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Warner v. Simmons

Supreme Court of Nebraska

July 3, 2014

LANA L. WARNER, APPELLANT AND CROSS-APPELLEE,
v.
LEE M. SIMMONS AND NIOBRARA RIVER RANCH, L.L.C., APPELLEES AND CROSS-APPELLANTS

Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.

AFFIRMED.

Gregory R. Coffey, of Friedman Law Offices, P.C., L.L.O., for appellant.

Robert S. Lannin, of Shively & Lannin, P.C., L.L.O., and Victor E. Covalt III, of Ballew, Covalt & Hazen, P.C., L.L.O., for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 476

Heavican, C.J.

INTRODUCTION

Appellant, Lana L. Warner, was injured when she fell while using a wooden plank walkway at a cabin owned by appellee Lee M. Simmons, doing business as Niobrara River Ranch, L.L.C. Warner sued Simmons and Niobrara River Ranch, alleging negligence for failure to maintain, failure to inspect, or failure to warn of a dangerous condition. A jury returned a verdict in favor of Simmons and Niobrara River Ranch. Warner appeals, arguing that the Nebraska jury instruction on burden [288 Neb. 473] of proof in premises condition liability cases is not compatible with Nebraska's comparative fault statute, Neb. Rev. Stat. § 25-21,185.09 (Reissue 2008). We affirm.

BACKGROUND

On Thursday, August 24, 2006, Warner and a group of friends took a " float trip" on the Niobrara River. The group had arranged to stay near Valentine, Nebraska, at a Niobrara River Ranch cabin owned by Simmons. The cabin was in a group of three that Simmons built in 1998. The cabins were labeled " south," " middle," and " north." Warner's group was assigned to the north cabin. Between the road and the north cabin, Simmons had

Page 477

placed 3-foot-long 2-by-8 inch cedar planks end to end, forming a walkway, ending approximately 6 feet from the cabin at a grassless patch.

On the evening of Friday, August 25, 2006, Warner and her friends returned from dinner in Valentine and walked toward the cabin where they were staying. According to Warner, Warner was walking behind her sister and as her sister stepped on the end of the last plank, the board tilted and hit Warner's foot, causing Warner to fall. Warner was taken by ambulance to a hospital in Valentine, where an x ray showed that Warner had suffered a fracture of the left tibial plateau and that she would need surgery. Warner was transferred to a Lincoln, Nebraska, hospital, where there was an orthopedic surgeon. After surgery, Warner was unable to put her full weight on her leg for approximately 4 months and used a walker to get around. Warner testified that for 2½ years, she experienced pain in her leg when walking.

On August 20, 2010, Warner filed an amended complaint against Simmons and Niobrara River Ranch, alleging that she was injured as a direct and proximate result of the defendants' negligence in failing to inspect the premises, maintain the premises in a reasonably safe manner, or warn Warner of the dangerous condition on the premises. In his answer, Simmons alleged that Warner's injury was the result of her own acts or her contributory negligence. The case proceeded to a jury trial on April 4, 2013.

[288 Neb. 474] Simmons stated during his deposition that he was primarily responsible for maintenance and upkeep on the property and that although he did not perform periodic inspections, per se, he is " always looking or seeing if there's something that needs to be fixed. And if there is, then [he] fix[es] it." When shown a photograph of Warner and her friends on the porch of the cabin, Simmons suggested that the photograph must have been taken the morning after Warner and her friends arrived, because he brought the group dinner the night they arrived and " would have noticed if there was a protruding board like that." Simmons was asked whether he agreed that the board closest to the cabin was protruding at the grassless patch, and Simmons answered, " It appears to be in this photo. And it appears that it isn't in a straight line with the other boards." Simmons testified that the board in the photograph looked like something he would have noticed needed to be fixed.

One of Warner's friends who was on the trip in 2006 testified that when she first arrived at the cabin and saw the plank walkway, she immediately thought " it looked much easier to me not ...


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