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                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                        ANDERSON v. UNION PACIFIC RR. CO.
                                               Cite as 295 Neb. 785




                                 Dan A nderson, appellee, v. Union Pacific
                                     R ailroad Company, a Delaware
                                          corporation, appellant.
                                                    ___ N.W.2d ___

                                        Filed February 10, 2017.   No. S-15-1224.

                1.	 Federal Acts: Railroads: Claims: Courts. In disposing of a claim
                    controlled by the Federal Employers’ Liability Act, a state court may
                    use procedural rules applicable to civil actions in the state court unless
                    otherwise directed by the act, but substantive issues concerning a claim
                    under the act are determined by the provisions of the act and interpretive
                    decisions of the federal courts construing the act.
                2.	 Negligence: Proof. The essence of res ipsa loquitur is that the facts
                    speak for themselves and lead to a proper inference of negligence by the
                    fact finder without further proof.
                3.	 Negligence: Presumptions. The doctrine of res ipsa loquitur is an
                    exception to the general rule that negligence cannot be presumed. Res
                    ipsa loquitur is a procedural tool that, if applicable, allows an inference
                    of a defendant’s negligence to be submitted to the fact finder, where it
                    may be accepted or rejected.
                4.	 Jury Instructions. Whether the jury instructions given by a trial court
                    are correct is a question of law.
                5.	 Judgments: Appeal and Error. When reviewing questions of law, an
                    appellate court has an obligation to resolve the questions independently
                    of the conclusion reached by the trial court.
                6.	 Negligence. If specific acts of negligence are alleged or there is direct
                    evidence of the precise cause of the accident, the doctrine of res ipsa
                    loquitur is not applicable.
                7.	 ____. The doctrine of res ipsa loquitur is applicable only where the
                    plaintiff is unable to allege or prove the particular act of negligence
                    which caused the injury.
                8.	 Jury Instructions: Appeal and Error. A jury instruction which mis-
                    states the issues and has a tendency to confuse the jury is erroneous.
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

   Appeal from the District Court for Scotts Bluff County:
R andall L. Lippstreu, Judge. Reversed and vacated, and cause
remanded for a new trial.
  William M. Lamson, Jr., and Cathy S. Trent-Vilim, of
Lamson, Dugan & Murray, L.L.P., and Torry N. Garland, of
Union Pacific Railroad Company, for appellant.
  Kyle J. Long, Robert G. Pahlke, and Robert O. Hippe, of
Robert Pahlke Law Group, for appellee.
  Nichole S. Bogen, of Sattler & Bogen, L.L.P., and Kathryn
D. Kirmayer and Daniel Saphire, of Association of American
Railroads, for amicus curiae Association of American
Railroads.
  H eavican, C.J., Wright, Cassel, Stacy, K elch, and
Funke, JJ.
  K elch, J.
                       INTRODUCTION
   This appeal arises from Dan Anderson’s suit against Union
Pacific Railroad Company (Union Pacific) pursuant to the
Federal Employers’ Liability Act (FELA) for personal injury
arising from his employment. A jury awarded Anderson dam-
ages, including past medical expenses. On appeal, Union
Pacific challenges, among other things, the jury instructions
on res ipsa loquitur. We conclude that the district court com-
mitted reversible error in instructing the jury and in overrul-
ing Union Pacific’s resulting motion for new trial. Therefore,
we vacate the jury’s verdict and the judgment entered against
Union Pacific. We reverse the order overruling Union Pacific’s
motion for new trial and remand the cause to the district court
for a new trial consistent with this opinion.
                     BACKGROUND
  On October 2, 2007, Anderson fell to the floor while on
duty as a control operator for Union Pacific when the chair
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                ANDERSON v. UNION PACIFIC RR. CO.
                       Cite as 295 Neb. 785

in which he sat collapsed. In March 2010, Anderson brought
an action against Union Pacific under FELA, asserting that
permanent back injuries resulted from the fall and seeking
damages. He alleged that Union Pacific was negligent in that
it failed to (l) provide a safe workplace, (2) properly maintain
and inspect the chair, (3) have a reasonable replacement proc­
ess in place for office equipment, and (4) properly instruct its
employees on how to inspect their office chairs. Union Pacific
generally denied Anderson’s allegations.
   On October 6, 2014, Union Pacific moved in limine to
exclude evidence of Anderson’s medical expenses altogether,
while on October 13, Anderson moved in limine to preclude
Union Pacific from offering evidence at trial of the amounts it
had paid to satisfy the expenses.
   In January 2015, the district court sustained Anderson’s
motion to preclude evidence of amounts paid by Union Pacific
and stated that claims for credits or offsets could be addressed
by posttrial motions. The district court overruled Union
Pacific’s motion in limine.
   In June 2015, approximately 3 months before trial, the dis-
trict court granted Anderson leave to amend his complaint to
allege res ipsa loquitur. The amended complaint included the
original theories of negligence and added that Union Pacific
had failed to provide Anderson with a chair that was safe for
the purpose for which it was used, along with a claim for res
ipsa loquitur.
   At trial, the jury heard undisputed evidence that the cause of
the chair’s collapse was immediately apparent after Anderson’s
fall: a bolt had failed. Anderson elicited expert opinion tes-
timony that the bolt failed because the chair was routinely
used outside its load limit. However, Union Pacific’s expert
opined that the bolt failed because it had been overtightened
by the manufacturer. Both parties presented evidence that the
defect in the bolt could not be seen with the naked eye and
likely could not have been discovered upon an inspection
by Anderson.
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

   The jury heard evidence that before the collapse, the chair
never wobbled or required repair. Anderson testified that on
the day of the accident, he observed no apparent defects and
believed the chair was safe to use.
   The manager of terminal operations for Anderson’s termi-
nal testified that Union Pacific did not designate employees
to inspect, maintain, or repair defects in the office equipment
at Anderson’s terminal. Instead, Union Pacific required its
employees to inspect their tools and equipment, but it did not
provide them with training or instruction on how to inspect
office chairs. Employees reported any defects in office equip-
ment to their manager for replacement or repair.
   According to the evidence at trial, Union Pacific had
“Herman Miller Aeron B” chairs, like the chair that collapsed,
in several of its terminals. Union Pacific generally docu-
mented complaints about its equipment, and it received no
complaints about bolt fractures occurring with that brand of
chair before or after Anderson’s fall, nor did Anderson him-
self make any kind of complaint about his chair in particular
before the fall.
   Union Pacific’s manager of safety testified that Union
Pacific had selected the “Herman Miller Aeron B” chair
in 2002 based on a specific list of criteria, including a
300-pound working load limit. The manufacturer’s literature
limited the weight of the chair’s occupants to either 270
or 300 pounds, depending on the occupant’s height. Union
Pacific’s manager of safety also testified that regular use
of the chair by individuals who exceeded its working load
limit would create excess stress that could cause the chair to
break before the 12-year warranty period expired. He further
stated that the chair would not be appropriate for individ­
uals who weighed more than 300 pounds and that continual
use by such individuals would constitute abuse of the chair’s
intended use.
   The manager of terminal operations, tasked with train-
ing employees to follow safety rules in Anderson’s terminal,
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

testified that at the time of Anderson’s accident, he was not
aware of any load limit for the chair that collapsed.
   Ronald Wilkinson, who had worked as a control operator
in Anderson’s office around the time of the accident, testified
that he was warned that individuals over 300 pounds should
not sit in the chair that ultimately failed. Wilkinson testified
that the chair was used by two Union Pacific control opera-
tors whose weight likely exceeded the 300-pound load limit.
However, one of those individuals testified that he never sat
in the chair, in accordance with Wilkinson’s instructions not to
use it because he was “too big for it.” Wilkinson did not recall
giving such an instruction.
   Anderson testified that Union Pacific did not inform him
of a 270-pound load limit for the chair, nor was he aware of
Union Pacific’s informing anyone else. Anderson testified that
at the time of the accident, he did not exceed the chair’s load
limit. Anderson estimated that three control operators probably
weighed more than 300 pounds, and certainly more than 270
pounds, but he did not specifically testify that these control
operators used the chair.
   Anderson sought a variety of nonsurgical treatments for his
injuries and eventually underwent surgery to fuse his lumbar
spine. Over objections by Union Pacific, the district court
received evidence of Anderson’s medical expenses. Union
Pacific made an offer of proof to preserve the issue of its pay-
ment of Anderson’s medical expenses. Union Pacific moved
for a directed verdict at the close of Anderson’s evidence and
again at the close of Union Pacific’s evidence. The district
court denied the motions.
   The district court instructed the jury on res ipsa loquitur
and on two theories of negligence: that Union Pacific failed to
provide reasonably safe equipment and that it failed to provide
a safe place to work. The district court’s instructions allowed
for separate findings of ordinary negligence, negligence based
upon res ipsa loquitur, or both. Union Pacific objected to the
court’s res ipsa loquitur instruction in its entirety.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

   The jury returned a special verdict for Anderson, finding
that he had proved both specific acts of negligence causing
injury and res ipsa loquitur. The jury awarded Anderson dam-
ages of $920,007, which included $266,925 for past medi-
cal expenses.
   Following the verdict, Union Pacific filed a motion for
judgment notwithstanding the verdict. Alternatively, it sought
a setoff against the judgment and a new trial, arguing,
among other things, that the district court erred in its treat-
ment of medical expenses and in instructing the jury on res
ipsa loquitur.
   The district court overruled the motion for judgment
notwithstanding the verdict and the motion for new trial.
However, it granted the motion for setoff in the amount of
$162,964.25, representing medical expenses paid by Union
Pacific. This setoff did not include medical expenses written
off by providers as a result of negotiations with Union Pacific,
and the district court noted that Union Pacific had not paid or
contributed to the writeoff.
   Union Pacific now appeals. Through no fault of either party,
the record does not contain a pretrial conference or closing
arguments.

                  ASSIGNMENTS OF ERROR
   Union Pacific assigns, condensed and restated, that (1) the
district court erred in overruling Union Pacific’s motions for
directed verdict and judgment notwithstanding the verdict; (2)
Union Pacific is entitled to a new trial because portions of
the record were not preserved, as requested by Union Pacific;
(3) the district court erred in instructing the jury on res ipsa
loquitur; (4) the district court erred in allowing Anderson to
introduce irrelevant evidence of his medical expenses and
refusing to allow Union Pacific to offer evidence that it paid
the medical expenses; and (5) the district court erred in calcu-
lating the posttrial setoff.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                ANDERSON v. UNION PACIFIC RR. CO.
                       Cite as 295 Neb. 785

                           ANALYSIS
   As noted above, the jury instructions allowed the jury to
return a verdict making separate findings of ordinary neg-
ligence, negligence based upon res ipsa loquitur, or both.
Union Pacific principally contends that the jury instructions
were incorrect, because Anderson should not have been per-
mitted to pursue a negligence claim simultaneously based
on both specific acts of negligence and res ipsa loquitur.
Alternatively, Union Pacific contends that the jury instruc-
tions were prejudicial, because the special verdict form con-
fused the jury by allowing the following inconsistent find-
ings: (1) that Anderson proved specific acts of negligence and
(2) that specific acts of negligence could not be proved. We
agree with Union Pacific.
   [1] We begin our analysis by acknowledging that in dis-
posing of a claim controlled by FELA, a state court may use
procedural rules applicable to civil actions in the state court
unless otherwise directed by the act, but substantive issues
concerning a claim under FELA are determined by the provi-
sions of the act and interpretive decisions of the federal courts
construing FELA. Kuhnel v. BNSF Railway Co., 287 Neb.
541, 844 N.W.2d 251 (2014). Thus, initially we must deter-
mine whether the doctrine of res ipsa loquitur is a procedural
matter or substantive law.
   [2,3] “‘The essence of res ipsa loquitur is that the facts
speak for themselves and lead to a proper inference of neg-
ligence by the fact finder without further proof.’” Swierczek
v. Lynch, 237 Neb. 469, 477, 466 N.W.2d 512, 517 (1991),
quoting McCall v. St. Joseph’s Hospital, 184 Neb. 1, 165
N.W.2d 85 (1969). The doctrine of res ipsa loquitur is an
exception to the general rule that negligence cannot be pre-
sumed. McLaughlin Freight Lines v. Gentrup, 281 Neb. 725,
798 N.W.2d 386 (2011). Res ipsa loquitur is a procedural
tool that, if applicable, allows an inference of a defendant’s
negligence to be submitted to the fact finder, where it may
be accepted or rejected. Id. See, also, Swierczek v. Lynch,
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                ANDERSON v. UNION PACIFIC RR. CO.
                       Cite as 295 Neb. 785

supra (res ipsa loquitur is procedural doctrine and not part
of substantive law). On this point, the federal courts are in
agreement that res ipsa loquitur is “not a rule of pleading, not
a substantive rule of law, but a rule of evidence.” Ramsouer v.
Midland Valley R. Co., 135 F.2d 101, 106 (8th Cir. 1943). See,
also, Weigand v. Pennsylvania Railroad Company, 267 F.2d
281 (3d Cir. 1959). Accordingly, we shall apply Nebraska law
in analyzing whether the district court erred in instructing the
jury on res ipsa loquitur.
   [4-7] Whether the jury instructions given by a trial court
are correct is a question of law. United Gen. Title Ins. Co. v.
Malone, 289 Neb. 1006, 1018, 858 N.W.2d 196, 210 (2015).
When reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court. Id. We have held that if specific
acts of negligence are alleged or there is direct evidence of the
precise cause of the accident, the doctrine of res ipsa loquitur
does not apply. Stahlecker v. Ford Motor Co., 266 Neb. 601,
667 N.W.2d 244 (2003). See, also, Bargmann v. Soll Oil Co.,
253 Neb. 1018, 574 N.W.2d 478 (1998) (simply pleading spe-
cific acts of negligence in complaint will render doctrine of
res ipsa loquitur inapplicable); Finley v. Brickman, 186 Neb.
747, 186 N.W.2d 111 (1971) (if petition alleges particular acts
of negligence, then plaintiff must establish specific negligence
alleged, and doctrine of res ipsa loquitur cannot be applied).
The doctrine is applicable only where the plaintiff is unable to
allege or prove the particular act of negligence which caused
the injury. Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195
(1994).
   Here, Anderson pled specific acts of negligence in the
operative amended complaint. Further, at trial, Anderson pre-
sented direct evidence of the cause of the chair’s collapse
through expert testimony that the chair collapsed because
a bolt failed. Further, the expert opined that the bolt failed
because users exceeded the chair’s load limit over a period
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

of time. Accordingly, the doctrine of res ipsa did not apply to
this case.
   Furthermore, the district court erred in instructing the jury
on res ipsa loquitur in this instance. As Union Pacific notes,
the jury instructions first stated that to find ordinary negli-
gence, Anderson must prove specific acts of negligence by
Union Pacific. Then, the jury was instructed that to find negli-
gence via res ispa loquitur, it had to find that Union Pacific’s
specific acts of negligence could not be proved. The instruc-
tions then allowed the jury to determine whether Anderson
could recover under (1) ordinary negligence, (2) negligence
based on res ipsa loquitur, or (3) both. Notably, within the
same instruction, the jury was advised that they could return
a verdict finding both (1) that specific acts of negligence by
Union Pacific had been proved and (2) that specific acts of
negligence could not be proved. And the jury found that both
were true. This is clearly a contradiction, and we cannot find
that this did not cause confusion for the jury.
   [8] A jury instruction which misstates the issues and has
a tendency to confuse the jury is erroneous. Long v. Hacker,
supra. If an erroneous jury instruction was prejudicial, or
otherwise adversely affected a substantial right of the mov-
ant, a motion for new trial must be granted. See Facilities
Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868
N.W.2d 67 (2015). In this case, it is apparent that the res ipsa
loquitur instructions’ internal inconsistencies distracted the
jury, which, in turn, led to the jury’s inconsistent and irrec-
oncilable verdict. Thus, the erroneous jury instructions preju-
diced Union Pacific.
   We conclude that the district court erred in submitting to
the jury the issue of negligence based upon res ipsa loquitur
and that such error prejudiced Union Pacific. We therefore
vacate the verdict of the jury and remand the cause for a
new trial.
   Our determination that the district court committed revers-
ible error by instructing the jury on res ipsa loquitur resolves
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
               ANDERSON v. UNION PACIFIC RR. CO.
                      Cite as 295 Neb. 785

this appeal, and we shall not consider Union Pacific’s addi-
tional assignments of error. See Gray v. Kenney, 290 Neb.
888, 863 N.W.2d 127 (2015) (appellate court is not obligated
to engage in analysis not needed to adjudicate case and con-
troversy before it).
                         CONCLUSION
   We conclude that the district court committed reversible
error in instructing the jury on res ipsa loquitur. Accordingly,
we vacate the jury’s verdict and the judgment entered against
Union Pacific. We reverse the order overruling Union Pacific’s
motion for new trial and remand the cause to the district court
for a new trial consistent with this opinion.
	R eversed and vacated, and cause
	                            remanded for a new trial.
   Miller-Lerman, J., not participating.
