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Larry Blaser et al v. County of Madison

February 22, 2013

LARRY BLASER ET AL.,
APPELLEES,
v.
COUNTY OF MADISON, NEBRASKA, A POLITICAL SUBDIVISION, APPELLANT.



Appeal from the District Court for Madison County: robert b. eNsz, Judge. Reversed and remanded with directions.

The opinion of the court was delivered by: miller-lermaN, J.

Nebraska advaNce sheets

290 285 NEBRASKA REPORTS

Visoso retained the burden to prove his permanent disability and the impairment of his earning capacity. Visoso had returned to his country of origin, and the compensation court concluded there was no credible evidence which could be used to determine his loss of earning capacity in his new community. When no credible data exists for the community to which the employee has relocated, the community where the injury occurred can serve as the hub community. Therefore, we remand the cause to the Workers' Compensation Court to allow Visoso to attempt to establish permanent impairment and loss of earning capacity using Schuyler as the hub community. affirmed

iN part, aNd iN part reversed aNd remaNded for further proceediNgs. cassel, J., not participating.

___ N.W.2d ___

Filed February 22, 2013.

Cite as

1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought under the Political Subdivisions Tort Claims Act, an appellate court will not disturb the factual findings of the trial court unless they are clearly wrong.

2. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the conclusion reached by the trial court.

4. Negligence: Appeal and Error. Whether a defendant breaches a duty is a question of fact for the fact finder, which an appellate court reviews for clear error.

5. Statutes. Statutory interpretation presents a question of law.

6. Judges: Recusal: Waiver. A party is said to have waived his or her right to obtain a judge's disqualification when the alleged basis for the disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.

7. Appeal and Error: Words and Phrases. Plain error is error uncomplained of at trial and is plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

8. Judges: Recusal. A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.

9. Negligence: Proof. In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

10. Negligence. It is for the fact finder in a negligence case to determine, on the facts of each individual case, whether or not the evidence establishes a breach of duty.

11. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

12. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

13. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

14. Statutes. Statutes which effect a change in the common law are to be strictly construed.

15. Negligence. The existence of a duty serves as a legal conclusion that an actor must exercise such degree of care as would be exercised by a reasonable person under the circumstances.

16. ____. Duty rules are meant to serve as broadly applicable guidelines for public behavior, i.e., rules of law applicable to a category of cases.

17. Pleadings. The issues in a case are framed by the pleadings.

Wright, coNNolly, stephaN, mccormack, miller-lermaN, and cassel, JJ.

NATURE OF CASE

Larry Blaser, Terry McCaw, and Patricia McCaw, the appel-lees, brought this negligence action in the district court for Madison County along with Sharon Blaser against the County of Madison, Nebraska (the County), the appellant, under the Political Subdivisions Tort Claims Act after Larry and Terry were injured in a single-vehicle accident in which Larry drove into a washout on a vacated county road. The appellees alleged that the County was negligent by failing to maintain the "Road Closed" warning sign. Following trial, the district court found the County liable for negligence and, after finding Larry 40-percent contributorily negligent, entered judgment against the County.

On appeal, the County claims that it was plain error for the first judge, who recused himself, to name a second judge as the successor judge. With respect to the merits, the County claims that although it may have had an obligation to warn travelers of the washout, the district court erred when it concluded that the County had a "duty" to maintain the vacated road and breached this duty. The County claims that it did not have "actual" or "constructive" knowledge its road closed warning sign was down on the day of the accident and that the district court erred when it failed to determine whether the County retained its sovereign immunity, which determination would resolve this issue.

We find no plain error with respect to naming the second judge. We determine that the district court erred when it concluded that the County had a duty to maintain the vacated road. We also determine that the district court erred when it determined that the issue whether the County had actual or constructive knowledge that its warning sign was down was a "non-issue" and when it failed to determine whether there was merit to the County's reliance on alleged retention of sovereign immunity under Neb. Rev. Stat. ยง 13-910(9) (Reissue 2007). We reverse, and remand this matter to the district court with directions, inter alia, to determine whether the County had actual or constructive knowledge that its road closed sign at the north end of the vacated road was not ...


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