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Scheele v. Rains

Supreme Court of Nebraska

March 4, 2016

KRISTINA A. SCHEELE, APPELLANT,
v.
DARRELL RAINS ET AL., APPELLEES

Page 868

Appeal from the District Court for Gage County: DANIEL E. BRYAN, JR., Judge.

Peter C. Wegman, Mark R. Richardson, and Sheila A. Bentzen, of Rembolt Ludtke, L.L.P., for appellant.

Stephen S. Gealy and Noah J. Heflin, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees Delles Carrier, Inc., and Frank G. Lukach.

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellee Darrell Rains.

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

OPINION

Page 869

[292 Neb. 975] Heavican, C.J.

I. INTRODUCTION

Kristina A. Scheele sued Darrell Rains; Delles Carrier, Inc. (Delles); Frank G. Lukach; Sentry Insurance; and the Evangelical Lutheran Good Samaritan Society (Good Samaritan) for injuries she sustained in an automobile accident with a semi-trailer truck driven by Lukach. Following a trial, the jury found for the defendants. Scheele appeals. We affirm.

II. BACKGROUND

1. Procedural Background

Scheele filed suit against Rains, Delles, Lukach, Sentry Insurance, and Good Samaritan for negligence. Sentry Insurance and Good Samaritan were included for workers' compensation subrogation purposes. Following a jury trial, special verdict forms were returned, finding that Scheele had not met her burden of proof as to the negligence of either Rains or Delles and Lukach.

2. Accident

The facts of this case are largely undisputed. Rains owns land along Highway 77 south of Beatrice, Nebraska. As it adjoins Rains' land, Highway 77 is a two-lane highway, with one northbound lane and one southbound lane. Rains was required, per the federal Conservation Reserve Program, to burn the vegetation off this field every 3 years.

[292 Neb. 976] The prescribed burn on this field and one other field was done on April 9, 2012. Rains first burned a nearby field, which was not located directly along Highway 77, during the morning of April 9. That burn went off without incident, but the burning of the second field did not.

The fire on the second field was set around 2:45 p.m. and initially burned as planned. But at some point, the wind shifted and smoke began to blow across Highway 77. Unable to control the fire, Rains called the fire department at approximately 3:19 p.m.

Meanwhile, Scheele had been in Beatrice on a work errand and was driving south on Highway 77, returning to her job at Good

Page 870

Samaritan in Wymore, Nebraska, when she came upon smoke that had drifted across the roadway from Rains' fire. Scheele was driving a 2004 Dodge Durango. She entered the smoke and testified that after doing so, the smoke became very thick. She slowed her speed, but drove on until she was forced to stop by a car ahead of her, which had come to a standstill. Scheele testified that she could see only the brake lights of the car ahead of her. She further testified that smoke was coming into her vehicle through the vehicle's vents and that she was afraid she was going to die.

Scheele testified that she wanted to get out of the smoke, but could not move because the car ahead of her had stopped. According to Scheele's testimony, she considered and rejected both backing up--because she knew there were cars behind her--and going onto the shoulder at her right--because she was afraid there would be flames there. Instead, Scheele inched slowly into the northbound lane to pass the car ahead of her. Scheele testified that she saw an oncoming vehicle and tried to edge back into the southbound lane, but collided with the car ahead of her before also colliding with a semi-trailer truck pulling an oversized load that was headed north in the north-bound lane of traffic.

Scheele suffered injuries in the accident, including facial lacerations, a facial fracture, rib fractures, clavicle fractures, [292 Neb. 977] and " pneumothorax." Scheele also suffered a closed head injury with a concussion, which ultimately evolved into a diagnosis of traumatic ...


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