Tuesday, November 20, 2007
Nebraska Court of Appeals reverses guilty verdict for second degree assault and sexual assault for the Sheridan County District Court's erroneous admission of prior crimes evidence. However the appeals court does not decide whether the District Court's failure to give the "other crimes" limiting instruction when the court allowed the evidence, as State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) requires. State v. Sutton , A-06-1297, 16 Neb. App. 185 Evidence of prior assault between defendant and victim was not admissible under 27-404(2) RRS Neb. The court admitted the evidence and the appeals court found the error harmful beyond a reasonable doubt. The district court failed to give a Sanchez limiting instruction, but since the admission of evidence was itself reversible error, the appeals court does not determine whether the court's failure to give Sanchez limiting instructions would be reversible error."The trial court failed to state such purpose at the time of the hearing required by rule 404(3)—which was an earlier opportunity for the trial court to “state the purpose or purposes” in order to comply with the procedures mandated in Sanchez. However we need not consider whether the trial court’s failure to abide by the Sanchez requirements constitutes reversible error in the instant case, given that we have concluded that the evidence was inadmissible. We simply point it out to remind trial courts of the requirements set forth in State v. Sanchez."
Sunday, November 18, 2007
No action against general contractor by subcontractor's employee from construction site accident. Eastlick v. Lueder Constr. Co., S-06-721, 274 Neb. 467 . Bricklayer fell off scaffolding he and a co-worker negligently assembled and of course his attorneys needed someone other to blame. Bricklayer sued the general contractor who had nothing to do with the masonry subcontractor's work. Dodge County District Court gave summary judgment to the general contractor and bricklayer appealed. Nebraska Supreme Court (J. Wright) affirms summary judgment. Unlike the Omaha Public Power District in Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993), who kept its own safety personnel constantly checking the work site, the general contractor had nothing to do with the masonry subcontractor's own scaffolding. Closer to the mark the Supreme Court finds that as in Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973), "the instrumentality (scaffolding) which caused the injury was not the premises, but, rather, was the equipment owned, controlled, and erected by the subcontractor, who was the employer of the injured worker. The general contractor had no right to control the subcontractor's equipment. The duty of a general contractor to employees of a subcontractor extends only to providing a reasonably safe place to work as distinguished from apparatus, tools, or machinery furnished by the subcontractor for the use of his own employees.”
Nebraska Supreme Court allows district courts to dictate work schedules of public safety employees. Hogelin v. City of Columbus, S-06-641, 274 Neb. 453. The Chief of the Columbus Fire Department required firefighters to attend extra safety training that the US Department of Homeland Security funded but the training schedule would put the firefighters over the maximum work hours that Section Section 35-302 allowed (no more than 60 hours per week, given 24 hour schedules). The head of the union complained that the evening training schedules interfered with his visitation schedule and another firefighter received a reprimand for failing to attend a training session when the fire department had already approved his trip out of town to attend a wedding in North Carolina. The firefighters right to the maximum hours restrictions in 35-302 was so important that the firefighters' collective bargaining agreement allowing the City to set work schedules did not set aside the requirements of the statute. Finally the court finds an injunction was appropriate. Remember that next time a government agency in Lincoln decides to impose extra training requirements on a small town's fire or police department.
Saturday, November 10, 2007
Nebraska Supreme Court leaves jurisdictional and other questions unanswered in underinsured motorist case where the State was a defendant and worker compensation subrogee. Nebraska Supreme Court holds that § 44-6413 RRS Neb (barring uninsured/underinsured motorist claims when the statute of limitations on the underlying claim has expired) did not bar injured state employee's underinsured motorist action because the plaintiff settled her negligence claim against the primary tort-feasor within the four year statute of limitations period § 25-207 RRS Neb. Reimers-Hild v. State, S-06-203 274 Neb. 438 . The State of Nebraska and its underinsured motorist carrier raised the defense of 44-6413 that the Plaintiff sued after the statute of limitations had expired. Plaintiff was injured in an automobile accident while in the scope and course of her employment with the State of Nebraska. She received worker compensation from the State and also settled for the primary tort-feasor's liability insurer liability limits of $25000. The State had uninsured/underisnured coverage on the state vehicle the Plaintiff was in at the time of the accident but self-insured damages of up to $300000. The plaintiff did not file a tort or contract claim against the State. Instead the Plaintiff sued the State more than four years after the accident and later added its underinsured carrier . The Nebraska Supreme Court reverses, refusing to consider the defendants jurisdictional claims. "we hold that § 44-6413(1)(e) does not apply when an insured has settled his or her claim against an uninsured or underinsured motorist before the statute of limitations applicable to that claim would have expired. T he district court erred in concluding otherwise." The Surpeme Court noted several of the future questions it will no doubt play with: what will be the correct statute of limitations? Did the Plaintiff need to file either a tort, contract claim or both against the State before filing suit Did sovereign immunity or worker compensation immunity apply?
Sunday, November 04, 2007
The Unicameral's boondoggle DNA testing statute's chickens come home to roost. The state convicted five defendants of robbing and murdering a 68 year old woman from Beatrice in 1985. Defendant White was convicted of murder and defendant Winslow plead to second degree murder. 29-4120(5). Senator Chambers comments back in 2001 tell it all, the senators agreed that cost was no object.
Saturday, November 03, 2007
Order of the Kneepads Update: Rare readmission of disbarred attorney to the Nebraska State Bar after 20 years. Nebraska Supreme Court allows readmission to the bar of attorney disbarred 20 years after twice stealing funds from his law firm. Legal profession blog. The Supreme Court disbarred John Kinney in 1987 after twice stealing over $20,000 from his law firm. The court denied his application for readmission ten years ago but this time allows it conditioned upon his passing the bar exam. Character witnesses and the court's soft spot for substance abusers carried the day for Mr. Kinney. State ex rel NSBA v. Kinney 274 Neb. 412 (2007).