Sunday, July 16, 2006
Nebraska supreme court allows new trial for realtor injured when he fell off a wooden walkway leading from a home under constructionPachunka v. Rogers Constr., S-04-1470, 271 Neb. 950HTML The Plaintiff entered a partially constructed model home to inspect it before show it to buyers. He fell off the wooden ramp when exiting. The trial court allowed the contractor's attorneys to submit an assumption of risk instruction. The jury gave a general defense verdict without considering comparative negligence or assumption of risk. Supreme Court reverses: Assumption of risk requires plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 (Reissue 1995). The defendant must plead and prove assumption of the risk. Everts v. Hardcopf-Bickley, 257 Neb. 151, 595 N.W.2d 911 (1999). "Pachunka asserts that Rogers Construction failed to establish that his use of the ramp was voluntary because he was given no reasonable alternative course to using the ramp. We agree." QUERY: Is the absence of safe alternatives to the risky pathway also something the party relying on the assumption of risk defense must prove? Also the assumption of risk instruction was not harmless error, because the jury verdict directing forms did not include that considered the issue. By returning the third verdict form (finding no liability for the Defendant), it is clear that the jury never reached the issue of contributory negligence. However, the same cannot be said with regard to the issue of assumption of risk. Because the jury was not presented with a separate verdict form addressing the issue of assumption of risk, it is impossible for us to tell whether or not the jury reached that issue.
Posted by stan_sipple at 12:22 PM