Directed Verdict: Appeal and Error. In
reviewing a trial court's ruling on a motion for directed
verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can
reasonably be deduced from the evidence.
Directed Verdict: Evidence. A directed
verdict is proper at the close of all the evidence only when
reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should
be decided as a matter of law.
Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
Contracts: Appeal and Error. The formation
and terms of an implied contract are questions of fact, which
an appellate court reviews for clear error.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
Rules of Evidence: Appeal and Error. When
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of
Trial: Evidence: Appeal and Error. In a
civil case, the admission or exclusion of evidence is not
reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
Jury Instructions: Pleadings: Evidence. A
litigant is entitled to have the jury instructed upon only
those theories of the case which [297 Neb. 596] are presented
by the pleadings and which are supported by competent
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's failure to
give a requested jury instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was
warranted by the evidence, and (3) the appellant was
prejudiced by the court's failure to give the requested
Jury Instructions. Whether the jury
instructions given by a trial court are correct is a question
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.
__. It is not error for a trial court to refuse a requested
instruction if the substance of the proposed instruction is
contained in those instructions actually given.
__. If the instructions given, which are taken as a whole,
correctly state the law, are not misleading, and adequately
cover the issues submissible to a jury, there is no
prejudicial error concerning the instructions and
necessitating a reversal.
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.
Judges: Words and Phrases. A judicial abuse
of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters
submitted for disposition.
Contracts: Parties: Intent. An implied in
fact contract arises where the intention of the parties is
not expressed in writing but where the circumstances are such
as to show a mutual intent to contract.
Contracts: Parties. The requisite mutuality
for an enforceable contract is absent when one of the
contracting parties is bound to perform, and the rights of
the parties exist at the option of one only.
Contracts: Intent. Where an implied in fact
contract exists, its terms may be shown by the surrounding
facts and circumstances giving rise to the contract, the
conduct of the parties when performing under the contract, or
a general reasonableness standard.
__. As a general matter, the terms of an implied contract are
a question of fact to be determined by the jury based on the
Pleadings. An affirmative defense raises a
new matter which, assuming the allegations in the petition to
be true, constitutes a defense to the merits of a claim
asserted in the petition.
Neb. 597] 21. Colleges and
Universities: Breach of Contract. An argument that
academic deference applies to a decision of a college or
university is not an affirmative defense, but instead relates
to the proper standard for reviewing a plaintiff's claim
for breach of contract premised on an academic judgment.
Colleges and Universities: Courts. Not every
decision by an academic institution is subject to deference.
Directed Verdict: Pleadings. If there are
controverted facts to support recovery upon any theory of
liability pled by the plaintiff, then a directed verdict is
Contracts. The doctrine of impossibility of
performance, often now called impracticability of
performance, excuses a promisor's failure to perform a
duty under a contract where performance has been rendered
severely impracticable or impossible by unforeseen
Contracts: Proof. There are three general
requirements for the application of the doctrine of
impracticability of performance: (1) the occurrence (or
nonoccurrence) of the event causing the impracticability was
unexpected; (2) performance of the duty by the promisor would
be extremely difficult and burdensome, if not impossible; and
(3) the promisor did not assume the risk of the event's
occurrence (or nonoccurrence).
Contracts. Performance of a contractual duty
is not impracticable merely because it has become
inconvenient or more expensive. Mere difficulty of
performance is not enough.
A promisor's duty to perform will be excused if it is the
other party's conduct that makes performance impossible
Contracts: Proof. The party invoking the
impracticability defense must show that he or she used
reasonable efforts to surmount the obstacles which prevented
Jury Instructions: Evidence. A tendered jury
instruction is warranted by the evidence only if there is
enough evidence on the issue to produce a genuine issue of
material fact for the jury to decide.
Damages. A party is required only to
mitigate damages that might have been avoided by reasonable
In reviewing the reasonableness of a party's actions to
mitigate damages, an appellate court often considers three
factors: (1) the cost or difficulty to the plaintiff of
mitigation, (2) the plaintiff's financial ability to
mitigate, and (3) the defendant's actions to inhibit the
plaintiff from mitigating damages.
Administrative Law: Appeal and Error. Under
the doctrine of exhaustion of administrative remedies, one
must generally exhaust any available administrative remedies
before one can seek judicial review.
Neb. 598] 33. Administrative Law. The
exhaustion of administrative remedies doctrine generally
applies to governmental entities.
Administrative Law: Appeal and Error. The
exhaustion of remedies doctrine applies in many cases to
private, nongovernmental entities that provide internal
administrative review procedures.
Colleges and Universities: Employment
Contracts. Where an employer or university provides
a mandatory grievance procedure in a contract, the
enforceability of a party's rights under the contract is
conditioned on the exercise of that grievance procedure.
Contracts: Appeal and Error. Mandatory
grievance procedures must be exhausted before seeking
judicial review, because the grievance procedure is part of
the contractual bargain and defines the rights themselves.
Administrative Law: Contracts: Proof. The
exhaustion of a mandatory grievance procedure in a contract
is a condition precedent to enforcing the rights under that
from the District Court for Douglas County: Marlon A. Polk,
Judge. Reversed and remanded for a new trial.
M. Welch and Kathryn J. Cheatle, of Cassem, Tierney. Adams,
Gotch & Douglas, for appellant.
Mario Bruno and Robert S. Sherrets, of Sherrets, Bruno &
Vogt, L.L.C., for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
awarded Kelly Armstrong a $1 million verdict on her breach of
contract claim against Clarkson College (Clarkson). Armstrong
had been a student at Clarkson, but was placed on probation
and then administratively withdrawn from the school by
Clarkson. Clarkson appeals the district court's denial of
its motion for a directed verdict, the denial of several
requested jury instructions, the exclusion of evidence, and
the denial of its motion for new trial. Because we conclude
that the district court erred by refusing to give
Clarkson's requested jury instruction on Armstrong's
alleged failure to fulfill a condition [297 Neb. 599]
precedent by not exhausting the college's grievance
procedure, we reverse, and remand for a new trial.
Clarkson's CRNA Program
is a nonprofit health science college located in Omaha,
Nebraska. In 2010, Clarkson established a program for a
master of science in nursing with a specialization in nurse
anesthesia (CRNA program). After a student graduates from the
program, the student can take a national examination to
become a certified registered nurse anesthetist (CRNA).
CRNA program, like other nurse anesthetist programs, has two
components, didactic and clinical. Clarkson's program is
"front-loaded, " with the completion of the
didactic portion first, followed by the clinical portion. The
didactic portion, consisting of coursework, lasts 12 months.
The clinical portion is completed at various clinical sites
and lasts 18 months. In the clinical stage of the CRNA
program, the students work at a hospital under the
supervision of the hospital's CRNA staff, gaining
experience in nearly every type of case a CRNA would
encounter in practice. Clarkson contracts with clinical sites
to provide clinical education for its students. These
contracts, known as clinical affiliation agreements, outline
the obligations of both Clarkson and the clinical sites.
the events underlying this litigation occurred in 2013,
Clarkson had five primary clinical sites. A primary clinical
site is one where a student completes the vast majority of
his or her clinical work. In 2013, Clarkson also had two
rural specialty sites where a student in the CRNA program
could gain experience in a rural hospital setting. These
specialty sites are designed to supplement the student's
clinical experience, but unlike the primary clinical sites,
do not provide all of the types of experience a student needs
to complete his or her clinical requirements.
fall of 2011, Armstrong enrolled in the CRNA program. She
completed the didactic portion, earning a 3.84 grade point
average. Armstrong then began the clinical phase of [297 Neb.
600] the program and was assigned to the University of
Nebraska Medical Center (UNMC) as her main clinical site. She
then began doing a rotation at a specialty clinical site in
Red Oak, Iowa.
Program Handbooks and Manuals
trial, several of Clarkson's student handbooks and policy
manuals were admitted into evidence, including:
Clarkson's student handbook, the handbook for nurse
anesthesia students, Clarkson's nurse anesthesia program
policies and procedures manual, Clarkson's nurse
anesthesia program clinical site manual, and Clarkson's
grievance policy. Clarkson's Code of Conduct (Code of
Conduct) is contained within its student handbook, which
applies to all students, not just those in the CRNA program.
the Clarkson handbooks and policies contained disclaimers
that they were not contractual in nature: the CRNA program
handbook states, "The information in this syllabus is
intended to be informational and not contractual in nature,
" and the CRNA program policies and procedures manual
states, "The statements contained herein are not to be
regarded as an offer or contract." Clarkson's
student handbook and its clinical site manual do not appear
to contain contractual disclaimers. Most of the handbooks
also contained clauses reserving Clarkson's right to
change the policies at any time.
admitted was the code of ethics for the CRNA, which is
adopted and promulgated by the American Association of Nurse
Anesthetists (AANA). Clarkson students in the CRNA program
are required to follow this code of ethics (AANA Code of
Ethics) under the CRNA program handbook.
Armstrong was approximately halfway done with the clinical
portion of the CRNA program, she decided to attend a national
AANA conference in Washington, D.C. Armstrong testified at
trial that she and Kristal Hodges, who Armstrong described as
her "best friend in the program at the time, " [297
Neb. 601] decided to go, because they thought the conference
would be fun and would provide a break from the rigors of
clinical work. The conference took place on April 14 to 17,
2013. Armstrong and Hodges were the only two students in the
Clarkson CRNA program who attended this national conference.
ANA Political Action Committee Potomac Cruise Fundraiser
AANA conference was 4 days long, Sunday through Wednesday.
The conference on Sunday featured discussions on the
legislative and political issues facing the nurse anesthetist
profession. Hodges arrived on Saturday, the day before the
conference, while Armstrong arrived on Sunday afternoon. The
two stayed in the same hotel room.
Sunday night, AANA's political action committee hosted a
fundraiser event for the conference attendees. The fundraiser
was a boat cruise on the Potomac River. The attendees were
instructed to wear either professional attire or dress for
the event's 1980's theme. Many members of the
Nebraska Association of Nurse Anesthetists and Nebraska
CRNA's were in attendance at the fundraiser.
attendees were provided bus transportation to the fundraiser
boat ride. Alcohol was served at the fundraiser; the
attendees were given two drink tickets, and glasses of
champagne were offered to them as they arrived on the boat.
testified that she consumed only four alcoholic drinks on the
cruise. She testified that she used her two drink tickets for
two beers, but did not remember finishing her champagne. She
said that Timothy Glidden, the chief CRNA at UNMC and
Armstrong's clinical supervisor, bought her a beer as did
another individual. Armstrong estimated that the fundraiser
lasted about 4 hours.
the fundraiser ended, the attendees were transported by bus
back to the hotel. The bus was filled with conference and
fundraiser attendees, including many from Nebraska. Also [297
Neb. 602] on the bus was Nancy Gondringer, the federal
political director and past president of the Nebraska
Association of Nurse Anesthetists and a member of the
"Small States Committee" of the AANA. Glidden was
on the bus, as was another UNMC CRNA and also a Clarkson CRNA
instructor. Dennis Bless, the then-incoming president of the
AANA, was also on the bus. Other students in CRNA programs
and CRNA's from Nebraska and other states rode on the bus
was some conflict in the witnesses' testimony at trial
about what happened on the bus ride. Armstrong testified that
she got on the bus and took a seat near Bless. She said that
she and Bless were joking about the 1980's costumes that
some were wearing as part of the fundraiser's theme.
Hodges was seated behind her. Armstrong said that she asked
for the fake moustache that Bless had as part of his
1980's costume and then stood up and turned around to
Hodges, placed the moustache on her stomach, just below her
belly button, and made a joke about a term used to reference
ungroomed pubic hair. Armstrong said that she had used the
term in the past as a nickname for Hodges or to tease her and
that it was an "inside joke" between the two about
Hodges' being single, because "if you're going
to go out and start dating, you better clean that up."
Armstrong testified that she told Bless that ungroomed pubic
hair could have been part of her 1980's-themed costume,
after which she obtained his fake moustache to make her joke.
witnesses, such as Hodges, Gondringer, and Glidden, gave a
slightly different account. They testified that Armstrong
held her pants down near her pubic symphysis, with the
moustache just above her pants, walking up and down the aisle
of the bus, saying things like, "Look at my [ungroomed
pubic hair], " and "[t]his is how yours looks
like" to Hodges. Hodges, Gondringer, and Glidden told
Armstrong to stop several times, after which she eventually
sat down. But Armstrong testified that the other
witnesses' accounts of her behavior were
"exaggerated quite a bit."
Neb. 603] 6. Probation
Return From Conference
Armstrong was en route home from the conference. Hodges
called Armstrong because she was concerned that Armstrong had
missed her flight because she did not wake up in time that
morning. According to Hodges, when they spoke over the
telephone, Armstrong told Hodges that Hodges did not know how
to have fun and was "too uptight." They argued
about what had happened at the conference. Hodges told
Armstrong that Armstrong may be in some trouble with
Clarkson, because "[t]here were so many people
there" and "[s]omebody's going to say
Mary Hoversten, the director of Clarkson's CRNA program,
soon received word of the incident on the fundraiser bus
ride. The day the conference ended, about 3 days after the
incident, Hoversten received a telephone call from Hodges,
informing her about the incident. Hodges was emotional on the
call and told Hoversten that Armstrong's behavior was
unprofessional and very embarrassing to her. The next
morning, Hoversten informed her supervisor of the situation
and they decided to meet with Armstrong when she returned.
Hoversten spoke to Armstrong over the telephone and told her
not to return to her specialty clinical site, but to return
to Clarkson's campus for a meeting. According to
Hoversten, Armstrong acknowledged during the call that her
behavior was unprofessional and that she was sorry about it.
spoke with Glidden over the telephone. Glidden described what
he had observed on the bus ride and that he thought
Armstrong's behavior was unprofessional and
inappropriate. He said that he was not sure whether Armstrong
would be allowed back at UNMC, her main clinical site.
Hoversten also called Gondringer about the incident on the
April 23, 2013, Meeting
April 23, less than a week after the conference ended,
Armstrong had a meeting at Clarkson. In attendance at the
meeting were Armstrong; Hoversten; Dr. Tony Damewood, the
[297 Neb. 604] vice president of operations for Clarkson; and
the vice president of academic affairs. Armstrong brought an
attorney to the April 23 meeting. According to Armstrong, her
attorney was not allowed in the meeting by Damewood, who made
him wait in the hallway.
decision was made to place Armstrong on probation for
violating the AANA Code of Ethics and the CRNA program
handbook. Armstrong was told at the meeting that she would
not be able to return to her specialty clinical site due to
the rule in the CRNA program handbook that students on
clinical probation cannot work at specialty clinical sites.
According to Hoversten's notes from the meeting, the
possibility that her clinical site may not allow her to
return due to the incident was discussed.
who was not a part of the CRNA program, was present at the
April 23 meeting because of his role in Clarkson's
student assistance program. Damewood told Armstrong at the
meeting that she had violated the Clarkson Code of Conduct.
The Code of Conduct is a part of the Clarkson student
handbook, applicable to all Clarkson students, not just the
students in the CRNA program. The Code of Conduct has
different procedural requirements for student discipline than
the procedures for placing a student on clinical probation
under the CRNA program handbook. Damewood said at trial that,
in retrospect, he did not believe that Armstrong violated the
Code of Conduct. Damewood never told Armstrong that he was
incorrect to state that her conduct violated the Code of
Conduct. No charges were ever filed against Armstrong under
the Code of Conduct.
April 24, 2013, Meeting
next day, April 24, the academic progression committee met to
formally notify Armstrong that she was being placed on
probation and discuss the probation terms. Present at the
meeting were Armstrong, Hoversten, and Dr. Ann Glow, the
assistant director of the CRNA program. The notes from the
meeting state that another faculty member and two [297 Neb.
605] UNMC clinical coordinators were absent and would be
briefed on the meeting.
April 24 meeting, Armstrong was given a formal notice by
Hoversten that she was being placed on probation. The general
plan for probation was discussed. The tentative plan was for
Armstrong to return to her primary clinical site. UNMC,
pending the approval of Glidden. Armstrong was told of
UNMC's right to terminate her clinical experience. The
plan, if UNMC did not allow her to return, was that Clarkson
would "make a reasonable attempt to place [Armstrong] in
an alternative site. ... If this is unsuccessful, [Armstrong]
will be given the option to withdraw from the program or be
terminated. [Armstrong] is made aware of [Clarkson's]
Student Grievance Policy . . . ."
told Armstrong that she was being placed on probation due to
a violation of rule 3.4 of the AANA Code of Ethics, which
states that "[t]he CRNA is responsible and accountable
for his or her conduct in maintaining the dignity and
integrity of the profession." Armstrong was given a copy
of this portion of the AANA Code of Ethics.
discussed at the meeting was the CRNA program handbook rule
regarding practice and professional ethics. The rule
regarding professionalism states that "[s]tudents shall
conduct themselves in a professional and respectable manner
during class time, clinical time and during professional
meetings and seminars." The subpart of the
professionalism rule related to practice and professional
ethics incorporates the AANA Code of Ethics and makes it
applicable to students in the Clarkson CRNA program:
The program expects students to adopt and observe the AANA
Code of Ethics. Violations of this ethical conduct standard
will be regarded as professional and academic misconduct and
failure to meet clinical performance objectives, and be
subject to review as such.
If a student is found to be noncompliant with this policy
disciplinary actions will be taken, up to and/or including
dismissal from the Program.
Neb. 606] Additionally, the CRNA program handbook's
probation policy and dismissal procedure was discussed. That
provision distinguishes between academic probation and
clinical probation. A student must, at a minimum, be placed
on clinical probation for certain reasons, including
"[f]ailure to comply with the AANA ethical code of
conduct." It also states that a student may be dismissed
from the program for failing to comply with the AANA Code of
Ethics. Armstrong was also given a copy of this portion of
the CRNA program handbook.
program's withdrawal and grievance policies were also
discussed with Armstrong. The grievance policy allows
students to grieve a complaint that "a specific decision
or action that affects the student's academic record or
status has violated published policies and procedures, or has
been applied to the grievant in a manner different from that
used for other students." The policy details the
procedure for filing a grievance, including that grievances
must be filed no later than 7 days after the incident in
question. Grievances are heard by a grievance committee,
which is composed of five members: an academic council
member, a faculty member from the faculty senate executive
committee, a student representative, a director from student
services, and the vice president of academic affairs (who
votes only in case of a tie vote), each of which must be
without conflicts of interest. The policy states that
"[t]he Grievance Committee is the designated arbiter of
disputes within the student community in cases, which do not