842 N.W.2d 631
Neb. Ct. App.2014Background
- Thurston sued Nelson Construction for alleged defects in a home addition/remodel, asserting contract, negligence, and implied warranty claims.
- Nelson allegedly left the project uncompleted, failed to protect the property from the elements, and disputes over workmanship and compliance with standards arose.
- Evidence included extensive trial exhibits; the district court granted a directed verdict only on personal injury from mold, not other damages.
- Jury returned verdict for Nelson; Thurstons appealed alleging exclusion of expert Wilkerson’s testimony and error in jury instructions.
- The court held the district court did not abuse discretion on expert testimony and did not err in the instructions; claims were analyzed under contract theory with economic loss considerations.
- Appeal focused on the exclusion of Wilkerson’s testimony and the sufficiency/structure of jury instructions about contract, negligence, and implied warranty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Wilkerson testimony on workmanship | Thurstons: Wilkerson would show breach of duty | Nelson: testimony was cumulative, lacked proper scope | No reversible error; no offer of proof; testimony cumulative |
| Separate or alternate instructions for negligent construction/implied warranty | Thurstons: needed separate/negligence instruction | Nelson: contract theory already encompassed issues | No error; instructions adequate and merged theories under contract |
| Coexistence of contract and tort theories; economic loss doctrine applicability | Thurstons: could recover in tort for negligent work | Nelson: damages were economic, governed by contract doctrine | No reversible error; economic losses tied to contract; no independent tort duty shown |
Key Cases Cited
- InterCall, Inc. v. Egenera, Inc., 284 Neb. 801 (Neb. 2012) (proper standard for evaluating jury-instruction error; independent decision on law)
- Lesiak v. Central Valley Ag Co-op, 283 Neb. 103 (Neb. 2012) (economic loss doctrine limits tort claims for purely contractual duties)
- Moglia v. McNeil Co., 270 Neb. 241 (Neb. 2005) (implied warranty of workmanlike performance in construction)
- Lange Indus. v. Hallam Grain Co., 244 Neb. 465 (Neb. 1993) (implied warranty in building contracts; reasonably good workmanship)
- Henggeler v. Jindra, 191 Neb. 317 (Neb. 1974) (construction standards; implied duties in building)
- Schwarz v. Platte Valley Exterminating, 258 Neb. 841 (Neb. 2000) (contract-and-tort considerations in implied duties)
- Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327 (Neb. 2008) (offer-of-proof requirement for excluding testimony)
- Kenyon & Larsen v. Deyle, 205 Neb. 209 (Neb. 1980) (permissibility of pleading alternative theories of recovery)
- Lesiak v. Central Valley Ag Co-op, 283 Neb. 103 (Neb. 2012) (economic loss doctrine clarified; coexistence of tort and contract actions)
- InterCall, Inc. v. Egenera, Inc., 284 Neb. 801 (Neb. 2012) (central issue: whether failure to give a requested instruction prejudices)