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Allen v. NS World Service, Inc.

Court of Appeals of Nebraska

December 10, 2013

Byron Allen, Jr., and Monique Wise, Copersonal Representatives of the Estate of Iyana N. Allen, deceased, appellants and cross-appellees,
v.
NS World Service, Inc., doing business as Omaha Executive Inns & Suites, defendant and third-party plaintiff, appellee and cross-appellant, and DeShayla Neal, third-party defendant, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge.

David E. Copple and Michelle M. Schlecht, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., and Douglas P. Peterson and Brett Anthony, of Anthony & Peterson, L.L.P., for appellants.

Earl G. Greene III and Michael T. Gibbons, of Woodke & Gibbons, P.C., L.L.O., for appellee NS World Service, Inc.

Irwin, Moore, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

Byron Allen, Jr., and Monique Wise, copersonal representatives of the estate of Iyana N. Allen, deceased (the Estate), brought this action seeking to recover damages as a result of the February 27, 2010, drowning death of 4-year-old Iyana in a hotel swimming pool. A jury returned a verdict in favor of the defendant, NS World Service, Inc. (NSWS), doing business as Omaha Executive Inns & Suites. In this appeal, the Estate alleges that the district court erred in not allowing the Estate to present evidence of a prior drowning in 2006 at the same hotel location, that the jury's verdict was contrary to the evidence adduced at trial, and that the district court erred in denying a motion for new trial. We affirm.

II. BACKGROUND

This case arises out of a tragic incident wherein Iyana, who was not yet 5 years of age at the time, drowned in the swimming pool of a hotel owned by NSWS. Iyana was attending a birthday party at the time of the event.

The evidence adduced at trial indicated that Iyana was attending a birthday party hosted by DeShayla Neal and that the party comprised 12 to 14 children under 14 years of age. A police investigation indicated that there were "perhaps 12 or so children under the age of 10, and maybe three or four teenagers, [and] at most, one adult that may have been in the pool area . . . with the children." Several witnesses testified about a lack of adult supervision of the children in the pool area.

When Neal discovered that Iyana was missing, she walked around the pool area, went to the hotel lobby, and engaged a hotel employee to help her look for Iyana. Testimony indicated that the bottom of the pool was not visible, as the water was "cloudy" or "murky." Iyana's body was eventually located at the bottom of the pool.

The Estate brought suit against the owner of the hotel, NSWS; the entity the Estate believed had been operating the hotel, JNS Lodging, Inc. (JNS); and the person the Estate believed had been the operating manager of the hotel, Nammi Song. The Estate alleged that Iyana's death had been the result of negligence on behalf of the various defendants. NSWS filed a third-party suit, naming as a third-party defendant Neal, the person who hosted the birthday party Iyana had been attending at the time of her drowning.

Song filed a motion in limine which sought, in part, to prevent the Estate from adducing evidence at trial concerning a prior incident in 2006 in which another person had drowned in the hotel's swimming pool. NSWS and JNS similarly moved in limine concerning the prior drowning incident. A hearing was held on the motions in limine, although the record from that hearing has not been provided to this court on appeal.

The district court sustained the motions in limine concerning evidence of the prior 2006 drowning incident. The court concluded that the Estate had not adduced sufficient evidence to demonstrate that the prior 2006 drowning and the instant drowning occurred under substantially similar circumstances.

Song and JNS were both dismissed from the proceedings, on the motion of the Estate, prior to trial.

Prior to the start of trial, the Estate moved the district court to reconsider its ruling on the motions in limine. The Estate argued that the two drowning incidents were substantially similar, and the Estate offered and the district court received a copy of a police report detailing the police investigation of the 2006 drowning incident. The court held, again, that the Estate had not demonstrated sufficient similarity between the two drowning incidents to make evidence of the prior drowning admissible.

During the course of the trial, the Estate moved to make an offer of proof concerning the prior 2006 drowning incident. The Estate indicated that it would like to "attach" two exhibits related to the prior incident--the police report previously offered and received and "a copy of the two investigations done by the Douglas County Health Department" concerning the prior incident. The Estate indicated it "would just attach those and would like to make a record that --just based on the Court's prior to ruling to Motion in Limine." The Estate did not specifically offer the county health department exhibit into evidence, and the court never made any ruling receiving that exhibit into evidence. NSWS objected to the two exhibits and ...


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