                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                  ALLEN V. NS WORLD SERV.


  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).


       BYRON ALLEN, JR., AND MONIQUE WISE, COPERSONAL REPRESENTATIVES OF THE
         ESTATE OF IYANA N. ALLEN, DECEASED, APPELLANTS AND CROSS-APPELLEES,
                                          V.
       NS WORLD SERVICE, INC., DOING BUSINESS AS OMAHA EXECUTIVE INNS & SUITES,
         DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE AND CROSS-APPELLANT,
                AND DESHAYLA NEAL, THIRD-PARTY DEFENDANT, APPELLEE.



                           Filed December 10, 2013.    No. A-12-902.


       Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Affirmed.
       David E. Copple and Michelle M. Schlecht, of Copple, Rockey, McKeever & Schlecht,
P.C., L.L.O., and Douglas P. Peterson and Brett Anthony, of Anthony & Peterson, L.L.P., for
appellants.
       Earl G. Greene III and Michael T. Gibbons, of Woodke & Gibbons, P.C., L.L.O., for
appellee NS World Service, Inc.


       IRWIN, MOORE, and BISHOP, Judges.
       IRWIN, Judge.
                                      I. INTRODUCTION
       Byron Allen, Jr., and Monique Wise, copersonal representatives of the estate of Iyana N.
Allen, deceased (the Estate), brought this action seeking to recover damages as a result of the
February 27, 2010, drowning death of 4-year-old Iyana in a hotel swimming pool. A jury
returned a verdict in favor of the defendant, NS World Service, Inc. (NSWS), doing business as
Omaha Executive Inns & Suites. In this appeal, the Estate alleges that the district court erred in
not allowing the Estate to present evidence of a prior drowning in 2006 at the same hotel



                                              -1-
location, that the jury’s verdict was contrary to the evidence adduced at trial, and that the district
court erred in denying a motion for new trial. We affirm.
                                         II. BACKGROUND
        This case arises out of a tragic incident wherein Iyana, who was not yet 5 years of age at
the time, drowned in the swimming pool of a hotel owned by NSWS. Iyana was attending a
birthday party at the time of the event.
        The evidence adduced at trial indicated that Iyana was attending a birthday party hosted
by DeShayla Neal and that the party comprised 12 to 14 children under 14 years of age. A police
investigation indicated that there were “perhaps 12 or so children under the age of 10, and maybe
three or four teenagers, [and] at most, one adult that may have been in the pool area . . . with the
children.” Several witnesses testified about a lack of adult supervision of the children in the pool
area.
        When Neal discovered that Iyana was missing, she walked around the pool area, went to
the hotel lobby, and engaged a hotel employee to help her look for Iyana. Testimony indicated
that the bottom of the pool was not visible, as the water was “cloudy” or “murky.” Iyana’s body
was eventually located at the bottom of the pool.
        The Estate brought suit against the owner of the hotel, NSWS; the entity the Estate
believed had been operating the hotel, JNS Lodging, Inc. (JNS); and the person the Estate
believed had been the operating manager of the hotel, Nammi Song. The Estate alleged that
Iyana’s death had been the result of negligence on behalf of the various defendants. NSWS filed
a third-party suit, naming as a third-party defendant Neal, the person who hosted the birthday
party Iyana had been attending at the time of her drowning.
        Song filed a motion in limine which sought, in part, to prevent the Estate from adducing
evidence at trial concerning a prior incident in 2006 in which another person had drowned in the
hotel’s swimming pool. NSWS and JNS similarly moved in limine concerning the prior
drowning incident. A hearing was held on the motions in limine, although the record from that
hearing has not been provided to this court on appeal.
        The district court sustained the motions in limine concerning evidence of the prior 2006
drowning incident. The court concluded that the Estate had not adduced sufficient evidence to
demonstrate that the prior 2006 drowning and the instant drowning occurred under substantially
similar circumstances.
        Song and JNS were both dismissed from the proceedings, on the motion of the Estate,
prior to trial.
        Prior to the start of trial, the Estate moved the district court to reconsider its ruling on the
motions in limine. The Estate argued that the two drowning incidents were substantially similar,
and the Estate offered and the district court received a copy of a police report detailing the police
investigation of the 2006 drowning incident. The court held, again, that the Estate had not
demonstrated sufficient similarity between the two drowning incidents to make evidence of the
prior drowning admissible.
        During the course of the trial, the Estate moved to make an offer of proof concerning the
prior 2006 drowning incident. The Estate indicated that it would like to “attach” two exhibits
related to the prior incident--the police report previously offered and received and “a copy of the


                                                 -2-
two investigations done by the Douglas County Health Department” concerning the prior
incident. The Estate indicated it “would just attach those and would like to make a record that --
just based on the Court’s prior to ruling to Motion in Limine.” The Estate did not specifically
offer the county health department exhibit into evidence, and the court never made any ruling
receiving that exhibit into evidence. NSWS objected to the two exhibits and iterated its earlier
argument that there was not substantial similarity between the two incidents. The court never
further ruled with respect to the offer of proof.
        At trial, NSWS offered the testimony of Dr. John Fletemeyer, an expert and professor of
aquatics at Florida International University, who had conducted extensive research and
consulting work in the area of water safety education. Dr. Fletemeyer’s focus was on drowning
research and behavior, and he testified that he had reviewed or been involved in more than 250
lawsuits related to drowning and had reviewed 200 to 300 other drowning cases.
        Dr. Fletemeyer testified concerning the evidence he had reviewed in this case, which
included depositions and a video of the drowning captured by a hotel video camera. He testified
about reports concerning the clarity of the water at the time of the incident, as well as the
supervision by adults at the time of the incident. Dr. Fletemeyer testified about the difference
between an active and a passive drowning, wherein an active drowning includes active visual
signs of struggle and distress.
        Dr. Fletemeyer testified that when watching the video of Iyana’s drowning, there were
visible signs of an active drowning occurring. He testified that neither the water clarity nor the
fact that the hotel allowed a birthday party to take place were the cause of Iyana’s drowning.
Rather, he opined that Iyana’s drowning was a preventable drowning caused by a lack of proper
adult supervision. He opined that any adult near Iyana at the time of the drowning would have
been able to save her life.
        At the conclusion of a several day trial, the jury returned a verdict in favor of NSWS. The
jury completed a verdict form in which it indicated that it had found that “[the Estate had] failed
to meet [its] burden of proof” and “the jury [did] find for [NSWS].” The Estate now appeals, and
NSWS cross-appeals.
                                III. ASSIGNMENTS OF ERROR
        On appeal, the Estate asserts that the district court erred in refusing to admit evidence
concerning the prior 2006 drowning incident, that the jury’s verdict was clearly wrong, and that
the court erred in denying the Estate’s motion for new trial.
        On cross-appeal, NSWS asserts that the district court erred in not granting NSWS a
directed verdict, in denying certain admissions against interest, in striking an asserted
comparative fault defense, and in denying certain evidence proffered by NSWS.
                                         IV. ANALYSIS
                                1. THE ESTATE’S DIRECT APPEAL
        On appeal, the Estate challenges the district court’s refusal to admit evidence concerning
the prior 2006 drowning incident, the sufficiency of the evidence to support the jury’s verdict,
and the court’s denial of the Estate’s motion for new trial. We find no merit to any of these
assertions.


                                               -3-
                                   (a) Evidence of Prior 2006
                                       Drowning Incident
        The Estate first asserts that the district court erred in denying evidence concerning the
prior 2006 drowning incident. The Estate asserts that the prior 2006 drowning incident was
substantially similar to the present incident and that evidence concerning it was admissible to
show notice and actual knowledge of the dangers of cloudy pool water and failure to comply
with regulations concerning operation of a swimming pool. We find no abuse of discretion by the
court in concluding that the Estate failed to demonstrate sufficient similarity to make the
evidence relevant and admissible.
        In proceedings in which the Nebraska Evidence Rules apply, the admissibility of
evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when
the rules make discretion a factor in determining admissibility. Holden v. Wal-Mart Stores, 259
Neb. 78, 608 N.W.2d 187 (2000). Because the exercise of judicial discretion is implicit in
determinations of relevance and admissibility under Neb. Rev. Stat. §§ 27-401 and 27-403
(Reissue 2008), the trial court’s decision will not be reversed absent an abuse of discretion.
Holden v. Wal-Mart Stores, supra. An abuse of discretion occurs when the trial judge’s reasons
or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition. Id.
        Under Neb. Rev. Stat. § 27-402 (Reissue 2008), evidence which is not relevant is not
admissible. An issue as to the existence or occurrence of a particular fact, condition, or event
may be proven by evidence as to the existence or occurrence of similar facts, conditions, or
events under the same or substantially similar circumstances. Holden v. Wal-Mart Stores, supra.
Relevant evidence of other similar accidents or occurrences is admissible to show that a
defendant had notice and actual knowledge of a defective condition, provided that the accidents
or occurrences were substantially similar; i.e., the prior accidents or occurrences happened under
substantially the same circumstances and were caused by the same or similar defects and
dangers. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006). However,
where an individual fails to adequately demonstrate how prior occurrences are substantially
similar, evidence of prior occurrences is irrelevant and, thus, inadmissible. Id.; Holden v.
Wal-Mart Stores, supra.
        The proponent of the evidence bears the burden to establish the similarity between the
other accidents and the accident at issue before the evidence is admitted. Shipler v. General
Motors Corp., supra. The proffered evidence must satisfy the substantial similarity test for it to
be properly admitted into evidence, whether to prove defect, causation, or knowledge/notice. Id.
        In Holden v. Wal-Mart Stores, supra, the appellant fell after stepping in a hole in the
parking lot of a store owned by Wal-Mart Stores, Inc. She subsequently underwent knee
replacement surgery and incurred medical bills, and she brought suit seeking an award of
damages. During trial, she offered evidence of instances at other Wal-Mart Stores locations
involving falls due to the condition of the pavement in the stores’ parking lots. The trial court
excluded the proffered evidence. Id.
        On appeal, the Nebraska Supreme Court held that the proffered evidence was not relevant
because the appellant had failed to show how the prior falls were substantially similar to her own



                                              -4-
fall. Id. The Supreme Court noted that the evidence proffered by the appellant showed that the
prior incidents had occurred at different locations across the county and had occurred under a
variety of circumstances. Id. Examples of some of the differences the Supreme Court pointed to
in concluding the appellant had failed to demonstrate sufficient similarity included that the falls
had occurred at different times of day, under different lighting conditions, and under different
weather conditions. Id. Moreover, photographs of the locations of the various falls demonstrated
a variety of surface conditions. The appellant had not attempted to lay foundation showing the
substantial similarity and had, instead, merely offered a single exhibit that included reports of all
of the other falls. Under those circumstances, the Supreme Court held that the appellant had
failed to establish substantial similarity sufficient to make evidence of the other falls relevant and
admissible.
         In Shipler v. General Motors Corp., supra, the appellee was injured in a motor vehicle
rollover that rendered her a quadriplegic. At trial, the appellee intended to offer evidence
describing a number of other rollover accidents. General Motors Corporation filed a motion in
limine to bar evidence of the other incidents, asserting that they were dissimilar in a variety of
ways. At a pretrial hearing, the appellee presented testimony from an expert witness who
testified regarding the elements which he claimed made the incidents substantially similar,
including that all of the accidents involved the same model of vehicle, involved rollover
accidents, and demonstrated roof crush causing severe head or neck injury. The evidence
adduced demonstrated that each accident was a rollover, each involved more than a single
revolution of the vehicle, each involved head or neck injury suffered as a result of contact with
the roof of the vehicle, each involved the victim’s being seated in the same position as the
appellee in the front seat and on the side of the vehicle that was the second to have contact with
the ground, and each vehicle involved was in the same family of vehicles manufactured by
General Motors Corporation. The trial court admitted the proffered evidence. Shipler v. General
Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
         On appeal, the Nebraska Supreme Court upheld the admission of the evidence. Id. The
Supreme Court noted that the trial court had conducted an extensive hearing to consider the
admissibility of the evidence, that an expert witness had testified about the similarities in the
accidents, that all involved equivalent vehicles, that all were rollover incidents, and that all
demonstrated roof crush resulting in severe head or neck injury. Id. Moreover, the trial court had
granted a limiting instruction directing the jury about the proper use of the admitted evidence. Id.
The Supreme Court found no abuse of discretion by the trial court in admitting the evidence and
giving a limiting instruction as to its proper use.
         We find that the present case is far more similar to the situation presented in Holden v.
Wal-Mart Stores, 259 Neb. 78, 608 N.W.2d 187 (2000). In the present case, the record presented
to us suggests that the Estate presented almost no evidence to the court to demonstrate
substantial similarity between the prior 2006 drowning incident and the instant drowning.
         After motions in limine were filed seeking to exclude evidence of the prior 2006
drowning incident, a hearing was held to consider the motions. That hearing, however, has not
been presented for our consideration on appeal.
         At the start of trial, the Estate moved the court to again consider allowing admission of
the evidence concerning the prior 2006 drowning incident. The Estate argued that the focus of


                                                -5-
the Nebraska Supreme Court in Holden v. Wal-Mart Stores, supra, was in considering
similarities in the time of day, lighting, and weather conditions, and suggested that those
conditions were substantially similar in both drownings. The Estate argued that a police report
concerning the 2006 incident indicated that the water in the swimming pool was cloudy and
nobody could see the bottom of the pool, that somebody discovered the victim was missing and
looked for the victim but could not see the victim in the pool, and that the victim was eventually
found in the pool. The court received the police report from the 2006 drowning.
         NSWS argued that the Estate had presented no evidence concerning maintenance of the
pool prior to the 2006 drowning incident, no evidence concerning the chemical values prior to
the 2006 drowning incident, and no evidence of the applicable swimming pool regulations at the
time of the 2006 drowning incident, and that allowing evidence concerning the 2006 drowning
incident in the present case would essentially force NSWS to relitigate the 2006 drowning
incident.
         The Estate asserted that testimony in a deposition of Song included information about the
maintenance and chemical levels in 2006. The Estate did not offer any deposition, however, and
no deposition of Song appears in our record.
         The trial court concluded again that the Estate had not demonstrated sufficient similarity
between the incidents and concluded that even if the evidence was relevant, it would be unduly
prejudicial and inadmissible under § 27-403.
         Later, during the course of the trial, the Estate made an offer of proof concerning
evidence of the prior 2006 drowning incident. The Estate noted that the 2006 drowning incident
occurred in the same pool, referred to the police report previously received as evidence, and also
referred to one exhibit that apparently contained two investigations conducted by the county
health department regarding the 2006 drowning incident. The Estate never actually offered the
latter exhibit, merely indicating that it would like to “attach” the exhibits to its offer of proof.
The court never ruled that the latter exhibit was received.
         On the record presented to us on appeal, we cannot find an abuse of discretion by the
district court’s finding that the Estate failed to demonstrate sufficient substantial similarity to
make the proffered evidence relevant and admissible. The Estate did not offer any testimony to
explain any similarities in the two incidents, and the evidence that was offered failed to
demonstrate substantial similarity.
         The evidence adduced demonstrated that the two drownings occurred in the same pool
and that witnesses described the water as cloudy at the time of both incidents. There was no
evidence to demonstrate that the cloudy condition of the water was a contributing factor in either
drowning, as there was no evidence indicating it was a contributing factor in the 2006 drowning,
and as discussed below, the evidence in the present case supported a conclusion that it was not a
contributing factor in the present drowning. There were no details concerning chemical levels at
the time of the 2006 drowning, beyond general references in the police report to records being
kept and the levels being “fine” earlier in the day. There was no evidence adduced concerning
the regulations governing operation of the pool in 2006. The evidence concerning the 2006
drowning did not provide details concerning the number of people in the pool area, the condition
of the lighting at the time of the drowning, or how long the water had apparently been cloudy.



                                               -6-
       The Estate made very little showing about any substantial similarities between the two
drownings, beyond them occurring at the same pool and in cloudy water. The Estate’s showing
was far less than that of the proponent of the evidence in Shipler v. General Motors Corp., 271
Neb. 194, 710 N.W.2d 807 (2006). Moreover, the district court in the present case found the
showing to be insufficient. Given our standard of review, we cannot say that this conclusion was
an abuse of discretion. This assigned error is without merit.
                                        (b) Jury’s Verdict
        The Estate next asserts that the verdict of the jury was not supported by the evidence and
was clearly wrong. The jury heard testimony from an expert witness on behalf of NSWS who
specifically opined that the drowning was not caused by the negligence of NSWS. That
testimony was sufficient to support the jury’s verdict.
        The Estate recognizes on appeal that a jury verdict will not be set aside unless clearly
wrong and that it is sufficient if there is any competent evidence presented to the jury upon
which it could find for the successful party. Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248
(2013). In determining the sufficiency of the evidence to sustain a verdict in a civil case, an
appellate court considers the evidence most favorably to the successful party and resolves
evidential conflicts in favor of such party, who is entitled to every reasonable inference
deducible from the evidence. Id.
        The Estate asserts on appeal that the evidence of NSWS’ negligence was
“overwhelming.” Brief for appellant at 25. The Estate points to evidence that NSWS had been
advised that Neal was hosting a birthday party in the pool area, contrary to hotel policy, and that
NSWS did not take action to stop the party or close the pool. The Estate also points to evidence
from a number of witnesses about the water being cloudy and murky. The Estate also points to
evidence that the hotel’s pool chemical levels had not been checked on three different occasions
on the date in question, contrary to applicable regulations concerning operation of a pool.
Finally, the Estate points to evidence that more than one person had walked around the pool
looking for Iyana before her body was located but had not been able to see her body in the pool.
        NSWS, however, presented evidence from an expert witness in the form of testimony
from Dr. Fletemeyer, who testified that he has reviewed or been involved in more than 250
lawsuits related to drowning and reviewed 200 to 300 other drowning cases.
        Dr. Fletemeyer testified concerning the evidence he had reviewed in this case, which
included depositions and a video of the drowning captured by a hotel video camera. He testified
about reports concerning the clarity of the water at the time of the incident, as well as the
supervision by adults at the time of the incident. Dr. Fletemeyer testified about the difference
between an active and a passive drowning, wherein an active drowning includes active visual
signs of struggle and distress.
        Dr. Fletemeyer testified that when watching the video of Iyana’s drowning, there were
visible signs of an active drowning occurring. He specifically testified that neither the water
clarity nor the fact that the hotel allowed a birthday party to take place were the cause of Iyana’s
drowning. Rather, he opined that Iyana’s drowning was a preventable drowning caused by a lack
of proper adult supervision. He opined that any adult near Iyana at the time of the drowning
would have been able to save her life.


                                               -7-
        The jury rendered a verdict in favor of NSWS. Dr. Fletemeyer’s testimony, taken in the
light most favorable to NSWS, is sufficient to support a conclusion that regardless of whether
any conduct on the part of NSWS fell below the applicable standard of care, that conduct did not
cause Iyana’s drowning. We are not free to disregard Dr. Fletemeyer’s testimony, and we cannot
conclude that the jury’s verdict is clearly wrong. The Estate’s assignment of error to the contrary
is without merit.
                                     (c) Motion for New Trial
        Finally, the Estate asserts that the district court erred in denying its motion for new trial.
The entire basis for the Estate’s assertion that a new trial was warranted in this case is its
assertion that “as set forth [previously in the Estate’s brief], the jury verdict was not sustained by
sufficient evidence.” Brief for appellant at 29. Inasmuch as we have already concluded that the
jury verdict was sustained by sufficient evidence, we find no abuse of discretion by the district
court in denying the motion for new trial.
                                     2. NSWS’ CROSS-APPEAL
        NSWS has brought a cross-appeal, asserting a variety of alleged errors. NSWS’ assigned
errors include assertions that the district court erred in denying a directed verdict, in denying
admissions against interest, in striking a comparative fault defense, and in denying certain
evidence proffered by NSWS.
        In light of our conclusions above, affirming the jury’s verdict in favor of NSWS and
rejecting the Estate’s assertions on direct appeal, there is no need to further address the
assignments of error in the cross-appeal.
                                        V. CONCLUSION
        We find no merit to the Estate’s assertions on appeal. The district court did not abuse its
discretion in finding that the Estate failed to demonstrate substantial similarity between a prior
incident and the incident in this case to make evidence of the prior incident relevant and
admissible. The jury’s verdict was sustained by sufficient evidence, and the district court did not
abuse its discretion in denying a motion for new trial. We decline to address the issues raised on
cross-appeal, because our ruling on the direct appeal renders them moot. We affirm.
                                                                                        AFFIRMED.




                                                -8-
