Plaintiff Peters was severely injured while walking to the spectator section of a rodeo when he was struck by defendant on his horse as he was exiting the riding area. The jury awarded over $90,000 in damages, primarily against the rodeo association. However, the Court of Appeals set aside that verdict mainly because the trial court had permitted the jury to decide legal liability based on a theory (defective premises) that had not been plead by the plaintiff. Therefore, the case was remanded for a new trial.
This appeal arises from an accident at a rodeo staged by defendant Washington County Agricultural Society (Society), in which a horse ridden from the rodeo arena by a rodeo participant, defendant James T. Wakefield, collided with the plaintiff, Ronald D. Peters, a spectator, as he was walking to a spectator section. Peters sustained serious personal injuries and brought this negligence action against both Wakefield and the Society. The jury found for Peters, determined his total damages to be $91,125.69, and allocated the parties' negligence as follows: the Society, 85 percent; Wakefield, 8 percent; and Peters, 7 percent.
The Society appeals, arguing that the court erred in overruling its motion for a directed verdict; in overruling its motion for a mistrial based on a statement made by Peters' attorney during voir dire; by instructing the jury that it could find for Peters on the theory of premises liability, as well as on the theory of ordinary negligence; and in failing to instruct the jury on the meaning of the term "reasonable care" as used in the premises liability instruction. Peters cross appeals, contending that the court erred in apportioning costs. We conclude that the court did not err in denying the motion for directed verdict. However, we find that the court erred by instructing on the theory of premises liability when such theory was not pled, erred by allowing Peters to recover on unpled general negligence, and erred in failing to define the term "reasonable care" which was included in a jury instruction. We conclude the other assigned errors are moot. We therefore reverse, and remand for a new trial consistent with this opinion.
I. SCENE OF EVENT
The rodeo arena at the Washington County Fairgrounds is rectangularly shaped and measures 260 feet long on the west and east sides, 128 feet wide on the north side, and 131 feet wide on the south side. A gate, 15 feet wide, was the only entrance used by participants to enter the arena and was located at the southwest corner. The arena was fenced, and bleachers for spectators were located outside of the fence on the west and east sides. A steel building was located approximately 73 feet south of the southeast corner of the arena, and a fence ran from the steel building to the southeast corner of the arena. The fence contained an 18 foot wide gate that opened 16 feet from the steel building. To enter the west bleachers, spectators walked through the gate near the steel building and then northwest toward a point west of, but adjacent to, the southwest corner. The 15 foot wide gate by which performers and their animals exited the arena was on the south side of the arena at its southwest corner. Thus, spectators going to the west bleachers walked in front of the arena gate. Neither the performers going to and from the arena nor the spectators were directed in a particular path, but their paths necessarily crossed at some point south of the arena gate. Some vehicles and trailers were parked in the area south of the arena.
II. EVIDENCE OF EVENT
On August 21, 1992, at approximately 7:15 p.m., Peters, then 45 years of age, and his friend Larry Graver entered the southeast gate and proceeded along the south end of the rodeo arena, in somewhat of a northwesterly direction, toward the west bleachers where their wives were sitting. As the two men passed directly in front of the open gate in the southwest corner of the arena, they were struck by a horse ridden by Wakefield which was exiting the arena after warming up for the rodeo which was to begin at 7:30 p.m.
Both Peters and Graver testified that they were in a hurry to reach the west bleachers because the rodeo was about to begin. As stated above, Peters and Graver entered the southeast gate and proceeded toward the west bleachers. Peters testified that there were "quite a few," or approximately 30, other people walking in the same general direction. Just before they reached the gate opening in the southwest corner of the arena, Peters and Graver stopped so that Graver could talk to two acquaintances. After approximately 30 seconds, they started walking west again. Peters testified that he noticed the gate swing to the inside, looked in, and noticed the press box. He and Graver then took approximately 2 1/2 steps, placing them halfway through the gate and about 8 to 10 feet south of the fence. Peters testified that immediately prior to the collision, he heard "some commotion or something, looked around, and there was the horse," approximately 8 to 12 feet away and "coming really fast, running hard." Wakefield's horse then ran into the two men, knocking Peters to the ground and causing him to roll three or four times. Peters sustained serious personal injuries, including several broken bones. Graver was also seriously injured.
Wakefield, 24 years of age at the time, was riding his horse "Rock," which weighed approximately 1,150 to 1,200 pounds. Wakefield, who considered himself an experienced horseman, and Rock often participated in the bulldogging event at rodeos, including 34 such events in the summer of 1992. Wakefield, who admitted that he had consumed two beers on his way to the rodeo, testified that after warming up his horse in the arena, an announcement came over the loudspeaker stating that the riders should leave the arena. At that time, Wakefield was in either the middle or the north end of the arena visiting with some friends. After Bob McCay, the rodeo contractor, said, "Get the hell out of here," Wakefield started riding out of the arena with his horse at a "lope," which Wakefield described as a gait that is an easier way of moving and faster than a walk. Wakefield testified that a lope is not necessarily faster than a trot but looks very much like a gallop. Wakefield testified that he was one of the last riders to leave the arena.
Wakefield testified that he was slowing down as he came to the southwest gate. According to Wakefield, he was following two horses loping out of the arena, one with a rider who was leading the second horse, which was riderless and approximately 5 to 10 feet behind. Initially, Wakefield testified that he was aware that people were on either side of the gate but that when he "went in, there was no one in the gate." However, Wakefield admitted that he had previously testified that there were people scattered throughout the 16 foot wide opening and later testified to the same. As he was riding through the gate, Wakefield saw Peters and Graver walking west, some 8 to 15 feet away. Wakefield testified that he yelled "Heads up" and tried to slow up and go around them but had difficulty stopping due to the hardness of the ground. However, Wakefield admitted that he had previously testified that he just reined up his horse as best as he could. Wakefield also admitted that he previously testified that Peters and Graver made no attempt to move, instead "they just froze" and "their eyes were wide like raccoons."
Several witnesses also testified as to the manner in which Wakefield left the arena and Peters' conduct immediately prior to being knocked down. These witnesses varied in their memories of the events, such as the speed of Wakefield's horse as it left the arena; Wakefield's control of the horse at the time; whether other horses were leaving the arena at the time; and the number of people, their attentiveness, and the density of the crowd in the area at the time. In view of the issues raised by this appeal, further summary of this evidence is unnecessary.
Ronnie Hilgenkamp, vice president of the Society, testified that the Society hired a rodeo contractor, McCay Rodeo, Inc., to provide and manage the livestock for the rodeo. Hilgenkamp testified that the Society was in charge of taking tickets, selling tickets, and advertising and was responsible for the safety of both the spectators and the participants. Hilgenkamp admitted that the Society was responsible for the positioning of the bleachers and testified that the Society and McCay had mutually agreed that the southwest gate should be used. Hilgenkamp testified that there was no other gate that could have been used that night because the cattle chutes were put at the north end of the arena. Hilgenkamp further testified that the responsibility for the gate's being opened was McCay's.
Hilgenkamp testified that an entry ticket allowed spectators to "go anywhere they wanted to go except in the arena." Hilgenkamp specifically testified that spectators were authorized to walk from the southeast gate to the southwest gate and stated that someone was to be at the gate to direct traffic during the rodeo but not before. Hilgenkamp also specifically admitted that the Society did not put up any warning signs at the gate, did not put up any fences or ropes to keep spectators away from the gate, and did not provide a specific path for spectators so they would be away from the horses.
Peters brought a negligence action against both Wakefield and the Society, alleging that Wakefield was negligent in failing to maintain proper lookout or control; in riding too fast; and in failing to slacken speed, to warn, to yield, to stop, or to turn to avoid hitting him. Peters separately alleged the Society was negligent in nine different ways, which may be summarized as follows: (1) in failing to properly supervise the rodeo participants, (2) in allowing spectators to be in the area where participants would be riding, (3) in failing to provide guards or personnel to protect spectators, (4) in failing to erect signs or barriers to protect spectators, (5) in failing to provide spectators with a safe way to enter and leave, (6) in allowing the gate to be left open, (7) in allowing spectators to walk in front of the gate, (8) in failing to provide participants with a thoroughfare, and (9) in failing to properly instruct and supervise McCay Rodeo Inc. Peters alleged damages of $15,300 for past medical expenses, $13,500 for lost income, and $20,000 for future medical expenses and general damages.
The Society filed an answer, generally denying Peters' allegations and affirmatively alleging the defenses of contributory negligence and assumption of the risk. Wakefield filed a cross claim against the Society, praying that in the case of judgment against him, he be able to seek contribution from the Society. The Society denied Wakefield's allegations.
III. JURY VERDICT
The jury returned a verdict allocating negligence as follows: Peters, 7 percent; Wakefield, 8 percent; and the Society, 85 percent. The jury awarded economic damages in the amount of $33,625.69 and noneconomic damages in the amount of $57,500, for a total of $91,125.69. Taking into account Peters' negligence, the jury determined that Peters could recover $84,746.89.
On December 30, 1996, the Society filed a motion to set aside the verdict, alleging as grounds the trial court's failure to grant a mistrial on the basis of a combination of Peters' counsel's statement during voir dire and the excessiveness of the awarded damages, which the Society argued "appear to have been given under the influence of passion or prejudice." The court overruled the motion and apportioned costs. The court also ordered, pursuant to Neb.Rev.Stat. § 25 21,185.10 (Reissue 1995), judgment in favor of Peters and against (1) Wakefield and the Society jointly and severally for Peters' economic damages in the sum of $31,271.89, (2) against Wakefield in the amount of $4,600, and (3) against the Society in the amount of $48,875. The Society now appeals.
IV. ASSIGNMENTS OF ERROR
The Society alleges that the court erred (1) in overruling its motion for directed verdict; (2) in giving jury instruction No. 2, which sets forth the grounds for liability for the Society; (3) in failing to instruct the jury on the law regarding the definition of reasonable care; and (4) in overruling its motion for a mistrial, which was based on a statement made by Peters' counsel during voir dire. Peters cross appeals, assigning as error that the trial court erred in assessing costs of $532.45 against Wakefield.
V. STANDARD OF REVIEW
A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party. World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996); German v. Swanson, 250 Neb. 690, 553 N.W.2d 724 (1996).
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Radecki v. Mutual of Omaha Ins. Co., 255 Neb. 224, 583 N.W.2d 320 (1998); Veskerna v. Erickson, 254 Neb. 559, 577 N.W.2d 736 (1998).
1. MOTION FOR DIRECTED VERDICT
The Society argues the court should have granted its motion for directed verdict based on the general rule in premises liability that a possessor of land is liable only for injuries to an invitee if the possessor knew or should have known of the condition that involves an unreasonable risk of harm, and should expect the invitee will fail to discover the danger or fails to exercise reasonable care to protect against the danger. We agree that this is among the elements of premises liability. See Scharmann v. Dayton Hudson Corp., 247 Neb. 304, 526 N.W.2d 436 (1995). The Society argues the evidence shows that Peters is familiar with horses, that he failed to keep a proper lookout, and on the basis of the above rule, that he is negligent as a matter of law. In this way, the Society seeks to misapply the premises liability rules to impose a duty on the plaintiff rather than the defendant.
In Ellis v. Far Mar Co, 215 Neb. 736, 340 N.W.2d 423 (1983), the defendant sought to misapply the premises liability rules in the same way. In Ellis, the defendant asked the court to instruct the jury on the plaintiff's duties. The court rejected this request because premises liability rules are not applicable to ordinary negligence. The Ellis court refused to apply NJI 8.22 and rejected the defendant's contention that the Restatement (Second) of Torts, §§ 341A and 343 (1965), applied to the situation, because the case involved active negligence. Premises liability rules are not applicable to this case for the same reason, that is, the Society's alleged negligence is active negligence, not the maintenance of a condition. We discuss the application of these authorities more fully below.
The often repeated rule is that to succeed in an action based on negligence, the plaintiff must establish the defendant's duty not to injure the plaintiff, breach of that duty, proximate causation, and damages. Hill v. City of Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996). The evidence shows that the Society constructed its rodeo facility in such a way that the paths of the spectators walking to the bleachers necessarily crossed the paths of the participants on horseback. No warnings were given either to the spectators or to the participants.
It is the general rule that, while one who operates a place of public amusement or entertainment is held to a stricter accountability for injuries to patrons than owners of private premises generally, he is not the insurer of the safety of patrons, but owes to them only what, under the particular circumstances, amounts to ordinary and reasonable care.
Welsh v. Jefferson County Agricultural Society, 121 Neb. 166, 168, 236 N.W. 331, 332 (1931) (involving fair patron injured when bench broke; court held only issue was whether bench was properly constructed). See, also, Fimple v. Archer Ballroom Co., 150 Neb. 681, 35 N.W.2d 680 (1949) (involving patron at dance hall injured by intoxicated person).
The evidence shows the Society constructed and maintained a system where, without warning, its patrons had to cross paths with horses and riders. Without going into specifics, a jury could certainly find negligence in such a system. Anyone would expect rodeo participants to be preoccupied with preparation for the upcoming contests. In this day of motor vehicle travel, the familiarity of most people with horses is limited to the rare use of a riding stable. Therefore, the Society would not be justified in assuming that the spectators at rodeos would be familiar with horses or that horses could safely be mixed with a crowd of rodeo spectators. At least, we cannot say that as a matter of law, the Society was not negligent in some fashion or that Peters was negligent as a matter of law.
2. INSTRUCTION NO. 2
(a) Instruction Summarized
Instruction No. 2 is the statement of the case instruction, and the Society alleges the trial court erred in giving it, because the jury was instructed that Peters could recover on the theory of ordinary negligence and also on the theory of premises liability. The Society also alleges the trial court erred by failing to define the term "reasonable care" which was used in the instruction. For brevity, we will summarize most of the jury instruction but will quote the crucial parts.
The court first stated that Peters claimed the Society was "negligent in one or more of the following ways." The instruction then lists all but one of the specific allegations of negligence contained in Peters' operative petition. In essence, Peters alleged the Society was negligent in failing to properly supervise rodeo participants, in failing to provide guards or personnel to protect spectators, in failing to erect signs or barriers to protect the spectators, in failing to provide spectators with a safe way to enter the bleachers, in allowing the gate to be left open, and in allowing spectators to walk in front of the gate. The court did not instruct the jury on the additional allegation that the Society failed to properly instruct and supervise McCay Rodeo, Inc.
The petition does not contain any other allegation of negligence or any other theory of liability designated by the Society. Nonetheless, after instructing the jury as to Peters' allegations of negligence, the instruction continues as follows:
The plaintiff, Ronald D. Peters was a business visitor on the rodeo grounds which were possessed and controlled by the defendant, the Washington County Agricultural Society. Plaintiff has also alleged that he may, as separate grounds [sic] for recovery, recover against the Washington County Agricultural Society, on his claim against the Washington County Agricultural Society, on the basis that the Washington County Agricultural Society negligently failed to maintain safe premises for business visitors. In order to recover on this basis, the plaintiff must establish each and all of the elements of premises liability set forth in the Burden of Proof section that follows.
The instruction then advises the jury of the Society's allegations, addresses Peters'
burden of proof to recover against Wakefield (and lists the acts of negligence alleged
against Wakefield), and finally, addresses Peters' burden of proof to recover against the
Society as follows:
Burden of Proof as to Defendant the Washington County Agricultural Society
Before the plaintiff can recover against the defendant, the Washington County
Agricultural Society, the plaintiff must prove, by the greater weight of the evidence, as
to such defendant, each and all of the following:
1. That such defendant was negligent in one or more of the ways claimed by the plaintiff against the defendant;
2. That this negligence was a proximate cause of the accident;
3. That the accident was a proximate cause of some damage to the plaintiff; and,
4. The nature and extent of that damage.
Before the plaintiff can recover against the defendant, the Washington County
Agricultural Society on separate grounds of premises liability, the plaintiff must prove,
by the greater weight of the evidence, each and all of the following:
1. That the Washington County Agricultural Society, in organizing, sponsoring and conducting the rodeo, failed to use reasonable care for the safety of business visitors;
2. That the Washington County Agricultural Society should have expected that business visitors such as the plaintiff either:
a. Would not discover or realize the danger; or,
b. Would fail to protect themselves against the danger;
3. That this negligence or failure to use reasonable care was a proximate cause of some damage to the plaintiff; and
4. The nature and extent of that damage.
The Society's counsel both objected to the instruction on premises liability and requested an instruction on the definition of reasonable care.
(b) Inclusion of Premises Liability
In his petition, Peters does not use the term "premises liability," nor does he allege two theories of recovery. The Society complains that by the instruction, the court separated the single cause of action into two causes of action. We hasten to point out that we understand the correct term to be "theories of recovery" and not "causes of action." Whatever term, it is clear that the trial court instructed the jury that the Society was liable if Peters proved negligence in any of the eight ways alleged in his petition or if he proved the elements for premises liability set forth in the instruction as quoted.
The premises liability portion of the instruction includes as elements facts which Peters did not allege, to wit: (1) those concerning failure to use reasonable care in organizing, sponsoring, and conducting the rodeo and (2) those alleging that the Society should have expected that its business visitors would either fail to realize the danger or fail to protect themselves from it. The first of these added elements clearly gives Peters a practically unlimited basis to recover, and the second adds to his burden of proof by requiring him to prove facts which are usually encompassed in foreseeability, or the defendant's burden under contributory negligence or assumption of the risk.
The Society complains that by failing to confine the issues to the pleadings, the court allowed the jury to believe two grounds existed for recovery rather than the one which Peters pled, and that the court thus violated its duty to correctly instruct the jury on the law.
Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. Veskerna v. Erickson, 254 Neb. 559, 577 N.W.2d 736 (1998). We will therefore consider whether the Society was prejudiced by the instruction on premises liability.
First, the instruction allowed Peters to recover if the "Society, in organizing, sponsoring and conducting the rodeo, failed to use reasonable care for the safety of business visitors." By this instruction, the court allowed the jury to find for Peters on the basis of failing to use reasonable care in the performance of acts not listed in Peters' petition or even in the instruction. In other words, the jury was instructed on general acts of negligence which were not pled. "It is error to submit a general allegation of negligence to the jury." Graham v. Simplex Motor Rebuilders, Inc., 189 Neb. 507, 511, 203 N.W.2d 494, 497 (1973). In Graham, the jury was told it could find for the plaintiff if the defendant was negligent " 'in otherwise failing to observe that care and caution of reasonable, prudent persons under the circumstances.' " Id. Similarly, in Raile v. Toews, 165 Neb. 184, 189, 84 N.W.2d 199, 202 (1957), the jury was instructed the defendant could be liable for certain alleged negligent acts and, then, by an independent clause, that he could be liable by failing to exercise " 'every reasonable precaution for their safety....' " The Raile court stated the instruction required the defendant to use every reasonable precaution without "condition, explanation, or limitation." Id. at 190, 84 N.W.2d at 203. Both the Graham court and the Raile court stated such instructions allowed the jury to speculate without any precaution or without limitation as to what act the defendant did not do reasonably. Similarly, in the case at hand, there is no limitation on which act or acts in organizing, sponsoring, or conducting the rodeo might make the Society liable under the premises liability theory, whereas under ordinary negligence, the instruction directed the jury to the specific acts of negligence pled in the petition and listed at the beginning of the instruction. The instruction with regard to premises liability was wrong and prejudicial because it allowed recovery for unspecified acts of negligence.
In addition, the Society argues that the jury instruction was not confined to the issues presented by the pleadings and supported by the evidence. We agree that instructions should be confined to the issues pled by the parties. See, Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994); Bump v. Firemens Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986); Swartz v. Peterson, 199 Neb. 171, 256 N.W.2d 681 (1977). The Society could not be expected to defend against a general claim that it was negligent in organizing, sponsoring, and conducting the rodeo when it did not know that Peters was seeking to recover on that basis until the jury instruction conference.
We realize that "[u]nder our Code system, although proper and learned so to do, it is not necessary to state a cause of action in any particular form." Sedlak v. Duda, 144 Neb. 567, 574, 13 N.W.2d 892, 897 (1944). "The mechanical form in which the plaintiff divided her petition is immaterial on the issue of whether it states one or more than one cause of action." Kohler v. Ford Motor Co., 187 Neb. 428, 432, 191 N.W.2d 601, 605 (1971). "A litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence." Swartz v. Peterson, 199 Neb. 171, 174, 256 N.W.2d 681, 684 (1977). Where a case is tried on several theories, the jury should be instructed on all of them. 88 C.J.S. Trial § 302 (1955). Under these rules, if Peters' petition contained allegations of fact supporting recovery under ordinary negligence and premises liability, the trial court could properly have instructed on both theories of recovery. However, Peters did not plead facts justifying recovery under premises liability.
We do not wish to imply by the above discussion that an instruction under premises liability would have been justified if pled. We find one case that was pled in ordinary negligence, and the trial court instructed on premises liability using an instruction patterned after NJI2d Civ. 8.22. See Scharmann v. Dayton Hudson Corp., 247 Neb. 304, 526 N.W.2d 436 (1995). Scharmann differs from the case at hand in that the plaintiff lost at the trial court level and the trial court had instructed the jury that it could find for the plaintiff not on either of two theories but only on premises liability. The instruction referred to listed acts of negligence, so it did not allow for recovery on general negligence. The plaintiff argued only that the court failed to list one alleged act of negligence. Thus, Scharmann throws no light on the issues of this appeal.
The premises liability instruction given by the trial court was clearly patterned after NJI2d Civ. 8.23, which discusses whether a business visitor can recover damages which resulted from the defendant's "activity," in contrast to NJI2d Civ. 8.22, which discusses the "condition" of the premises. The wisdom of instructing on premises liability when the plaintiff's claim is based upon negligent activity is called into question in Ellis v. Far Mar Co, 215 Neb. 736, 340 N.W.2d 423 (1983). In Ellis, a grain inspector was injured when he fell from a railroad grain car. The court instructed on ordinary negligence, and the plaintiff recovered. On appeal, the defendant argued on the basis of NJI 8.22 and the Restatement (Second) of Torts §§ 341A and 343 (1965), that the court should have instructed that there was no duty on the part of the possessor of land to warn unless the possessor expected that the invitee did not know or would not discover the danger and would fail to protect himself. (This argument is similar to the Society's argument for a directed verdict.) The Ellis court stated the accident did not arise out of a defect or condition of the premises, but, rather, the failure of the defendant to move the grain cars in a reasonable manner, and held that an instruction on ordinary negligence and not premises liability was proper.
The premises liability instruction given by the trial court is patterned after NJI2d Civ. 8.23, which cites the Restatement (Second) of Torts § 341A as authority. These authorities seem to support an instruction that the possessor of land is liable for invitees' activities only if the possessor should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against the danger. However, the holding in Ellis makes the validity of such an instruction questionable.
We realize the petition and the evidence in this case do not raise the issue. We are aware that in Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), the Nebraska Supreme Court abandoned the distinction between invitees and licensees. While Heins is not applicable to the case at hand, it might well affect the ultimate decision on the propriety of an instruction on ordinary negligence and premises liability in the same case. We therefore do not consider whether such a duplicate instruction is authorized under Nebraska law, because the issue was not raised by the pleading.
3. FAILURE TO GIVE PROFFERED JURY INSTRUCTION ON REASONABLE CARE
The Society argues that the court erred in failing to give its proffered jury instruction that "[r]easonable care on the part of the possessor does not ordinarily require precautions, or even warning, against dangers which are known or obvious to the invitee." To establish reversible error from a court's failure to give a requested instruction, an appellant has the burden of showing that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the tendered instruction. Veskerna v. Erickson, 254 Neb. 559, 577 N.W.2d 736 (1998).
NJI2d Civ. 8.23, along with two similar instructions dealing with the burden of proof in business invitee cases, specifically NJI2d Civ. 8.22 and 8.24, all use the phrase "reasonable care" rather than the term "negligence." While the court did instruct the jury on the definition of "negligence," it did not instruct the jury on the definition of "reasonable care." While we have held that the court erred in giving an instruction on premises liability, it seems that since the instruction as given used the term "reasonable care," such term must be defined. The Nebraska Supreme Court has held that it is plain error to give an instruction on premises liability containing the words "reasonable care" without defining that term. Palmtag v. Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994).
4. MOTION FOR MISTRIAL
Although record of voir dire proceedings were not made part of the bill of exceptions, the court's journal entry reflects that the Society's counsel did move for a mistrial, and a hearing on this motion comprises the first transcribed events. In that hearing, the parties stipulated that Peters' counsel told the jury that "there would be no tax dollars rendered or needed if a verdict was awarded against the Ag Society." Peters' counsel argued that he made the statement to counteract the judge's statement that the Society was "governmental."
The general rule is that an argument addressed to the jurors appealing to their self interest as taxpayers is improper in a civil case. 75A Am.Jur.2d Trial § 676 (1991). Moreover, the statement appears to violate the spirit if not the letter of Sandomierski v. Fixemer, 163 Neb. 716, 81 N.W.2d 142 (1957), in that the jury is advised of facts which should not be considered in its deliberation. However, because we reverse, and remand on other grounds, and because we presume that no similar statements will be made in a new trial, we need not specifically decide whether the statement was corrected by the court or if the statement was prejudicial under the facts in this case.
5. WAKEFIELD'S CROSS APPEAL
We must reverse the entire judgment, because a redetermination of the Society's negligence will necessarily require a redetermination of Wakefield's negligence and Peters' contributory negligence. Our reversal renders Wakefield's argument with regard to apportionment of costs moot.
The judgment of the trial court is reversed, and the cause is remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
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