8th Cir: Directed verdict in crash with parked semi sent back for trial

8th Cir holds that jury should have decided negligence of truck driver who parked on exit ramp when collision occurred with family camper; 8th concludes that passive/active negligence distinction no longer applies in Nebraska negligence cases 08/26/05 Heatherly v. Midwest Specialized U.S. Court of Appeals Case No. 03-4013 District of NebraskaCivil Case - Diversity. District court's grant of judgment as a matter of law to truck driver and his employer for parking his truck in the exit ramp because location of truck was not the proximate cause of the injuries to plaintiffs is reversed. "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 courtconcluded, as a matter of law, that Gilbertson's conduct in parking the MST truckwhere 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 throughthe negligence of Alexander." Under Nebraska negligence law, district court erred in deciding question of causation as a matter of law, as a jury issue was presented. "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)."[a] proximate cause is a cause that produces a result in a natural and continuous sequence, unaccompaniedby an efficient intervening cause, and without which the result would not haveoccurred." Tapp v. Blackmore Ranch, Inc., 575 N.W.2d 341, 348 (Neb. 1998)."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].Sacco v. Carothers, 567 N.W.2d 299 (Neb. 1997),("The issue of proximate cause, in the face of conflicting evidence, is ordinarily a question for the trier of fact.").Tess v. Lawyers Title Ins. Corp., 557 N.W.2d 696, 706 (Neb. 1997)" District court erred in concluding position of truck created a condition for, and thus was not the cause of, the fatal collision; continuing negligence theory and foreseeability of an intervening cause is proper analysis."By deciding the question of causation as a matter of law after the jurydeadlocked, a jury was not allowed–in this case, a future jury, after declaration of themistrial–to consider the evidence presented and determine from it whether theHeatherlys' injuries reasonably flowed, at least in part, from Gilbertson's negligentparking of the MST truck on the shoulder of the exit ramp. That is, the jury was notallowed to perform its duty of calibrating the limits of liability flowing from anestablished duty and breach thereof with regard to the collision between the motorhome and the negligently parked MST truck."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.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, Knuth v. Singer, 116 N.W.2d 291 (Neb. 1962),. And Delaware v. Valls, 409N.W.2d 621 (Neb. 1987),, 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. 8ht Circuit notes that passive negligence is passe as Nebraska Jury instructions now discourage discussing the subject in jury instructions