Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/21/2020 08:08 AM CDT




                                                         - 203 -
                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                    CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                                              Cite as 306 Neb. 203




                                           City of Wahoo, Nebraska,
                                        appellant, v. NIFCO Mechanical
                                             Systems, Inc., appellee.
                                                     ___ N.W.2d ___

                                           Filed June 19, 2020.    No. S-19-622.

                 1. Jury Instructions: Appeal and Error. Whether a jury instruction
                    is correct is a question of law, which an appellate court indepen-
                    dently decides.
                 2. ____: ____. Failure to object to a jury instruction after it has been sub-
                    mitted to counsel for review precludes raising an objection on appeal
                    absent plain error.
                 3. Appeal and Error: Words and Phrases. Plain error exists where there
                    is an error, plainly evident from the record but not complained of at
                    trial, which prejudicially affects a substantial right of a litigant and is of
                    such a nature that to leave it uncorrected would cause a miscarriage of
                    justice or result in damage to the integrity, reputation, and fairness of the
                    judicial process.
                 4. Jury Instructions: Appeal and Error. If the jury instructions given,
                    taken as a whole, correctly state the law, are not misleading, and
                    adequately cover the issues submissible to a jury, there is no prejudicial
                    error concerning the instructions and necessitating a reversal.
                 5. Appeal and Error. An appellate court may, at its discretion, discuss
                    issues unnecessary to the disposition of an appeal where those issues are
                    likely to recur during further proceedings.

                  Appeal from the District Court for Saunders County:
               Christina M. Marroquin, Judge. Reversed and remanded for
               a new trial.

                 John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann,
               Tannehill & Hahn, L.L.P., for appellant.
                              - 204 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

  Daniel B. Shuck, of Shuck Law Firm, P.C., for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Papik, J.
   In this negligence action, the district court gave the jury two
comparative negligence instructions. One instructed the jury
that if it found that the plaintiff’s negligence was more than
slight or that the remaining defendant’s negligence was less
than gross, then its verdict must be for the remaining defend­
ant. Another stated that if the jury found that the negligence
of the plaintiff was equal to or greater than the negligence of
the remaining defendant and a defendant that had been dis-
missed from the case by stipulation, then the plaintiff was not
entitled to recover, but if the plaintiff’s negligence was less
than the negligence of those defendants, it would be allowed
to recover. Following a verdict for the remaining defendant,
NIFCO Mechanical Systems, Inc. (NIFCO), the plaintiff, the
City of Wahoo, Nebraska (Wahoo), appeals. We find that the
comparative negligence instructions constituted plain error and
thus reverse, and remand for a new trial.
                       BACKGROUND
Parties and Claims.
   On January 7, 2014, a pipe in the sprinkler system of
Wahoo’s public library burst. This caused the sprinkler sys-
tem to activate and resulted in water damage to books, other
items, and the building itself. Wahoo subsequently brought
suit against Cheever Construction Company (Cheever) and
NIFCO. Among other theories of recovery, Wahoo alleged that
Cheever negligently installed the sprinkler system and that
NIFCO negligently failed to inspect and maintain it. Cheever
joined Midwest Automatic Fire Sprinkler Co. (Midwest) as a
third-party defendant. Among the affirmative defenses asserted
by NIFCO was a claim that Wahoo’s negligence was a proxi-
mate cause of any damages and that, as a result, either Wahoo
                              - 205 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

was completely barred from recovering or its recovery was
subject to reduction by the percentage of its fault.
   Because the details of the trial proceedings are not central
to the issues on appeal, we will not recount them in great
specificity here. For our purposes, it is sufficient to note
that all claims asserted by or against Cheever and Midwest
were dismissed by stipulation during the course of trial and
that the case was submitted to the jury with NIFCO as the
sole defendant.
Jury Instructions and Verdict Forms.
   Among the instructions adopted by the court and submitted
to the jury were instructions Nos. 2 and 5, both of which dealt
with comparative negligence. Instruction No. 2 included lan-
guage of “slight” and “gross” in the course of instructing the
jury on comparative negligence. After explaining that Wahoo
bore the burden of proving NIFCO was negligent and that
NIFCO bore the burden of proving Wahoo was negligent, a
section of that instruction directed the jury as to what it should
do if it found that both parties met their burden to show the
other was negligent. This section provided as follows:
                      C. EFFECT OF FINDINGS
          If the plaintiff has met its burden of proof and the
      defendant has not met its burden of proof, then your ver-
      dict must be for the plaintiff.
          If both the plaintiff and the defendant have met their
      burden of proof, then you must compare the negligence
      of each with that of the other.
          1. If upon comparison you decide that the plaintiff’s
      negligence was more than slight, or that the defendant’s
      was less than gross, then your verdict must be for the
      defendant.
          2. If, however, upon comparison, you decide that the
      plaintiff’s negligence was slight and that the defendant’s
      was gross, then your verdict must be for the plain-
      tiff. . . . You must then decide what percent of the total
                              - 206 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

      negligence was attributable to the plaintiff and reduce the
      amount of its total damages by that same percent, return-
      ing a verdict for the balance only.
         The words “slight” and “gross” as used here are com-
      parative words. The negligence of a party is not to be
      evaluated as slight or gross standing alone but only when
      compared with that of the other party.
(Emphasis in original.)
   Instruction No. 5 also addressed comparative fault. It pro-
vided as follows:
                    COMPARATIVE NEGLIGENCE
         If you find Plaintiff, [Wahoo], was damaged and that
      the damages were proximately caused by the negligence
      of [NIFCO] and [Midwest], then you must determine to
      what extent the negligent conduct of each contributed to
      the damages of the plaintiff, expressed as a percentage of
      100 percent.
         If you find that both Plaintiff and one or more of the
      Defendants were negligent and that the negligence of
      the plaintiff was equal to or greater than the negligence
      of the defendants, then Plaintiff will not be allowed to
      recover.
         If you find that [Wahoo] and one or more of the
      Defendants were negligent and that the negligence of
      one or more of the Defendants was greater than the neg-
      ligence of [Wahoo], then the Plaintiff will be allowed to
      recover.
         If Plaintiff is allowed to recover, you will first deter-
      mine the Plaintiff’s total damages without regard to the
      percentage or degree of negligence.
         If Plaintiff is allowed to recover, then the court will
      then reduce the total damages by the percentage of the
      plaintiff’s negligence.
         In this regard please refer to the Verdict Form No. 3.
   Neither party objected to instruction No. 2 or instruction
No. 5 or proposed any alternative instructions regarding com-
parative negligence.
                             - 207 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
            CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                      Cite as 306 Neb. 203

   The district court supplied the jury with several verdict
forms. Verdict form No. 1 provided that Wahoo had not met
its burden of proof and that the jury’s verdict was for NIFCO.
Verdict form No. 2 provided that Wahoo had met its burden of
proof, that NIFCO had not met its burden of proof, and that the
jury’s verdict was for Wahoo. Verdict form No. 2 included a
line upon which the jury could enter Wahoo’s damages.
   Verdict form No. 3 allowed for a finding that Wahoo
proved NIFCO was negligent and that NIFCO proved Wahoo
was negligent. The form included blank lines upon which the
jury could enter NIFCO’s and Midwest’s respective percent-
ages of negligence. Just below those blank lines, the form
stated that “[t]he total negligence must add up to 100%.” A
space was not provided for Wahoo’s percentage of negligence,
nor was there one for Cheever’s. Verdict form No. 3 then
stated that if Wahoo’s negligence equaled 50 percent or more,
a verdict should be returned for NIFCO using verdict form
No. 1 and verdict form No. 3 should not be completed further.
Verdict form No. 3 next stated that if Wahoo’s negligence
was less than 50 percent, the jury must return a verdict for
Wahoo and calculate Wahoo’s total damages; the court would
then determine the award by reducing the total damages
by the percentage of negligence apportioned to Wahoo and
to Midwest.

Jury Verdict and Wahoo’s
Motion for New Trial.
   The jury completed verdict form No. 1 and rendered a ver-
dict in favor of NIFCO. The district court accepted the verdict.
   Wahoo filed a timely motion for a new trial. Wahoo asserted
that instruction No. 2 contained an incorrect statement of the
law. Following a hearing, the district court denied the motion
in a written order.
   In its order, the district court acknowledged that instruc-
tion No. 2 and its use of “slight” and “gross” was not a
proper comparative negligence instruction. The district court
                              - 208 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

nonetheless concluded that Wahoo was not entitled to a new
trial. It recited two reasons for that conclusion: First, the
district court asserted that if instructions Nos. 2 and 5 were
read together, they correctly stated the law and were not
confusing or misleading. In this regard, the district court sug-
gested that instructions Nos. 2 and 5 were not contradictory,
but that instruction No. 2’s use of “slight” and “gross” was
merely a “more general comparison” than the comparison
called for in instruction No. 5. The district court reasoned
that taken together, the instructions directed the jury to first
make a determination as to whether the parties’ negligence
was slight or gross, but then, in conjunction with verdict form
No. 3, directed it to express negligence in percentage terms.
Alternatively, the district court concluded that the jury did not
reach the issue of comparative negligence and that, thus, any
error in instruction on the issue was harmless.
   Wahoo appeals.
                ASSIGNMENTS OF ERROR
   Wahoo asserts multiple assignments of error, but each rests
on the contention that the district court erred by instructing the
jury with the “slight” and “gross” formulation in instruction
No. 2.
                STANDARD OF REVIEW
   [1] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. Kuhnel
v. BNSF Railway Co., 287 Neb. 541, 844 N.W.2d 251 (2014).
                          ANALYSIS
Propriety of Instruction No. 2.
   [2] Wahoo contends that the verdict against it must be
reversed because of the inclusion of the “slight” and “gross”
comparative negligence formulation in instruction No. 2.
Wahoo, however, did not object to instruction No. 2 at trial.
We have stated that failure to object to a jury instruction after
it has been submitted to counsel for review precludes raising
                              - 209 -
          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

an objection on appeal absent plain error. Id. Our review is
thus limited to plain error here.
   As for instruction No. 2, no one involved in this case
believes that the “slight” and “gross” comparative negligence
formulation should have been included in the jury instructions.
The district court acknowledged it should not have been given
in its order on Wahoo’s motion for a new trial. And although
NIFCO maintains that reversal is not appropriate, it too con-
cedes that the “slight” and “gross” formulation should not have
been included in the instructions to the jury.
   We agree that instruction No. 2 should not have been given,
but before turning to the disputed issue on which this appeal
turns—whether the jury instructions rise to the level of plain
error—we pause to clarify a misunderstanding regarding the
“slight” and “gross” comparative negligence formulation held
by the district court and the parties to this case, a misunder-
standing that appears to have arisen as a result of comments to
the Nebraska Jury Instructions.
   The district court explained in its order denying Wahoo’s
motion for a new trial that instruction No. 2 was taken from
NJI2d Civ. 2.02A. A “Special Note” in the comments to that
instruction states that it applies to “causes of action that accrue
before February 8, 1992.” The Special Note goes on to say that
“[i]t seems” that the NJI2d Civ. 2.02A pattern instruction con-
taining the “slight” and “gross” formulation
      also applies to causes of action that accrue on or after
      February 8, 1992, when there is only one defendant in
      the case when it goes to the jury (and, presumably, no
      defendant who has been discharged from a lawsuit by
      a release, a covenant not to sue, or a similar agreement
      entered into by a claimant and a person liable).
In its order denying Wahoo’s motion for a new trial, the dis-
trict court, with a citation to the Special Note, concluded that
the instruction patterned after NJI2d Civ. 2.02A should not
have been given, because Cheever and Midwest had been
discharged from the lawsuit. Wahoo and NIFCO also appear
                              - 210 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

to take the position that the instruction should not have been
given for that reason.
   We agree that the jury should not have been instructed with
the “slight” and “gross” language, but we do not believe the
propriety of that instruction turns on the discharge of Cheever
and Midwest from the suit. As we will explain, under the gov-
erning statutes, the “slight” and “gross” formulation applies
only to what must be an ever-shrinking category of cases that
accrued before February 8, 1992.
   At common law, if any negligence of the plaintiff con-
tributed to his or her injury, the doctrine of contributory
negligence barred recovery completely. See, e.g., Niemeyer
v. Tichota, 190 Neb. 775, 212 N.W.2d 557 (1973). Nebraska
adopted a statutory version of comparative negligence that
departed from the common law rule in 1913. See id. The stat-
ute allowed for the possibility of some recovery for a plaintiff
even if his or her negligence contributed to the injury, so long
as the plaintiff’s negligence was “slight” and the defendant’s
negligence was “gross.” If that was the case, the damages
awarded to the plaintiff would be reduced in proportion to the
amount of negligence attributable to the plaintiff. See id.
   In 1992, the comparative negligence statute was amended
again. See 1992 Neb. Laws, L.B. 262. Under the 1992 amend-
ments, the “slight” and “gross” formulation was left in place
for actions accruing before February 8, 1992. See Neb. Rev.
Stat. § 25-21,185 (Reissue 2016). But a new comparative neg-
ligence regime was put in place for actions accruing on or after
February 8, 1992. See Neb. Rev. Stat. § 25-21,185.07 (Reissue
2016). For those actions, the “slight” and “gross” language was
removed and then replaced with the following:
         Any contributory negligence chargeable to the claim-
      ant shall diminish proportionately the amount awarded as
      damages for an injury attributable to the claimant’s con-
      tributory negligence but shall not bar recovery, except
      that if the contributory negligence of the claimant is
      equal to or greater than the total negligence of all persons
                              - 211 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

      against whom recovery is sought, the claimant shall be
      totally barred from recovery. The jury shall be instructed
      on the effects of the allocation of negligence.
Neb. Rev. Stat. § 25-21,185.09 (Reissue 2016).
   Other sections of the 1992 statutory amendments address
how liability is to be allocated among multiple defendants. See
Neb. Rev. Stat. §§ 25-21,185.10 and 25-21,185.11 (Reissue
2016). We have previously held that § 25-21,185.10 applies
only where there are multiple defendants in a lawsuit at the
time the case is submitted to the finder of fact. See Maxwell
v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). Section
25-21,185.11 applies when a claimant enters into a release,
covenant not to sue, or similar agreement with a person liable
for negligence. See, e.g., Tadros v. City of Omaha, 273 Neb.
935, 735 N.W.2d 377 (2007). But there is nothing in those
statutes or any of the other comparative negligence statutes
suggesting that the “slight” and “gross” formulation is to be
used in any cases accruing on or after February 8, 1992. We
disapprove of the Special Note following NJI2d Civ. 2.02A to
the extent it suggests otherwise.
   Because the “slight” and “gross” formulation applies only in
cases accruing before February 8, 1992, it does not apply here
and the jury should not have been instructed as if it did.

Plain Error Analysis.
   [3] Because Wahoo did not object to the jury instructions
at issue, we may reverse on that basis only if there was plain
error. Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. Kuhnel v. BNSF Railway Co.,
287 Neb. 541, 844 N.W.2d 251 (2014).
   NIFCO argues that the inclusion of instruction No. 2 did
not amount to plain error for two reasons: First, it argues that
                             - 212 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
            CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                      Cite as 306 Neb. 203

there was no plain error, because instruction No. 5 correctly
set forth the governing comparative negligence standards.
Second, it argues that any error was harmless, because the jury
did not reach the question of comparative negligence. The dis-
trict court identified essentially the same reasons for denying
Wahoo’s motion for a new trial. As we will explain below, we
find plain error.
   [4] Starting with NIFCO’s argument that the jury was prop-
erly instructed on the subject of comparative negligence, it
is true that if the jury instructions given, taken as a whole,
correctly state the law, are not misleading, and adequately
cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917
N.W.2d 435 (2018). In our view, however, that proposition has
no application here, because the instructions, taken as a whole,
did not correctly state the law.
   Instruction No. 5 may have correctly stated the governing
comparative negligence law, but instruction No. 2 did not.
And it is not difficult to see how the jury could have been
led astray by instruction No. 2. Consider a case in which
the jury believed that Wahoo’s damages were caused by the
negligence of both Wahoo and NIFCO, with Wahoo’s share
of responsibility approaching but not reaching 50 percent. A
jury likely would not deem that level of negligence on the
part of Wahoo “slight” or that level of negligence on the part
of NIFCO “gross,” and if the jury so found, instruction No. 2
would direct it to enter a verdict in favor of NIFCO. But this
would, of course, run directly counter to the current com-
parative negligence law, which allows Wahoo some recovery
under those same circumstances. See § 25-21,185.09. As
this example illustrates, instruction No. 2 was not, as the
district court suggested, a general statement of comparative
negligence law, which was ultimately clarified by instruction
No. 5. Rather, instruction No. 2 “misstate[d] the law upon
a vital issue” and was not “cured by another which state[d]
                             - 213 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
            CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                      Cite as 306 Neb. 203

the law correctly.” Kaspar v. Schack, 195 Neb. 215, 220, 237
N.W.2d 414, 417 (1976).
   This leaves NIFCO’s argument that any error in the com-
parative negligence instructions was harmless. Here, NIFCO
relies on several cases in which Nebraska appellate courts
have held that any error in instructing the jury on comparative
negligence was harmless, because the jury’s return of a special
verdict form stating the jury found no negligence on the part
of the defendant showed that it did not reach the question of
comparative negligence. See, e.g., Corcoran v. Lovercheck,
256 Neb. 936, 594 N.W.2d 615 (1999); Hoover v. Burlington
Northern RR. Co., 251 Neb. 689, 559 N.W.2d 729 (1997);
Ammon v. Nagengast, 24 Neb. App. 632, 895 N.W.2d 729
(2017). NIFCO argues that the jury did not reach the issue of
comparative negligence in this case, because it returned its
verdict on verdict form No. 1, which stated that Wahoo had not
met its burden of proof.
   Unlike the cases cited by NIFCO, however, we cannot
be certain in this case that the jury did not reach the issue
of comparative negligence. As we have noted, the jury was
directed via instruction No. 2 that if it found that both par-
ties were negligent and that Wahoo’s negligence was more
than slight and NIFCO’s negligence was less than gross, its
verdict must be for NIFCO. The only verdict form given to
the jury which allowed it to return a verdict for NIFCO was
verdict form No. 1. Accordingly, while it is possible that the
jury did not reach the issue of comparative negligence, it is
equally possible that the jury did reach the issue of compara-
tive negligence and understood its instructions to require it to
use verdict form No. 1.
   Not only do we believe that the district court erred by giving
instruction No. 2 and that this error was not harmless, it also
bears all of the attributes of plain error. The error was plainly
evident from the record and affected Wahoo’s substantial right
to have the jury decide the case under the governing law. We
also believe that if we were to leave this error uncorrected, it
                              - 214 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                       Cite as 306 Neb. 203

would result in damage to the integrity, reputation, and fairness
of the judicial process. The Legislature decided nearly three
decades ago that, moving forward, comparative negligence
would no longer be decided through the “slight” and “gross”
formulation. The district court’s use of that formulation in this
case failed to give effect to the Legislature’s policy choice.
   Because the district court’s comparative negligence jury
instructions were plainly erroneous, we reverse, and remand
for a new trial.

Issue Likely to Recur on Remand.
   [5] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings. Bohling v.
Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020). Prior to con-
cluding, we exercise that discretion here to note one additional
problem with the district court’s directions to the jury concern-
ing comparative negligence.
   According to instruction No. 5, verdict form No. 3 was to be
used if the jury found that the negligence of both Wahoo and
one or more of the defendants proximately caused Wahoo’s
damages. Verdict form No. 3 included spaces for the jury to
list the respective percentages of negligence of certain par-
ties. But the only blank lines provided were for NIFCO and
Midwest. No blank line was provided for Wahoo or Cheever.
Just below those lines, the jury was told that “[t]he total negli-
gence must add up to 100%.”
   At the jury instructions conference, NIFCO objected to the
fact that a line was not included for Cheever on verdict form
No. 3. The district court overruled that objection, finding
that there was no evidence of Cheever’s negligence presented
at trial.
   Although neither party objected to the fact that a line
was not provided for Wahoo’s percentage of negligence, that
appears to have been erroneous. For the jury to properly con-
sider the issue of Wahoo’s comparative negligence as directed
                            - 215 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
            CITY OF WAHOO v. NIFCO MECH. SYSTEMS
                      Cite as 306 Neb. 203

by instruction No. 5, it would have to assess, in percentage
terms, the extent to which Wahoo’s negligence proximately
caused its damages. But verdict form No. 3 not only did not
provide a space for the jury to list a percentage of negligence
for Wahoo, by directing that the negligence of NIFCO and
Midwest must total 100 percent, it seemed to suggest that the
jury was not to consider the issue at all. If, when this matter
is retried, the district court finds that the evidence warrants
instruction on the issue of Wahoo’s comparative negligence,
the relevant verdict form should make clear the jury is to con-
sider and list a percentage of negligence for Wahoo.

                        CONCLUSION
   For the reasons explained above, we reverse, and remand for
a new trial.
                Reversed and remanded for a new trial.
