocation of such employer. NEB. REV. STAT. § 48-106 (Cum. Supp. 2006). Under NEB. REV. STAT. § 48-106, the Act does not apply to:

1) A railroad company engaged in interstate or foreign commerce;

2) Service performed by a worker who is a household domestic servant in a private residence;

3) Service performed by a worker when performed for an employer who is engaged in an agricultural operation and employs unrelated employees unless such service is performed for an employer who during any calendar year employees ten or more unrelated, full-time employees; and

4) Service performed by a person who is engaged in an agricultural operation, or performed by his or her related employees, when the service performed is occasional and for another person who is engaged in an agricultural operation who has provided or will provide reciprocal or similar service.

C) Contribution and indemnity. The Nebraska Workers’ Compensation Act bars an action by a third party tortfeasor against an employer for contribution or indemnity based on a claim arising from injury. Vangreen v. Interstate Mach. & Supply Co., 30, 246 N.W.2d 652, 653 (1976).

D) Employee’s own negligence defense. An employer cannot use an employee’s negligence as a defense to a worker’s compensation claim unless: (1) the employee’s

9

negligence was willful or that the employee was in a state of intoxication; (2) the injury was caused by a fellow employee’s negligence; or (3) the employee “had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.” NEB. REV. STAT. § 48-102 (Reissue 2004).

E) Willful negligence. An employee who was willfully negligent at the time of his or her injury or death will not ordinarily be entitled to recover benefits under the Workers’ Compensation Act. Breckenridge v. Midlands Roofing Co., 222 Neb. 452, 384 N.W.2d 298 (1986). An employee is not willfully negligent for violating an employer’s safety rule when the trier of fact could reasonably infer that the safety rule was not always strictly enforced. Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000). The employer has the burden of establishing willful negligence. Myszkowski v. Wilson & Co., 155 Neb. 714, 53 N.W.2d 203 (1952).

F) Plaintiff’s burden. In a worker’s compensation claim, the plaintiff has the burden to establish that an injury arose out of and in the course of his employment. Union Packing, 210 Neb. at 336, 314 N.W.2d at 29. For an award based on disability, a claimant need to only show by a preponderance of the evidence that the employment proximately caused an injury which resulted in compensable disability. Gray v. Fuel Econ. Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).

G) Exclusive remedy. The Nebraska Workers’ Compensation Act is an employee’s exclusive remedy against an employer for an injury arising out of and in the course of employment. Employees surrender their right to any method, form, or amount of compensation or determination against their employers or workers’ compensation insurer other than that as provided in the Nebraska Workers’ Compensation Act when that employee sustains an injury arising out of and in the course of his or her employment. Ihm v. Crawford & Co., 254 Neb. 818, 820, 580 N.W.2d 115, 117 (1998) (citing NEB. REV. STAT. §§ 48-110, 48-111).

H) Dual capacity doctrine. The “dual capacity doctrine” provides that an employer may become liable to an employee in a tort if the employer holds a position which places upon him or her obligations that are distinct from and independent of the role as an employer. Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 308, 729 N.W.2d 80, 86 (2007).

Indemnification

A) Nebraska recognizes the right to indemnity. Royal Indem. Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 764, 229 N.W.2d 183, 189 (1975). Indemnity is an equitable concept which transfers the entire loss to the tortfeasor. Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 797, 332 N.W.2d 39, 47 (1983). The right to indemnity can arise through express agreement or through implication of law. Id.

B) Product liability. In a product liability action, a manufacturer can seek indemnity from the maker of a defective component part. Nat’l Crane Corp., 213 Neb. At 797, 332 N.W.2d at 47 (internal citation omitted). In a tort action, indemnity is available to one

10

who engaged in passive neglect, but is unavailable to one who engaged in direct and active negligence. Warner v. Reagan Buick, Inc., 240 Neb. 668, 677, 483 N.W.2d 764, 771 (1992).

Joint and Several Liability

A) In Nebraska, joint and several liability is governed by NEB. REV. STAT. § 25-21,185.10. (2008). In an action involving more than one defendant, the liability of each defendant for economic and non-economic damages is joint and several. In any other action involving more than one defendant, the liability of each defendant for non-economic damages is several only and is not joint. Each defendant is liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of negligence, and a separate judgment is rendered against that defendant for that amount. Id.

B) Distinguishing joint from several liability. Where two or more defendants contribute to a single indivisible injury, joint liability renders each liable party individually responsible for the entire obligation, regardless of what proportion of the plaintiff’s damage was caused by each defendant. Trieweiler v. Sears, 268 Neb. 952, 955, 689 N.W.2d 807, 818 (2004). Several liability dictates that defendants are only liable for their respective portion of damages.

C) Liability for entire damages. Nebraska courts also follow the rule that under joint and

several liability, either defendant may be held liable for the entire damage, and a plaintiff need not join all tortfeasors as defendants in an action for damages. Tadros v. City of Omaha, 273 Neb. 935, 938, 745 N.W.2d 377, 380 (2007).

D) Effect of settlement. If the plaintiff settled with one of the jointly and severally liable

defendants, then the plaintiff’s recovery against the remaining defendants is reduced by the actual settlement amount. Id.

E) Contribution. Contribution is the sharing of the cost of an injury, as opposed to a

shifting of the cost from one defendant to another. Lackman v. Rousselle, 7 Neb. App. 698, 699, 585 N.W.2d 469, 473 (Neb. Ct. App. 1998). The prerequisite for establishing a contribution claim is that the party seeking contribution and the party from whom the contribution is sought must share a common liability to the same person. Id. Thus, a common liability to the same person must exist in order for there to be contribution.

F) Attorney fees. A primarily liable, joint tortfeasor is not obligated in a contribution action

to pay the attorney fees and costs incurred by the secondarily liable tortfeasor in defending the original action filed by the injured plaintiff. Woollen v. State, 256 Neb. 865, 888, 593 N.W.2d 729, 744 (1999) (internal citation omitted).

11

Strict Liability

A) Strict liability is a doctrine that imposes liability without regard to breach of a duty. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 75 (5th ed. 1984). Nebraska courts apply strict liability in cases with unreasonable dangerous products, Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 577, 618 N.W.2d 827, 845-46 (2000), and in cases involving ultra-hazardous or abnormally dangerous activities. Fitzpatrick v. U.S. West, Inc., 246 Neb. 225, 235, 518 N.W.2d 107, 115 (1994). In strict liability cases, contributory negligence is not a defense. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).

B) Test. For recovery based on strict liability in a product liability action, Nebraska courts

use the test found in the RESTATEMENT (SECOND) OF TORTS § 402A. Stahlecker v. Ford Motor Co., 266 Neb. 601, 602, 667 N.W.2d 244, 249 (2003). Under this test, a plaintiff must prove by a preponderance of evidence that: (1) the defendant placed the product on the market for use and knew or should have known that the product would be used without inspection for defects; (2) the product was in defective condition when it was placed on the market and left the defendant’s possession; (3) the defect is the proximate cause of the plaintiff’s injury sustained while the product was being used in the way and the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) the plaintiff’s damages were a direct and proximate result of the alleged defect. Id.

C) Learned intermediary doctrine. Nebraska courts adopted the learned intermediary

doctrine as the applicable test for determining whether a manufacturer may be liable for a warning defect in prescription drug cases. Freeman v. Hoffman-La Roche, Inc., 260 Neb. at 571, 618 N.W.2d at 841-42. Instead of providing the blanket immunity from strict liability for prescription drugs as outlined in the RESTATEMENT (SECOND) OF TORTS, Nebraska courts require plaintiffs to plead that the drug was unreasonably dangerous under a consumer expectations test. Id. Nebraska courts apply the RESTATEMENT (THIRD) OF TORTS to determine a warning defect for a prescription drug. A prescription drug or medical device is not reasonably safe, due to inadequate instructions or warnings, if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: (1) “prescribing and other health-care providers who are in a position to reduce the risks of harm;” or (2) the patient, “when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm.” Freeman, 260 Neb. at 571.

Willful and Wanton Conduct

Under Nebraska law, an action is willful and wanton if the defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result. Wright v. Preston Resources, Inc., 10 Neb. App. 856, 857, 639 N.W.2d 149, 152 (Neb. Ct. App. 2002). Willful negligence is an act that was intended or involves such reckless disregard of security and right as to imply bad faith, Id. at 864, while

12

wanton negligence is an act conducted with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury. Id.

DISCOVERY

Electronic Discovery Rules

Electronic discovery pertains to the discovery of electronically stored information. This area is still evolving, as evidenced by the recent amendments in June 2008.

A) NEB. CT. R. DISC. §§ 6-333, 6-334, and 6-334A (2008) govern electronic discovery in Nebraska.

1) Interrogatories. NEB. CT. R. DISC. § 6-333 was recently amended to allow parties serving interrogatories reasonable opportunity to examine, audit, or inspect electronically stored information if the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served.

2) Requests to produce. NEB. CT. R. DISC. § 6-334 now provides that any party may serve on any other party a request to produce and permit the party making the request to inspect, copy, test, or sample any designated documents or electronically stored information.

3) Subpoenas. NEB. CT. R. DISC. § 6-334A allows discovery of electronically-stored information by subpoena without deposition.

Expert Witness

A) Forms of disclosure – reports required. “The expert may testify in terms of opinion or inference and give reasons . . . without prior disclosure of the underlying facts or data, unless the judge requires otherwise.” NEB. REV. STAT. § 27-705 (Reissue 1995). However, upon cross-examination, the expert may nonetheless be required to disclose the underlying facts or data. Id. If the facts or data in the particular case upon which an expert bases an opinion or inference is of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. NEB. REV. STAT. § 27-703 (Reissue 1995).

B) Discovery of expert work product. NEB. CT. R. DISC. § 6-326(e)(1) provides that “[a] party is under a duty seasonably to supplement his or her response with respect to any questions addressed to . . . the identity of each person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.” There is no rule that explicitly provides for an examination of expert work product. However, Rule 326(e)(1) permits inquiries into the substance of an expert’s testimony which could be founded on the testifying expert’s work product.

13

Non-Party Discovery

A) NEB. CT. R. DISC. § 6-334A provides the procedure for discovery from a non-party without a deposition. A subpoena may be served personally or by registered or certified mail not less than ten days before the time specified for compliance. NEB. CT. R. DISC. § 6-334A(a)(4). A party intending to serve a subpoena to a non-party pursuant § 6-334A shall give “notice in writing to every other party to the action at least ten days before the subpoena will be issued.” NEB. CT. R. DISC. § 6-334A(a)(2). A non-party cannot be compelled to attend a deposition outside the county of his or her residence or outside the county where the subpoena is served. NEB. REV. STAT. § 25-1227 (Cum. Supp. 2006)(1). For reimbursement purposes, mileage shall be computed at the rate provided in NEB. REV. STAT. § 81-1176 (Reissue 1999).

B) Inspection. A person served with a subpoena shall permit inspection and copying either where the documents or tangible things are regularly kept or at some other reasonable place designated by that person. NEB. CT. R. DISC. § 6-334A(c)(2). A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize them to correspond with the categories in subpoena. NEB. CT. R. DISC. § 6-334A(d)(1).

C) Objection. A person served with a subpoena may, within ten days after service of the subpoena, serve upon the party for whom the subpoena was issued a written objection to inspection or copying of any or all of the designated materials or of the premises. NEB. CT. R. DISC. § 6-334A(c)(1)(B).

Privileges

There are three areas of law which provide guidance on an attorney’s duty to protect client communications. The areas of law are the attorney-client privilege, the Nebraska Rules of Professional Conduct, and the work product doctrine.

A) Attorney-client privilege. The attorney-client privilege provides protection to confidential communications between an attorney and his or her client. In order to establish the privilege, the communication between the attorney and client must relate to a professional matter and must have been made during the course of the attorney-client relationship. In re Miller’s Estate, 169 Neb. 339, 343, 99 N.W.2d 473, 476 (1959). An attorney-client relationship is created when: (1) a person seeks assistance from an attorney; (2) the assistance sought pertains to “matters within the attorney’s professional competence;” and (3) the attorney expressly or impliedly agrees to provide or actually provides the assistance. State ex rel. Stivrins v. Flowers, 273 Neb. 336, 341-42, 729 N.W.2d 311, 317 (2007). Furthermore, a communication is confidential if it is not intended to be disclosed to third persons. Id. Disclosure to third persons is allowed if such disclosure is necessary to provide legal services to the client. Id.

1) Unavailability. The attorney-client privilege is not available in the following situations: (1) if the attorney’s services are sought or obtained to commit a crime or fraud; (2) “if the communication is relevant to an issue between parties who

14

claim through the same deceased client;” (3) if the communication is relevant to an issue of breach of duty by the attorney or the client; (4) if the communication is relevant to an issue concerning an attested document and the attorney is an attesting witness; and (5) if there are two or more clients and the communication is relevant to a common interest between them, and the communication is made by either client to the attorney. NEB. REV. STAT. § 27-503 (Reissue 1995).

2) Specific circumstances. A report or statements made by an insured to his liability insurance company is privileged if the policy requires the company to defend the insured through the insurance company’s attorney. Brakhage v. Graff, 190 Neb. 53, 53, 206 N.W.2d 45, 46 (1973). On the other hand, a school instructor’s statement to the school district’s insurance claims adjuster is not considered privileged communication between attorney and client. Curtis v. Millard Sch. Dist., 217 Neb. 502, 504, 349 N.W.2d 379, 381 (1984). The Nebraska Supreme Court declined to extend the privilege in Curtis because the school instructor was not the insured and the insurance company owed no duty to defend the school instructor through its attorneys. Id.

B) Confidentiality. NEB. CT. R. OF PROF. CONDUCT § 3-501.6 is Nebraska's Rule of Professional Conduct governing the confidentiality of client information. Unlike the attorney-client privilege, which is based in evidentiary rules, the rules of professional conduct are based on an attorney’s duties and responsibilities as a member of the legal profession. NEB. CT. R. OF PROF. CONDUCT § 3-501.6 provides that an attorney shall not reveal client confidences unless the client gives informed consent. However, NEB. CT. R. OF PROF. CONDUCT § 3-501.6 states that an attorney may reveal information relating to the client representation if: (1) the revelation is necessary in preventing the client from committing a crime; or (2) the information is necessary to prevent reasonably certain death or substantial bodily harm.

C) Work Product. FED. R. CIV. P. 26(b)(3) and the NEB. CT. R. DISC. § 6-326(b)(3) govern the work product doctrine in Nebraska. The doctrine prohibits discovery of opposing counsel’s materials that were prepared in anticipation of trial. Hickman v. Taylor, 329 U.S. 495 (1947). The Nebraska rule is similar to the federal rule. Under both provisions, a party may obtain discovery of materials prepared in anticipation of trial only upon showing a substantial need. After such a showing has been shown, the court will order discovery but also protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of the party’s attorney. FED. R. CIV. P. 26(b)(3); NEB. CT. R. DISC. § 6-326(b)(3).

D) Other privileges for consideration. Chapter 25, Article 5 of the Revised Statutes of Nebraska governs other forms of privileges. The privileges include:

1) NEB. REV. STAT. § 27-504 (Supp. 2007): communications between physician and patient and communications between professional counselor and patient;

2) NEB. REV. STAT. § 27-505 (Reissue 1995): communications between husband and wife;

15

3) NEB. REV. STAT. § 27-506 (Reissue 1995): communications to clergy;

4) NEB. REV. STAT. § 27-507 (Reissue 1995): confidentiality of political vote;

5) NEB. REV. STAT. § 27-508 (Reissue 1995): trade secrets;

6) NEB. REV. STAT. § 27-509 (Reissue 1995): secrets of state and other official information; and

7) NEB. REV. STAT. § 27-510 (Reissue 1995): informer identity.

Requests for Admissions

NEB. CT. R. DISC. § 6-336 governs requests for admissions.

A) Requests. Under NEB. CT. R. DISC. § 6-336(a), a party may serve another party a written request for an admission to the truth of any matter set forth in the request. The matter(s) shall be admitted unless the party to whom the request is directed serves a written answer or objection within thirty days after service of the request. Id.

B) Conclusiveness. NEB. CT. R. DISC. § 6-336(b) provides that any matter admitted under this rule is conclusive unless “the court on motion permits withdrawal or amendment of the admission.” An admission made by a party under this rule is for the pending action only and is not an admission for any other purpose or in any other proceeding. Id.

Unique State Issues

A) NEB. CT. R. DISC. § 6-329 provides that unless the court orders otherwise, the parties may by written or otherwise recorded stipulation: (1) “provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions,” and (2) “modify the procedures provided by these rules for other methods of discovery.”

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction A) If there are no eyewitnesses to an incident or the eyewitnesses are incapable of recalling

the details of the incident, generally an expert witness is allowed to reconstruct an accident. The purpose of accident reconstruction is to provide the expert witness with the knowledge to testify to the details of an incident. Accident reconstruction is most commonly done for accidents involving automobiles and airplanes.

B) Standard. It is proper to allow an expert witness to conduct accident reconstruction if

the testimony of the expert witness will assist the trier of fact in understanding the evidence in order to determine an issue of fact. NEB. REV. STAT. §27 -702 (Reissue 1995).

16

C) Admissibility. There are four preliminary questions that must be answered to determine whether an expert’s testimony is admissible: (1) whether the witness qualifies as an expert; (2) whether the expert’s testimony is relevant; (3) whether the expert’s testimony will assist the trier of fact in understanding the evidence or determining a factual issue; and (4) whether relevant and admissible expert testimony should be excluded because its probative value is substantially outweighed by the risk of unfair prejudice. See NEB. REV. STAT. § 27-403 (Reissue 1995); NEB. REV. STAT. § 27-702 (Reissue 1995).

Appeal Nebraska has two courts of appeals: the Nebraska Court of Appeals and the Nebraska Supreme Court. A) Nebraska Court of Appeals. The Nebraska Court of Appeals is the state's intermediate

appellate court. There are currently six judges, who sit in panels or divisions of three judges each. The Court of Appeals is generally the first court to hear appeals of judgments and orders in criminal, juvenile, civil, domestic relations and probate matters. In addition, the Court of Appeals has appellate jurisdiction over decisions originating in a number of state administrative boards and agencies. Its determination of an appeal is final unless the Nebraska Supreme Court agrees to hear the matter. The Court of Appeals generally hears cases in its courtroom on the second floor of the State Capitol in Lincoln; however, the Court is authorized to hear oral arguments throughout the state and the Court sits outside of Lincoln four to six months out of the year. See generally NEB. REV. STAT. § 24-1101 et seq. (2008).

B) Nebraska Supreme Court. The Nebraska Supreme Court is the state’s court of last

resort. A party may seek further review from a decision of the Court of Appeals by the Supreme Court; however, further review by the Supreme Court is not a matter of right, but of judicial discretion. NEB. CT. R. § 2-102(G) (2008). The Supreme Court has original jurisdiction in certain situations as provided by statute. The Supreme Court is composed of a Chief Justice and six Associate Justices. Oral arguments before the Nebraska Supreme Court are generally held at the State Capitol in Lincoln. See generally NEB. REV. STAT. § 24-201 et seq. (2008).

C) When permitted. Any final order made or judgment rendered by a district court can be

reversed, vacated, or modified by an appellate court. NEB. REV. STAT. § 25-1911 (Reissue 1995). A final order is one which fixes, determines, and disposes of the parties' rights regarding the litigation in some definite, separate part of the litigation. See NEB. REV. STAT. § 25-1902 (Reissue 1995).

D) Timing. The notice of appeal must be filed with the clerk of the district court within

thirty days after entry of the final judgment appealed from, or if a timely post-trial motion directed against the judgment is filed, within thirty days after the entry of the order disposing of the last pending post-judgment motion directed against that judgment or order. See NEB. REV. STAT. § 25-1912 (Cum. Supp. 2006). The timely filing of an appeal is jurisdictional. Id.

17

Biomechanical Testimony Before the testimony from a biomechanical engineer may be admitted at trial, the proponent of the evidence must prove the methods of study utilized by the engineer are both generally accepted and reliable. Nebraska has adopted the Daubert test for determining whether scientific and other expert evidence is admissible. Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008). Accordingly, the admissibility of an expert’s testimony, including an opinion, which is based on scientific principle or on a technique or process which utilizes or applies a scientific principle, hinges upon general acceptance of the principle or process in the relevant scientific community. Id. Collateral Source Rule The collateral source rule excludes evidence that an injured party has been wholly or partially indemnified by insurance or otherwise. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (Neb. 2007). The collateral source rule also precludes evidence of social legislation benefits, such as payment by Medicaid and Medicare. Id. Nebraska, like a majority of jurisdictions, has adopted this rule to prevent tortfeasors “from escaping liability because of the act of a third party, even if a possibility exists that the plaintiff may be compensated twice.” Mahoney v. Nebraska Methodist Hosp., Inc., 251 Neb. 841, 560 N.W.2d 451 (1997) (internal quotation omitted). Convictions A) In order to qualify as a conviction, the person must have been sentenced for the crime. A

party opposing the admissibility of a prior conviction bears the burden of proving that the evidence is prejudicial. Evidence of prior convictions is not admissible to prove the character of a person in order to show that he or she acted in conformity on this occasion. However, prior convictions are admissible for other purposes, such as proof of motive, opportunity, intent, preparation, planning, knowledge, identity, or absence of mistake or accident. See NEB. REV. STAT. § 27-404 (Reissue 1995).

B) Impeachment. Prior criminal convictions may be introduced to impeach a witness.

NEB. REV. STAT. § 27-609 (Reissue 1995). Evidence of prior crimes is only admissible: (a) if the crime was punishable by death or imprisonment in excess of one year (i.e. a felony); or (b) the crime involved dishonesty or false statement, regardless of the punishment. Id. Evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date the conviction or the date of the release of the witness from confinement, whichever is the later date. Id. If a conviction has been the subject of a pardon, annulment, or other equivalent procedure based on innocence, it will not be admissible. Id. Evidence of juvenile adjudications is not admissible. Id. Finally, if an appeal of a conviction is pending, evidence of the conviction is inadmissible. Id.

C) Traffic infractions. A traffic infraction is a misdemeanor. A conviction of an offense

below the grade of a felony is not admissible for the purpose of impeaching a witness. Young Men's Christian Ass'n of Lincoln v. Rawlings, 60 Neb. 377, 83 N.W. 175 (1900).

18

Day in the Life Videos A “Day in the Life” video is created by an attorney to portray the impact a catastrophic injury has had on his client’s everyday life. In order to be admissible, a “Day in the Life” video must be authenticated and it must pass the balancing test set forth in NEB. REV. STAT. § 27-403 (Reissue 1995). Whether a video can be used for the purpose of proving certain facts before the jury is a matter that is left to the judgment and discretion of the trial judge. Hansen v. Hasenkamp, 192 Neb. 530, 223 N.W.2d 44 (1974). Dead Man’s Statute The "Dead Man Act" was put in place to protect the deceased and persons under legal disability (mental illness, retardation, or deterioration). Nebraska courts have held that a party or person interested in the event is incompetent to testify to a personal transaction or communication with the deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is "interested" if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action. See In re Cook's Estate, 188 Neb. 312, 196 N.W.2d 380 (1972). Medical Bills Generally, a plaintiff's medical bills are admissible as damages evidence, regardless if the bills were paid partially or in full by an insurance company. Evidence of the existence of a collateral source or the receipt of benefits is inadmissible (See Section "Collateral Source Rule," above). A plaintiff must prove the reasonable value of medical (hospital, nursing, and similar) care and supplies reasonable needed by and actually provided to the plaintiff. See NJI2D CIV. § 4.00; § 4.01 (2008). Offers of Judgment A defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff, or his attorney, a written offer allowing judgment to be taken against him for the sum specified therein. The plaintiff has five days to accept the offer. If the plaintiff does not accept the offer, the matter proceeds to trial, and the plaintiff does not obtain judgment for more than was offered by the defendant, the plaintiff will be required to pay the defendant's costs from the time of the offer. See NEB. REV. STAT. § 25-901 (Reissue 1995). Note, as is more fully explained below, "costs" does not include the recovery of attorney fees. Offers of Proof An attorney must make an offer of proof to preserve the record for appeal if the court sustains an objection and excludes testimony. See generally NEB. REV. STAT. § 27-103 (Reissue 1995). An offer of proof consists of two parts: (1) a description of testimony that the witness would have offered either by the attorney or by the witness in question and answer form; and (2) an explanation of why the evidence should be admitted. Id. The description of the testimony

19

preserves the testimony for appeal. The explanation allows the judge the opportunity to reconsider the previous ruling excluding the evidence. Prior Accidents Evidence of a prior accident is admissible if it makes a disputed fact more or less probable. NEB. REV. STAT. § 27-401 (Reissue 1995). Relevant evidence of other similar accidents or occurrences is admissible to show that a defendant had “notice and actual knowledge of a defective condition, provided that the accidents or occurrences . . . happened under substantially the same circumstances and were caused by the same or similar defects and dangers.” Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). If an individual fails to show that the accidents are substantially similar, the evidence is irrelevant and inadmissible. Id. Relationship to the Federal Rules of Evidence On August 24, 1975, Nebraska codified the Federal Rules of Evidence. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994) (overruled on other grounds by State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997)). Nebraska courts will look to federal decisions interpreting the corresponding federal rules for guidance in construing the Nebraska rules. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). Seat Belt and Helmet Use Admissibility In Nebraska, failure to wear a seat belt at the time a person was injured is not admissible regarding the issue of liability or proximate cause; however, such evidence may be admissible as evidence concerning mitigation of damages. NEB. REV. STAT. § 60-6,273 (Reissue 2004). If the injured person’s failure to wear a seatbelt is admitted into evidence for the latter purpose, it shall not reduce recovery for damages by more than five percent. Id. Evidence of plaintiff's failure to wear a seatbelt may be introduced for mitigation of damages only if the defendant has demonstrated a causal connection between plaintiff's failure to wear a seatbelt and the damages sustained by plaintiff. Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993). Spoliation Spoliation refers to withholding, hiding, or destruction of evidence relevant to a legal proceeding. A) Effect. Nebraska courts have not addressed whether an independent cause of action is

created by the intentional or negligent spoliation of evidence. However, the Nebraska Court of Appeals has held that a trial court may exclude evidence on the basis of spoliation. Estate of Schindler v. Walker, 7 Neb. App. 300, 582 N.W.2d 369 (1998).

1) Adverse inference. Adverse inferences can only be drawn against the party

allegedly responsible for the spoliation of evidence if substantial evidence exists that supports a finding that the spoiled evidence was in existence and in the possession or under the control of the party against whom the inference may be

20

drawn. It also must be shown that the evidence would have been admissible at trial and that the party responsible for the destruction of the evidence did so intentionally and in bad faith. State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).

Subsequent Remedial Measures Subsequent remedial measures are defined as any measure that is taken after an event that would have made the event less likely to occur if they had be taken before the event. Subsequent remedial measures are not admissible to establish negligence or culpable conduct in relation with an event. See NEB. REV. STAT. § 27-407 (Reissue 1995). Subsequent remedial measures are usually not admissible to prove negligence or culpable conduct in connection with an event or injury because courts do not want to deter individuals from fixing and repairing safety hazards. However, courts will typically admit evidence of subsequent remedial measures if such evidence is being offered to show ownership and/or control of property, the feasibility of preventative measures, or to impeach a witness. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987). If evidence is offered to prove something other than negligence or culpable conduct, its admissibility is governed by NEB. REV. STAT. § 27-403 (Reissue 1995). Under NEB. REV. STAT. § 27-403, relevant evidence can be excluded from the trial if its prejudicial value outweighs its probative value. Use of Photographs Photographs serve as a visual aid to the jury and judge to supplement a witness’s verbal testimony. The photograph should be admissible as long as it makes any fact set forth in the witness’s verbal testimony more or less probable than it would be without the photograph. See NEB. REV. STAT. § 27-401 (Reissue 1995). Before the photograph can be offered into evidence, it must be authenticated by someone who has personal knowledge of the photograph. See NEB. REV. STAT. § 27-901 (Reissue 1995). It also must pass the balancing test set forth in Rule 403, meaning that the photo's probative value must substantially outweigh its prejudicial value. NEB. REV. STAT. § 27-403 (Reissue 1995).

DAMAGES

Caps on Damages

A) In Nebraska, whenever damages are recoverable, a plaintiff may “claim and recover any rate of damages to which he or she may be entitled.” NEB. REV. STAT. § 25-1146 (Reissue 1995). In a personal injury action, the court must instruct the jury to compensate only the damages that are reasonably certain to have been the result of the injury. See Bower v. Chicago & Nw. Ry. Co., 96 Neb. 419, 148 N.W.2d 145 (1914).

B) Medical malpractice. In medical malpractice cases, the Nebraska Hospital-Medical Liability Act (the “Act”) limits the total amount recoverable from health care providers for any occurrence resulting in the injury or death of a patient. NEB. REV. STAT. §§ 44-2801 to 44-2855 (Reissue 2004 & 2006 Cum. Supp. & Supp. 2007). The Act schedules maximum damage amounts based on when the occurrence happened. For an occurrence

21

after December 31, 2003, damages are capped at $1,750,000. NEB. REV. STAT. § 44-2825 (Reissue 2004). The Nebraska Supreme Court found the Act constitutional. Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 663 N.W.2d 43 (2003).

C) Political subdivisions. The Political Subdivisions Tort Claims Act limits damages for which a political subdivision may be held liable to “[o]ne million dollars for any person for any number of claims arising out of a single occurrence” and “[f]ive million dollars for all claims arising out of a single occurrence.” NEB. REV. STAT. § 13-926(1)–(2) (Reissue 1997). The Nebraska Supreme Court found that the Tort Claims Act is constitutional. Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006). Notably, no similar cap on damages exists under the State Tort Claims Act.

Valuation of Damages

The principle underlying damage calculation is to place the injured party in the same position as he or she would have been had there been no injury. J.D. Warehouse v. Lutz Co., 263 Neb. 189, 639 N.W.2d 88 (2002). A plaintiff claiming substantial damages must furnish evidence to the fact finder to prove the amount of damages with reasonable exactness, and may not establish damages by doubtful proof. K & R, Inc. v. Crete Storage Corp., 194 Neb. 138, 231 N.W.2d 110 (1975).

A) Factors. In a personal injury case, there is no formula for computing damages; typically, the verdict is made up of several factors. Bartunek v. George A. Hormel & Co., 2 Neb. App. 598, 513 N.W.2d 545 (1994). On review, a court may not substitute its judgment for the jury’s when the verdict amount is sustainable by factors of pain, suffering, mutilation, disability, wage losses, medical costs, or other monetary losses, including damages resulting from existing economic conditions such as inflation. Johnson v. Schrepf, 154 Neb. 317, 47 N.W.2d 853 (1951).

B) Value estimation. In an action for damages for an injury to personal property, ownership qualifies the owner of the property to estimate its value. Folken v. Union Pac. R.R. Co., 122 Neb. 193, 239 N.W. 831 (1932). Where property is taken or destroyed without fraud, malice, or other aggravating circumstances, the measure of damages is ordinarily the value of the property, with any incidental damages that are proven to be the natural and proximate result of the act charged. Murray v. Mace, 41 Neb. 60, 59 N.W. 387 (1894).

Available Items of Personal Injury Damages

The following is a list of the items of personal injury damages that are generally available. The Nebraska Jury Instructions are also a good resource for identification and explanation of damages.

A) Past medical bills. A plaintiff may recover the expense of past medical bills. See, e.g., Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).

B) Future medical bills. A plaintiff is entitled to recover for future medical expenses. Steinauer v. Sarpy County, 217 Neb. 830, 353 N.W.2d 715 (1984). To recover for future

22

medical expenses, it must be reasonably certain that a plaintiff will incur them; however, a plaintiff need not establish the amount of future medical costs with mathematical certainty. Id. These damages are reduced to present cash value. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).

C) Hedonic damages. A court may consider the loss of enjoyment of life as it relates to pain and suffering, and to disability; however, Nebraska does not recognize hedonic damages as a separate category of damages. Talle v. Nebraska Dep’t of Social Servs., 253 Neb. 823, 572 N.W.2d 790 (1998).

D) Increased risk of harm. Nebraska does not recognize damages for increased risk of harm as a separate category. The test is whether future medical care and supplies are reasonably certain to be needed and provided in the future. NJI2D CIV. § 4.00; § 4.01 (2008).

E) Disfigurement. Disfigurement refers to a permanent alteration in appearance. Nebraska recognizes disfigurement as a type of compensatory damage. See, e.g., Johnson v. Sch. Dist. of Millard, 253 Neb. 634, 573 N.W.2d 116 (1998).

F) Loss of normal life. In one personal injury case, the Nebraska Supreme Court noted “[t]here was evidence introduced to support the plaintiff’s diminished capacity to enjoy life with respect to activities formerly enjoyed, deprivations of pleasure, and inconvenience.” Swiler v. Baker’s Super Market, Inc., 203 Neb. 183, 187, 277 N.W.2d 697, 700 (1979). Where the evidence supports a loss of enjoyment of life, a plaintiff may argue it to the jury. Id.

G) Disability. In Nebraska, permanent injuries are compensable. A party need not prove a disability with absolute certainty; however, probability, alone, is insufficient. McGowan v. Dresher Bros., 106 Neb. 374, 183 N.W. 560 (1921). Where the evidence shows injuries are permanent, a court may accept life tables of expectancy into evidence. Lyons v. Joseph, 124 Neb. 442, 246 N.W. 859 (1933).

H) Past pain and suffering. Where the evidence supports the existence of an injury, damages for pain, suffering, and emotional distress are proper. No allegation of special damages, however, is necessary to recover for mental suffering since it attends personal injuries. Fink v. Busch, 83 Neb. 599, 120 N.W. 167 (1909).

I) Future pain and suffering. A jury may award damages for future pain and suffering if the probability of occurrence is a reasonable certainty, and the future consequences are the result of the original injury. Schwarting v. Ogram, 123 Neb. 76, 242 N.W. 273 (1932).

J) Loss of Society. Nebraska recognizes the loss of society and companionship as a subjective nonmonetary loss that is compensable. NEB. REV. STAT. § 25-21,185.08 (Reissue 1995). “The term ‘society’ embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including care, companionship, comfort, and protection.” Brandon v. County of Richardson, 264 Neb. 1020, 653 N.W.2d 829 (2002). Damages for loss of society must be decided on a case-

23

by-case basis because it is impossible to assign a value to highly personal relationships by any strict accounting method. Id.

K) Lost income, wages, and earnings. In Nebraska, loss of earning capacity is a separate element of damages distinct from loss of wages, salary, or earnings. Washington v. Am. Cmty. Stores Corp., 196 Neb. 624, 244 N.W.2d 286 (1976). A loss of past earnings is an item of special damages that must be expressly plead and proven. Id. Diminished earning capacity is an item of general damages and may be generally alleged. Id. In determining earning capacity, the fact finder should consider what the plaintiff was able to earn near the plaintiff’s residence, and not at a distant point in another state. Hershiser v. Chicago, Burlington & Quincy R.R. Co., 102 Neb. 820, 170 N.W. 177 (1918). Annuity tables are admissible evidence, and a jury may consider them. Jones v. Chicago Great W. R.R. Co., 97 Neb. 306, 149 N.W. 813 (1914).

Lost Opportunity Doctrine

The “lost opportunity doctrine” allows a jury to measure damages based on the plaintiff’s future chance at something, typically a profession, rather than the plaintiff’s current calling or income. See Washington v. Am. Cmty. Stores Corp., 196 Neb. 624, 629–30, 244 N.W.2d 286, 289 (1976) (finding a parole officer who was a candidate for the Olympic wrestling team could be compensated for the lost opportunity to coach or wrestle professionally); see also Laun v. Roach, 191 Neb. 11, 13, 213 N.W.2d 450, 451 (1973) (finding damages based on a dentist’s earning capacity even though the injury occurred while the plaintiff was a dental student).

Mitigation

Mitigation requires a plaintiff to take reasonable steps to minimize damages. For example, when a tenant abandons leased premises, the landlord must take reasonable steps to relet the premises to mitigate the loss of unpaid rent. Hilliard v. Robertson, 253 Neb. 232, 570 N.W.2d 180 (1997). The failure to mitigate damages is also known as the “doctrine of avoidable consequences.” The defendant is not liable for any damages that could have been prevented if the plaintiff had taken reasonable steps to minimize damages. The defendant must prove the plaintiff failed to take reasonable steps toward mitigation. NJI2D CIV. § 4.70 (2008). The Nebraska Supreme Court has found this instruction to be an accurate statement of Nebraska law. Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).

If the issue of mitigation is relevant, the jury may only consider the acts of the injured party after the injury occurred. Welsh v. Anderson, 228 Neb. 79, 421 N.W.2d 426 (1988). For example, in an assault and battery case, a jury may not consider provocation in mitigation of damages because any provocation must have occurred before the injury. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).

Punitive Damages

Generally, the measure of damages in Nebraska is the amount necessary to compensate the injured party. Punitive damages are not available. Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472 (1975). This rule is premised on NEB. CONST. art. VII, § 5, which provides “[a]ll fines, penalties . . . shall be appropriated exclusively to the use and support of the common

24

schools.” See Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960). The Abel court, while finding that penalties paid for the benefit of a private person were unconstitutional, stated that punitive damages are available in Nebraska if such damages are paid into the school fund. Id. As a practical matter, courts have not awarded punitive damages for payment into the school fund.

A judgment rendered in another state that contains a punitive damage award may be enforced in Nebraska. Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472 (1975). The Nebraska Supreme Court has also upheld a provision of Nebraska’s Worker’s Compensation Act that increases compensation by 50% for a delay in payment. Univ. of Nebraska at Omaha v. Paustian, 190 Neb. 840, 212 N.W.2d 704 (1973). One may distinguish between the holding in Abel and the holding in Faustian based on the presence or absence of a statutory right to punitive damages.

Recovery of Pre and Post-judgment Interest

Prejudgment and post-judgment interest are each governed by both statute and case law. The current judgment interest rate can be found on the Nebraska Supreme Court's web-site at: http://supremecourt.ne.gov/community/judgment-interest-rate.shtml.

A) Prejudgment interest. Prejudgment interest is interest that accrues prior to the entry of judgment. First National Bank v. Bolzer, 221 Neb. 415, 377 N.W.2d 533 (1985). Within specified limits, a defendant may be required to pay judgment interest on “the unpaid balance of unliquidated claims” that exceeds the settlement offered by the plaintiff; this interest is calculated from the date of the settlement offer to the date of the judgment. NEB. REV. STAT. § 45-103.02 (Reissue 2004). The specified limits concern the form, date, and method of delivery of the settlement offer as more specifically set forth in Nebraska statutes.

B) Post-judgment interest. Post-judgment interest is the interest that accrues on judgments for the payment of money from the date of the entry of judgment until the date the judgment is satisfied. NEB. REV. STAT. § 45-103.01 (Reissue 2004). If the court’s decree falls under the applicable post-judgment statute, the payment of post-judgment interest is mandatory and need not be expressly provided for in the court’s decree. Sherard v. State, 244 Neb. 743, 509 N.W.2d 194 (1993).

Recovery of Attorneys Fees

In Nebraska, attorney fees are generally not recoverable. The winning party in a civil action may recover attorneys’ fees only where provided for by statute or when an accepted uniform course of procedure allows recovery of attorney fees. Eicher v. Mid Am. Fin. Inv. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005). There are a relatively limited number of statutes that permit the recovery of attorney fees.

Settlement Involving Minors

In Nebraska, a court may use its discretion to appoint any suitable person or corporation to protect the rights and interests of minors in settlement agreements. In re Estate of Shierman, 129 Neb. 230, 261 N.W. 155 (1935). The party appointed to represent minor children has a duty to

25

protect the interests of those minors. Id. Upon court approval, a settlement is binding upon the rights and interests of minors. Id. The court, however, will review any proceedings to ensure they are for the benefit of the minors involved. Id.

Taxation of Costs

Taxable costs are costs that are assessed to the losing party in civil and criminal cases. Because costs were unknown at common law in Nebraska, statutes govern taxable costs. Geere v. Sweet, 2 Neb. 76, 1872 WL 5812 (1872). Unless provided by statute, a court should only allow costs to a successful plaintiff in actions for the recovery of money only, or for the recovery of specific real or personal property. NEB. REV. STAT. § 25-1708 (Reissue 1995).

A) Attorney fees. See section on "Attorney Fees," above.

B) Deposition recording costs. “The general rule is that the costs in taking a deposition will be taxed in favor of the prevailing party if the taking of the deposition was reasonably necessary at the time it was taken, even though it may not have been used at trial. . . . Depositions taken solely for discovery are not taxable as costs.” U.S. District Court Bill of Costs Handbook, part B; see also Kliment, 245 Neb. 596, 514 N.W.2d 315 (affirming the trial court’s refusal to award successful plaintiffs “costs for . . . expenses for making additional copies of depositions. . . .”).

C) Expert witness fees. Witnesses appearing before the district and county courts are entitled to receive twenty dollars for each day actually in attendance. If the witness resides more than one mile from the where the court is held, the witness is also entitled to mileage at the rate provided for state employees in section 81-1176. NEB. REV. STAT. § 33-139 (Reissue 2004).

Unique Damages Issues

A) In an action for hospital services for a spouse and for loss of that spouse’s services as a result of the personal injuries sustained, where there is no evidence as to the value of the loss of the spouse’s services, a verdict should be limited to the specified amount of hospital services. Glandt v. Ricceri, 123 Neb. 126, 242 N.W. 363 (1932).

B) Mental and bodily suffering cannot be measured by any fixed and arbitrary rule; therefore, a jury must determine the appropriate amount of damages based on the circumstances of each case. St. Joseph & Grand Island R.R. Co., 44 Neb. 448, 62 N.W. 887 (1895). The jury may resolve conflicting evidence regarding damages, and is not obligated to accept the plaintiff’s testimony as to the extent of damages. Vacanti v. Master Elecs. Corp., 245 Neb. 586, 514 N.W.2d 319 (1994).

C) In medical malpractice cases, where a sterilization procedure is ineffective, the cost of rearing a healthy child is not recoverable because of the speculative nature of the damages. Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994). A plaintiff may recover, however, other proven attendant costs of the failed sterilization procedure such as: the child’s prenatal and delivery medical expenses; emotional distress; loss of wages; pain and suffering; loss of consortium caused by the failed sterilization; pregnancy and

26

27

childbirth costs; and any costs associated with a second corrective sterilization procedure. Id.

This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice.