Caguioa v. Fellman

he was the victim of prosecutorial misconduct, the result of
Jackson’s trial would not change even if Jackson was able to
obtain and present the evidence he seeks from the prosecution.
therefore, the request was properly denied.
Finally, we have considered Jackson’s other assignments of
error and arguments and conclude that none of those issues
have sufficient merit to warrant further discussion.
affirMed .
heavicaN, C.J., not participating.
dorothy caguioa , iNdividually aNd aS S pecial adMiNiStrator
of the eState of N icoSio caguioa , deceaSed , aNd aS guardiaN
of J ade caguioa , a MiNor , appellaNt , v . thoMaS fellMaN
aNd M artiN M eyerS, doiNg buSiNeSS aS fellMaN
M eyerS boat veNtureS, appelleeS.
747 N.W.2d 623
Filed april 18, 2008. 	No. s-06-1055.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
2. Trial: Evidence: Appeal and Error. In determining the admissibility of evidence,
the exercise of judicial discretion is implicit in determinations of relevancy and
admissibility, and the trial court’s decision will not be reversed absent an abuse
of discretion.
3. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
4. Negligence: Words and Phrases. ordinary negligence is defined as the doing of
something that a reasonably careful person would not do under similar circum-
stances or the failing to do something that a reasonably careful person would do
under similar circumstances.
5. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, a plaintiff must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proximately caused by the
failure to discharge that duty.
6. Rules of Evidence: Expert Witnesses. Four preliminary questions must be
answered in order to determine whether an expert’s testimony is admissible:
(1) whether the witness qualifies as an expert pursuant to Neb. evid. r. 702,
CaGUIoa v. FeLLMaN 	455
Cite as 275 Neb. 455
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

456 	275 Nebraska reports
Neb. rev. stat. § 27-702 (reissue 1995); (2) whether the expert’s testimony is
relevant; (3) whether the expert’s testimony will assist the trier of fact to under-
stand the evidence or determine a controverted factual issue; and (4) whether the
expert’s testimony, even though relevant and admissible, should be excluded in
light of Neb. evid. r. 403, Neb. rev. stat. § 27-403 (reissue 1995), because its
probative value is substantially outweighed by the danger of unfair prejudice or
other considerations.
appeal from the District Court for Douglas County: J ruSSell
derr, Judge. affirmed in part, and in part reversed and remanded
for further proceedings.
Joseph b. Muller and ronald J. palagi, of Law offices of
ronald J. palagi, p.C., L.L.o., for appellant.
Dan H. ketcham and Meredith J. Morgans, of engles,
ketcham, olson & keith, p.C., for appellees.
heavicaN, c.J., W right , coNNolly , gerrard , S tephaN, and
M ccorMack , JJ.
W right , J.
NatUre oF Case
Nicosio Caguioa (Caguioa) drowned in Lake powell, Utah.
His widow, Dorothy Caguioa (plaintiff), brought suit against
the owners of the houseboat upon which Caguioa was a guest.
the trial court granted the defendants’ motion for summary
judgment. It concluded that the record did not demonstrate the
defendants were negligent in their operation of the houseboat
and that there was no factual dispute as to any wanton negli-
gence on the part of the defendants.
sCope oF reVIeW
[1] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the ben-
efit of all reasonable inferences deducible from the evidence.
Peterson v. Ohio Casualty Group, 272 Neb. 700, 724 N.W.2d
765 (2006).
[2] In determining the admissibility of evidence, the exercise
of judicial discretion is implicit in determinations of relevancy
and admissibility, and the trial court’s decision will not be

reversed absent an abuse of discretion. Streeks v. Diamond Hill
Farms, 258 Neb. 581, 605 N.W.2d 110 (2000).
FaCts
thomas Fellman and Martin Meyers (collectively the defen-
dants) invited Caguioa to Lake powell to spend time on their
houseboat. Caguioa accepted the invitation and flew to Lake
powell to meet the defendants.
on august 20, 2001, while on the defendants’ houseboat,
Caguioa decided to go for a swim and jumped off the house-
boat into the water. He was not wearing a lifejacket, nor did he
have any flotation device. Meyers, who was steering the house-
boat, saw Caguioa swimming in the water immediately after
he jumped.
Meyers stated that he allowed the houseboat to drift the
“length of a football field” or more from Caguioa. Meyers then
started the houseboat and went back to get Caguioa. When
Meyers got within approximately 50 feet of Caguioa, he turned
off the engine, and Caguioa started to swim toward the left side
of the houseboat. Meyers lost sight of Caguioa but stated that
a passenger saw Caguioa approach the side of the houseboat
and reach up. However, it was not possible to climb onto the
houseboat at that location.
as Meyers came down from the helm, he saw Caguioa not
more than 10 feet from the right side of the houseboat. Caguioa
was looking at Meyers but did not say anything. Caguioa then
went under the water, bobbed back up, raised his right arm, and
went straight down into the water. Meyers screamed, “Nick’s
in trouble.”
one passenger jumped into the water without a lifejacket.
another passenger retrieved snorkel gear from the back of the
houseboat. Meyers radioed the National park service and stated
that he had a man overboard. efforts to rescue Caguioa were
unsuccessful, and he drowned in the lake.
plaintiff sued the defendants, alleging general acts of negli-
gence and a cause of action based upon 46 U.s.C. app. § 688
(2000) (now codified at 46 U.s.C.a. § 30104 (West 2006)),
commonly known as the Jones act. the Douglas County
CaGUIoa v. FeLLMaN 	457
Cite as 275 Neb. 455

458 	275 Nebraska reports
District Court granted summary judgment in favor of the defen-
dants, and plaintiff appeals.
assIGNMeNts oF error
plaintiff assigns, restated, that the trial court erred (1)
in granting the defendants’ motion for summary judgment,
because the court applied the wrong standard of care and the
evidence showed a genuine issue of material fact, and (2) in
excluding certain experts’ affidavits regarding the negligence
of the defendants.
aNaLYsIs
[3] summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Peterson v. Ohio
Casualty Group, 272 Neb. 700, 724 N.W.2d 765 (2006).
the trial court stated that the defendants’ main basis for
their motion for summary judgment was that the action was
brought exclusively under the Jones act, a type of workers’
compensation claim for seamen. Under the Jones act, the duty
is to provide employed seamen with safe and seaworthy condi-
tions. In order for an action to be brought under the Jones act,
the plaintiff must show that he was employed by the defendant
as a seaman. second, the plaintiff must show that his injury
occurred during the course of his employment.
In their motion for summary judgment, the defendants
claimed Caguioa was not an employee under the Jones act
and was not injured in the course of his employment. the
trial court found that the evidence presented by the defendants
established that Caguioa was not a seaman and was merely a
guest on the houseboat, not a chef hired to prepare meals for
the other passengers. this evidence was not controverted by
plaintiff, and to the extent that the action sought recovery based
on the Jones act, the defendants’ motion for summary judgment
was sustained.
the parties do not contest this issue, and it is not assigned
as error on appeal. therefore, the trial court’s granting of

summary judgment as to the action brought under the Jones
act is affirmed.
the trial court also found that there were general allega-
tions of wrongful death and negligence in addition to the claim
raised under the Jones act. the defendants argued that even if
plaintiff’s claim was based on general negligence, there was no
evidence of negligence on the part of the defendants.
the trial court analyzed the cause of action as if it were a
claim based on premises liability. It relied upon Alexander v.
Warehouse, 253 Neb. 153, 568 N.W.2d 892 (1997), in which
the plaintiff was injured when he dove off a diving board
and struck his head on the bottom of a swimming pool. In
Alexander, the plaintiff was visiting residents of the apartment
complex when the accident occurred. because the plaintiff was
a social guest, he was therefore considered a licensee. Under
the law in effect at that time, an owner or occupant of a prem-
ises owed only the duty to refrain from injuring a licensee by
willful or wanton negligence.
Alexander is inapplicable for two reasons: In the case at bar,
plaintiff’s claim is not based upon premises liability, and even
if it were, the duty owed is that of reasonable care. In Heins
v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), we
abrogated the distinction between invitees and licensees and
held that owners and occupiers of land owe a general duty of
reasonable care to all lawful entrants.
the trial court found that Caguioa was a guest and vol-
untarily left the houseboat to swim. there was evidence that
Caguioa could swim, that he knew where the ladders and safety
equipment were located, and that the houseboat was in good
operating condition. based on these facts, the court concluded
there was no evidence in the record to indicate that the defen-
dants were negligent in the operation of the houseboat. It con-
cluded that there was no evidence as to any wanton negligence
or designed injury on the part of the defendants.
We first address the standard of care to be applied in this
negligence action. Generally, the owners and operators of
boats and vessels have a duty to operate the boat in a careful
and prudent manner. None of the parties have alleged that the
law of the state where the accident occurred is different than
CaGUIoa v. FeLLMaN 	459
Cite as 275 Neb. 455

460 	275 Nebraska reports
the law of Nebraska. In the absence of such a pleading, we
conclude that the law of Utah is the same as that of Nebraska.
“No person shall operate any motorboat or vessel . . . in a . . .
negligent manner so as to endanger the life, limb, or property
of any person.” Neb. rev. stat. § 37-1254 (reissue 2004).
[4] In Reed v. Reed, 182 Neb. 136, 153 N.W.2d 356 (1967),
we recognized the duty of ordinary care in the operation of a
vessel and a cause of action for negligently failing to observe
such ordinary care. ordinary negligence is defined as the
doing of something that a reasonably careful person would
not do under similar circumstances or the failing to do some-
thing that a reasonably careful person would do under similar
circumstances. Drake v. Drake, 260 Neb. 530, 618 N.W.2d
650 (2000).
[5] In order to prevail in a negligence action, a plaintiff
must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proxi-
mately caused by the failure to discharge that duty. National
Am. Ins. Co. v. Constructors Bonding Co., 272 Neb. 169, 719
N.W.2d 297 (2006). In order to be granted summary judgment,
a defendant must show that one of the required elements of a
plaintiff’s case cannot be established. In reviewing a summary
judgment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence. Peterson v. Ohio Casualty Group,
272 Neb. 700, 724 N.W.2d 765 (2006).
In the case at bar, the evidence presented on the motion for
summary judgment created a genuine issue of material fact
as to whether the defendants’ conduct breached their duty of
ordinary care. the defendants allowed their houseboat to drift
over 100 yards from Caguioa. they knew he did not have a
lifejacket or flotation device with him. there was also evidence
that the houseboat may have run over Caguioa. thus, summary
judgment was not proper.
In addition, the trial court erroneously excluded the affidavits
of Caguioa’s expert witnesses. the affidavit of David smith,
ph.D., averred that he was a retired commander from the U.s.
Coast Guard. He graduated from the U.s. Coast Guard academy

in 1960 with a bachelor of science degree in naval science. smith
had 21 years of experience as a U.s. Coast Guard officer with
assignments including “Chief of the boating safety Division,
second Coast Guard District, st. Louis,” Missouri. He had been
a member of the “National Water safety Congress, recreation
and parks association, and the safe boating Council.”
based on his education, training, skills, and experience and
his review of the National park service’s incident report and
witness statements regarding the drowning, smith stated that
Meyers was negligent in his operation of the houseboat on Lake
powell in the following particulars: in allowing the houseboat
to drift away from Caguioa, in failing to safely maneuver the
houseboat back to retrieve Caguioa, and in failing to be prop-
erly trained and prepared in rescue operations or have someone
present onboard who was properly trained in rescue opera-
tions. smith opined that the above factors led to the death of
Caguioa. smith set forth his conclusions to a reasonable degree
of certainty in his area of expertise. a similar affidavit was
filed by Capt. eugene Hickey, who had also graduated from the
U.s. Coast Guard academy with a bachelor of science degree
in engineering.
[6] Four preliminary questions must be answered in order
to determine whether an expert’s testimony is admissible: (1)
whether the witness qualifies as an expert pursuant to Neb.
evid. r. 702, Neb. rev. stat. § 27-702 (reissue 1995); (2)
whether the expert’s testimony is relevant; (3) whether the
expert’s testimony will assist the trier of fact to understand
the evidence or determine a controverted factual issue; and
(4) whether the expert’s testimony, even though relevant and
admissible, should be excluded in light of Neb. evid. r. 403,
Neb. rev. stat. § 27-403 (reissue 1995), because its probative
value is substantially outweighed by the danger of unfair preju-
dice or other considerations. City of Lincoln v. Realty Trust
Group, 270 Neb. 587, 705 N.W.2d 432 (2005); State v. Duncan,
265 Neb. 406, 657 N.W.2d 620 (2003).
In this case, the trial court excluded the affidavits of both of
Caguioa’s expert witnesses because the
resumes and curriculum vitae presented for these wit-
nesses do not indicate that they are experts in the area of
CaGUIoa v. FeLLMaN 	461
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462 	275 Nebraska reports
determining the negligence of a driver of a recreational
boat, they do not indicate how their testimony is relevant,
and, they do not indicate how they arrived at their opinions
or state the basis for their opinions.
the resumes and curricula vitae of Caguioa’s witnesses
established that they were qualified as experts in matters involv-
ing the operation and use of pleasure boats. both graduated
from the U.s. Coast Guard academy, and each had extensive
experience with boats, including more than 20 years of experi-
ence as officers of the U.s. Coast Guard.
the affidavits were offered to show the experts’ opinions
that the defendants’ conduct was negligent because it did not
conform to a standard of ordinary care. their affidavits were
relevant and were sufficient to establish the foundation for their
opinions. the affidavits were not unfairly prejudicial.
CoNCLUsIoN
We affirm the judgment of the trial court as to plaintiff’s
claim based on the Jones act. However, for the reasons set
forth above, we conclude that the trial court erred in grant-
ing the defendants’ motion for summary judgment based on a
cause of action for negligence. We reverse the judgment as to
plaintiff’s claims based on the alleged negligence of the defen-
dants, and we remand the cause for further proceedings.
affirMed iN part , aNd iN part reverSed aNd
reMaNded for further proceediNgS.
M iller -lerMaN, J., not participating.
ivaN eicher aNd deloreS eicher et al ., appelleeS,
v . M id aMerica fiNaNcial iNveStMeNt
corporatioN et al ., appellaNtS.
748 N.W.2d 1
Filed april 18, 2008. 	No. s-06-1206.
1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given
their testimony.