Jacobson v. Shresta, 288 Neb. 615

Background

Virginia Jacobson was admitted to Gordon Memorial Hospital after aspirating a piece of meat; Drs. Shresta and Cornu-Labat treated her and she died days later; her husband and the estate (the Jacobsons) sued for wrongful death.
Defendants moved to bifurcate the threshold employment issue (whether they were hospital employees) and requested a bench trial on that issue because if they were hospital employees the Political Subdivisions Tort Claims Act (PSTCA) would bar the claim as untimely.
The district court granted bifurcation and tried the employment issue to the court; it found defendants were employees and dismissed the complaint.
The Court of Appeals affirmed, reasoning the Jacobsons waived a jury trial by failing to timely object to the bifurcation ruling in the record.
The Nebraska Supreme Court granted further review to decide (1) whether the Jacobsons waived their constitutional jury right and (2) whether they had a right to a jury on the issue whether the defendants were political subdivision employees.
The Supreme Court held the Court of Appeals erred in finding waiver under the record, but affirmed overall because plaintiffs had no right to a jury on the political-subdivision/employee-status issue under the PSTCA framework.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Jacobsons waived right to jury by failing to object to bifurcation pretrial	Jacobsons argued they did not clearly and unequivocally waive; they renewed objection before trial and never consented	Defendants argued silence before the court’s ruling waived the jury right and Court of Appeals correctly found waiver	Court: Court of Appeals erred — waiver in district court must fall within §25-1126 modes (written, oral in open court, or consent when other fails to appear); mere pretrial silence does not automatically waive jury right
Whether plaintiffs had a constitutional/statutory right to jury on whether defendants were political subdivision employees	Jacobsons: Because they did not sue the hospital under PSTCA, a jury should decide the factual employment issue	Defendants: Legislature sets terms of waiver of immunity; PSTCA’s terms treat employee-status determinations as for the court and do not include jury trial among waiver terms	Court: No right to jury on employee-status issue — PSTCA (and related principles on governmental immunity) means jury trial is not a term of the State’s consent to be sued; therefore bench determination was proper
Whether §25-1126 allows waiver to be implied by silence or non-objection	Jacobsons: silence/late objection did not amount to waiver; previous case law allows revival of jury demand	Defendants: Practical waiver rules and appellate record principles support presuming waiver when no timely objection is in record	Court: §25-1126 provides exclusive statutory modes of waiver in district court; waiver cannot be inferred from mere silence outside those modes
Whether legislative waiver of immunity can exclude jury trials	Jacobsons: constitutional jury right should preserve jury for common-law issues like negligence	Defendants: Legislature can condition consent to suit and prescribe procedures (including non-jury resolution)	Court: Legislature may set terms of waiver; if jury trial is not among those terms, plaintiffs are not entitled to jury on that issue

Key Cases Cited

In re Interest of Eden K., 14 Neb. App. 867 (Neb. Ct. App. 2006) (definition of clear and convincing evidence)
ML Manager v. Jensen, 287 Neb. 171 (Neb. 2014) (statutory interpretation is question of law)
Eihusen v. Eihusen, 272 Neb. 462 (Neb. 2006) (historical distinction between law and equity; jury right context)
Lehman v. Nakshian, 453 U.S. 156 (U.S. 1981) (Seventh Amendment does not apply to the federal government; jury rights as terms of consent to be sued)
Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329 (6th Cir. 2009) (no jury on employment/scope-of-employment issue where statute makes that a matter of governmental exposure/consent)
Livengood v. Nebraska State Patrol Retirement Sys., 273 Neb. 247 (Neb. 2007) (Legislature controls terms of waiver of sovereign immunity)
Brown v. City of Omaha, 183 Neb. 430 (Neb. 1968) (governmental immunity doctrine applies to political subdivision employees acting within scope of employment)
Britton v. City of Crawford, 282 Neb. 374 (Neb. 2011) (discussion of waiver and statutory construction principles)
Lett v. Hammond, 59 Neb. 339 (Neb. 1899) (party may demand jury on appearance of docket even after pretrial procedural rulings)
MFA Ins. Companies v. Mendelhall, 205 Neb. 430 (Neb. 1980) (presumption of waiver where parties try case to court without objection)