Warner v. Simmons, 849 N.W.2d 475

Warner injured from a fall on a cedar plank walkway leading to a Niobrara River Ranch cabin owned by Simmons (Niobrara River Ranch, L.L.C.).
Plaintiff alleged negligence for failure to maintain, inspect, or warn about a dangerous condition on the premises.
Defendants denied liability, claiming Warner’s own actions/contributory negligence contributed to the injury.
Trial was to a jury; verdict favored Simmons and Niobrara River Ranch.
Warner challenged NJI2d Civ. 8.26 burden-of-proof instruction as incompatible with Nebraska’s comparative fault statute.
Simmons cross-appealed seeking error in refusing NJI2d Civ. 3.01 on the right to assume others’ reasonable care; the court affirmed the verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NJI2d Civ. 8.26 aligns with § 25-21,185.09.	Warner: 8.26 misstates burden under comparative fault.	Simmons: 8.26 accurately states law and precludes shifting burden.	No reversible error; 8.26 is correct under law.
Whether the district court erred by not giving NJI2d Civ. 3.01 on assumed reasonable care.	Warner desires broader duty-shift clarity.	Simmons contends 3.01 was misapplied.	No error; court affirmed without addressing cross-appeal further.

Burns v. Veterans of Foreign Wars, 231 Neb. 844 (1989) (open/obvious danger not automatically shield from liability; duty if invitee may fail to protect themselves)
Herrera v. Fleming Cos., 265 Neb. 118 (2003) (landowner liability based on superior knowledge; Restatement §343)
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801 (2012) (application of NJI; burden-of-proof principles)
Karel v. Nebraska Health Sys., 274 Neb. 175 (2007) (restatement/summary of land- possessor duty)
Domjan v. Faith Regional Health Servs., 273 Neb. 877 (2007) (premises liability and comparative fault context)
Worth v. Kolbeck, 273 Neb. 163 (2007) (comparative fault framework in premises liability)
Orduna v. Total Constr. Servs., 271 Neb. 557 (2006) (apply comparative fault to landowner duties)