Used car dealers now must inspect even "as-is" cars for sale for "patent" safety defects. Wilke v. Woodhouse Ford, S-08-807, 278 Neb. 800 The Nebraska Supreme Court holds "patent" defects the responsibility of the dealer, such as steering and brakes, but in this case the defect was the loose play in the gearshift that allowed a child to take the parked car out of park. "Applying our risk-utility test for the existence of a legal duty to use reasonable care, we conclude that there is a relatively great magnitude of risk of injury in the circumstance where an unknowing buyer drives off the dealer’s lot in a used vehicle which has a patent safety defect, such as defective brakes or steering. " "a commercial dealer of used vehicles intended for use on public streets and highways has a duty to conduct a reasonable inspection of the vehicle prior to sale in order to determine whether there are any patent defects existing at the time of sale which would make the vehicle unsafe for ordinary operation and, upon discovery of such a defect, to either repair it or warn a prospective purchaser of its existence. The dealer has no duty to disassemble the vehicle to discover latent defects or to anticipate the future development of safety defects which do not exist at the time of sale. The tort duty we recognize today is not affected by a valid disclaimer or exclusion of U.C.C. warranties, because such contractual provisions do not absolve a seller from exercising reasonable care to prevent foreseeable harm."

Excavating company's efforts to remove beaver dams from path of pipeline caused fuel leaks in 2007 and a lawsuit. Omaha.com

Mid-America Pipeline LLC filed a federal lawsuit against Wilson Excavating this week.

The lawsuit says Wilson Excavating caused the pipeline leak while trying to remove beaver dams in eastern Nebraska.

Nebraska Supreme Court declines to allow pain and suffering damages for intentional or negligent misrepresentation. Estate had sued nurses for misrepresenting decedent's suffering while under its hospice care. While the trial court erred when it excluded the plaintiff's expert witness who would testify that improper medications led to the decedent's increased pain, the error was harmless. Tolliver v. Visiting Nurse Assn., S-08-357, 278 Neb. 532 The estate asks this court to adopt the Restatement (Second) of Torts § 557A. It contends that adopting § 557A would allow a party who is physically harmed by a defendant’s misrepresentation to recover non-economic damages. In addition, the estate claims that the trial court erred in excluding the testimony of one of its medical experts. We decline to adopt § 557A because the damages the estate seeks were available under its negligence theory. We further conclude that the excluded expert testimony was cumulative to other experts’ testimony. We affirm.

Follow up: the Eighth Circuit Court of Appeals amended its decision on October 21, 2009 but did not change its ruling, its amended holding states: "substantial evidence supports the district court’s conclusion that Graske breached a duty of reasonable care if Doyle was seated on the bow cushion when the boat came on plane." Nebraskan vacationers went fishing in the Grand Cayman Islands. The defendant's boat had an air cushion hull and when defendant accelerated the steering failed, causing the boat to turn sharply left. Plaintiff flew off the boat and suffered severe head trauma when the boat struck him. Defendant removed case to federal district court under admiralty jurisdiction and after taking consideration of plaintiff's 10% contributory negligence awarded plaintiff over $3 million plus $750, 000 loss of consortium damages. Eighth Circuit Court of Appeals affirms damage verdict but noting ambiguous law and precendents from other circuits reverses loss of consortium award.Daniel Doyle v. Leland Graske U.S. Court of Appeals Case No: 08-3144 District of Nebraska - Omaha 083144P.pdf 09/02/2009 . "Substantial evidence supported the district court's determination that defendant breached a duty of reasonable care to plaintiff by bringing his boat to planing speed when plaintiff was in a position of danger; neither did the court err in finding that defendant's negligence in operating the boat was a proximate and substantial cause of plaintiff's injuries; there is no well-settled admiralty rule authorizing loss-of-consortium damages for spouses of non-seafarers negligently injured beyond the territorial waters of the U.S., and the district court erred in awarding plaintiff's spouse damages for loss of consortium"

Nebraska Supreme Court affirms summary judgment against Mortgage lender in its declaratory complaint and insurers' cross-complaint denying the mortgage lender a defense in borrower's fraud and slander of title lawsuit against it in Kentucky state court. Mortgage Express v. Tudor Ins. Co., S-08-728, 278 Neb. 449 Mortgage Express, Inc., and Jeff Rothlisberger, its sole shareholder (collectively Mortgage Express), seek a declaration that Mortgage Express liability insurers, Tudor Insurance Company (Tudor) and Cincinnati Insurance Company (Cincinnati) are obligated to defend Mortgage Express in a suit brought against it by a third party, Village Campground (Village). In December 2006, the court entered summary judgment in favor of Tudor and Cincinnati, thereby dismissing Mortgage Express’ action, and Mortgage Express appealed The court filed another order dismissing Peterson ( the defendant insurance broker), properly certifying the case as a final, appealable order, and Mortgage Express filed this appeal. We affirm. There is no genuine issue as to the fact Mortgage Express was unaware, prior to the effective date of the Tudor policy, of the circumstances leading up to the claims asserted in Village’s amended complaint. Therefore, the Tudor policy does not provide coverage for the defense sought by Mortgage Express. As to defending the Village's slander of title suit, "title to real estate is not a person, organization good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage of a good, product, or service as those terms are commonly understood," thus, slander of title did not fall within the policy coverage defendant provided to plaintiff. Mortgage Express’ remaining argument is that Cincinnati must defend it in the underlying action because its lien is an invasion of the right to private occupancy of the premises Mortgage Express merely asserted that it held a valid, unsatisfied security interest against the property. A security interest is an interest in personal property or fixtures which secures payment or performance of an obligation. As such, Cincinnati has no duty to defend Mortgage Express and was properly granted judgment as a matter of law.

Nebraska Supreme Court reverses Court of Appeals decision that dismissed appeal of landlord's complaint for indemnificaiton against tenant bank arising from a bank customer's personal injury lawsuit. Kuhn v. Wells Fargo Bank of Neb., S-08-141, 278 Neb. 428 The burden of proving mootness is on the party seeking dismissal "Maintenance of a building," within the meaning of Neb. Rev. Stat. § 25-21,187(1) (Reissue 2008), does not encompass the ordinary activities associated with management of commercial property. Indemnification is distinguishable from the closely related remedy of contribution in that the latter involves a sharing of the loss between parties jointly liable. "The Court of Appeals erred by dismissing this appeal as moot, because the burden had not yet been placed on (landlord) to prove damages, and the record does not foreclose the possibility that (landlord) was liable to (injured plaintiff). The district court erred in concluding that paragraph 20 was ambiguous, and we find no merit to the Bank’s alternative reasons why paragraph 20 was purportedly unenforceable. The judgment of the Court of Appeals is reversed, and the cause remanded to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause to the district court for further proceedings consistent with this opinion

Nebraska Supreme Court affirms summary judgment against tenured Creighton language professor who sued a PHD student for maliciously filing a harassment complaint against her. Recio v. Evers, S-07-1338, 278 Neb. 405 We conclude that a person cannot incur liability for interfering with a business relationship by giving truthful information to another. In this case, Recio’s claim for tortious interference with a business relationship rested on Evers’ sexual harassment complaint, and the record establishes that the material allegations of Evers’ complaint were truthful. And even if actual malice can defeat a defense that interference with a business relationship was justified, there is insufficient evidence in the record to show that Evers’ sexual harassment complaint was motivated by actual malice. Therefore, the district court correctly concluded that Evers’ sexual harassment complaint was justified.

Jackpot Justice Update: Nebraska Supreme Court (J Gerrard) hands over another deep-pocket to plaintiffs' attorneys and they won't let a ruling from the "slipping backward" days stand in their way. DeWester v. Watkins, S-06-230, 275 Neb. 173 "In this case, the district court entered summary judgment for Kyle based on the rule announced in Vilas, and theCourt of Appeals affirmed that judgment because the doctrine of vertical stare decisis compelled it to strictly follow Vilas. The estate argues that Vilas was wrongly decided and should be overruled. We agree. We are persuaded by the Restatement, the reasoning of other courts to have decided the issue, and our ownauthority giving effect to the clearly articulated public policyof the Motor Vehicle Operator’s License Act, that negligent entrustment should be defined with reference to control of theentrusted property, and a defendant’s ownership of the propertyis not a prerequisite for liability for negligent entrustment. In other words, to be liable for negligent entrustment, the defendant must have had the authority to permit or prohibitthe entrustee’s use of the entrusted property. But control ofthe entrusted property is the essential element of a negligententrustment claim, not legal ownership. To the extent that Vilas holds otherwise, it is overruled.

Another win for trial lawyer justice in Nebraska: Nebraska Supreme Court reverses summary judgment in suit against U-Haul by user who mishandled the truck's loading ramp. Erickson v. U-Haul International, S-05-1163, 274 Neb. 236The plaintiff's parents rented a U-Haul moving van to move from Iowa to Herman, Nebraska in Washington County. The Plaintiff tried to extend the loading ramp while her father moved the truck, but the truck jumped suddenly and pinned her leg. She sued the U-Haul Center of Omaha and also the umbrella U-Haul company. District court dismissed the case against U-Haul Center finding no duty to warn and dismissed against U-Haul parent company finding no personal jurisdiction. Even though the Nebraska Unicameral has already addressed truck leasing liability issues in 25-21,239, the Supreme Court (J Connolly) predictably reverses. So why is this worthless case going back for trial? Who is going to win a negligence case when a girl and her parents are mishandling heavy equipment? This case wont go to trial and someone will pocket a nice settlement since the Supreme Court has shut off the defendants' threat of a quick dismissal.

Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"

Some jurors used a slide rule and looked up the inflation rate to help them determine how much to award in wrongful death case.Nebraska Supreme Court affirms verdict of only $46k for wrongful death of a woman in her late teens. Poppe v. Siefker, S-05-670, 274 Neb. 1 Family members of woman killed in head-on collision on Interstate 80 with suicidal driver sued and the Lancaster County district court jury awarded them $46k. Plaintiffs appealed arguing the verdict was too low and the result of jurors' improper reliance on outside aids to help them calculate the present value of their award. Nebraska Supreme Court agrees that the plaintiffs failed to present clear and convincing evidence that some jurors' use of a financial slide rule and inflation rate on a post-it note presented a reasonable likelihood that the extraneous materials prejudiced the plaintiff. Although Nebraska jury instructions ask jurors to reduce their damage awards to present value, the instructions don't tell jurors how to do it. In this case, neither side offered evidence on how to do this either. The Nebraska Supreme Court affirms the verdict because although the slide rule and inflation rate were not in evidence, the court cant determine whether the jurors' use of the aids hurt or even helped the Plaintiffs. "Given that the jury was not provided any evidence on present value, nor instructed as to how present value was to be calculated, the personal financial slide calculator and the handwritten inflation rate could not have contradicted any of the evidence presented at trial. Nor could the jury have given undue weight to these items, while disregarding other evidence adduced at trial, because there simply was no evidence presented on this issue."

Follow up: WE'RE NUMBER ONE! Legal reform activists proclaim Nebraska most business friendly legal climate in the country. We have a "rule of law" judiciary (for now) and an attorney general who is more interested in law enforcement than taking down businesses. But I'm not sure if the authors of the report took into account our justice crusaders Connolly and Gerrard.. Overlawyered.com.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States ranks state legal environments with economics, real world corporate experience and input from state legal reform experts and puts Nebraska and Virginia on top. Why does Nebraska come out on top? "Nebraska enjoys the top ranking for its favorable litigation climate. Its liability laws lead to fair and predictable litigation results. Nebraska law does not allow punitive damages, places limits on medical malpractice lawsuits, has a 10-year statute of repose for product liability lawsuits, and does not allow joint liability for non-economic damages. The Supreme Court is led by a rule-of-law majority and Attorney General Jon Bruning is a staunch defender of the rule of law. Nebraska’s liability climate is conducive to growth and job creation..

Follow up on why the pedestrian crossed the road: Nebraska Supreme Court wont let attorneys pocket a quick settlement from a co-defendant, dismiss him from the case and then go after the deep pockets for the entire case. Tadros v. City of Omaha, S-05-1538, 273 Neb. 935 The plaintiff was injured crossing at the crosswalk West Omaha. A motorist ran her over and she sustained serious injuries. The plaintiff filed a political subdivision tort claim against the city and sued the driver, but later settled and dismissed the driver for $35000. The plaintiffs injuries apparently exceeded $1million. Because poltical subdivisons are liable for up to $1milliion the court reduced the judgment. The trial court determined the parties responsibility for the accident to be 50% City, 30% driver, 20% plaintiff. City appealed when the court took off only the $35000 settlement and not the driver's 30%. Supreme court reverses because under §25-21,185.11(1) RRS Neb a defendant's obligation for an accident proportional to his percentage of fault in the accident, inlcuding the fault of dismissed defendants. Under the contributory negligence statutory scheme in nebraska,joint tort-feasors who are“defendants”in an action “involving more than one defendant” share joint and several liability to the claimant for economic damages. they are liable for the entire amount of the claimant’s economic damages which are not chargeable to the claimant,so long as the claimant’s contributory negligence is not equal to or greater than the total negligence of all persons against whom recovery is sought. but,when the claimant settles with a joint tort-feasor,the claimant forfeits that joint and several liability. the claimant cannot recover from the nonsettling joint tort-feas o r more than that tort-feasor’sp roportionate share in order to compensate for the fact that the claimant made settlement with another that may prove to be inadequate.

Our states personal injury lawyers should get paid a lot for swift justice: The Hauptman OBrien law firm took on a serious injury case just weeks after the accident and within a few months was in court getting a settlement for nearly $200,000. The clients dismissed the law firm before they accepted the settlement The lawyers sued for their justly earned fee. The Nebraska supreme court reverses, ordering the law firm to prove that its fee was reasonable,Hauptman, O'Brien v. Turco, S-05-928, 273 Neb. 924 Ahem! Concurring Justice Gerrard wants to make sure we dont chill the worthy efforts of personal injury attorneys who work a few months on a case and pocket thousands of dollars. Heed his words of wisdom, "(the client) must (have specific) objections to (show why the fees are unreasonable). Inparticular, it will generally be insufficient to simply conclude that the size of a contingent fee,compared to the length of the litigation, makes the fee unreasonable.It should therefore be the unusual circumstance that a court refuses to enforce a fully informed contingent fee arrangement because of events arising after the contract’s negotiation

Nebraska Supreme Court advises District Courts not to make extra work for it by routinely certifying Section 25- 1315(1) piece-meal final orders for appeal. Supreme Court dismisses appeal from Plaintiff severely injured in 1998 on Interstate 680- while it was under construction because the appeal concerned only part of his case against the road sign contractor and the district court abused its discretion in allowing the Plaintiff to appeal on just this part of his case. Cerny v. Todco Barricade Co., S-05-877 Plaintiff was severely injured in rear end collision on a part of Douglas county I680 that was under construction. He settled claims with the other driver, the state and its main contractor. He proceeded against the Road Sign subcontractor for his own claim and the assigned claims of the other defendants. The district court granted summary judgment in favor of the road sign contractor only on the contribution and indemnity claims of the state and its contractor. The plaintiff asked the court to certify the summary judgment as final under 25-1315(1) and the District Court entered final judgment. The sign company cross appealed the court's denying its motion for summary judgment against the 2nd driver. Supreme Court dismisses appeal finding that the trial court should not have so easily found the contribution/indemnity claims were final orders. "§ 25-1315(1) was intended to prevent interlocutory appeals, not make them easier...Therefor certification of a final judgment must be reserved for the “unusual case” in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.29 the power § 25-1315(1)confers upon the trial judge should only be used “‘“in the infrequent harsh case

No political subdivision tort claim act liability against a zoning entity that refused to grant a building permit after one of its representatives advised property owners that he would allow the permit.

Rohde v. City of Ogallala, S-06-149

Plaintiffs sued the City of Ogallala for rescinding approval it had given the Plaintiffs to rebuild on some property. The court of appeals sent the case back after Ogallala won a 12b motion in district court. Rohde v. Knoepfel, 13 N eb. A pp. 383, 693 N .W.2d 564 (2005). This time the Supreme Court affirms summary judgment because the city was immune from zoning actions under 13-910(4). Section 13-910(4) is clear and unambiguous. Political subdivisions are not liable under the PSTCA for actions based upon the revocation of a permit or license. The City revoked its decision to issue a permit allowing the Rohdes to subdivide their property because such division did not comply with City ordinances.

Plaintiff loses auto accident case because she did not serve already deceased defendant in time. Two Justices also recommend cleaning up the civil procedure code on amending pleadings. Plaintiff in an auto accident case sued the defendant only a few months before the normal statute of limitations would have run. Plaintiffs counsel attempted service a number of times and shortly before the six month service deadline (25-217 RRS Neb)learned the defendant had passed away over year before they filed suit. Plaintiff served the defendant's son who was the decedent's administrator but did not attempt to amend the suit to name the personal representative defendant until her six month service deadline had run. Supreme Court agrees that any attempt to relate the amendment back to the suit filing date was void because there is no case after 25-217 caused the case to be dismissed. In concurring opinion, Justices Lerman and McCormack argue that the legislature should amend 25-201.02 to make the state version of FRCP 15 current with the federal version, which was amended in 1991 and then allowed relation back only if done within a time before the statute of limitations had run with the new defendant aware of the pending action. Reid v. Evans, S-05-1503"Because Reid’s lawsuit had been dismissed, her subsequent motion to amend and take advantage of relation back was a nullity, as would have been any order entered by the county court on that motion. Once Reid’s lawsuit had been dismissed, the county court lacked jurisdiction to make any further orders other than to formalize the dismissal. See id. The district court did not err in determining that the county court lacked jurisdiction to consider Reid’s motion to amend, and we affirm the district court’s decision. Concurring opinion: If the Legislature was to revise § 25-201.02 to provide language similar to the current version of rule 15(c) of the Federal Rules of Civil Procedure, a plaintiff seeking to amend and take advantage of relation back who files a motion after the statute of limitations has run but during the period allowed for service, and who otherwise meets statutory requirements, would be able to amend the complaint. Revisions to § 25-201.02 could marginally enhance the utility of statutory relation back in Nebraska.

The IRS audited the former owner of a construction company and the targeted principal alleges he ultimately won the audits, however he alleged that his former partner and the Bennington Bank had conspired to submit false business records to the IRS in order to harm him. The audited partner sued the bank and his former partner but the district Court dismissed on Rule 12b6. Nebraska Supreme court affirms 12b6 dismissal because the Plaintiff's complaint fraud, misrepresentation, and conspiracy apply only when the defendants make the misrepresentations to the Plaintiff and not to third parties. Supreme Court however does not charge the Plaintiff attorney fees because his theory of recovery was "plausible." Brummels v. Tomasek, S-05-1548 brumes set forth four separate claims for relief entitled “Fraud,” “negligent Misrepresentation,” “Fraudulent Concealment,” and “Conspiracy.” brumes alleged, inter alia, that appellees had prepared and submitted false information to the Internal revenue service (IRS), allegedly involving Plaintiff’s misappropriation of funds and unreported income, and that appellees concealed exonerating information from the IRS. Supreme Court concludes that the district court did not err in sustaining appellees’ rule 12(b)(6) motions to dismiss and in dismissing Brummels’ complaint. We further conclude that the district court did not abuse its discretion in denying Tomasek and MJr’s motion for attorney fees. the decisions of the district court are affirmed

Follow up: Unicameral bows to pressure of agitated skate boarders and reverses Nebraska Supreme Court ruling that had eliminated landowner protections for political subdivisions arising from recreational activities Omaha.com But will such an unjust law stand up in the supreme court? I see that the legislature goes into mind numbing detail as to types of recreational activities, specifies conditions for skateboard parks and their design, and even as a bone to Senator Chambers requires localities post signs that skateboarding is inherently dangerous. Do they skateboard in the hood? State lawmakers voted 48-0 Thursday to give final passage to a bill that will protect cities and other government entities from liability for injuries at parks, playgrounds and other recreational facilities open free to the public.The bill now heads to Gov. Dave Heineman's desk, and he's expected to sign it in a formal ceremony to be scheduled next week, said spokeswoman Jen Rae Hein. It takes effect immediately upon his signature.Legislative Bill 564 was introduced, by State Sen. Mike Friend of Omaha after a Nebraska Supreme Court ruling last year said public entities could be found liable for injuries that occur at public recreational facilities

Follow up: Unlike the recent decision of our Supreme Court, the Kansas Supreme Court keeps sensible limitations on slip and fall claims against public entities under the Kansas recreational land liability statute, throws out New Year’s Eve partygoer’s slip and fall case. Day on Torts: In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007), The Court “barred” the plaintiff’s New Year’s Eve slip-and-fall claim against a publicly owned convention center that had hosted dances, card tournaments, sewing demonstrations, and even local Bar meetings! Plaintiff contended the recreational use limitation applied only if the facility where the injury occurred was primarily a recreational one. The Court disagreed, "immunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question.. The recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes.” The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."