Scheele v. Rains, 292 Neb. 974

Background

Kristina Scheele sued Darrell Rains (landowner who conducted a prescribed burn), Delles Carrier, Inc., and driver Frank Lukach after a multi-vehicle collision caused by smoke from Rains’ burn; jury returned verdicts for defendants and Scheele appealed.
Rains performed two prescribed burns April 9, 2012; the second burn produced smoke crossing Highway 77 after wind shifted; Rains obtained permits and completed a burn plan but the relative humidity and timing did not match recommended burn-plan parameters.
Scheele, driving south in heavy smoke, slowed, was stopped behind a vehicle, attempted to pass by moving into the northbound lane, and collided with the stopped vehicle and an oncoming semi driven by Lukach.
Lukach was driving an oversized load and received postaccident citations for several Federal Motor Carrier Safety Regulation violations; he testified he slowed in the smoke and continued because he believed he could not safely stop.
At trial, defendants presented evidence of permits, a burn plan, available suppression equipment, and permission from the local fire chief; the jury found Scheele did not prove negligence by Rains or by Delles/Lukach.
After jury deliberations began, the court discovered an error in a comparative-negligence instruction, replaced it with corrected language (with counsel’s agreement), and reread it to the jury before the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether directed verdict should have been entered for Scheele on Rains’ negligence	Rains violated his burn plan and federal program duties; his noncompliance was negligence (argued effectively negligence per se)	Rains obtained permits, followed a burn plan, had suppression tools/people, and sought/received fire chief approval; factual disputes for jury	Denied — evidence was conflicting; not negligence per se; factual issues for jury
Whether directed verdict should have been entered for Scheele against Delles/Lukach	Lukach violated FMCSR and failed to stop or exercise extreme caution in smoke	Lukach slowed, kept right, and testified he initially had required visibility; violations are evidence but not conclusive	Denied — violations admissible as evidence but not dispositive; credibility/facts for jury
Whether giving conflicting versions of the comparative‑negligence instruction required reversal	Incorrect instruction initially given misstated comparative-combined negligence standard, prejudicing Scheele	Court corrected instruction before verdict; parties agreed; jury was reread corrected instruction; no conflicting instructions were given to jury	No plain error — corrected before verdict; harmless because jury found no defendant negligence so comparative negligence not reached
Whether failure to object at trial precludes appellate review of instruction	Scheele argues instruction was erroneous despite no contemporaneous objection	Defendants point to lack of objection; appellate review limited to plain error standard	No reversible error — plain-error standard not met; no prejudice shown

Key Cases Cited

Balames v. Ginn, 290 Neb. 682 (evidence of compliance/permits can be weighed; directed verdict standard)
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801 (standard for reviewing directed verdicts)
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006 (failure to object to jury instruction limits appellate review)
Orduna v. Total Constr. Servs., 271 Neb. 557 (statute/regulation violation is evidence, not negligence per se)
Raben v. Dittenber, 230 Neb. 822 (same principle: regulatory violation as evidence)
Blaser v. County of Madison, 285 Neb. 290 (plain error standard described)
Kaspar v. Schack, 195 Neb. 215 (incorrect jury instruction not cured by a correct instruction when both given)
Krepcik v. Interstate Transit Lines, 153 Neb. 98 (conflicting instructions that remain before jury require reversal)
Bunnell v. Burlington Northern RR. Co., 247 Neb. 743 (harmlessness where jury never reached contributory negligence issue)