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Kelly v. Cutch, Inc.

Court of Appeals of Nebraska

December 31, 2019

Dock Kelly III, appellant,
v.
Cutch, Inc., a Nebraska corporation, doing business as Burger Star Restaurant, and Cutchall Management Company, Inc., appellees.

         1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

         2. 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.

         3. 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.

         4. 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.

         5. Expert Witnesses. Where injuries are objective, expert testimony is not required.

         6. Actions: Negligence: Damages: Proof. The plaintiff has the burden of proving duty, breach, causation, and resultant harm to recover in a suit in negligence.

         7. 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.

         [27 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.

         9. __:__. In the absence of proof of aggravation, an instruction on apportionment of damages would be inappropriate.

          Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

          James 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.

          David D. Ernst and Jeffrey A. Nix, of Pansing, Hogan, Ernst & Bachman, L.L.P, for appellees.

          Riedmann, Arterburn, and Welch, Judges.

          RIEDMANN, JUDGE.

         INTRODUCTION

         Dock 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 ...


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