City of Wahoo v. NIFCO Mech. Systems
944 N.W.2d 757
Neb.2020Background
- On Jan. 7, 2014, a library sprinkler pipe burst in Wahoo, Nebraska, causing water damage; Wahoo sued Cheever Construction and NIFCO Mechanical Systems for negligence.
- During trial, claims against Cheever and third‑party Midwest were dismissed by stipulation, leaving NIFCO as the sole defendant when the case went to the jury.
- The court gave two comparative‑negligence instructions: Instruction No. 2 used the older "slight"/"gross" formulation; Instruction No. 5 used percentage allocation consistent with post‑1992 statute. Neither party objected at trial.
- Verdict forms included Form No. 1 (verdict for defendant), Form No. 2 (plaintiff wins), and Form No. 3 (percentage allocation) — but Form No. 3 lacked a line for the plaintiff's percentage and required the listed defendants to total 100%.
- The jury returned a verdict for NIFCO (Form No. 1). Wahoo moved for a new trial arguing Instruction No. 2 misstated the law; the district court denied the motion. Wahoo appealed, invoking plain‑error review because no contemporaneous objection was made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Instruction No. 2's "slight"/"gross" comparative‑negligence language was proper | The instruction misstated current law — the "slight/gross" rule applies only to pre‑Feb. 8, 1992 causes of action and thus should not have been given | Conceded the language was undesirable but argued Instruction No. 5 correctly stated the law and cured any error | Court held the "slight/gross" formulation was improper for post‑1992 claims and should not have been given; Special Note in NJI2d Civ. 2.02A suggesting broader applicability was disapproved |
| Whether any instructional error was harmless or cured by Instruction No. 5 | Error was prejudicial because Instruction No. 2 could lead a jury to deny recovery in situations where modern statute allows it | Asserted no plain error because Instruction No. 5 correctly stated the law and the jury likely did not reach comparative allocation | Court held the coexistence of the conflicting instructions could have misled the jury; the error was not harmless and was plain error requiring reversal |
| Whether failure to object at trial waives review or triggers plain‑error standard | Wahoo acknowledged it did not object and asked for plain‑error reversal | NIFCO argued waiver and that any error was harmless; relied on verdict form showing plaintiff failed to meet burden | Court applied plain‑error review and found error plainly evident, affecting substantial rights and justice, so reversal was warranted |
| Adequacy of verdict form No. 3 (no space for plaintiff percentage) | Wahoo argued the form prevented proper percentage allocation and confused jury duty | NIFCO did not press an objection to omission for plaintiff; trial court refused to add a line for one defendant (Cheever) based on evidence | Court noted the omission was erroneous and, on remand, directed that if comparative‑negligence is submitted the verdict form must allow the jury to allocate a percentage to the plaintiff (and any appropriate defendants) |
Key Cases Cited
- Kuhnel v. BNSF Railway Co., 287 Neb. 541 (2014) (standard: whether a jury instruction is correct is a question of law reviewed de novo; failure to object preserves only plain‑error review)
- Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38 (2018) (instructions taken as a whole must correctly state the law and not mislead the jury)
- Kaspar v. Schack, 195 Neb. 215 (1976) (a misstatement of law on a vital issue is not cured by a correct instruction elsewhere)
- Maxwell v. Montey, 262 Neb. 160 (2001) (statutory allocation among multiple defendants applies only where multiple defendants remain before the factfinder)
- Tadros v. City of Omaha, 273 Neb. 935 (2007) (discusses effect of releases, covenants, or similar agreements on allocation under comparative‑negligence statutes)
- Corcoran v. Lovercheck, 256 Neb. 936 (1999) (instructional error on comparative negligence may be harmless where jury verdict shows the jury did not reach comparative allocation)
- Niemeyer v. Tichota, 190 Neb. 775 (1973) (historical treatment of contributory negligence and transition to statutory comparative negligence)
- Bohling v. Bohling, 304 Neb. 968 (2020) (appellate courts may address issues unnecessary to disposition when they are likely to recur)