Jury Instructions: Appeal and Error. Whether
a jury instruction is correct is a question of law, which an
appellate court independently decides.
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 failure to give the requested instruction.
Negligence: Jury Instructions: Damages. A
court is required to instruct a jury on damages for the
aggravation of a preexisting condition where there is
evidence to support a finding that the defendant's
negligence had aggravated a preexisting condition.
Damages: Liability. A defendant, under
Nebraska law, can be liable for the total harm to a plaintiff
from an accident even though the injury was greater because
of the plaintiff's preexisting physical condition than
would usually be caused by such an accident.
Expert Witnesses. Where injuries are
objective, expert testimony is not required.
Actions: Negligence: Damages: Proof. The
plaintiff has the burden of proving duty, breach, causation,
and resultant harm to recover in a suit in negligence.
Negligence: Damages: Proximate Cause: Proof.
Once the plaintiff presents evidence from which a jury
reasonably can find that damages were proximately caused by
the tortious act, the burden of apportioning damages
resulting from the tort rests squarely on the defendant.
Neb.App. 922] 8. Jury Instructions:
Damages. The apportionment instruction is
appropriate where there is evidence of a preexisting
condition but the degree to which that condition may have
been aggravated could not be determined.
__:__. In the absence of proof of aggravation, an instruction
on apportionment of damages would be inappropriate.
from the District Court for Douglas County: Leigh Ann
E. Harris and Britany S. Shotkoski, of Harris &
Associates, PC, L.L.O., and Daniel L. Draisen, of Krause.
Moorhead & Draisen, P.A., for appellant.
D. Ernst and Jeffrey A. Nix, of Pansing, Hogan, Ernst &
Bachman, L.L.P, for appellees.
Riedmann, Arterburn, and Welch, Judges.
Kelly III appeals a jury verdict in his favor awarding him
damages for injuries he sustained in a slip-and-fall
accident. On appeal, he alleges that the district court for
Douglas County erred in refusing to give his proposed jury
instruction on the aggravation of a preexisting condition and
failed to properly instruct the jury on the burden of proof
on damages. We conclude that Kelly's proposed jury
instruction was not warranted by the evidence and that the
jury was ...