United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Laurie Smith Camp Chief United States District Judge.
This matter is before the Court on the Plaintiffs’ Motion in Limine (Filing No. 65). Plaintiffs William Shelton (“Shelton”) and Alecia Shelton seek to preclude Defendant Young’s Welding and Machine Shop, LLC (“Young’s Welding”) from presenting sixteen categories of evidence at trial. Grouped, to facilitate discussion, the categories concern (1) conduct of Shelton, (2) conduct of Shelton’s co-worker, Carl Hamm (“Hamm”), (3) conduct of Shelton’s employer, Hurt Holen (“Holen”), (4) conduct of Show-Me Shortline, LLC (“Show-Me”), the company that asked Young’s Welding to manufacture the hydraulic bag wrapper machine (the “Machine”) at issue in this case and sold the Machine to a farm equipment distributor, and (5) information about farm safety.
Plaintiffs argue that the evidence is irrelevant to their claim, based on strict liability in tort, and would confuse or prejudice the jury. Young’s Welding argues that the evidence is relevant to its defenses of misuse and assumption of risk, as well as two elements of the Plaintiffs’ case in chief, i.e., whether Young’s Welding placed the Machine on the market, and whether the Machine was the proximate cause of injuries suffered by Shelton.
This case arises out of an accident that occurred on February 21, 2012 (the “Accident”), in which Shelton was injured when he attempted to use the Machine. Plaintiffs brought this action against Young’s Welding, alleging that it is strictly liable in tort for Plaintiffs’ injuries and damages arising out of the Accident. Specifically, Plaintiffs allege (1) there were no warning labels on the Machine, (2) there were no instruction labels on the Machine, and (3) there was no emergency shut-off on the Machine. (Amended Complaint, Filing No. 37 at 2.)
Nebraska law requires that a plaintiff in a strict liability action prove, by the greater weight of the evidence: (1) That the defendant placed the product on the market; (2) that at the time the product left the defendant's possession, it was defective in one or more of the ways claimed by the plaintiff; (3) that this defect made the product unreasonably dangerous for its intended use, or for any use the defendant could have reasonably foreseen; (4) that this defect was a proximate cause of some damage to the plaintiff; and (5) the nature and extent of that damage. Jay v. Moog Automotive, Inc., 652 N.W.2d 872, 879 (Neb. 2002); Nebraska Jury Instruction (“NJI”) 2d Civ. 11.20.
“A product is defective in its design if it fails to perform as safely as an ordinary consumer would expect when it is used in a manner either intended by the manufacturer or reasonably foreseeable by the manufacturer.” NJI2d Civ. 11.22; see Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 610-11 (Neb. 1994). “A product is defective if it is not accompanied by sufficient warnings. To be sufficient, a warning must inform a product’s user of any risk of harm not readily recognizable by the ordinary user while using the product in a manner reasonably foreseeable to the manufacturer.” NJI2d Civ. 11.23; see Erickson v. Monarch Industries, Inc., 347 N.W.2d 99, 109 (Neb. 1984). “A product is unreasonably dangerous if it creates a risk of harm beyond that which would be contemplated by the ordinary foreseeable user.” NJI2d Civ. 11.24; see Erickson, 347 N.W.2d at 109.
Misuse of a product is a defense in Nebraska in strict liability cases. See Erickson, 347 N.W.2d at 109-10. A defendant asserting this defense has the burden of proving by the greater weight of the evidence: (1) That the plaintiff used the product in one or more ways claimed by the defendant; (2) that the defendant could not reasonably have foreseen such a use of the product; and (3) that this misuse by the plaintiff was a proximate cause of his own injury. NJI2d Civ. 11.25; see Erickson, 347 N.W.2d at 110. In Nebraska, it is also a defense in a strict liability case if a manufacturer proves by a preponderance of the evidence: (1) That the plaintiff knew of and understood the danger, (2) that the plaintiff voluntarily and unreasonably exposed himself to that danger; and (3) that the plaintiff’s injury occurred as a result of his exposure to that danger. NJI2d Civ. 11.26; see Hancock v. Paccar, 283 N.W.2d 25, 38 (Neb. 1979).
I. Conduct of Shelton
Plaintiffs seek to preclude Young’s Welding from offering testimony or other evidence that Shelton violated any standard of care, or operating protocol, or was negligent, at fault, mistaken, or in error, by attempting to load the grain bag onto the Machine while leaving the tractor running and unattended. Plaintiffs note that Nebraska’s comparative negligence scheme does not apply to actions based on strict liability in tort. See Shipler v. General Motors Corp., 710 N.W.2d 807, 831-32 (Neb. 2006) (holding that trial court did not err in refusing to admit evidence of plaintiff’s negligence in action based on strict liability).
Plaintiffs also seek to preclude Young’s Welding from presenting testimony or other evidence that Shelton should have recognized the potential danger the Machine presented. Plaintiffs argue that the doctrine of assumption of risk applies a subjective standard, involving an inquiry into what a particular plaintiff actually knows, understands and appreciates, and not “those things from which, in possibility, danger may flow.” Hughes v. Omaha Pub. Power Dist., 735 N.W.2d 793, 807 (Neb. 2007); id. at 808 (“[P]laintiff must have actual knowledge of the specific danger which caused the injury.”).
The evidence before the Court at this time suggests that the Machine was designed to be powered by an external engine, such as a tractor engine; and once Shelton and Hamm both dismounted the tractor, their ability to shut off the power to the Machine was impaired. Because Plaintiffs claim the Machine was defective, inter alia, due to its lack of an emergency shut-off mechanism, Shelton’s act of attempting to load the grain bag onto the Machine while leaving the tractor running and unattended may be relevant to issues of whether the Machine was in fact defective; whether Shelton misused the Machine in a manner not reasonably foreseeable to Young’s Welding; and whether any defect in the Machine was the cause of Shelton’s injuries.
With regard to Shelton’s recognition of the potential danger the Machine presented, evidence relevant to whether he knew of and understood the dangers, voluntarily and unreasonably exposed himself to those dangers, and was injured as a result of his exposure to those dangers, may well be admissible. The Plaintiffs’ motion in limine will be granted, however, with respect to evidence related only to the ...