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Golnick v. Callender

Supreme Court of Nebraska

March 20, 2015

JAN J. GOLNICK, APPELLANT,
v.
JACK W. CALLENDER, APPELLEE

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Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.

Matthew A. Lathrop, of Law Office of Matthew A. Lathrop, P.C., L.L.O., for appellant.

Joseph E. Jones and Alexander D. Boyd, of Fraser Stryker, P.C., L.L.O., for appellee.

James E. Harris, of Harris Kuhn Law Firm, L.L.P., for amicus curiae Nebraska Association of Trial Attorneys.

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

OPINION

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[290 Neb. 397] Connolly, J.

I. SUMMARY

Jan J. Golnick appeals from the district court's judgment in his negligence action against Jack W. Callender. Callender amended his answer to admit that he was negligent in causing the vehicle accident that injured Golnick. Thereafter, the court sustained Callender's motion to preclude evidence of his negligence at trial. The court also denied Golnick's request to amend his complaint to allege specific acts of tortious conduct and rejected three of his proposed jury instructions. The jury returned a verdict for Callender. Finding no reversible error, we affirm.

II. BACKGROUND

In October 2009, Golnick filed a complaint alleging that in October 2005, he and Callender were driving on the same street in opposite directions when Callender's vehicle crossed the centerline and crashed

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head on into Golnick's vehicle. He alleged that he sustained injuries as a " direct and proximate result of the crash."

In Callender's original answer, he denied that the accident occurred as Golnick alleged. In 2013, Callender sought leave to file an amended answer. He still denied that the accident occurred as Golnick alleged, but he admitted that " he was negligent and that his negligence was the proximate cause of the accident." He denied the nature and extent of Golnick's injuries and all other allegations.

Golnick objected to the amendment and moved to file an amended complaint, which would have alleged that when Callender crossed the centerline, he was distracted by his cell phone. At the hearing on the parties' proposed amendments, [290 Neb. 398] Golnick offered a police report to show that (1) an issue of fact existed regarding Callender's denial that the accident happened as Golnick alleged and (2) Callender had not admitted to the relevant facts regarding the alleged negligence. The court received the police report for deciding whether to allow the pleading amendments.

At the hearing, the court stated that Golnick wanted to " put in evidence to make [Callender] more liable than just the admitting of negligence. You want to make him derelict." The court concluded that the issue was whether Callender had " proper control of his car, not whether he was on his cell phone." The court overruled Golnick's objections to Callender's amended answer and overruled Golnick's request to amend his complaint.

Callender then moved for an order in limine to prohibit Golnick from presenting any evidence about Callender's negligence. As relevant here, Callender sought to exclude (1) evidence that he was distracted by his cell phone and (2) evidence that he was cited, charged, or convicted of a traffic violation because of the accident. Callender also sought to admit evidence of Golnick's pleadings in a pending negligence case about a 2007 vehicle accident involving Golnick. In both cases, Callender alleged that the accident caused Golnick to have permanent injuries to his neck, head, shoulder, and back. The court's rulings on these motions are not part of the record.

At the start of the trial, the court briefly explained to the jurors that while Golnick and Callender were traveling on the same street, Callender's vehicle crossed the centerline and struck Golnick's vehicle. The court also explained that because Callender admitted that his negligence caused the collision, they would not have to decide the cause of the collision.

In Golnick's opening statement, his attorney told the jurors that Callender had veered into oncoming traffic and hit Golnick's vehicle head on when Callender saw that the traffic in front of him had stopped. His attorney said that Golnick's preexisting eye problems and preexisting back problems did not account for the eye problems and back problems that Golnick began to experience within a month [290 Neb. 399] after the accident. He also stated that Golnick's problems were not caused by a severe 2007 accident in which Golnick was struck from behind. He admitted that Golnick's problems were permanently worsened by the 2007 accident. But he stated that Golnick had already sustained permanent injuries before 2007 and that his pain had never gone away. In Callender's opening statement, his attorney listed evidence that would show the 2005 accident did not cause Golnick's physical problems.

At trial, the evidence showed that Golnick was age 71 and had some preexisting health problems before the 2005 accident. The court admitted a photograph of his vehicle that showed minor damage to the

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front bumper and grill. Golnick did not attempt to submit evidence on Callender's distraction by his cell phone or make an offer of proof on that fact. The court admitted the pleadings in the 2007 action.

At the jury instruction conference, the court rejected Golnick's proposed jury instructions Nos. 2, 3, and 4. The jury returned a unanimous verdict for Callender. After entering judgment for Callender, the court denied Golnick's request to obtain the name, address, and telephone number for each juror.

III. ASSIGNMENTS OF ERROR

Golnick assigns that the court erred as follows:

(1) not allowing Golnick to amend his complaint to allege specific acts of negligence;

(2) overruling Golnick's objection to Callender's motion to amend his answer;

(3) permitting Callender to deny that the collision occurred in the manner Golnick alleged while admitting that his negligence caused the collision;

(4) sustaining Callender's motion in limine to prohibit Golnick from telling jurors that Callender had admitted to specific acts of negligence, including using a cell phone;

(5) rejecting Golnick's requested jury instruction No. 4 on the " Statement of ...


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