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Jacobson v. Shresta

Supreme Court of Nebraska

July 25, 2014

MICHAEL L. JACOBSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF VIRGINIA A. JACOBSON, DECEASED, AND MYRON J. JACOBSON, APPELLANTS,
v.
SHERRY K. SHRESTA, M.D., AND GASTON CORNU-LABAT, M.D., APPELLEES

Page 516

Petition for further review from the Court of Appeals, SIEVERS, PIRTLE, and RIEDMANN, Judges, on appeal thereto from the District Court for Sheridan County, RANDALL L. LIPPSTREU, Judge. Judgment of Court of Appeals affirmed.

AFFIRMED.

Christopher P. Welsh and James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for appellants.

Mark A. Christensen, Tracy A. Oldemeyer, Cristin McGarry Berkhausen, and Elizabeth A. Tiarks, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

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

OPINION

Page 517

[288 Neb. 616] Connolly, J.

SUMMARY

Virginia A. Jacobson (Virginia) was admitted to Gordon Memorial Hospital after she began coughing while eating a piece of meat. On March 29, 2003, Sherry K. Shresta, M.D., admitted her, and Gaston Cornu-Labat, M.D., performed an esophagogastroscopy. During the procedure, Virginia " coded." A piece of meat was found in her throat and suctioned out; a subsequent x ray showed aspiration pneumonia. After remaining under the care of Shresta and Cornu-Labat (collectively the defendants) for the next 3 days, Virginia died from complications. Virginia's husband and the special administrator for her estate (collectively the Jacobsons) filed a wrongful death action against the defendants in the district court for Sheridan County.

[288 Neb. 617] The defendants subsequently filed a motion to bifurcate. The threshold issue was whether the defendants were employees of the hospital. The parties stipulated that the hospital was a political subdivision and that the Jacobsons did not comply with the 1-year statute of limitations for presenting a claim under the Political Subdivisions Tort Claims Act (PSTCA).[1] So, if the defendants were hospital employees, the PSTCA barred the Jacobsons' action.

Before hearing the bifurcated employment issue, the court rejected the Jacobsons' claim that they were entitled to a jury trial. On the employment issue, the court found that the defendants were employees. It dismissed the Jacobsons' complaint. On appeal, the Nebraska Court of Appeals determined that the Jacobsons had waived their right to a jury trial and affirmed the trial court's decision.[2] The Jacobsons seek further review.

We conclude that the Jacobsons, by their silence, could not have waived their right to a jury trial. Nevertheless, because we conclude that the Jacobsons did not have a right to have a jury decide whether the defendants were political subdivision employees, we affirm.

BACKGROUND

The record shows that the trial court heard the defendants' motion for a bifurcated bench trial in a telephonic hearing. Although the Jacobsons argued that they objected to a bench trial at this hearing, a transcript of the hearing is not part of the record. The record does show, however, that the Jacobsons moved the court to reconsider its ruling and that the court

Page 518

overruled their request. And before the bench trial began, the Jacobsons renewed their objection. They argued that under Neb. Rev. Stat. § 25-221 (Reissue 2008), they were entitled to a jury trial on the employment issue. The district court overruled that objection without comment from the bench.

In rejecting the Jacobsons' assignment that the trial court erred in denying them their right to a jury trial, the Court of Appeals reasoned ...


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