                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-4013
                                  ___________

Carroll E. Heatherly, as Independent     *
Administrator of the Estate of           *
Margaret M. Heatherly, deceased;         *
Carroll E. Heatherly, individually,      *
                                         *
            Plaintiffs - Appellants,     *
                                         *
Thomas C. Heatherly, individually;       * Appeal from the United States
Margaret C. Heatherly, individually;     * District Court for the District
Bridget C. Heatherly, individually;      * of Nebraska.
Patrick B. Heatherly, individually,      *
                                         *
            Plaintiffs,                  *
                                         *
      v.                                 *
                                         *
Steven Alexander;                        *
Black Creek Transport, Inc.,             *
                                         *
            Defendants,                  *
                                         *
Midwest Specialized Transportation;      *
David Gilbertson,                        *
                                         *
            Defendants - Appellees.      *
                                    ___________

                            Submitted: November 17, 2004
                               Filed: August 26, 2005
                                ___________
Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       On the afternoon of June 26, 1999, Carroll Heatherly, his wife Margaret
Heatherly, and their four children Thomas, Brigid, Meg, and Patrick, embarked in a
motor home on a vacation trip to Yellowstone National Park from their home in Lisle,
Illinois. Tragically, the trip ended in Nebraska with the death of Margaret, and
serious injury to Carroll. This personal injury and wrongful death litigation ensued.

       Heatherly, individually and in his capacity as independent administrator of the
estate of his deceased wife, appeals the district court's grant of judgment as a matter
of law (JML) to defendants Midwest Specialized Transportation (MST) and its
employee David Gilbertson. We reverse and remand for a new trial.

I.    BACKGROUND

      We recount the facts of this case in the light most favorable to Heatherly, the
non-moving party. Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830 (8th Cir.
1996).

       On June 26, 1999, David Gilbertson, a professional truck driver working for
MST of Rochester, Minnesota, who had nine years of trucking experience, was
hauling a load of paper from Minnesota to California in his tractor-trailer unit.
Around 1:15 a.m. June 27, he became tired and decided to pull off Interstate 80 to
sleep at the Phillips rest area located at mile marker 317. Gilbertson parked his truck
on the shoulder (or emergency lane) of the deceleration portion of the exit ramp1


      1
       A deceleration lane on a freeway is the initial portion of an exit ramp,
designed to handle traffic entering the ramp at highway speeds and to provide space

                                         -2-
leading into the rest area. He and his son Dennis, who was riding with him, went to
sleep in the tractor's sleeper bunks. At around 2:30 a.m., the Heatherlys' motor home
approached mile marker 317 from the east. They were towing a Ford Escort.
Another tractor-trailer rig, stolen and being driven by Steven Alexander, was coming
up behind the motor home at a speed of nearly ninety miles-per-hour. A series of four
collisions ensued. First, Alexander's truck struck the back of the towed Escort. This
propelled the Escort forward, striking the back of the motor home. The Escort rotated
and was briefly sandwiched between the motor home and Alexander's truck before
Alexander's truck ran over the top of the Escort. The third impact involved
Alexander's truck striking the back of the motor home. This forced the motor home,
still traveling at some sixty-seven miles-per-hour, head-long into the back of the
parked MST truck, the fourth and final impact. Alexander's truck proceeded,
unimpeded, across the deceleration lane, and across the shoulder of the lane. It came
to rest in the grassy ditch next to the shoulder of the lane. The motor home and MST
truck trailer were soon engulfed in flames. All four of the Heatherly children and
Carroll Heatherly were rescued, though Carroll Heatherly was badly injured.
Margaret Heatherly was killed in the collision. Doctors had to amputate Carroll
Heatherly's right leg below the knee.

       Heatherly commenced this diversity action in the United States District Court
for the District of Nebraska. Before trial, Alexander and Black Creek Transport, Inc.2
were dismissed as defendants, leaving defendants Gilbertson and MST. At the close


for deceleration to the appropriate speed once off the freeway. Gilbertson's truck was
parked very close to the traveled portion of Interstate 80 near the beginning of the
deceleration lane.
      2
        Black Creek Transport, Inc. had originally been sued because of an alleged
interest in the truck that Alexander was driving. But the company contended that
though it had at one time leased the tractor that Alexander drove, it had returned it to
the lessor over a year prior to the accident and had no interest in the tractor at the time
of the accident. The parties stipulated to the company's dismissal from the case.

                                           -3-
of the evidence, defendants moved for JML pursuant to Rule 50 of the Federal Rules
of Civil Procedure. Taking the motion under advisement, the district court submitted
the case to the jury. After the jury deadlocked, the district court declared a mistrial,
granted defendants' JML motion and then dismissed the case. The district court
concluded, as a matter of law, that Gilbertson's conduct in parking the MST truck
where he did on the exit ramp was not a proximate cause of the Heatherlys' injuries,
but merely created a condition by which those injuries were made possible through
the negligence of Alexander. Heatherly appeals.

II.   DISCUSSION

        The question before us is whether it was error to grant JML to defendants on
this issue of proximate cause. "In a diversity action for negligence, we apply the law
of the forum state," Jordan v. NUCOR Corp., 295 F.3d 828, 834 (8th Cir. 2002), in
this case, Nebraska. Heatherly contends that, in granting JML to defendants, the
district court misapplied Nebraska law regarding proximate cause and failed to
consider the evidence in the light most favorable to Heatherly, the non-moving party.
We review a district court's grant of JML de novo and apply the same standards as the
district court. Sip-Top, 86 F.3d at 830. A motion for JML is properly granted where
"a party has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party" on that issue. Id. (quotation
omitted); Fed. R. Civ. P. 50. Judgment as a matter of law "is appropriate where the
evidence is such that . . . there can be but one reasonable conclusion as to the verdict."
Sip-Top, 86 F.3d at 830 (quotation omitted).

      Thus, this case requires us to undertake a de novo review of the law of
proximate cause in Nebraska and its application by the court in this particular case.
Proximate cause analysis invariably involves complex issues of tort law in general,
and this case is no exception.



                                           -4-
      A.     Foreseeability: The Crux of Nebraska Proximate Cause Law

       Under Nebraska negligence law, proximate cause consists of three elements:
that (1) but for the negligence, the injury would not have occurred, (2) the injury is
the natural and probable result of the negligence, and (3) there is no efficient
intervening cause.3 Shelton v. Bd. of Regents of the Univ. of Neb., 320 N.W.2d 748,
752 (Neb. 1982). The foreseeability of an injury that results from a negligent act
determines whether that injury is the "natural and probable result" of the act. "To
constitute proximate cause . . . the injury must be the natural and probable result of
the negligence, and be of such a character as an ordinarily prudent person could have
known, or would or ought to have foreseen might probably occur as the result."
Steenbock v. Omaha Country Club, 195 N.W. 117, 118 (Neb. 1923) (emphasis
added). "The law does not require precision in foreseeing the exact hazard or
consequence which happens. It is sufficient if what occurs is one of the kind of
consequences which might reasonably be foreseen." Brown v. Neb. Pub. Power Dist.,
306 N.W.2d 167, 171 (Neb. 1981) (quotation omitted). Further, "[a] proximate cause
is a cause that produces a result in a natural and continuous sequence, unaccompanied
by an efficient intervening cause, and without which the result would not have
occurred." Tapp v. Blackmore Ranch, Inc., 575 N.W.2d 341, 348 (Neb. 1998). An
efficient intervening cause

      is a new and independent act, itself a proximate cause of a result, which
      breaks the causal connection between the original wrong and the result.
      A person is not legally responsible for a result if it would not have

      3
       While the Nebraska Supreme Court, in Sacco v. Carothers, 567 N.W.2d 299
(Neb. 1997), instructed Nebraska courts to discontinue separately instructing juries
about efficient intervening causes, it did not remove the notion from proximate cause
doctrine in Nebraska. The court, in fact, reaffirmed that "the question of efficient
intervening causation is, in essence, one of proximate causation. The concepts of
negligence and proximate cause are sufficient to encompass notions of efficient
intervening causation without the [separate instruction]." Id. at 306.

                                         -5-
      resulted but for the interposition of an efficient intervening cause, which
      he should not have reasonably anticipated or reasonably foreseen.

Id. (emphasis added).

       Causation is "ordinarily a question for the trier of fact." Id. See King v.
Crowell Mem'l Home, 622 N.W.2d 588, 594 (Neb. 2001); Sharkey v. Bd. of Regents
of the Univ. of Neb., 615 N.W.2d 889, 900 (Neb. 2000) ("[I]n the proximate cause
context . . . foreseeability is a question of fact for the finder of fact."); Knoll v. Bd.
of Regents of the Univ. of Neb., 601 N.W.2d 757, 763 (Neb. 1999) (same); Kozicki
v. Dragon, 583 N.W.2d 336, 340 (Neb. 1998) ("Determination of causation is
ordinarily a matter for the trier of fact."). Only where the evidence is such that "only
one inference can be drawn" is it "for the court to decide whether a given act or series
of acts is the proximate cause of the injury." Tapp, 575 N.W.2d at 348. See Tess v.
Lawyers Title Ins. Corp., 557 N.W.2d 696, 706 (Neb. 1997) ("The issue of proximate
cause, in the face of conflicting evidence, is ordinarily a question for the trier of
fact."). The determination of causation is for the trier of fact because of the unique
role foreseeability plays in causation. In Kozicki, the Nebraska Supreme Court cited
Hill v. Yaskin, 380 A.2d 1107 (N.J. 1977), in holding that the role of foreseeability
as it applies to determinations of duty and causation presents "two separate issues,"
a point upon which we elaborate below. 583 N.W.2d at 339.

        In the instant case, it is difficult to tell the extent to which the role of
foreseeability was considered in the analysis of proximate cause. This leaves us with
two concerns. First, the question of causation was decided as a matter of law, when
it is generally a matter of fact under Nebraska law. Second, though the district court
relied on relevant precedent, our analysis of Nebraska proximate cause law dictates
a different outcome. As an initial matter, proximate cause appears to have been
analyzed from the standpoint that "'X' is a condition, therefore 'X' is not a cause."
Instead, we think the question should have been "Is 'X' a proximate cause?" and if it

                                           -6-
is not, then "X" may be merely a condition. This latter approach follows the weight
of Nebraska law which makes foreseeability the axis around which the cause-
condition analysis rotates. It also makes more sense of the difficult inquiry involved
in distinguishing cause from condition. This is so because it makes the finding of a
condition the product of the proximate cause analysis.

       Finally, though Alexander's negligence was determined to have been an
intervening cause of the collision, which it was, we believe an analysis of the
foreseeability of that negligence acting in concert with the parked MST truck should
have been a more prominent factor in the overall analysis. The question of whether
an act is a proximate cause, or simply a non-actionable condition, is determined by
whether it was foreseeable that the initial act could join with the intervening act to
cause the alleged injuries.

             1.     Causation a Matter for the Trier of Fact

       As earlier noted, under Nebraska law, causation is generally a determination
for the trier of fact because of the function foreseeability plays in the analysis. When
legal duty is the issue, foreseeability is also a necessary element but it shoulders a
different burden. Indeed, the Nebraska Supreme Court has specifically recognized
the confusion caused by these differing roles. "[T]he distinction between
foreseeability as it applies to duty and as it applies to proximate cause is a critical
distinction that is too often and too easily overlooked." Sharkey, 615 N.W.2d at 900.
See Knoll, 601 N.W.2d at 763; Kozicki, 583 N.W.2d at 339 ("The district court did
not make a distinction between the application of foreseeability to determining duty
and the role foreseeability plays in determining proximate cause. However, duty and
proximate cause are two separate issues."). In Yaskin, upon which the Nebraska
Supreme Court relied in Kozicki, the court explained that foreseeability in terms of
causation "relate[s] to the question of whether the specific act or omission of the
defendant was such that the ultimate injury to the plaintiff was a reasonably

                                          -7-
foreseeable result so as to constitute a proximate cause of the injury." 380 A.2d at
1109.

      Foreseeability that affects proximate cause . . . relates to the question of
      whether the specific act or omission of the defendant was such that the
      ultimate injury to the plaintiff reasonably flowed from defendant's
      breach of duty . . . . Foreseeability in the proximate cause context
      relates to remoteness rather than the existence of a duty.

Knoll, 601 N.W.2d at 763 (second alteration in original) (quotation omitted).

       By contrast, the Nebraska Supreme Court has held that "foreseeability, in the
duty context, is a legal question for the court." Id. (emphasis added). "'[Duty] is
entirely a question of law . . . and it must be determined only by the court. It is no
part of the province of a jury to decide . . . whether the Long Island Railroad is
required to protect Mrs. Palsgraf from fireworks explosions.'" Id. (alterations in
original) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
37 at 236 (5th ed. 1984)).4 That is because

             [f]oreseeability as it impacts duty determinations refers to
             the knowledge of the risk of injury to be apprehended. The
             risk reasonably to be perceived defines the duty to be
             obeyed; it is the risk reasonably within the range of
             apprehension, of injury to another person, that is taken into
             account in determining the existence of the duty to exercise
             care.

Id. (quotations omitted). In Knoll, the Nebraska Supreme Court specifically
overruled some of its earlier cases that, in the court's view, had tended to confuse the

      4
        Referring to the classic debate between Judge Cardozo and Judge Andrews in
Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928), over the extent of and
distinction between duty and causation.

                                          -8-
role of foreseeability by stating that foreseeability as to duty and causation were both
for the trier of fact. Id. at 762-63. In the process of overruling those cases, the court
clearly stated that duty is a question of law, while causation is a question of fact. Id.5

       By deciding the question of causation as a matter of law after the jury
deadlocked, a jury was not allowed–in this case, a future jury, after declaration of the
mistrial–to consider the evidence presented and determine from it whether the
Heatherlys' injuries reasonably flowed, at least in part, from Gilbertson's negligent
parking of the MST truck on the shoulder of the exit ramp. That is, the jury was not
allowed to perform its duty of calibrating the limits of liability flowing from an
established duty and breach thereof with regard to the collision between the motor
home and the negligently parked MST truck. Unless there was insufficient evidence
for a jury to determine causation, or the evidence was such that a reasonable jury
could draw but one inference about the foreseeability of the resulting accident, JML
was not appropriate.

       We believe that there was sufficient evidence to create a jury question
regarding causation. Given the evidence in the record, we cannot say that it would
be unreasonable for a jury to determine that it was foreseeable that the parking of the
MST truck on the shoulder of the exit ramp could result in a collision and injuries of
the type suffered by the Heatherlys.

       Michael Williams testified as an expert for the plaintiffs, basing his opinions
on his experience as an over-the-road truck driver with approximately forty-four years
of work in the trucking industry. At various times, he worked as a driver, corporate
safety director, general fleet manager, truck driver trainer, Federal Motor Carrier

      5
        The parties do not contest that the MST truck was negligently parked, and that
the district court based its ruling on the issue of proximate cause. Thus, we need not
concern ourselves with an analysis of foreseeability in the duty context. We mention
the differing treatment only to show the contrast.

                                           -9-
Safety Regulations compliance consultant, and truck driver training program
developer. Williams testified that, in his opinion, (1) Gilbertson had parked in an
unsafe location, (2) truck drivers are trained not to park adjacent to a deceleration
lane because of the risk of collision with high-speed traffic exiting a freeway, and (3)
truck drivers should park at truck stops away from traffic.

       Nebraska State Patrol Trooper Ross Lyon, a fourteen-year veteran with
expertise in accident reconstruction testified that (1) most high-speed traffic on the
freeway travels in the right-hand lane, the one adjacent to the deceleration lane and
shoulder where the MST truck was parked, (2) the MST truck was not at all parked
within the confines of the rest area, (3) the shoulder of deceleration lane where the
MST truck was parked was not designed for truck drivers to stop for rest, and (4) the
MST truck was illegally parked in an unsafe location, creating a hazard. Nebraska
State Patrol Trooper Darwin Daily, a sixteen-year veteran who became an accident
reconstruction specialist in 1989, testified that at the time of the accident, a "No
Parking" sign was posted on the shoulder of the exit ramp to the rest area. Gilbertson
himself testified that parking within the rest area or at a truck stop would have been
safer alternatives to parking the MST truck on the shoulder of the exit ramp.

       Stephen Fenton, an engineer who specializes in accident reconstruction using
photogrammetry (the science of gathering dimensions from photographs), testified
that had the MST truck not been parked where it was that night, the Heatherlys' motor
home, instead of colliding with the MST truck, would have followed a parallel path
to that of the Alexander truck and would have ended up in the grassy area beyond the
shoulder of the deceleration lane. It was the impact between the motor home,
traveling at the time at an estimated sixty-seven miles-per-hour, and the parked MST
truck, that Fenton likened to "hit[ting] . . . a brick wall." That impact surpassed, by
some twenty-seven miles-per-hour, the forty mile-per-hour difference in velocity at
which point collisions are denoted "extreme," according to Fenton. Fenton testified
that, by contrast, the impact between the truck driven by Alexander and the motor

                                         -10-
home was "very minor" given that their speeds at the time of impact differed by only
six miles-per-hour. Several aerial and close-range photographs of the accident scene,
as well as diagrams of how the accident occurred, show that the MST truck was
parked very close to the high-speed traffic lanes of the interstate highway before and
during the accident. This, along with other evidence we find unnecessary to recount,
was sufficient to create a jury question about the issue of foreseeability and, thus,
causation.

             2.     Finding of Condition Derives From Analysis of
                    Foreseeability in Proximate Cause Context


       The district court relied primarily on Steenbock and Knuth v. Singer, 116
N.W.2d 291 (Neb. 1962), for its conclusion that Gilbertson's parking of the MST
truck on the exit ramp merely created a condition for, and therefore was not a cause
of, the fatal collision. However, the cause-condition analysis, in light of more recent
precedent, reveals that a finding of a condition derives from, and does not determine,
proximate cause. A finding of proximate cause emerges from an analysis of the
foreseeability that the injury could arise from the negligent act. In fact, the decision
in Steenbock rests on the matter of foreseeability. In Steenbock, an Omaha Country
Club employee had placed a flagpole across a club driveway for repair. A car
negligently drove on the driveway in such a fashion that it struck the flagpole and
propelled one end of it "with great violence" into the back of the plaintiff sitting
nearby, causing unspecified injuries. 195 N.W. at 118. In holding that it was the
negligent driving, and not any assumed negligent placement of the flagpole, that was
the proximate cause of the employee's injuries, the Nebraska Supreme Court
explained that a proximate cause must "be of such a character as an ordinarily prudent
person could have known, or would or ought to have foreseen might probably occur
as the result." Id. The court continued:




                                         -11-
      It is not sufficient that the negligence charged does nothing more than
      furnish a condition by which the injury is made possible, and if such
      condition causes an injury by the subsequent independent act of a third
      person, the two acts are not concurrent and the existence of the
      condition is not the proximate cause of the injury.

Id.

       The results in Steenbock were such that it could not be said that they were the
foreseeable consequence of the country club employee's placement of the flagpole
across the driveway for repair. That is, the injuries were not such that "an ordinarily
prudent person could have known, or would or ought to have foreseen" that they
might result from placing the flagpole across the driveway. Id. (emphasis added).
While it might be foreseeable that placing a flagpole across a driveway could create
a hazard to cars (or their passengers) which might hit it or try to avoid it, or to
pedestrians, who might trip over it, it is much less foreseeable that someone sitting
near the driveway would be injured by the movement of a flagpole placed across it.
Thus, the court first rejected the placing of the pole as a proximate cause, because of
the unforeseeability of the injury, and then concluded that the pole "simply furnished
a condition" for the accident. Id. In the present case, the district court did not
mention that it considered the foreseeability of the Heatherlys' injuries being caused
by the negligently parked MST truck, and apparently did not analyze causation in that
context. It instead determined that the parking of the truck was a condition, and thus
not a cause, seemingly inverting the analysis.

       The district court also relied upon Singer, where plaintiff was a passenger in
a car (for clarity, "plaintiff's car") that came upon the scene of a collision. Three cars
had been proceeding in the lane ahead of plaintiff's car. The first of these cars,
wanting to make a left turn, had stopped for oncoming traffic. The second car
stopped behind the first. The third car did not stop and struck the second car, causing
the third car to block a portion of the highway. Plaintiff's car then struck the third car,

                                           -12-
causing plaintiff's injuries. Plaintiff sued the driver of the third car. The Nebraska
Supreme Court held that the position of the third car was but a condition that made
the accident possible, and that the negligence of the driver of plaintiff's car in failing
to keep a proper lookout was the efficient intervening cause of plaintiff's damages.

       Singer is also distinguishable. Indeed, rather than turning on foreseeability,
Singer turns on a more fundamental failure of proximate causation that is not at issue
in this case–failure of the "but-for" element under Nebraska law. It appears that the
Singer court held that the second collision was not at all caused by the first. The
evidence showed that had the third automobile not been negligently operated, but
instead had come to a safe stop behind the second vehicle, plaintiff's car would still
have collided with it as a result of plaintiff's car being driven negligently. Since
plaintiff would have been injured regardless of the actions or position of the third
automobile, the court held that the third automobile was but a condition, and not a
cause, of the accident. The intervening negligent driving of plaintiff's car was the
sole cause of plaintiff's injuries.

             3.     Continuing Negligence, Intervening Causes, and the
                    Role of Foreseeability


      Moreover, other Nebraska cases seemingly more on-point with the instant case
indicate that parking and maintaining the MST truck on the shoulder of the exit ramp
may have constituted continuing negligence that was a cause of the accident, and not
merely a condition.

       In Johnson v. Metropolitan Utilities District, 125 N.W.2d 708 (Neb. 1964),
plaintiff was injured when the car in which she was riding collided with a front-end
loader tractor that defendants had parked off the side of a street, but left protruding
into the street some two feet. Defendants argued that the parked tractor "was at most
a condition and not a proximate cause of the injuries to the plaintiff." Id. at 710.

                                          -13-
They cited Singer, stating that an obstruction on a highway is a condition and not a
proximate cause of any subsequent injuries. The court, however, noted that the
difference between a mere condition that makes an intervening cause possible, and
continuing negligence that is a proximate cause, is the foreseeability of that
intervention:

       [T]he doer of an original wrongful act that should reasonably cause one
       to anticipate an injury therefrom is not relieved from liability for an
       injury immediately brought about by an intervening cause . . . that is set
       into operation by such original wrongful act, and that alone would not
       have caused the injury, but which with the aid of the original wrong
       does cause such injury.

Id. at 711 (emphasis added). See Brown, 306 N.W.2d at 171 (reversing summary
judgment for power district that had started fire to burn weeds, the smoke from which
caused a fatal accident on adjacent highway, stating that an intervening cause, if
foreseeable, does not relieve original actor of liability, and that "[t]he question
whether such negligence is a continuing and substantial factor in producing the
accident so as to be a proximate cause of the injury is . . . a question of fact . . . [for]
the jury"); Drawbridge v. Douglas County, 311 N.W.2d 898 (Neb. 1981) (holding that
failure to warn of car blocking highway was continuing negligence and not a
condition); Looney v. Pickering, 439 N.W.2d 467, 471 (Neb. 1989) (reversing
directed verdict for defendant who had parked truck and trailer in the curb lane of
busy Omaha street and where plaintiff negligently drove and collided with back of
truck, stating that "foreseeability is an important determinant of whether the
defendants are relieved of liability for their own negligence by the intervening
negligence of another" because plaintiff's negligence was not foreseeable by the
defendants, and concluding that "[w]e cannot make that finding as a matter of law").
The Johnson court also emphasized that the jury has a unique responsibility to make
the foreseeability determination when it said that where "the original negligence is
of a character which, according to the usual experience of mankind, is liable to invite

                                           -14-
or induce the intervention of some subsequent cause, the intervening cause will not
excuse it, and the subsequent mischief will be held to be the result of the original
negligence." 125 N.W.2d at 711 (emphasis added). In Johnson, the court concluded
that the failure of the defendants to warn motorists of the parked tractor constituted
"continuing negligence as distinguished from a condition." Id. "[A]nd if reasonable
minds could conclude from the evidence that such negligence proximately caused an
accident, then the issue should be submitted to a jury for its determination." Id. In
dismissing the applicability of Singer and the condition analysis, the court stated:

      There is . . . a group of cases in which this court has held that where a
      party creates an obstruction upon a highway and fails to use due care to
      warn others of its danger, his negligence may be a proximate cause of
      the injuries to another. . . . In these cases, it was held that it is a question
      for the jury as to whether the original negligence was a proximate cause
      of the injuries.

Id. In the present case, though the MST truck did not obstruct one of the driving
lanes, it did obstruct an emergency lane intended only for emergency stopping.6 And
while warnings of the truck's location may have made little or no difference in this
instance, it is for a jury to decide whether a collision, regardless of the exact



      6
       Nebraska Revised Statute § 60-6,164(2) provides:

      No person shall stop, park, or leave standing any vehicle on a freeway
      except in areas designated . . . except that when a vehicle is disabled
      or inoperable or the driver of the vehicle is ill or incapacitated, such
      vehicle shall be permitted to park, stop, or stand on the shoulder facing
      in the direction of travel with all wheels and projecting parts of such
      vehicle completely clear of the traveled lanes, but in no event shall such
      parking, standing, or stopping upon the shoulder of a freeway exceed
      twelve hours.


                                           -15-
circumstances, was reasonably foreseeable as a result of the MST truck being parked
so close to such high-speed traffic.

       Finally, the Nebraska Supreme Court indicated in Delaware v. Valls, 409
N.W.2d 621 (Neb. 1987), that use of the cause-condition distinction may be falling
out of favor in Nebraska, and instead discussed causation in that case in terms of
active preexisting negligence. In Valls, plaintiff was injured as a passenger on a dirt
bike that collided with a car in an intersection. She sued the owners of property on
the corner of the intersection for failing to maintain vegetation and for parking a truck
near the intersection that made it difficult to see approaching traffic. The trial court
granted summary judgment in favor of the property owners, concluding their
negligence merely created a condition, and did not cause the accident. The Nebraska
Supreme Court recognized a number of cases that had applied the condition analysis,
but noted that

      situations involving passive preexisting negligence have been
      distinguished from those situations in which active preexisting
      negligence combines with subsequent independent acts of negligence to
      cause injury. In the latter situations the preexisting and subsequent
      negligence have been held to combine and become concurrent acts of
      negligence such that each may be a proximate cause of the resulting
      injury.

Id. at 623. The court pointed to cases like Brown and Johnson as examples. Notably,
the court recognized some merit in an argument that the cause-condition analysis
should be abandoned as "meaningless" in the sense that it "provid[es] no more
guidance than calling something blamable or not blamable," and that it had been
"almost entirely discredited."7 Id. at 623-24 (quotations omitted). Nevertheless, the

      7
       In fact, the current edition of the Nebraska Jury Instructions states that
"[d]iscussion of conditions versus causes is discouraged." 1 Nebraska Jury
Instructions § 3.43 Comment IV (2d ed. 2004). That is because many of the cases

                                          -16-
court avoided reexamining the distinction, deciding the case instead as a matter of
intervening cause. It upheld the grant of summary judgment because, unlike the
instant case, the evidence in Valls was not in conflict and reasonably pointed only to
the conclusion that the defendants could not have foreseen that the plaintiff would
negligently enter an intersection when the view was not clear. Id. at 624.

       Under the facts, the present litigation is, in our analysis, better viewed in light
of cases about continuing negligence and the foreseeability of an intervening cause
rather than in light of, in particular, Singer. And Valls, in conjunction with language
from the Nebraska Jury Instructions, teaches us to proceed with caution in making the
cause-condition distinction in the first place.




making a distinction between cause and condition "are merely saying that the so-
called condition was not a proximate cause of the injury." Id. (emphasis added). The
instructions also note cases involving two acts that concur to cause injury where the
first act merely provides the circumstance necessary for the second to bring about the
injury.

      Some of these cases speak in terms of whether the first act was a cause
      or a condition. But these cases, too, really turn upon whether the first
      act was "a" proximate cause or the second act, "the" sole proximate
      cause. Talk of conditions versus causes is really incidental to analysis
      of proximate and superseding cause. . . . To the extent that [discussion
      of conditions versus causes] confuses the real issues, it should be
      avoided. In any event, recognizing that the real issue is proximate,
      superseding cause, or both, can minimize the difficulties encountered
      with many of these cases.

Id. at § 3.42 Comment (emphasis added) (citations omitted).

                                          -17-
III.   CONCLUSION

      Because the question of causation was a matter for the jury to decide in this
case, we reverse and remand for a new trial.
                       ______________________________




                                       -18-
