Opinion
No. A-11-204.
12-27-2011
KIRK BEGLEY, APPELLEE, v. DAN HARKINS, APPELLANT.
Pamela Epp Olsen and Tracy A. Oldemeyer, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellant. Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
BEGLEY V. HARKINS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Scotts Bluff County: BRIAN C. SILVERMAN and LEO DOBROVOLNY, Judges. Reversed and remanded with directions.
Pamela Epp Olsen and Tracy A. Oldemeyer, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellant.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, for appellee.
IRWIN, MOORE, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. of App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Dan Harkins appeals an order of the district court for Scotts Bluff County granting partial summary judgment on the issue of contributory negligence and a judgment entered upon a jury verdict in this personal injury action. We find that the district court erred in granting summary judgment on the issue of contributory negligence, and we reverse, and remand with directions.
II. BACKGROUND
The events giving rise to this cause of action occurred on or about September 8, 2007, when Kirk Begley, Harkins, and two others were in a group together playing in a golf tournament at the Scottsbluff Country Club. The group was operating three golf carts. As the team approached the seventh hole, Begley was a passenger in the first cart, one of the other members of the group was in the second cart, and Harkins was the passenger in the third cart.
Harkins was sharing the third golf cart with a professional golfer in the group, and they stopped at the professional tee for the seventh hole, while the other two carts proceeded approximately 20 yards ahead to the amateur tee. Begley testified that the operator of the second golf cart parked so closely behind the first cart, in which Begley was a passenger, that when he exited the first cart he was unable to walk behind the first cart and in front of the second cart. Instead, he proceeded to walk around and behind the second cart.
Begley testified that he observed Harkins driving the third cart on the cart path toward where he was standing and that Harkins was operating the third cart from the passenger's side, rather than the driver's side. Begley testified that he observed that Harkins was also talking on a cellular telephone. Begley testified that he stopped walking while on the cart path and while immediately behind the second cart to watch another member of the group tee off.
After the member of the group teed off, Begley heard Harkins' cart approaching, observed that Harkins was still talking on his cellular telephone, and observed that it appeared that Harkins attempted to push the brake but instead pushed the accelerator. Harkins was unable to stop the cart, and despite Begley's attempt to jump out of the way, he was unable to get both of his legs out of the way. One of Begley's feet was pinned between the two golf carts, and he suffered injuries as a result.
Begley brought suit, alleging negligence. Harkins answered Begley's complaint and alleged that Begley was contributorily negligent. Begley then filed motions for partial summary judgment on the issues of negligence and contributory negligence.
The district court entered an order granting the motions for partial summary judgment on the issues of negligence and contributory negligence. The court found that the evidence adduced at the summary judgment hearing demonstrated that Harkins "was not paying attention and, as a consequence, crashed his golf cart into a parked cart, trapping [Begley] in between. There is not a world in which that is not negligent." With respect to the issue of contributory negligence, the court found that Harkins had not adduced evidence generating a question of fact as to whether Begley was negligent. The court held that "[b]eing where a negligent driver drives is not, in and of itself, negligence: a defendant must produce evidence that a plaintiff was doing something that a reasonable person would not do, or was failing to do something that a reasonable person would do."
Prior to the start of trial, Begley's attorney sought a continuance because of a conflict with another trial in federal court in Omaha, Nebraska. As a result, Harkins incurred additional fees related to expert witnesses and late cancellation of their testimony scheduled for the first day of trial. Harkins then filed a motion for sanctions, seeking reimbursement of those costs, as well as other costs allegedly incurred as a result of the late continuance. During a pretrial hearing on various motions, including the motion for sanctions, the district court noted that Harkins was being defended by State Farm Insurance Company and noted that "you're complaining about money for trial and stuff like that, and you shouldn't complain to me about those things because I know who State Farm is and I know they are huge and I know they have all the money in the world." The court also noted that Begley's "case doesn't have that kind of money behind it" and that Harkins' attorney was "not representing poor little defendant doctor who can't pay his way." The court ultimately denied the motion for sanctions.
A trial was conducted on the issue of damages. There are issues raised on appeal concerning allowing a challenged juror to serve, admission of evidence, questioning of a doctor who performed an independent medical examination of Begley and the fact that his testimony in court was generally paid for by insurance companies covering defendants, and jury instructions, but our disposition of the issue of contributory negligence obviates the need to discuss those issues further.
During closing arguments, Begley's counsel requested a damages award of $380,000. Begley's counsel then explained to the jury how she arrived at the amount requested for damages:
Where did I get this number? I'll tell you where I got it from. I crunched the numbers for [the doctor who performed an independent medical examination of Begley]. He says that we know he admits [to being paid] [$]232,000 a year from doing just the exams, he said he gives a deposition probably about twice a month, he testifies in trial about every six weeks or so. . . . And if you multiply it all out, it looks like his average take home in a year [for expert testimony and legal work] is about $329,000. $329,000. And if he makes $329,000 in one year just from his exams and his testifying, then $330,000 ought to be the least that's fair for the pain that [Begley] is in for the rest of his life. [$330,000] for [Begley] and [$]50,000 for [Begley's wife] because she has a claim in this too. You will have one blank on your verdict form and just write the total. The total should be $380,000 for that.Despite this seemingly improper argument about Begley's claim for pain and suffering somehow being calculated and supported based on the entirely unrelated earnings of a particular witness in the case, and despite Harkins' pointing this argument out on appeal, Harkins' counsel did not object to any of this argument. The jury ultimately returned a verdict in the sum of $281,000. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Harkins has assigned numerous errors. We conclude that our disposition of Harkins' assertion that the lower court erred in granting partial summary judgment in favor of Begley on the issue of contributory negligence obviates the need to address most of the remaining assertions of error.
IV. ANALYSIS
1. CONTRIBUTORY NEGLIGENCE
As noted above, after Begley filed his complaint alleging that Harkins was negligent, Harkins filed a responsive pleading and raised the issue of contributory negligence. The district court granted a motion for partial summary judgment on the issue of contributory negligence, finding that Begley's conduct was, as a matter of law, not something a jury could find constituted contributory negligence. We disagree.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Howsden v. Roper's Real Estate Co., 282 Neb. 666, ______ N.W.2d ______(2011). In reviewing a grant of summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the court granted the judgment and gives such party the benefit of all reasonable inferences deducible from the evidence. Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, ______ N.W.2d ______(2011).
A plaintiff is contributorily negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a proximate cause. Carroll v. Chase County, 259 Neb. 780, 612 N.W.2d 231 (2000). Whether contributory negligence is present in a particular case is a question for the trier of fact. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).
Nebraska has adopted a comparative negligence standard in which contributory negligence chargeable to the plaintiff diminishes proportionately the amount awarded as damages attributable to the defendant's negligence, but shall not bar recovery unless the contributory negligence is equal to or greater than the total negligence of all persons against whom recovery is sought. See Neb. Rev. Stat. § 25-21,185.09 (Reissue 2008). The purpose of the comparative negligence standard is to allow triers of fact to compare relative negligence and to apportion damages on that basis. Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004).
In the present case, viewing the evidence in the light most favorable to Harkins, the record established a genuine issue of material fact concerning whether Begley was contributorily negligent and failed to protect himself from harm. Begley testified in his deposition that after the golf cart he was a passenger in stopped at the seventh hole, the second golf cart in his group stopped so closely behind Begley's cart that he was not capable of walking between the two. Despite this, as he walked around and behind the second cart, he chose to stop immediately behind it and on the cart path while the third cart, operated by Harkins, was approaching on the cart path. Begley testified that he observed Harkins operating the cart from the passenger side and observed that Harkins was distracted and talking on a cellular telephone. Nonetheless, he chose to stand on the cart path and watch another golfer hit a tee shot.
Begley testified:
I grabbed the club and you have to then be facing to the north and then, you know, [the golfer hitting the tee shot] was getting ready to hit . . . . And at that point in time, I was standing right behind [the second golf cart]. Golf etiquette, you know, you don't walk behind somebody when they're getting ready to hit. And so, you know, by - where the two carts were at, I would have been standing on the cart path. So I would have noticed [Harkins] as I was walking . . . to behind [the second cart] and then faced [the golfer on the tee] while he was hitting and then heard [Harkins'] cart coming up behind me . . . .(Emphasis supplied.)
Viewed in a light most favorable to Harkins, this testimony of Begley would have supported a finding by the trier of fact that Begley observed Harkins but chose to stand on the cart path immediately behind the second golf cart and immediately in front of where Harkins was approaching, knowing that the two parked golf carts had ended up so close to one another that it was impossible to walk between them, and turned his back on Harkins to watch a tee shot from that spot directly on the cart path. We cannot conclude that, as a matter of law, this could not constitute contributory negligence, and we conclude that the district court erred in finding that there was no evidence to support a finding that Begley had failed to act reasonably. While there was testimony from several witnesses, including Harkins, that Begley was not doing anything "unreasonably dangerous," there was a genuine issue of fact for the trier of fact to resolve.
Because we conclude that the trial court erred in granting summary judgment on the issue of contributory negligence, we reverse, and remand for a new trial. That conclusion makes it unnecessary for us to further address most of Harkins' remaining assertions of error on appeal concerning the introduction of evidence in the damages trial, the allowance of a particular juror to serve, and the jury instructions given.
2. MOTION FOR SANCTIONS
Harkins asserts that the district court erred in denying his motion for sanctions associated with expenses incurred by Harkins as a result of Begley's counsel's conduct related to a continuance granted shortly before trial was scheduled to commence. Resolution of this assertion of error is not rendered unnecessary by our conclusion above.
The damages trial in this case was scheduled to begin on a Monday. On the Friday before, Begley's counsel determined that she would be unable to make the Monday starting date because of an overlapping commitment to a trial in federal court in Omaha. Begley's counsel communicated with the trial judge concerning the conflict and notified Harkins' counsel. Harkins alleged that as a result of the late notice, he incurred a substantial late cancellation fee associated with the scheduled testimony of an expert witness, as well as other costs. Harkins filed a motion for sanctions, seeking reimbursement of the expenses. As noted above, the district court denied the motion and, during the hearing on pretrial motions, commented concerning Harkins' defense being paid for by an insurance company that had "all the money in the world."
The denial of a motion for sanctions is reviewed for an abuse of discretion. Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 (1999). An abuse of discretion exists when the reasons or rulings of a trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
In the present case, the trial court's inappropriate comments are disturbing. The trial court's comments make it clear that his reasoning was untenable and demonstrate a bias against the moving party--thus, an abuse of discretion. Given our conclusion, we vacate his ruling on the sanctions motion and remand the matter for a new hearing before a different judge. Our opinion should not be read as expressing any opinion regarding the existence or nonexistence of grounds excusing the sanction.
V. CONCLUSION
We reverse, and remand for a new trial having found that the district court erred in granting summary judgment on the issue of contributory negligence when the record contained sufficient evidence from which the trier of fact could have concluded that Begley had failed to protect himself from harm. Additionally, we vacate the trial court's ruling on the sanctions motion and remand the matter for a new hearing before a different judge.
REVERSED AND REMANDED WITH DIRECTIONS.