Opinion
No. 36543.
Filed November 3, 1967.
1. Courts: Estoppel. The doctrine of issue preclusion or collateral estoppel recognizes that limits on litigation are desirable, but a person should not be denied a day in court unfairly. 2. Negligence: Estoppel. In a negligence action, employee A v. employer B, a prior determination of common issues of negligence in another action, employee B v. employer A, is ordinarily not conclusive upon employee A.
Appeal from the district court for Douglas County: RUDOLPH TESAR, Judge. Reversed and remanded.
Viren, Emmert Epstein and Boland, Mullin, Walsh Cooney, for appellant.
Cassem, Tierney, Adams Henatsch and Charles F. Gotch, for appellee Peter Pan Bakers, Inc.
Stoehr, Rickerson Caporale, for appellee Continental Baking Co.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
A collision between two trucks killed both drivers instantly. In this negligence action driver A's representative v. employer B — plaintiff's petition was dismissed on the ground of issue preclusion or collateral estoppel. A prior determination in another action-driver B's representative v. employer A — was ruled conclusive of common issues concerning driver negligence. Plaintiff has appealed.
In the former action a jury had returned a verdict for driver B's representative, and judgment on the verdict was affirmed as to liability. Lorenzen v. Continental Baking Co., 180 Neb. 23, 141 N.W.2d 163.
The doctrine of issue preclusion recognizes that limits on litigation are desirable, but a person should not be denied a day in court unfairly. American Province Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466. The employer of plaintiff's decedent having fully litigated the common issues of negligence, the problem is reduced to the effect of the employment relationship.
"Initially, one might say that a non-party to Suit I should not be bound by the decision in that suit * * *. In fact, the concept of preclusion is spelled out in terms of the individual who has had the incentive and the opportunity to litigate fully the matter involved. * * *
"In the past, such preclusion has extended beyond those persons actually involved in Suit I. A stranger to the first suit has been precluded, as opposed to the winning party in Suit I, through the use of various rationales. * * *
"The courts have talked in terms of a close relationship, privity, between a participant in the first suit and the person to be precluded in the second. Involved seems to be the idea that the precluded party's interests were represented in the first suit, or that the preclude, d party should have no greater interest than did the participant in the first suit. * * * One party having had his day in court and having lost, the related party — the one in privity — is precluded. This is justified in terms of the relationship of the parties. * * *
"Apart from judgments which have effect qua facts, it is clear that judgments can have conclusive effect against persons who were not parties to the original action. In attempting to decide how far the concept of preclusion should apply, it is well to consider the underlying rationale of judicial preclusion and preclusion generally. In all cases in which a person finds himself subject to preclusion generally, either (1) he has had the opportunity to litigate the matter or (2) his interests have been adequately represented in the litigation of the matter. * * *
"It would seem to be entirely reasonable to allow preclusion against non-parties to Suit I so long as they are adequately represented and protected in that suit. At this point there would seem to be a weighing process involved. Considered should be the saving of the time of the court, the adequacy of protection extended, and other relevant variable factors. * * *
"This idea of using a judgment against a person not a party to the first suit is not as well developed as is the use of a judgment by a non-party against a party to the first suit. * * * Since the whole area is in a state of flux, it is difficult to chart the development of the future, * * *." 50 Iowa L. Rev. 27, Preclusion/Res Judicata Variables: Parties, pp. 59-60, 74-75.
Preclusion against plaintiff under the circumstances would unfairly deny her an opportunity to assert her rights. See Makariw v. Rinard, 336 F.2d 333. The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.