834 N.W.2d 803
Neb. Ct. App.2013Background
- Kuhnel filed a FELA workplace injury claim against BNSF in July 2009 for injuries from recoupling train cars.
- Kuhnel alleged BNSF failed to provide a reasonably safe place to work and to train employees in safety practices.
- During jury instruction conference, the court overridden tendered instructions and gave its own instructions, omitting Kuhnel’s requested duty instruction.
- Kuhnel did not object to the instructions at trial on the specific duty issue, limiting review to plain error.
- The jury returned a verdict for BNSF (verdict form No. 1), Kuhnel moved for a new trial, which the district court denied.
- The Nebraska Court of Appeals reversed and remanded for a new trial on the basis that the district court failed to properly instruct on BNSF’s FELA duty to provide a safe place to work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by omitting BNSF’s duty to provide a safe workplace in the instruction | Kuhnel | BNSF | Error; prejudicial to Kuhnel; remand warranted. |
| Whether plain error review applies due to lack of objection | Kuhnel’s claims require plain error review | No objection means review limited to plain error | Plain error review applicable; instructional omission prejudicial. |
| Whether the general verdict rule bars reversal here | Kuhnel | General verdict rule applies | General verdict rule not applicable because the case hinged on an instructional error on a legal duty. |
| Whether the failure to instruct on the federal duty affected the outcome | Kuhnel’s duty was federally mandated | Jury should decide factual issues only | Prejudicial error; affected liability determination. |
| Remedy—whether to reverse and remand for new trial | Kuhnel | No remand needed | Reverse and remand for new trial. |
Key Cases Cited
- Lahm v. Burlington Northern RR. Co., 6 Neb. App. 182 (Neb. App. 1997) (general verdict rule considerations in mixed-error contexts)
- Nguyen v. Rezac, 256 Neb. 458 (Neb. 1999) (requirement to read instructions together; plain error review baseline)
- Centurion Stone of Nebraska v. Trombino, 19 Neb. App. 643 (Neb. App. 2012) (general instruction sufficiency; read as a whole)
- Schmitz v. Canadian Pacific Ry. Co., 454 F.3d 678 (7th Cir. 2006) (federal regulation duty instruction error; need for regulation-driven duty instruction)
- Tolliver v. Visiting Nurse Assn., 278 Neb. 532 (Neb. 2009) (plain error review when no trial objection)
- Worth v. Kolbeck, 273 Neb. 163 (Neb. 2007) (define plain error standard; appellate review)