Kirkwood v. State

CONCLUSION
Based on the foregoing, we conclude that we do not have
jurisdiction over case No. A-05-1076, and accordingly dismiss
the appeal.
APPeAl diSmiSSed .
williAm K irKwood et Al ., APPelleeS, v . S tAte of
neBrASKA, APPellAnt , And S helter mutuAl
inSurAnCe C omPAny , intervenor -APPellee .
roSS oStergArd , APPellee , v .
S tAte of neBrASKA, APPellAnt .
748 N.W.2d 83
Filed February 26, 2008. 	Nos. A-05-1226, A-06-630.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its gate-
keeping function.
2. ____: ____: ____. Whether a witness is qualified as an expert is a preliminary
question for the trial court. A trial court is allowed discretion in determining
whether a witness is qualified to testify as an expert, and unless the court’s finding
is clearly erroneous, such a determination will not be disturbed on appeal.
3. Rules of Evidence. In proceedings where the Nebraska rules of evidence apply,
the admission of evidence is controlled by rule and not by judicial discretion,
except where judicial discretion is a factor involved in assessing admissibility.
4. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
6. Tort Claims Act: Appeal and Error. A district court’s findings of fact in a pro-
ceeding under the State tort Claims Act will not be set aside unless such findings
are clearly erroneous.
7. Tort Claims Act: Claims. Whether the allegations made by a plaintiff constitute a
claim under the State tort Claims Act or whether the allegations set forth a claim
that is precluded by the exemptions set forth in the act are questions of law.
8. Negligence. the question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
9. Administrative Law: Judgments. the district court’s interpretation of the
Manual on Uniform traffic Control Devices presents a question of law.
kIrkWOOD v. StAte 	459
Cite as 16 Neb. App. 459
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

10. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
11. Rules of Evidence: Expert Witnesses. When a court is faced with a decision
regarding the admissibility of expert opinion evidence, the trial judge must deter-
mine at the outset, in accordance with Neb. evid. r. 702, whether the expert is
proposing to testify to (1) scientific, technical, or other specialized knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue.
12. ____: ____. An expert’s opinion is ordinarily admissible under Neb. evid. r. 702
if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier
of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of
that opinion on cross-examination.
13. Trial: Evidence. A trial court may not abdicate it gatekeeping duty in a bench
trial, but the court is afforded more flexibility in performing this function.
14. Trial: Expert Witnesses. A trial court adequately demonstrates that it has per-
formed its gatekeeping duty in determining the reliability of expert testimony
when the record shows (1) the court’s conclusion whether the expert’s opinion is
admissible and (2) the reasoning the court used to reach that conclusion, specifi-
cally noting the factors bearing on reliability that the court relied on in reaching
its determination.
15. ____: ____. Determining the weight that should be given expert testimony is
uniquely the province of the fact finder.
16. Tort Claims Act: Proof. In order to recover in a negligence action brought under
the State tort Claims Act, a plaintiff must show a legal duty owed by the defend-
ant to the plaintiff, a breach of such duty, causation, and damages.
17. Governmental Subdivisions: Highways. Concerning highways in general, the
State has a duty to use reasonable and ordinary care in the construction, main-
tenance, and repair of its highways so that they will be reasonably safe for the
traveler using them while exercising reasonable and ordinary care and prudence.
18. ____: ____. the State is not an insurer of the safety of travelers on its roads
and highways.
19. Negligence. Advisory safety standards may represent a consensus of what a
reasonable person in a particular industry would do, and therefore may be helpful
to the trier of fact in deciding whether the standard of care has been met.
20. Trial: Witnesses. In a bench trial of a law action, the court, as the trier of fact,
is the sole judge of the credibility of the witnesses and the weight to be given
their testimony.
21. Proximate Cause: Evidence. the question of proximate cause, in the face of
conflicting evidence, is ordinarily one for the trier of fact, and the court’s deter-
mination will not be set aside unless clearly wrong.
22. Proximate Cause: Words and Phrases. A proximate cause is a cause that pro-
duces a result in a natural and continuous sequence, and without which the result
would not have occurred.
23. Negligence: Proximate Cause: Proof. to establish proximate cause, there are
three basic requirements: (1) the negligence must be such that without it, the
injury would not have occurred, commonly known as the “but for” rule; (2) the
460 	16 NeBrASkA AppeLLAte repOrtS

injury must be the natural and probable result of the negligence; and (3) there can
be no efficient intervening cause.
24. Negligence: Proximate Cause: Words and Phrases. An efficient intervening
cause is new and independent conduct of a third person, which itself is a proxi-
mate cause of the injury in question and breaks the causal connection between
the original conduct and the injury. the causal connection is severed when (1) the
negligent actions of a third party intervene, (2) the third party had full control of
the situation, (3) the third party’s negligence could not have been anticipated by
the defendant, and (4) the third party’s negligence directly resulted in injury to
the plaintiff.
25. Motor Vehicles: Right-of-Way. A motorist has the duty to look both to the right
and to the left and to maintain a proper lookout for the motorist’s safety and that
of others.
26. Motor Vehicles: Highways. Neb. rev. Stat. § 60-6,119(1) (reissue 2004) requires
a driver to obey any traffic control devices.
27. Damages: Evidence: Proof. Damages for permanent impairment of future earn-
ing capacity may not be based on speculation, probabilities, or uncertainty, but
must be shown by competent evidence that such damages are reasonably certain
as the proximate result of the pleaded injury.
28. Damages: Appeal and Error. the determination of the amount of damages is
a matter which is one solely for the fact finder, whose action in this respect will
not be disturbed on appeal if it is supported by evidence and bears a reasonable
relationship to the elements of damages proved.
29. Pretrial Procedure. A litigant has the right to have interrogatories answered, and
the adversary has a continuing duty to supplement prior responses.
30. Pretrial Procedure: Expert Witnesses: Trial. When a party has failed to respond,
or respond properly, to an interrogatory authorized by Neb. Ct. r. of Discovery
26(b)(4)(A)(i) (rev. 2000), or has failed to make supplemental responses required
under rule 26(e)(1)(B), and such noncomplying party calls an expert witness to
offer testimony within the scope of the interrogatory in question, the adverse party
must object to a previously unidentified expert witness’ testifying in general or
object to testimony of an expert witness testifying about a previously undisclosed
but discoverable matter sought to be disclosed by the interrogatory in question.
31. ____: ____: ____. If the court, over objection, allows an expert witness called by a
party who has not properly responded to an interrogatory to testify, notwithstand-
ing nondisclosure before trial, when appropriate the adverse party must move to
strike the expert witness’ testimony, request a continuance to give the surprised
adversary an opportunity to investigate further and secure rebuttal evidence, or,
under certain circumstances, move for a mistrial.
32. Pretrial Procedure. Generally, the control of discovery is a matter for judi-
cial discretion.
Appeal from the District Court for Lincoln County: J ohn P.
murPhy, Judge. Affirmed.
kIrkWOOD v. StAte 	461
Cite as 16 Neb. App. 459

Jon Bruning, Attorney General, and Matthew F. Gaffey for
appellant.
Martin J. troshynski, of Baskins, pederson & troshynski, paul
J. Hickey, of Hickey & evans, L.L.p., and Mark A. Christensen,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.p., for
appellees William kirkwood et al.
p. Stephen potter, p.C., for appellee ross Ostergard.
irwin , S ieverS, and CASSel, Judges.
CASSel, Judge.
I. INtrODUCtION
the State of Nebraska appeals from the judgments of the
district court for Lincoln County, following separate bench
trials, in favor of William kirkwood, robert Johnson, and
Mavis 	Johnson 	(collectively 	kirkwood Appellees) 	in 	case
No. A-05-1226 and in favor of ross Ostergard in case No.
A-06-630 on their actions under the State tort Claims Act, see
Neb. rev. Stat. § 81-8,209 et seq. (reissue 2003), to recover
damages sustained as a result of two separate two-vehicle
collisions at an intersection where the northbound vehicles
at issue did not stop. the district court determined that the
State was negligent in failing to comply with the Manual on
Uniform traffic Control Devices (Manual) in placing stop signs
and other warning devices at the intersection. In kirkwood
Appellees’ case, the court determined that the State’s negli-
gence was the sole proximate cause of the damages sustained
by kirkwood Appellees. Approximately 7 months after the
kirkwood trial, the same district court judge held a bench trial
in Ostergard’s case and subsequently found that Ostergard was
40-percent negligent and that the State was 60-percent neg-
ligent. Following oral arguments in case No. A-05-1226 and
pursuant to our authority under Neb. Ct. r. of prac. 11B(1)
(rev. 2006), we ordered case No. A-06-630 submitted without
oral argument. We have consolidated these cases for purposes
of opinion and disposition, and we affirm the district court’s
judgment in each case.
462 	16 NeBrASkA AppeLLAte repOrtS

II. BACkGrOUND
1. interSeCtion
the accidents at issue occurred at the intersection of a road
called Newberry Access (Newberry road) and U.S. Highway
30, which intersection is located at the east corporate limits of
North platte, Nebraska. Newberry road runs north and south
and has a speed limit of 55 miles per hour on the south leg
and 50 miles per hour on the north leg. the north leg is also
Highway 30, but to avoid confusion, we will refer to that sec-
tion of the road as the north leg. Highway 30 runs east and
west, and the speed limit is 60 miles per hour. the intersection
was formerly a t-intersection, requiring a northbound traveler
on the south leg of Newberry road to turn onto Highway 30 at
the intersection, and it is a “wide-throat intersection,” meaning
that it has a large turning radius to accommodate drivers turning
right. In September 2002, the north leg opened for travel.
the terrain on the south leg of Newberry road is fairly flat,
and the road has a slight curve. A topography survey conducted
in March 2005 showed that the south leg of Newberry road
sloped upward as it approached the intersection. Highway 30 is
mostly level, but it is “super elevated” to keep the high-speed
traffic from running off the curvature of the road. the elevation
of Highway 30 at the intersection is lower than the grade of the
south approach of Newberry road. the north leg is elevated
over railroad tracks.
A traffic engineering analyst for the Nebraska Department
of roads (DOr) testified that the north leg “might be a dis-
traction” to a northbound driver. He explained that such a
driver might think the grade separation where the north leg
passes over the railroad is actually a highway interchange and
would then expect the intersection to be closer to the grade
separation. He testified that a northbound driver does not see
Highway 30 pass through the intersection, partly because it
is a superelevated curve. A deputy sheriff with the Lincoln
County sheriff’s office testified that a driver approaching the
intersection from the south leg of Newberry road would see,
from a distance, the north leg but would not see Highway 30.
But he testified that Highway 30 would be apparent once a
kIrkWOOD v. StAte 	463
Cite as 16 Neb. App. 459

driver reached the stop signs at the intersection. North platte
police Chief Martin Gutschenritter testified that an individual
involved in an accident at the intersection called to share his
concerns and told Gutschenritter that he was “‘mesmerized by
that overpass’” and that he thought Newberry road “‘was a
straight shot through.’”
2. S ignAge And S ignAge P lAnS for interSeCtion
traffic on Highway 30 does not stop or slow at the intersec-
tion. For the benefit of drivers approaching the intersection on
the south leg of Newberry road, there is a sign on the right side
of the road designating a stop ahead with a plaque underneath
that states “1500 Ft.” Approximately 500 feet later, a junc-
tion sign is located on the right side of the road, showing “4tH
Street” to the west (the west leg of Highway 30 is called
Fourth Street) and “30” (designating the highway) to the north
and to the east. An unspecified distance later, the words “StOp
AHeAD” appear on the pavement. then, a highway direc-
tion and distance sign is posted on the right side of the road,
showing that North platte is to the west and that an airport and
Gothenburg, Nebraska, are a certain number of miles to the
east. At the intersection, a stop sign is located in what appears
to be the center of an island on the left side of the road and
another stop sign is located an unspecified distance from the
shoulder on the right side of the road. pictures in the record
show two reddish-orange flags protruding from the top of each
stop sign.
According to the March 2002 signing plan of the DOr,
rumble strips were intended to be placed on the south leg of
Newberry road by the time the north leg opened. the strips
were to be placed approximately 100 feet before the stop ahead
sign. the rumble strips were not in place at the time of the
accidents. Nor was there a stop line, a solid white line used to
indicate the point behind which vehicles are required to stop,
on the pavement. the signing plan did not show a stop line or
the “StOp AHeAD” pavement marking, but a “notes” sec-
tion on the plan contained the statement, “ANY pAVeMeNt
MArkING SHOWN IS FOr INFOrMAtION ONLY.”
Lester O’Donnell, a district highway engineer for the DOr,
raised concerns to others within the DOr about the plans for
464 	16 NeBrASkA AppeLLAte repOrtS

the intersection. Specifically, O’Donnell wanted stop control on
Highway 30 and through traffic on Newberry road. O’Donnell
testified that he had recommended placing overhead stop signs
at the intersection. the DOr determined that Highway 30
would not have stop control at the intersection, and the road-
way design engineer in charge of the roadway design division
of the DOr testified that the determination meant that the DOr
would not have to reconstruct Highway 30. He explained that
because travelers on Newberry road would be stopping, they
could then cross the superelevated curve of Highway 30 com-
fortably and safely at a low speed.
Jess Abasolo, a highway maintenance superintendent with
the DOr, testified about his experience driving through the
intersection, which he did at least once every other week. He
testified that as he approached the stop ahead sign, he could
turn his head, look forward toward the intersection, and see
the stop signs. With regard to an exhibit that shows the stop
ahead sign and the view looking north, Abasolo testified that he
could not “make a clear picture” of the stop sign on the right
side of the road and could not see the roadway of Highway 30
as it passed through the intersection. Abasolo testified that in
looking at a photographic exhibit taken over 1,000 feet from
the intersection, he could not see the stop sign on the right side
of the road or the roadway of Newberry road as it crossed
Highway 30, but he could see the north leg of Newberry road.
With regard to a different photographic exhibit which showed
the words “StOp AHeAD” on the pavement, Abasolo testified
that a person located where the photograph was taken would
be anywhere between 500 and 1,000 feet from the intersection
when viewing the words. In looking at that exhibit, Abasolo
testified that he could not see the roadbed of Highway 30 as it
passed through the intersection, but that he could see the right-
hand stop sign, stating, “the shape I can’t tell. I just see the
speck of red in there.”
3. K irKwood -oStergArd C olliSion
On October 10, 2002, at approximately 9:14 p.m., a collision
occurred at the intersection. kirkwood and his passenger were
traveling west on the east leg of Highway 30, and Ostergard
and his passenger, Julie thomlison, were traveling north on the
kIrkWOOD v. StAte 	465
Cite as 16 Neb. App. 459

south leg of Newberry road. No citations were issued as a result
of the accident. prior to the kirkwood trial, kirkwood recovered
$300,000 from Ostergard’s insurance company and $100,000
under a provision of kirkwood’s insurance policy.
thomlison testified that she had been with Ostergard through
the same intersection at issue on two prior occasions. thomlison
testified that on the night of the accident, she could not get
Ostergard to concentrate on his driving and Ostergard ran two
red lights after they left a truckstop and just prior to the colli-
sion. thomlison testified that as Ostergard’s vehicle approached
the intersection, Ostergard did not slow at all and did not look
to the right or the left. thomlison testified that she was upset
with Ostergard over the accident and that she did not remember
“a whole lot” of the accident. She admitted testifying in her
deposition that she did not remember seeing a stop sign or an
intersection and that “‘[t]he only thing [she] remember[ed was]
laying [sic] on the ground.’”
Ostergard testified only in case No. A-06-630. He testi-
fied that he had driven through the intersection when it was a
t-intersection, which required him to stop before proceeding
onto Highway 30. Ostergard denied running any stop signs or
stop lights on the night of the accident on the way to the truck-
stop with thomlison, but did not address whether he had done
so after leaving the truckstop. He had no recollection of the
events after leaving the truckstop other than proceeding north
on Newberry road.
4. J ohnSon -P odoll C olliSion
At approximately 10:25 a.m. on October 18, 2002, Coloradan
Dean podoll was traveling northbound on the south leg of
Newberry road with his wife. A collision occurred when
robert Johnson turned left from the north leg of Newberry
road onto Highway 30. A witness testified that podoll’s vehicle
was traveling at a “pretty high speed” and did not slow at all.
podoll believed that he was driving under the speed limit.
podoll testified in his deposition that as he approached the
intersection, he did not see warning or stop signs due to a
“truck/trailer” turning left. podoll testified that he did not see the
stop ahead sign. He testified, “[t]here was something parked on
466 	16 NeBrASkA AppeLLAte repOrtS

the right-hand side of the road back further, too; but I couldn’t
tell you what it is or whereabouts it was or anything like that.”
podoll knew he was approaching the junction of two roads, but
he believed he had the right-of-way because the north leg was
a bypass to get around North platte and because he could “see
far enough ahead to where the road continued, no forewarning
signs.” podoll testified that he first noticed the stop signs after
the accident and that he observed them from the back while he
was out of his vehicle. podoll testified that he told a police offi-
cer who had arrived at the scene, “‘that stop sign needs more
forewarning or needs to be better marked earlier.’”
5. notiCe of C onCern ABout interSeCtion
On October 14, 2002, Lincoln County Sheriff Jim Carman
wrote a letter to O’Donnell stating in part, “[t]he stop signs
which were placed to the right side of the road are so far to
the right that they may not be noticed by someone intending to
proceed on north or south across Highway #30.” On October 15,
Gutschenritter wrote a letter to O’Donnell about the intersec-
tion because, as he later testified at trial, people “were getting
killed and they were getting seriously injured, and it was the
frequency that disturbed [him] considerably.” Gutschenritter
called the intersection “suicidal.”
After the accidents, on December 6, 2002, the DOr traffic
engineering analyst who would later testify wrote a memoran-
dum to the state traffic engineer concerning the intersection,
which memorandum stated in part:
Sheriff Carman noted the StOp sign on the south leg may
be placed too far to the right to be noted by drivers. photos
taken by our data collector shows [sic] this could be a
problem. the [Manual] indicates the StOp sign should
be 12 feet from the edge of the pavement. the StOp sign
on the right and the StOp sign on the median should
be moved closer to the traffic and StOp bars should
be added.
6. mAnuAl
the DOr approved rules and regulations which adopted
the 1988 edition of the Manual. these rules and regulations
kIrkWOOD v. StAte 	467
Cite as 16 Neb. App. 459

were approved and filed with the Nebraska Secretary of
State on November 4, 1994, and are codified in the Nebraska
Administrative Code as title 411, chapter 1. these regulations
were in full force and effect at the time of the accidents.
Section 1A-5 of the Manual addresses the meanings of “shall,”
“should,” and “may” as those terms are used in the Manual:
1. 	SHALL-a 	mandatory 	condition. 	Where 	certain
requirements in the design or application of the device are
described with the “shall” stipulation, it is mandatory when
an installation is made that these requirements be met.
2. SHOULD-an advisory condition. Where the word
“should” is used, it is considered to be advisable usage,
recommended but not mandatory.
3. MAY-a permissive condition. No requirement for
design or application is intended.
two 	experts 	provided 	testimony 	regarding 	the 	Manual:
eugene M. Wilson, a consultant in traffic engineering safety
and education, testified on kirkwood Appellees’ behalf, and
James L. pline, a consulting traffic engineer, provided testi-
mony for the State. Wilson testified that some of the research
that he conducted was incorporated in the 1988 edition of the
Manual, specifically in the area of symbol sign evaluation. pline
participated in the development of the 1988 Manual, principally
in the areas of regulatory and warning signs.
Wilson testified that the reason for the distinction between
“shall” and “should” is the existence of circumstances in the
field that require the adjustment of the placement of traffic con-
trol devices, such as slopes and guardrails. Wilson testified, “the
reason these guidelines are placed there as recommendations and
provided as Should conditions is based on scientific based study.
It doesn’t say ignore these Should advisory conditions.”
(a) Stop Signs
the Manual provides that the standard size of a stop sign
shall be 30 by 30 inches, but that a larger size is recommended
where greater emphasis or visibility is required. Both stop signs
at the intersection were 36 by 36 inches.
Section 2A-21 of the Manual discusses standardization of
location of signs in general:
468 	16 NeBrASkA AppeLLAte repOrtS

Standardization of position cannot always be attained in
practice; however, the general rule is to locate signs on the
right-hand side of the roadway, where the driver is look-
ing for them. . . . Signs in any other locations ordinarily
should be considered only as supplementary to signs in the
normal locations.
Section 2B-9, the section of the Manual addressing location of
stop signs in particular, states: “A StOp sign should be erected
at the point where the vehicle is to stop or as near thereto as
possible, and may be supplemented with a Stop line and/or the
word StOp on the pavement . . . .” With respect to the lateral
clearance of signs, section 2A-24 of the Manual states in part,
“Signs should have the maximum practical lateral clearance
from the edge of the traveled way for the safety of motor-
ists who may leave the roadway and strike the sign supports.”
Section 2A-24 further provides, “Normally, signs should not be
closer than 6 feet from the edge of the shoulder, or if none, 12
feet from the edge of the traveled way.”
Daniel J. Waddle, a traffic control engineer in the DOr’s
traffic engineering division, testified that the DOr’s practices
with regard to the placement of stop signs are “[g]enerally to
try to follow the guidelines of the [Manual], placing the stop
sign . . . at the location a vehicle is intended to stop at; and for
lateral, you know, placing them — if the [M]anual says six to
twelve feet outside the shoulder or travel lane.” Waddle testi-
fied that at the intersection, the stop sign on the left was placed
in a “typical” island placement, which is 2 to 4 feet inside the
island, centered on the nose of the island.
Wilson opined that the stop sign on the right side of the
south leg of Newberry road did not comply with the Manual
“[b]ecause it’s clearly not visible” and “[i]t’s not located where
the motorist is supposed to stop.” He testified that the stop sign
“clearly did not comply with recommended practice, the Should
requirements associated with the Manual . . . which are advi-
sory.” Wilson testified that figure 2-2 in the Manual, illustrating
placement of stop and yield signs at a wide-throat intersection,
showed the typical placement of a stop sign to be 12 feet from
the road. Figure 2-2 is labeled “[t]ypical locations for stop signs
and yield signs,” but section 2A-21, addressing standardization
kIrkWOOD v. StAte 	469
Cite as 16 Neb. App. 459

of location, states, “Standard positions for a number of typical
signs are illustrated in figures 2-1 to 2-4.” Wilson testified that
the placement of the stop sign on the right by the DOr was
“clearly in excess of that by orders of magnitude.” He stated,
“It’s not readily in the cone of vision of the motorist, it does
not command motorist attention. that is a significant failure.”
He testified that the failure to move the stop sign closer to the
road “significantly contributed to these accidents.”
In a deposition, David B. Daubert, an engineer, testified,
“According to . . . Wilson, the Stop sign [on the right] was not
located appropriately. I can’t tell you where it was located. I’m
basing [Daubert’s earlier statement that the sign was ‘hard for
the driver to find’] on [Wilson’s] analysis that the Stop sign was
too far to the right.” When shown a picture of the stop signs
at the intersection, Daubert testified, “that Stop sign is worse
than I had ever imagined.” When asked whether the stop signs
were conspicuous, Daubert testified that the sign on the left was
but that he was “not sure” if the sign on the right was conspic-
uous. He testified that the Manual stated that a stop sign should
be placed in the driver’s cone of vision rather than 12 feet
from the edge of the road. Upon viewing a particular exhibit,
Daubert testified that he could see the “StOp AHeAD” pave-
ment marking and could see the stop sign located in the median
in the same field of vision. He could not cite to any reason
why a reasonably attentive driver would not be able to see the
pavement marking and that stop sign.
pline opined that the DOr fully met the provisions of the
Manual with regard to the placement of the stop signs at the
intersection. He testified that under the Manual, a stop sign on
a wide-throat intersection “goes farther to the right in relation
to the approach to the intersection.” And pline testified that
when a stop sign is placed farther to the right, the Manual rec-
ommends installing a supplemental stop sign on the left for the
benefit of drivers approaching the intersection who are either
making a left turn or proceeding straight across the intersec-
tion. pline testified that he looked at the devices along the south
approach to the intersection and that a driver would readily
“pick up” the traffic control devices, including the right-side
stop sign, within a 10-degree cone of vision.
470 	16 NeBrASkA AppeLLAte repOrtS

(b) Stop Ahead Sign and pavement Marking
Section 2C-15 of the Manual provides that “[a] StOp AHeAD
sign is intended for use on an approach to a StOp sign that is
not visible for a sufficient distance to permit the driver to bring
his vehicle to a stop at the StOp sign” and that “it may be
used for emphasis where there is poor observance of the StOp
sign.” the Manual contains a table on the advance placement
of warning signs, setting forth in section 2C-3 the “suggested
minimum sign placement distances.” For a stop condition on a
road such as the south leg with a posted speed of 55 miles per
hour, the minimum sign placement distance is 450 feet. pline
testified that he served on the task force that developed the
original table in the 1970’s and that he actually wrote the text
and revised the table that were included in the 1988 Manual.
He testified that the Manual did not contain criteria addressing
maximum distance.
Wilson testified that the stop ahead sign, located 1,500 feet
in advance of the stop location, was “three times further” away
than it should be and that “it really loses its effectiveness.” He
testified that the advance location needed to be around 550 feet
where the speed limit was in the neighborhood of 60 miles per
hour. Daubert testified in his deposition that at 55 miles per
hour, a driver’s primary focus would be between 1,200 and
1,400 feet ahead. He testified that a driver, after driving by
the stop ahead sign placed 1,500 feet in advance of the stop
condition, would be focusing right at about where the stop sign
would be located. pline testified that the stop ahead sign in this
case was given a “normal placement.” He further testified that
the Manual did not require a stop ahead sign for the intersec-
tion because “there was sufficient visibility and sight distance
so the stop signs could be seen, but the Stop Ahead was put in
as an . . . additional device to help the driver recognize the stop
condition.” pline testified that the Manual did not require the
“StOp AHeAD” pavement marking.
(c) Stop Line
regarding stop lines, section 3B-17 of the Manual states in
part, “If a stop line is used in conjunction with a StOp sign,
it should ordinarily be placed in line with the StOp sign.
kIrkWOOD v. StAte 	471
Cite as 16 Neb. App. 459

However, if the sign cannot be located exactly where vehicles
are expected to stop, the Stop line should be placed at the stop-
ping point.” In section 3B-20 addressing pavement word and
symbol markings, the Manual states, “the word ‘StOp’ shall
not be used on the pavement unless accompanied by a stop line
. . . and StOp sign . . . .”
Wilson testified that a stop line was needed at the intersection.
He pointed out that the illustration in the Manual of stop sign
placement at a wide-throat intersection showed a stop line. pline
testified that the Manual required a stop line when a “StOp”
pavement marking was used, but not when a “StOp AHeAD”
pavement marking was used. He explained that the Manual on
this issue “was somewhat subject to interpretation” because it
did not specify whether the stop line is mandated “when you use
solely the word Stop or when you use Stop in itself[,] . . . and
it didn’t address what happens with a Stop Ahead sign.” pline
initially agreed with Wilson’s opinion: During pline’s deposi-
tion on December 23, 2004, he said, “‘the absence of a stop
line is the only [Manual] compliance issue.’ ” But pline testi-
fied that he later thought such an interpretation did not “sound
reasonable” and was not borne out by what he had “seen in the
field.” He testified that he reviewed the Manual and e-mailed
“the chairman of [the] markings technical committee” asking
whether he agreed with pline’s later interpretation that a stop
line was not needed with a “StOp AHeAD” pavement mark-
ing. pline testified that the chairman’s response concurred with
pline’s later interpretation and that pline then notified counsel
that he was incorrect in his deposition.
7. diStriCt C ourt ’S J udgment
(a) Case No. A-05-1226
On July 18, 2005, the district court entered judgment against
the State. the court found that all the experts who testified
were clearly qualified to render opinions, that the opinions were
based on scientifically valid and reliable considerations, and
that all the expert testimony was more probative than prejudi-
cial. the court stated that it did not receive as expert testimony
the testimony of Carman or Gutschenritter, or O’Donnell or
any other employee of the DOr, and that it “accept[ed] the
472 	16 NeBrASkA AppeLLAte repOrtS

testimony of all of these witnesses only to show that the State
. . . received notice concerning possible dangers involving the
intersection and the potential problems to be addressed.”
the district court stated that the State had not waived its sov-
ereign immunity with regard to the design of roadways and that
the court did not question the design aspects of the intersection
or the determination as to which traffic control devices to use
at the intersection because such matters clearly fell within the
discretionary function exception to the State tort Claims Act.
the court stated that it “is clear that the overpass ascending
north of the intersection is a visual distraction to drivers” and
that the signing plan called for rumble strips to be placed on
Newberry road “bracketing the ‘stop ahead’ sign in order to
warn motorists.” the court continued, “While the rumble bars
are not governed by the [Manual], it is clear that the State . . .
determined that they should be placed on the approach to the
intersection.” the district court further stated:
the issues presented to the Court are whether . . . the
State . . . fully complied with the [Manual], and, if not,
whether such failure constituted negligence that proxi-
mately caused the accidents and injuries to [kirkwood
Appellees].
A review of the evidence . . . makes it clear that the
right-hand stop sign was to the right of the expansion
joint a significant distance from the right-hand edge of
Newberry [road]. this stop sign had been in place prior
to the opening of the intersection and appears to the Court
to be angled towards traffic turning right on to [sic] US
Highway 30. this placement does not comply with the
[Manual] and the standard of placement of stop signs lat-
erally from the edge of the highway at 12 feet. Figure 2-2
on page 2A-15 of the [Manual] shows a wide throat inter-
section with the clearance of the stop sign 12 feet from the
right edge of the roadway. that diagram also shows a stop
bar painted on the pavement. . . .
In addition, the [Manual] sets a standard for placement
of warning signs, such as the “stop ahead” sign in this
case. On a roadway with a 55 miles per hour speed limit,
it should be 450 feet from the actual stop condition. In the
kIrkWOOD v. StAte 	473
Cite as 16 Neb. App. 459

instant case, the sign was 1500 feet from the stop condi-
tion. In addition, the [Manual] in Section 3B-20 states that
the word “stop” shall not be used on the pavement unless
accompanied by a stop line or stop bar.
the district court found Wilson’s testimony to be “fully
credible” and compelling. the court stated that it could not
find that pline devoted as much time to the study of the inter-
section as did Wilson, that it was clear that pline changed his
opinion on the necessity of a stop line at the intersection, and
that the court did not give the same weight to pline’s testimony
and opinions as it did to the testimony of Wilson. the court
accepted Wilson’s testimony that the use of “should” in the
Manual was never intended to be merely a suggestion but was
adopted to allow leeway for road departments to comply with
the Manual as closely as practicable.
the district court found ample evidence of negligence on the
part of the State in its failure to comply with the Manual in the
signage for the intersection. the court found that the State was
negligent and in breach of its duty to the traveling public by
its failure to place the right-hand stop sign in accordance with
the Manual, in its failure to place the stop ahead sign within
500 feet of the intersection, in its failure to place a stop line
at the intersection, and in its failure to place rumble strips on
the south leg of Newberry road. the court found such negli-
gence to be the proximate cause of the accident and resulting
injuries to kirkwood Appellees. the district court entered the
following money judgments against the State: $1,640,791.28
for kirkwood, $1,458,975.82 for robert Johnson, and $300,000
for Mavis Johnson.
(b) Case No. A-06-630
the matter came on for trial on January 31, 2006. the
parties stipulated that they would submit the record of the
kirkwood trial as to the issue of liability and that such record
“may be entered subject to the same objections that were made
at the [kirkwood] trial . . . and subject to the same rulings that
were made by the Court in the kirkwood trial.” On March 23,
the district court entered an amended order, finding the State
negligent in its signage of the intersection by failing to have
474 	16 NeBrASkA AppeLLAte repOrtS

the stop signs located in the proper manner and in its failing
to place rumble strips on “the highway” (meaning Newberry
road) prior to the intersection. the district court stated:
the State . . . raised an issue in regard to the testimony
of . . . Wilson in the [kirkwood] trial . . . which has been
received in evidence in this trial. Assuming, arguendo, this
Court should not consider the testimony of . . . Wilson in
regard to the placement of the “stop ahead” sign, and [sic]
there is still sufficient evidence of the State’s negligence to
hold [it] responsible for the accident that occurred in this
case. Again, the Court specifically finds that the State was
negligent in the placement of the stop signs and in the fail-
ure to place the rumble bars upon [Newberry road] to give
warning to any driver approaching the intersection.
It is apparent from the evidence that [Ostergard] him-
self was negligent in failing to stop at the stop sign as he
entered the intersection with Highway 30. [Ostergard] had
a duty to obey all traffic signs and to drive so as to not
endanger other drivers, his passenger, or himself.
When comparing the two, the Court finds that the duty
of the State . . . is greater than that of [Ostergard] in light
of [the State’s] overall obligation to protect all members of
the traveling public by the way [it] conduct[s its] business.
the negligence of the State . . . in this case, compared
to the negligence of [Ostergard,] is greater. the Court
assigns the negligence of the State . . . at 60 percent and
the negligence of [Ostergard] at 40 percent.
the 	court 	found 	that 	Ostergard 	suffered 	damages 	of
$204,817.98, and after reducing that amount by 40 percent,
it entered judgment in favor of Ostergard in the amount
of $122,890.78.
III. ASSIGNMeNtS OF errOr
In both cases, the State alleges that the district court erred
in (1) failing to adequately perform its duty as a gatekeeper
by (a) overruling the State’s motion to determine admissibility
of evidence concerning the expert opinion testimony offered
against the State, (b) failing to make specific findings on the
record as to why the court believed the experts’ methodology
kIrkWOOD v. StAte 	475
Cite as 16 Neb. App. 459

was reliably applied, and (c) admitting and relying on opinion
testimony from Wilson and Daubert that was unreliable and
lacked a sufficient engineering basis; (2) failing to apply the
appropriate standard of care; (3) failing to find that the neg-
ligence of Ostergard was the proximate cause of the collision
with kirkwood; (4) finding that the State was liable based on
evidence that (a) the overpass to the north of the intersection
created a visual distraction, (b) there were no rumble strips,
and (c) there was no stop line; and (5) failing to find that
the State retained its sovereign immunity in (a) placing the
stop ahead sign, (b) placing the “StOp AHeAD” pavement
marking, and (c) constructing a viaduct that was visible from
the intersection.
In case No. A-05-1226, the State additionally alleges that the
district court erred in (1) failing to find that podoll’s negligence
was the proximate cause of the collision with robert Johnson,
(2) finding that the State was liable based on evidence that
kirkwood sustained a loss of earning capacity as a result of the
accident, and (3) overruling the State’s motion to compel and
motion to quash.
IV. StANDArD OF reVIeW
[1] An appellate court reviews the record de novo to deter-
mine whether a trial court has abdicated its gatekeeping func-
tion. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
[2] Whether a witness is qualified as an expert is a prelimi-
nary question for the trial court. State v. Tolliver, 268 Neb. 920,
689 N.W.2d 567 (2004). A trial court is allowed discretion
in determining whether a witness is qualified to testify as an
expert, and unless the court’s finding is clearly erroneous, such
a determination will not be disturbed on appeal. Id.
[3-5] In proceedings where the Nebraska rules of evidence
apply, the admission of evidence is controlled by rule and not
by judicial discretion, except where judicial discretion is a fac-
tor involved in assessing admissibility. Epp v. Lauby, 271 Neb.
640, 715 N.W.2d 501 (2006). A trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant
will be reversed only when there has been an abuse of discre-
tion. Id.; Schafersman v. Agland Coop, 262 Neb. 215, 631
476 	16 NeBrASkA AppeLLAte repOrtS

N.W.2d 862 (2001). An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Epp v. Lauby, supra.
[6] A district court’s findings of fact in a proceeding under
the State tort Claims Act will not be set aside unless such find-
ings are clearly erroneous. Fickle v. State, supra.
[7] Whether the allegations made by a plaintiff constitute a
claim under the State tort Claims Act or whether the allega-
tions set forth a claim that is precluded by the exemptions set
forth in the act are questions of law. Fickle v. State, supra.
[8] the question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a par-
ticular situation. Id.
[9,10] the district court’s interpretation of the Manual pre-
sents a question of law. Tadros v. City of Omaha, 269 Neb. 528,
694 N.W.2d 180 (2005). When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court. Id.
V. ANALYSIS
1. C ourt ’S P erformAnCe of duty AS gAteKeePer
the State argues that the district court failed to adequately
perform its duty as a gatekeeper by overruling the State’s
motion for determination of the admissibility of evidence in
each case, failing to make specific findings on the record as to
why the court believed the experts’ methodology was reliably
applied, and admitting and relying on opinion testimony from
Wilson and Daubert that was unreliable and lacked a sufficient
engineering basis. In its brief on appeal, the State argues that
the court erred in admitting testimony from Wilson and from
Daubert—who did not know the location of the right-side
stop sign and merely relied on Wilson’s assessment that it was
located too far to the right—because such testimony was based
on incorrect assumptions of fact in that Wilson did not reliably
apply the correct provision of the Manual and in that Wilson’s
interpretation of various provisions of the Manual conflicted
with the plain language of the Manual. the State asserts that
the district court “made no finding on the reliability factors it
kIrkWOOD v. StAte 	477
Cite as 16 Neb. App. 459

relied on in overruling the State’s Motion.” Brief for appellant
in case No. A-05-1226 at 26.
In case No. A-05-1226, the State filed on June 13, 2005,
a motion for determination of the admissibility of evidence,
requesting that the district court determine, as a preliminary
matter, that certain testimony of kirkwood Appellees’ expert
witnesses was inadmissible under Neb. rev. Stat. § 27-702
(reissue 1995) and Schafersman v. Agland Coop, supra. On
June 22, the district court overruled the motion, stating, “the
Court finds, despite its comments earlier to the contrary, that
the parties will simply call their witnesses and lay the founda-
tion necessary for their opinions to be given. the Court sees
no need to conduct a separate hearing prior to the introduction
of evidence.”
In case No. A-06-630, on September 8, 2005, the State filed
a motion for determination of the admissibility of evidence,
requesting the court to determine that certain testimony of
Wilson, Daubert, and other witnesses was inadmissible. On
January 17, 2006, the court overruled the motion without expla-
nation. On January 31, the day trial commenced, the State filed
a second motion for determination of the admissibility of evi-
dence, seeking a determination that the anticipated testimonies
of Wilson and Daubert were inadmissible. the State alleged
that the opinions expressed by Wilson in the excerpts of his
deposition that the State attached to its motion misrepresented
the standard of care in traffic engineering. Specifically, the
State alleged Wilson had testified that figure 2-2 of the Manual
depicted the required signing practices for a wide-throat inter-
section, based on section 2A-21 of the Manual, which it alleged
Wilson believed provided an industry standard by use of the
words “‘standard positions for a number of typical signs are
illustrated in figures 2-1 to 2-4.’” the State attached an affi-
davit of Waddle, who stated therein that the Manual is peri-
odically updated with “errata Notifications” for correction of
errors and omissions. Waddle attached to his affidavit a copy of
a 1992 “errata sheet” for the Manual that he obtained from the
Federal Highway Administration which showed the following
correction: “Page 2A-8, Section 2A-21, Standardization of
Location. Modify last paragraph to read, ‘typical placement
478 	16 NeBrASkA AppeLLAte repOrtS

for a number of signs is illustrated in Figures 2-1 to 2-4.’” the
State discussed the motion at the beginning of trial, and the
court stated that it would take the motion under advisement
because the court had not had a chance to look at it.
[11,12] When a court is faced with a decision regarding the
admissibility of expert opinion evidence, the trial judge must
determine at the outset, in accordance with Neb. evid. r. 702,
whether the expert is proposing to testify to (1) scientific, tech-
nical, or other specialized knowledge that (2) will assist the
trier of fact to understand or determine a fact in issue. Fickle
v. State, 273 Neb. 990, 735 N.W.2d 754 (2007); Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). this
entails a preliminary assessment to determine whether the rea-
soning or methodology underlying the testimony is valid and
whether that reasoning or methodology properly can be applied
to the facts in issue. Id. An expert’s opinion is ordinarily admis-
sible under rule 702 if the witness (1) qualifies as an expert,
(2) has an opinion that will assist the trier of fact, (3) states his
or her opinion, and (4) is prepared to disclose the basis of that
opinion on cross-examination. State v. Gutierrez, 272 Neb. 995,
726 N.W.2d 542 (2007).
the Nebraska Supreme Court held in Schafersman v. Agland
Coop, supra, that when the opinion involves scientific or
specialized knowledge, appellate courts will apply the prin-
ciples 	of 	Daubert 	v. 	Merrell 	Dow 	Pharmaceuticals, 	Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. ed. 2d 469 (1993)
(Daubert/Schafersman). See State v. Gutierrez, supra. Under
the Daubert/Schafersman jurisprudence, the trial court acts as
a gatekeeper to ensure the evidentiary relevance and reliabil-
ity of an expert’s opinion. this gatekeeping function entails a
preliminary assessment whether the reasoning or methodology
underlying the testimony is valid and whether that reasoning or
methodology properly can be applied to the facts in issue. State
v. Gutierrez, supra.
[13,14] An appellate court reviews the record de novo to
determine whether a trial court has abdicated its gatekeeping
function. Fickle v. State, supra. A trial court may not abdicate
its gatekeeping duty under Daubert/Schafersman in a bench
trial, but the court is afforded more flexibility in performing
kIrkWOOD v. StAte 	479
Cite as 16 Neb. App. 459

this function. Fickle v. State, supra. A trial court adequately
demonstrates that it has performed its gatekeeping duty in
determining the reliability of expert testimony when the record
shows (1) the court’s conclusion whether the expert’s opinion
is admissible and (2) the reasoning the court used to reach that
conclusion, specifically noting the factors bearing on reliability
that the court relied on in reaching its determination. Id. We
note that a trial court is not required to always hold a hearing
prior to qualifying an expert pursuant to Daubert/Schafersman.
See State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005). Like
in Fickle v. State, supra, the district court here did not make
any express findings; rather, it essentially concluded that the
evidence was admissible but left open the opportunity for par-
ties to object to such testimony at trial.
the record shows that during Wilson’s testimony on direct
examination, Wilson stated that he had opinions as to whether
the DOr complied with the Manual in developing the intersec-
tion, and when counsel for kirkwood Appellees asked what
those opinions were, the State objected, stating:
I’ll object at this point on the basis of rule 702. [the
question] calls for speculation, it calls for novel theories
by this witness that have not been peer reviewed, . . . his
method has not been reliably applied and . . . there has not
been sufficient evidence as to what the standard of care is
in the first place to support these conclusions.
the court sustained the objection. the court stated that it
needed to know the underlying scientific principles upon which
Wilson relied to make the determination that the State did not
properly rely on the Manual. Wilson then testified that the basic
requirements of traffic control devices are that they fulfill a
need, command attention, be clearly recognized, convey a clear
and simple meaning, and provide adequate time for a response.
Wilson testified:
[S]cientific research, research associated with message,
visual acuity, research associated with motorists’ compre-
hension of traffic control devices, motorists’ recognition,
eye movements, human factors are all fundamental prin-
ciples that go into the Manual . . . so that research and
the analysis of that research, the decisions made on that
480 	16 NeBrASkA AppeLLAte repOrtS

research become the founding basis for the Manual . . .
and how that information is put there.
Shortly thereafter, the record shows the following colloquy:
[Counsel for kirkwood Appellees:] Let’s take an exam-
ple. I’m going to ask you to look within [the Manual].
Would you look at Section 2C?
tHe COUrt: No. We don’t — we don’t need any
examples. 	For 	the 	purposes 	of 	complying 	with 	the
Nebraska Supreme Court’s decision in Shafersman relying
on Daubert . . . , he’s qualified to give an opinion.
[Counsel for kirkwood Appellees:] thank you very
much, Your Honor.
. . . Mr. Wilson, what conclusions did you draw fol-
lowing your study and analysis of the . . . intersection
regarding whether or not the [DOr] had complied with
this manual —
. . . .
[Counsel for the State:] . . . I’ll renew the rule 702
Daubert/Schafersman objection, Your Honor. particularly
as to the unidentified research.
tHe COUrt: Overruled.
the State did not make a similar objection over the nearly
100 ensuing pages of testimony by Wilson, which testimony
included his opinions.
In its judgment, the court stated that the engineers who testi-
fied “were clearly qualified to render the opinions they provided
based on their extensive education,” that “their opinions were
based on scientifically valid and reliable considerations,” and
that the testimony “was clearly more probative than prejudi-
cial.” the court further stated that it found Wilson’s testimony
to be “entirely credible” and found Wilson to be “extremely
well qualified and possessing what is clearly a passion for the
safety of the traveling public.” the court stated, “Further, his
testimony was logical, clear, and pointed and coincided with the
expectations contained in the [Manual].”
[15] On appeal, the State does not challenge Wilson’s qualifi-
cations as an expert. Nor does the State challenge the scientific
validity and reliability of the Manual, upon which Wilson based
his opinions. rather, the State’s point of contention centers on
kIrkWOOD v. StAte 	481
Cite as 16 Neb. App. 459

Wilson’s interpretation of provisions of the Manual. For that
reason, we conclude that no Daubert analysis was necessary.
See, e.g., Perry Lumber Co. v. Durable Servs., 271 Neb. 303,
710 N.W.2d 854 (2006) (concluding that no Daubert analysis of
methodology was necessary where party asserting error did not
challenge scientific validity and reliability of methodology set
forth in publication providing guidelines for scientific method
of fire investigation). the State’s arguments would more appro-
priately be characterized as an attack on the amount of weight
that should be accorded to Wilson’s opinions, rather than on
the admissibility of such opinions. And determining the weight
that should be given expert testimony is uniquely the province
of the fact finder. Staley v. City of Omaha, 271 Neb. 543, 713
N.W.2d 457 (2006). We conclude that the district court did not
abuse its discretion in admitting Wilson’s or Daubert’s testi-
mony as expert testimony.
2. liABility of S tAte
[16] In order to recover in a negligence action brought under
the State tort Claims Act, a plaintiff must show a legal duty
owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages. Fickle v. State, 273 Neb. 990, 735
N.W.2d 754 (2007).
(a) Duty
[17,18] the threshold issue in any negligence action is
whether the defendant owes a legal duty to the plaintiff. Id. the
question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
Id. Concerning highways in general, the State has a duty to use
reasonable and ordinary care in the construction, maintenance,
and repair of its highways so that they will be reasonably safe
for the traveler using them while exercising reasonable and
ordinary care and prudence. Id. the State is not an insurer of
the safety of travelers on its roads and highways. See Woollen v.
State, 256 Neb. 865, 593 N.W.2d 729 (1999).
the State argues that the district court erred in failing
to determine the appropriate standard of care because the
court “failed to correctly apply the terms ‘Shall,’ ‘Should,’
482 	16 NeBrASkA AppeLLAte repOrtS

and ‘May.’” Brief for appellant in case No. A-05-1226 at 39.
It appears that the State’s line of reasoning is that if it did not
violate a mandatory provision of the Manual, it did not breach
its duty of care.
[19] the first issue we consider is whether the Manual pro-
vides the sole duty of care. the Nebraska Supreme Court has
stated that the State’s failure to comply with the Manual is evi-
dence of negligence, i.e., breach of duty. See Maresh v. State,
241 Neb. 496, 489 N.W.2d 298 (1992). Our state Supreme
Court has also stated that advisory safety standards may rep-
resent a consensus of what a reasonable person in a particular
industry would do, and therefore may be helpful to the trier
of fact in deciding whether the standard of care has been met.
Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d
338 (2000) (reasoning that failure to follow “should” recom-
mendation contained in safety standards may be considered as
evidence of negligence). We conclude that compliance with the
mandatory provisions of the Manual is not all that is needed
for the State to meet its duty and that the State is still bound to
exercise ordinary care in selecting the appropriate traffic con-
trol device for the circumstances.
(b) Breach
In addressing whether the State was negligent, we must
determine whether the measures taken by the State were ade-
quate under the provisions of the Manual and whether the State
breached its general duty of reasonable and ordinary care.
(i) Stop Ahead Sign
[20] the State installed a stop ahead sign 1,500 feet from
the intersection. Wilson testified that the sign was three times
farther than it should have been. Daubert’s testimony seemed
to establish that the sign was appropriately placed, and pline
testified that the placement was “normal.” In a bench trial of
a law action, the court, as the trier of fact, is the sole judge
of the credibility of the witnesses and the weight to be given
their testimony. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754
(2007). However, the district court seemed to base its decision
on the terms of the Manual, which we review independently of
kIrkWOOD v. StAte 	483
Cite as 16 Neb. App. 459

the district court’s interpretation. See Tadros v. City of Omaha,
269 Neb. 528, 694 N.W.2d 180 (2005).
the district court determined that the State was negligent
in failing to place the stop ahead sign within 500 feet of the
intersection. the court stated that the Manual “sets a standard
for placement of warning signs, such as the ‘stop ahead’ sign in
this case,” that “[o]n a roadway with a 55 miles per hour speed
limit, [the sign] should be 450 feet from the actual stop condi-
tion,” and that “[i]n the instant case, the warning sign was more
than . . . 1000 feet farther away from the intersection than the
[Manual] provides.” However, the Manual only suggested that
the sign be placed at least 450 feet away from the stop condi-
tion. It did not require or advise placement at 450 feet. Because
the court’s statements show that its finding was based on an
incorrect belief that the Manual called for placement of the sign
450 feet in advance of the intersection, we conclude the court’s
factual finding was clearly erroneous.
(ii) Stop Line
the State did not use a stop line at the intersection. Section
3B-20 of the Manual, entitled “pavement Word and Symbol
Markings,” provides: “the word ‘StOp’ shall not be used on
the pavement unless accompanied by a stop line . . . and StOp
sign . . . .”
the expert testimony on this issue conflicted. Wilson pointed
out that in the Manual’s figure 2-2, the illustration of a wide-
throat intersection showed a stop line, and the district court
recognized the same in its judgment; but we note that four
of the six illustrations comprised by figure 2-2—which is
intended to show “[t]ypical locations for stop signs and yield
signs”—depicted a stop line, and only one illustration included
the word “StOp” on the pavement. the court found the State
negligent in failing to place a stop line at the intersection
based on the above-quoted language of section 3B-20 of the
Manual. Given that even pline testified this issue was “subject
to interpretation,” we conclude the court’s factual finding was
not clearly erroneous.
484 	16 NeBrASkA AppeLLAte repOrtS

(iii) Stop Signs
the State placed two stop signs at the intersection for the
benefit of a northbound traveler on the south leg of Newberry
road. the court made no factual findings as to the sign on the
left, which was intended to be a supplemental device. As to the
sign on the right, the court found that the State breached its duty,
stating in its judgment, “this placement does not comply with
the [Manual] and the standard of placement of stop signs later-
ally from the edge of the highway at 12 feet.”
Neither the State nor any of the appellees presented evidence
of the right-hand sign’s distance from the edge of Newberry
road. In looking at pictures of the sign, it does appear to be
placed farther to the right than one would expect. However, the
Manual does not require placement 12 feet from the edge of the
road. rather, the Manual provides that placement should not
be closer than 12 feet from the edge. In its judgment, the court
cites to an illustration of a wide-throat intersection contained in
the Manual which shows a stop sign 12 feet from the edge of the
road. But again, the illustration is of a “[t]ypical” location.
We are troubled by the court’s dismissal of the evidence
regarding the cone of vision. the court stated:
Much was made of the “cone of vision” as set out in [an
exhibit containing diagrams and photographs of the inter-
section and a driver’s field of view]. Such evidence was
of some interest. However, nothing in regard to the “cone
of vision” replaces the responsibility of the State . . . to
comply with the [Manual] in regard to the placement of
signs. Further, . . . pline testified that at higher speeds the
focus of a driver is narrowed and extended farther and
farther ahead. therefore, the Court finds such evidence is
not persuasive nor ultimately helpful to the Court as the
trier of fact.
With respect to placement of a traffic control device, section
1A-2 of the Manual states in part:
placement of the device should assure that it is within
the cone of vision of the viewer so that it will command
attention; that it is positioned with respect to the point,
object, or situation to which it applies to aid in conveying
kIrkWOOD v. StAte 	485
Cite as 16 Neb. App. 459

the proper meaning; and that its location, combined with
suitable legibility, is such that a driver traveling at normal
speed has adequate time to make the proper response.
(emphasis omitted.) (emphasis supplied.)
An authoritative engineering textbook received in evidence
at trial states, “the best vision occurs within a cone of 3°,
clear vision within 10°, and satisfactory vision within 20°.
traffic signs and markings should fall within the cone of clear
vision, since acuity for reading drops rapidly outside this
limit.” Wolfgang S. Homburger et al., Fundamentals of traffic
engineering at 3-1 (15th ed. 2001). that textbook further pro-
vides, “Laterally, signs should be placed within the driver’s
cone of vision, but not so close that they constitute a hazard to
an errant vehicle.” Id. at 16-4. However, whether the stop sign
on the right was in a driver’s cone of vision was disputed—
Wilson testified that it was not, and others, including pline,
testified that it was.
Our interpretation of the Manual is that the stop sign needed
to be placed within the driver’s cone of vision, and not some
specified distance from the edge of the road. to the extent the
district court found that the Manual required placement from
the edge of Newberry road at 12 feet, such finding is clearly
erroneous. We conclude, however, that the State breached its
duty of ordinary care by placing the stop sign too far to the
right of the road and outside of the cone of vision.
(iv) Rumble Strips
the State did not install rumble strips on the south leg of
Newberry road as shown on the DOr’s signing plan. the
strips were to be placed approximately 100 feet before the stop
ahead sign. (the district court incorrectly stated that the rumble
strips were to bracket the stop ahead sign.) the installation of
rumble strips is not covered by the Manual, but the court found
that the State breached its duty by failing to place the rumble
strips as shown on its plan. We cannot say that this factual find-
ing by the court was clearly erroneous.
(c) Causation
Above we concluded that the district court’s findings that
the State breached its duty in not placing a stop line at the
486 	16 NeBrASkA AppeLLAte repOrtS

intersection, in placing the right-hand stop sign too far to the
right, and in not placing rumble strips before the stop ahead
sign were not clearly wrong. We now consider whether the
district court clearly erred in finding that the State’s breach of
duty was a proximate cause of each of the accidents.
[21-24] the question of proximate cause, in the face of
conflicting evidence, is ordinarily one for the trier of fact, and
the court’s determination will not be set aside unless clearly
wrong. Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d
457 (2006). A proximate cause is a cause that produces a result
in a natural and continuous sequence, and without which the
result would not have occurred. Fickle v. State, 273 Neb. 990,
735 N.W.2d 754 (2007). to establish proximate cause, there
are three basic requirements: (1) the negligence must be such
that without it, the injury would not have occurred, commonly
known as the “but for” rule; (2) the injury must be the natural
and probable result of the negligence; and (3) there can be no
efficient intervening cause. See Malolepszy v. State, 273 Neb.
313, 729 N.W.2d 669 (2007). An efficient intervening cause is
new and independent conduct of a third person, which itself is a
proximate cause of the injury in question and breaks the causal
connection between the original conduct and the injury. Id. the
causal connection is severed when (1) the negligent actions of a
third party intervene, (2) the third party had full control of the
situation, (3) the third party’s negligence could not have been
anticipated by the defendant, and (4) the third party’s negli-
gence directly resulted in injury to the plaintiff. Id.
[25,26] the State argues that the respective negligence of
Ostergard and podoll proximately caused the accidents because
those drivers did not obey the traffic control devices and did not
maintain a proper lookout. Certainly, a motorist has the duty to
look both to the right and to the left and to maintain a proper
lookout for the motorist’s safety and that of others. Id. And
Neb. rev. Stat. § 60-6,119(1) (reissue 2004) requires a driver
to obey any traffic control devices. However, § 60-6,119(2)
provides, “No provision of the rules for which traffic control
devices are required shall be enforced against an alleged viola-
tor if at the time and place of the alleged violation an official
device is not in proper position and sufficiently legible to be
kIrkWOOD v. StAte 	487
Cite as 16 Neb. App. 459

seen by a reasonably observant person.” We note that neither
Ostergard nor podoll received traffic tickets as a result of
the accidents for disobeying the stop signs. Several witnesses
testified that the right-hand stop sign was too far away or was
not readily visible. Wilson testified that the supplemental stop
sign, located to the northbound drivers’ left and in the median,
was intended for a vehicle turning left and that the stop sign
on the right was the “primary needed traffic control” for a
“through motorist.”
the State also argues that Ostergard’s and podoll’s negli-
gence was an efficient intervening cause. the State contends
that the facts of the instant cases are indistinguishable from the
facts of Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d
654 (1988), and Gerlach v. State, 9 Neb. App. 806, 623 N.W.2d
1 (2000). We disagree.
In Zeller, a truck was struck while driving at a low rate of
speed through an intersection obstructed from view by a knoll.
A stop sign at which the truck would have been obligated to
stop had been knocked down, and the passenger of the truck
sued the county for failing to replace the sign. the Nebraska
Supreme Court held that the driver of the truck failed to take
appropriate measures to avoid the collision and unreasonably
disregarded the obvious danger of the intersection and that
thus, the driver’s conduct was an efficient intervening cause
of the collision because his behavior was unforeseeable to
the county.
In Gerlach, a case that was appealed to this court following
the sustaining of the State’s motion for summary judgment, we
concluded that the State was not bound to anticipate that a driver
would negligently attempt to navigate a left-hand turn across
oncoming traffic without yielding or that said driver would fail
to see an oncoming vehicle in time to avoid a collision. thus,
the driver’s conduct was an efficient intervening cause.
In the instant cases, however, the intersection was not
obstructed from view such that a driver would need to slow or
stop before proceeding through the intersection. Unfortunately,
the roadbed of Highway 30 was not visible from a distance due
to its elevation’s being lower than that of the approach of the
488 	16 NeBrASkA AppeLLAte repOrtS

south leg of Newberry road, so drivers may not immediately
have been aware where the roads intersected. the placement of
the right-hand stop sign too far away from the road exacerbated
the problem, and we cannot say that it was unforeseeable to the
State that a reasonably attentive driver would fail to see it. We
recognize that the State installed a supplemental stop sign in
the island to the left and undertook other measures to warn of
an upcoming stop condition. However, according to the expert
testimony presented by kirkwood Appellees and by Ostergard,
a driver would look for, and reasonably expect to see, a stop
sign a short distance from the right side of the road. the right-
hand sign in this case was not appropriately located. We can-
not say that the district court’s factual findings on the issue of
causation were clearly erroneous.
the dissent considers robert Johnson’s actions in its conclu-
sion that the State’s signage at the intersection was not the prox-
imate cause of the Johnson-podoll accident. the State alleged
in its answer that robert Johnson’s damages were proximately
caused by his negligence, which included failing to keep a proper
lookout and failing to yield the right-of-way to podoll. However,
the State apparently abandoned this position at trial; the most
significant evidence at trial concerning robert Johnson’s actions
at the time of the accident came from the description of the
accident contained in the motor vehicle accident report and
brief testimony admitted over the State’s objection by a witness
summarizing what podoll had described. As a general rule, an
appellate court disposes of a case on the theory presented in
the district court. Wise v. Omaha Public Schools, 271 Neb. 635,
714 N.W.2d 19 (2006). Moreover, on appeal, the State does not
assign or argue that the district court erred in failing to find that
robert Johnson was contributorily negligent. In the absence
of plain error, an appellate court considers only claimed errors
which are both assigned and discussed. In re Trust of Rosenberg,
273 Neb. 59, 727 N.W.2d 430 (2007). Because (1) any negligent
conduct by robert Johnson was not a theory of defense pursued
by the State at trial, (2) the State does not assign error regarding
the matter, and (3) we find no plain error, we decline to consider
robert Johnson’s conduct on appeal.
kIrkWOOD v. StAte 	489
Cite as 16 Neb. App. 459

3. S overeign immunity
the State assigns that the district court erred in failing to
find that the State retained its sovereign immunity in placing
the stop ahead sign and the “StOp AHeAD” pavement mark-
ing and in constructing a viaduct that was visible from the
intersection. the State’s argument on this issue is that it is
immune from liability under § 81-8,219(11) because the visi-
bility of Highway 30 was a condition that conformed to the
State’s plans for construction and because the stop ahead sign
and pavement marking were installed as shown on properly
approved plans and designs.
First, as to the placement of the stop ahead sign, above we
concluded that the district court’s factual finding was clearly
erroneous and that the State did not breach its duty in installing
this device. Second, the district court did not find that the State
breached a duty with respect to the pavement marking; in fact,
the court made no findings in regard to the pavement marking.
Finally, the district court specifically found that the State had
not waived its sovereign immunity in regard to the design of
roadways, overpasses, or bridges, and the court stated that it did
“not question in any way the design aspects of the intersection”
or “the determination as to which traffic control devices were
chosen for the intersection.” It stated that each of those issues
“clearly falls within the discretionary function exception to the
tort claims act.” this assignment of error lacks merit.
4. loSt eArning CAPACity
the State argues that the evidence was insufficient to estab-
lish that kirkwood suffered a loss of earning capacity as a result
of the accident. With regard to lost earning capacity, the district
court stated that it accepted the deposition testimony of David
W. Utley and Dr. Jerome Sherman, and the court entered judg-
ment for loss of earning capacity in the amount of $442,219.
the court stated that kirkwood clearly “suffered significant
injuries that resulted in his present emotional and cognitive dif-
ficulties” and that “[t]his has affected his ability to work.”
the thrust of the State’s argument on this issue is that Utley
incorrectly assumed that all of kirkwood’s impairments were a
result of the collision and that Sherman’s opinions were based
490 	16 NeBrASkA AppeLLAte repOrtS

on Utley’s opinion. Utley testified in his deposition, “It’s my
understanding that all of the . . . restrictions and all of the medi-
cal diagnoses that I’m aware of are as a result of the automobile
collision.” He based that conclusion “[o]n [his] review of the
overall records and . . . kirkwood’s report of what his work
activities were prior to the . . . motor vehicle accident.” Utley
did not believe that he had been provided any information as
to a workplace accident sustained by kirkwood in October
or November 2003. In performing his analysis of kirkwood,
Utley did not make any attempt to distinguish restrictions that
may have arisen from accident injuries from restrictions that
may have arisen from some other cause or injury sustained at
a different time.
the evidence shows that kirkwood’s family doctor released
him to return to work without restrictions and that kirkwood
returned to work in January 2003. kirkwood testified that his
back had bothered him and that in November 2003, he “was
doing some pretty strenuous work and it bothered [him] pretty
bad again and put [him] out of work for a little while.” More spe-
cifically, kirkwood was twisting and bending in a narrow space
as he removed an assembly of an alternator weighing approxi-
mately 200 pounds. Immediately after that incident, kirkwood
was off work for 2 months. He testified that he “opted to not do
that job anymore and try to find something else just a little bit
more suitable” and that “unfortunately, [in] North platte, that’s
not easy to do.” He testified that he voluntarily resigned from
his railroad employment in October 2004, primarily due to prob-
lems associated with the back injury. He was unemployed at the
time of trial. A psychiatrist testified that kirkwood told him that
kirkwood returned to work following the accident and electively
decided to leave in 2004 because he did not have much seniority
with the railroad and “felt it just really wasn’t . . . worthwhile.”
Dr. estela Bogaert-Martinez testified:
kirkwood is going to have a very difficult time regaining
employment because of the damage to his motivational
system, to his frontal lobes, which [are] the boss of the
brain that allows him to continue to problem solve, to
follow through, to engage in goal-oriented activity. So
unless he gets a very structured, very repetitive type of job,
kIrkWOOD v. StAte 	491
Cite as 16 Neb. App. 459

anything that requires a lot of novel thinking and problem
solving is going to be very hard for him.
In Utley’s loss of earning capacity analysis, he stated that
kirkwood had a mild limitation for understanding and remem-
bering detailed, complex, and multistep instructions; a moderate
limitation for being able to maintain attention and concentra-
tion for extended periods of time; and a moderate limitation
for working at a consistent pace without an unreasonable num-
ber or length of rest periods. Utley concluded that kirkwood
was employable but had sustained a loss of earning capacity
of approximately 45 percent. Sherman testified the net eco-
nomic loss for kirkwood, discounted at 2.45 percent, would
be $442,119.
[27,28] Damages for permanent impairment of future earn-
ing capacity may not be based on speculation, probabilities, or
uncertainty, but must be shown by competent evidence that such
damages are reasonably certain as the proximate result of the
pleaded injury. Anderson/Couvillon v. Nebraska Dept. of Soc.
Servs., 253 Neb. 813, 572 N.W.2d 362 (1998). the determina-
tion of the amount of damages is a matter which is one solely for
the fact finder, whose action in this respect will not be disturbed
on appeal if it is supported by evidence and bears a reasonable
relationship to the elements of damages proved. See Woollen v.
State, 256 Neb. 865, 593 N.W.2d 729 (1999). the evidence dem-
onstrates that kirkwood returned to work following the accident,
that he later injured his back while working, and that he resigned
due in large part to the injury sustained at work. even though
Utley’s analysis may have been flawed because he was of the
impression that all of kirkwood’s restrictions and medical diag-
noses were caused by the collision, Utley opined that kirkwood
was employable. the court specifically stated that kirkwood’s
emotional and cognitive difficulties—not any physical restric-
tions—would affect his ability to work. We conclude that com-
petent evidence supported the district court’s determination of
damages based on kirkwood’s lost earning capacity.
5. motion to C omPel And motion to Q uASh
In case No. A-05-1226, the State filed various pretrial
motions relating to the experts of kirkwood Appellees, and the
492 	16 NeBrASkA AppeLLAte repOrtS

State argues that the district court erred in overruling its motion
to compel and its motion to quash.
(a) Motion to Compel
On February 22, 2005, the State filed a motion to compel.
According to the motion, on June 3, 2004, the State served inter-
rogatories and requests for production on kirkwood Appellees,
but the State had not been provided with answers or documents
which could be deemed to constitute fully responsive answers to
certain interrogatories and requests. the State sought responses
to interrogatory No. 8 and request for production No. 1.
Interrogatory No. 8 requested information about each expert
witness kirkwood Appellees had consulted or intended to call
at trial. request for production No. 1 asked for medical records
of any kirkwood Appellees which related to their action against
the State and the expenses which kirkwood Appellees sought
to recover.
On March 9, 2005, the court entered its order overruling the
motion, stating:
the Court specifically notes that the treating physicians
who are “experts” for the purposes of giving an instruc-
tion on expert witnesses are not experts retained in this
case to testify on behalf of [kirkwood Appellees], but
were merely treating physicians. they are, therefore, fact
witnesses who may be rendering opinions, but they were
not retained to do so. See, Tzystuck v. Chicago Transit
Authority, [124 Ill. 2d 226, 529 N.e.2d 525, 124 Ill. Dec.
544 (1988)]; Ryder Truck Rental, Inc. v. Perez, [715 So.
2d 289 (Fla. App. 1998)]; and Schreiber v. Kiser, [989
p.2d 720 (1999)].
the State argues that this was an abuse of discretion because
the treating physicians were expert witnesses rather than fact
witnesses, citing Smith v. Paiz, 84 p.3d 1272 (Wyo. 2004) (sta-
tus of treating physicians as fact or expert witnesses depends
upon content of testimony).
the State asserts that kirkwood Appellees offered med-
ical opinion testimony from doctors Jennifer Burns, David
Hurst, Mark Young, and Bogaert-Martinez at trial and that those
doctors were not identified prior to trial in a responsive answer
kIrkWOOD v. StAte 	493
Cite as 16 Neb. App. 459

to interrogatory No. 8, but that they were listed on a document
entitled “‘plaintiff’s Designation of expert Witnesses’” which
was served on the State on December 8, 2004, identifying
them as “‘treating physician[s] who may be called to testify in
this matter.’” Brief for appellant in case No. A-05-1226 at 44.
the State argues that “[t]he ‘plaintiff’s Designation of expert
Witnesses’ was not in the form of an Answer to Interrogatory,
was not signed under oath, and did not state the substance of
the facts and opinions to which the doctors were expected to
testify.” Id.
[29-31] Certainly, a litigant has the right to have inter-
rogatories answered and the adversary has a continuing duty
to supplement prior responses. See Norquay v. Union Pacific
Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987). When a party
has failed to respond, or respond properly, to an interrogatory
authorized by Neb. Ct. r. of Discovery 26(b)(4)(A)(i) (rev.
2000), or has failed to make supplemental responses required
under rule 26(e)(1)(B), and such noncomplying party calls
an expert witness to offer testimony within the scope of the
interrogatory in question, the adverse party must object to a
previously unidentified expert witness’ testifying in general
or object to testimony of an expert witness testifying about a
previously undisclosed but discoverable matter sought to be
disclosed by the interrogatory in question. Norquay v. Union
Pacific Railroad, supra. If the court, over objection, allows such
expert witness to testify, notwithstanding nondisclosure before
trial, when appropriate the adverse party must move to strike
the expert witness’ testimony, request a continuance to give the
surprised adversary an opportunity to investigate further and
secure rebuttal evidence, or, under certain circumstances, move
for a mistrial. Id.
At trial, the State objected to the offer of Burns’ deposition,
but the only reason for the objection was due to the State’s
cross-examination’s being cut short because not enough time
had been allotted. the State also objected to medical records
from Burns, but only “to any use of them for opinions or diag-
noses which are clearly excepted from the business records
rule.” During Hurst’s testimony, he was asked for conclusions
as to kirkwood’s condition, and the State objected “on basis
494 	16 NeBrASkA AppeLLAte repOrtS

of [rule] 702, opinions not previously disclosed and the basis
of surprise.” Counsel for kirkwood Appellees responded, “We
talked about it at the deposition.” the court overruled the objec-
tion. During the testimony of Young and Bogaert-Martinez, the
State objected to any “rule 702 testimony” on the basis of sur-
prise. However, the State never moved to strike the testimony or
reports of the above doctors; nor did the State move for a con-
tinuance or for a mistrial. For those reasons, we reach the same
conclusion as did the Nebraska Supreme Court in Norquay v.
Union Pacific Railroad, 225 Neb. at 542, 407 N.W.2d at 156:
“Whatever may have been an appropriate remedial measure
. . . at trial we do not decide in the absence of a motion for a
particular remedial measure in the trial court.”
(b) Motion to Quash
On May 31, 2005, the State filed a motion to quash kirkwood
Appellees’ fifth supplemental answers to the State’s first inter-
rogatories 	and 	kirkwood 	Appellees’ 	seventh 	supplemental
answers to the State’s first requests for production of docu-
ments. the State argued that kirkwood Appellees failed to
seasonably supplement their answers and that their fifth supple-
mental answers to interrogatories failed to comply with the
requirements of Neb. Ct. r. of Discovery 33 (rev. 2000). the
State asserted that it was prejudiced by (1) the disclosure on
the eve of trial of five new expert witnesses, namely Bonnie
edwards, Gutschenritter, Carman, Daubert, and Joel Cotton; (2)
kirkwood Appellees’ attempt on the eve of trial to transform the
witnesses previously identified as “treating physicians,” namely
Young, Bogaert-Martinez, Burns, Hurst, Gary Connell, Cotton,
and eric Hartman, into expert witnesses; and (3) the disclosure
of witnesses ken Barnum and Bill Heimbuch, whose identities
had not been disclosed in any previous discovery proceeding.
On June 20, 2005, the court held a hearing on the motion.
the State argued that the interrogatory answers were not signed
under oath and that the interrogatory answers disclosed a num-
ber of expert witnesses in May—only a month in advance of
trial. Counsel for the State represented that a pretrial order
required expert witnesses to be disclosed by either December
31, 2004, or January 31, 2005. the State contended that it was
kIrkWOOD v. StAte 	495
Cite as 16 Neb. App. 459

not afforded any reasonable opportunity to discover what the
experts were going to say and to prepare a counterargument
and that kirkwood Appellees had been “trying to morph” the
doctors they disclosed as treating physicians into expert wit-
nesses “so they can get them to offer opinions on causation,
damages, prognoses, diagnoses, things of that nature.” the
court responded, “the sort of things doctors always tell us. this
can’t be a surprise that the doctors are going to say what caused
the injury and how much it’s going to affect their [sic] life. I
mean, that’s what doctors do.” kirkwood Appellees argued that
the State had known about the medical witnesses and had, for
months, received reports from the witnesses setting forth their
opinions. kirkwood Appellees’ counsel claimed that the State
had the vast majority of the reports in late February, when the
State moved to continue the trial so that dozens of depositions
could be taken, but that the State had only taken one or two
depositions since that time.
On June 22, 2005, the court overruled the motion in a writ-
ten order. the State argues that this was an abuse of discretion
because the court had previously ordered that all of kirkwood
Appellees’ experts were to be disclosed by December 1, 2004,
and kirkwood Appellees knew the identities of most of the
experts months before they were disclosed in response to the
State’s interrogatories.
[32] We find no abuse of discretion by the district court for
a number of reasons. First, we observe that Connell, Hartman,
and Heimbuch did not provide any testimony at trial. Second,
the State did not make any objections based on late disclosure
to the testimony of Gutschenritter, Carman, or Barnum. third,
we already covered the State’s objections at trial to testimony
from Young, Bogaert-Martinez, Burns, Hurst, and Cotton on
the basis of late disclosure, and noted that we could not pro-
vide relief when the State failed to move to strike, move for a
continuance, or move for a mistrial. Fourth, the State objected
to the offer of Cotton’s deposition “on the lateness of the
disclosure of the witness,” but counsel for kirkwood Appellees
stated, “Just for the record . . . Cotton is an expert retained by
the [State] and who did an examination of [robert] Johnson.”
Surely, the State was aware of Cotton’s findings and opinions.
496 	16 NeBrASkA AppeLLAte repOrtS

Fifth, on the basis of surprise, the State objected during trial
to a question asked of edwards and to two exhibits she helped
prepare, and the State also objected to the offer of Daubert’s
deposition “on the basis [that] the witness [Daubert] was not
disclosed until about a month before trial as a potential expert.”
However, the State has failed to demonstrate any prejudice suf-
fered as a result of the late disclosures. Although we do not
condone the disclosing of experts after the deadline for such
as imposed by the trial court, the control of discovery is gen-
erally a matter for judicial discretion. See Gallner v. Gallner,
257 Neb. 158, 595 N.W.2d 904 (1999). We find no abuse of
discretion by the district court in denying the State’s motion
to quash.
VI. CONCLUSION
We conclude that the district court did not abdicate its gate-
keeping function or abuse its discretion in admitting the expert
testimony of Wilson and Daubert. We conclude that the court’s
factual findings that the State’s negligence proximately caused
the accidents were not clearly erroneous. the district court did
not find that the State waived its sovereign immunity as alleged
by the State. We conclude the evidence supports the award to
kirkwood based on lost earning capacity. Finally, we find no
abuse of discretion by the court in denying the State’s motion
to compel and motion to quash. We therefore affirm the judg-
ments of the district court in each case.
A ffirmed .
S ieverS, Judge, dissenting.
I find that I must respectfully dissent from the affirmance
of the judgments entered by the trial court in these two cases
which have been consolidated for purposes of opinion and
disposition. My colleagues’ opinion comprehensively discusses
the facts and circumstances of both accidents, with one excep-
tion to be discussed later, as well as the pertinent testimony
and exhibits concerning the signage at the intersection of
Newberry road and Highway 30 located at the east corporate
limits of North platte, Nebraska. the written word cannot begin
to accurately portray what was visible to the two northbound
drivers, and the significance of such, as they approached the
kIrkWOOD v. StAte 	497
Cite as 16 Neb. App. 459

intersection. Nonetheless, let me begin by simply listing what
the two northbound drivers passed by, and obviously ignored,
as they blew through this protected intersection and collided
with the kirkwood and Johnson vehicles. All of such is power-
fully depicted in the photographs of the signage at the intersec-
tion and its overall appearance. the northbound drivers would
have seen the following had they been attentive:
▶ A diamond-shaped sign with a red octagon (for a stop sign)
and a black arrow pointing forward, with a rectangular sign
attached below saying “1500 Ft.”
▶ A 	large 	green-backgrounded 	sign 	with 	“JUNCtION” 	in
white letters above a white diagram depicting an intersection
of “4tH Street” on the left and the U.S. highway symbol
with the number 30 in black numbers both to the right and
straight ahead north.
▶ the words “StOp AHeAD” in the middle of the north-
bound lane in large letters, within 100 feet of the beginning
of the island; on the northbound driver’s left, a solid yellow
no-passing line on the pavement and a black-on-white sign,
placed on the south end of the island, depicting an island;
on the driver’s right, a white-on-green sign indicating North
platte to the left and Gothenburg to the right, with distances;
and large overhead street lamps on both sides of the road.
▶ On the northbound driver’s left, an oversized stop sign, with
two reddish-orange flags on top of it, located at the center of
the nose of the island for left turns.
▶ On the northbound driver’s right at the edge of the “wide
throat” right turn configuration, another stop sign identical to
the sign described above.
In the simplest terms, if all of the above could speak
to 	the 	northbound 	driver, 	they 	would 	scream, 	“MAJOr
INterSeCtION AHeAD! CrOSS trAFFIC! StOp!”
therefore, even if the State could be found negligent in its
signage of the intersection, the failure of the trial court to find
that the obvious negligence of the two northbound drivers was
an efficient intervening cause is clearly wrong. As such, rever-
sal of the trial court’s judgments against the State is required.
In the majority opinion at section V(2), “liABility of S tAte,”
under subheading (b), “Breach,” the majority discusses the four
498 	16 NeBrASkA AppeLLAte repOrtS

specific aspects by which the trial court found the State was
negligent with respect to signage at the intersection. these are
(i) stop ahead sign, (ii) stop line, (iii) stop signs, and (iv) rum-
ble strips. My colleagues have concluded that the trial court’s
findings of negligence with respect to two of the four—(i) stop
ahead sign and (iii) stop signs—are clearly erroneous, and I
agree with my colleagues. that said, I disagree with what I see
as a factual finding by the majority with respect to (iii) stop
signs, when the majority opinion says, “We conclude, however,
that the State breached its duty of ordinary care by placing the
[right-side] stop sign too far to the right of the road and outside
of the cone of vision.” the difficulty with that finding by my
colleagues is that it fails to recognize the fundamental fact that
the concept of a driver’s cone of vision is a dynamic rather than
a static measurement of what a driver could see and where he
or she would be when he or she could see the stop sign on the
right. I note that there is no dispute that the stop sign on the
northbound driver’s left was appropriately within the driver’s
10-degree cone of vision.
As pointed out in the majority opinion, the testimony is that
an object within the central 10 degrees of the driver’s vision is
within the driver’s “‘clear vision’” and thus is readily visible
to the driver. However, what is inside of, or outside of, that
10-degree cone of vision for a driver looking forward depends
upon how far away from the object the driver is. In short, the
10-degree cone of vision takes in more objects the farther the
driver is away from the objects. Consequently, as the driver
approaches a stop sign, it will be within his 10-degree cone
of vision at some point and then will pass outside of the 10-
degree cone of vision as the driver gets closer and closer to
it, to the point that it is more than 10 degrees outside, then
directly beside him, and then behind him as he passes it. the
farther the object is to the left or right of the driver’s cone of
vision, the farther back from the object the driver will be for
the object to be in his cone of vision. And, all of this assumes
a driver is staring directly ahead, without moving his vision left
or right, because if he shifts his vision, then the objects to the
left or right of straight-ahead vision obviously can fall within
the 10-degree cone of vision. For example, when a driver
kIrkWOOD v. StAte 	499
Cite as 16 Neb. App. 459

directs his vision 15 degrees to the right, the 10-degree cone
of clear vision obviously shifts 15 degrees to the right. In this
case, an exhibit contains objective evidence through a series of
photographs taken from a northbound vehicle as it approached
the intersection—to depict what such a driver would see and
where he would be on the roadway when objects such as the
signs described above were in his 20-degree “satisfactory” cone
of vision—again recognizing that even a slight shift to the left
or right of the driver’s vision has the effect of putting more
objects within the cone of vision, and does so when the driver
is closer to such objects. Superimposed on such photographs
is a cone of vision as a shaded area, and through studying the
exhibit, one can easily discern what exactly is in the cone of
vision (of a driver staring straight ahead) and how far away
from the intersection such an object is from the driver. the
witness testifying about the exhibit acknowledged that drivers
do not stare straight ahead but naturally shift their vision left
and right of their driving path. And, in this respect, I would
submit that reasonably attentive drivers do not drive with their
vision fixed straight ahead. In other words, the attentive driver
shifts vision to the left and right, which increases what he sees
as well as affecting when such objects are seen as the driver
proceeds forward on the roadway. the aforementioned exhibit
reveals that all of the things listed at the outset, which tell the
driver to stop, were readily visible to an attentive driver.
therefore, of the four grounds upon which the trial court
found the State negligent, my colleagues find that two of
those findings are clearly erroneous, and such fact obviously
impacts the trial court’s finding that the State’s negligence was
a proximate cause of the accident, as well as adversely impact-
ing my colleagues’ affirmance of that finding. Additionally, it
is appropriate to point out at this juncture and emphasize that
both stop signs were overly large stop signs, being 36 by 36
inches, with a cross dimension 20 percent larger than that of
the typical 30- by 30-inch stop sign. And, both stop signs had
two reddish-orange flags affixed to the top of them, obviously
to call the motorists’ attention to their presence.
With respect to the trial court’s finding of negligence on the
part of the State by failing to install rumble strips, my colleagues
500 	16 NeBrASkA AppeLLAte repOrtS

affirm such finding as not clearly erroneous, noting that the
installation of such is not covered by the Manual but was in
the State’s original signing plan. When rumble strips are not
required by the Manual, the fact that such were not installed by
the State is an insufficient basis upon which to premise a find-
ing of proximate cause and lack of intervening cause—given the
other warnings listed above that the northbound motorist had to
stop at this intersection.
the majority opinion discusses the fundamental principles of
proximate cause and efficient intervening cause with the appro-
priate authority cited, which I will not repeat.
the kirkwood-Ostergard collision occurred at night, when
presumably the northbound Ostergard vehicle and the west-
bound kirkwood vehicle had their headlights illuminated.
there is no evidence that Ostergard ever responded in any way
to the numerous things which would tell a reasonably attentive
driver that he was approaching a major intersection at which he
was required to stop. His passenger, whose testimony provided
the only source of evidence as to what Ostergard did or did not
do, testified that Ostergard did not slow down, stop, or look
left or right. Ostergard himself had no memory of anything
that happened after leaving a truckstop some distance away
from the accident site. there is simply no evidence that he was
reasonably attentive or exercised even a touch of reasonable
care. there was no physical evidence to indicate that Ostergard
braked. In summary, Ostergard was a northbound driver with
a duty imposed by law to be reasonably attentive who went
through all of the signs and indications warning of a stop ahead
at a major intersection. even if two out of the four grounds of
negligence on the part of the State are upheld, when analyzing
proximate cause, it is impossible for me to conclude, given
the numerous warning signs and devices obviously ignored by
Ostergard in breach of his duty to exercise reasonable care and
be reasonably attentive, that the accident and injury would not
have occurred but for the State’s negligence; nor can I say that
the accident and injury were the natural and probable result of
the State’s negligence in signage. even if the State was neg-
ligent in signing the intersection, I cannot say that Ostergard
was not an efficient intervening cause.
kIrkWOOD v. StAte 	501
Cite as 16 Neb. App. 459

An efficient intervening cause is the new and independent
conduct of a third person which itself is a proximate cause of
the injury in question and breaks the causal connection between
any negligence on the part of the State in signing the intersec-
tion and kirkwood’s injuries. In the instance of an efficient
intervening cause, the causal connection is severed when the
negligent actions of a third party intervene, and Ostergard was
obviously negligent; the third party had full control of the situa-
tion, which Ostergard clearly did in that all he needed to do
was see what was there to be seen and obey the traffic direc-
tions given by the traffic controls, signs, and devices; and the
third party’s negligence could not have been anticipated by the
defendant, the State. With regard to the State’s anticipation,
the State was entitled to assume that Ostergard would act with
reasonable care, and in my view, the State could not anticipate
that a driver acting with reasonable care and attention would
ignore the abundant signs of an approaching major intersection
at which he had to stop before entering that intersection.
Finally, the fourth requirement with respect to efficient
intervening cause is that the third party’s negligence directly
resulted in injury to the plaintiff. Obviously, it is the act of
Ostergard in entering a protected intersection that directly
caused the injuries to kirkwood. Accordingly, in summary,
even upholding two of the factual findings of negligence on the
part of the State, such negligence was not a proximate cause
of kirkwood’s injuries, and Ostergard’s negligence was an
efficient intervening cause even if the State’s negligence was a
proximate cause. For these reasons, I would reverse the verdict
in the amount of $1,640,791.28 in favor of kirkwood.
My colleagues have also affirmed the trial court’s verdict
in favor of Ostergard in the amount of $122,890.78, thereby
affirming the trial court’s finding that the State was 60-percent
negligent and Ostergard was 40-percent negligent. the trial
judge’s apportionment of such percentages is based on its
finding that “the duty of the State . . . is greater than that of
[Ostergard] in light of [its] overall obligation to protect all
members of the traveling public by the way [it] conduct[s
its] business.” there is no citation of authority for the notion
that the State has a greater duty to act with reasonable care
502 	16 NeBrASkA AppeLLAte repOrtS

toward members of the traveling public, i.e., kirkwood, than
does Ostergard. even ignoring this unfounded conclusion of
law imposing a greater duty on the State than upon Ostergard,
under the facts of this accident as laid out above, a finding that
Ostergard’s negligence was less than the State’s negligence is
not supported by the evidence and is clearly wrong. the State’s
negligence is passive and Ostergard’s negligence is active, and
in my view, the State’s negligence—even assuming it was a
proximate cause, a conclusion that I cannot reach—still could
not be found to be greater than Ostergard’s by a reasonable
fact finder. Accordingly, I would reverse the judgment, in
Ostergard’s favor.
turning 	to 	the 	Johnson-podoll 	collision, 	my 	problems
with an affirmance of the trial court’s verdict in the amount
of $1,458,975.82 for robert Johnson and $300,000 for his
wife, Mavis Johnson, are even more pronounced than in the
kirkwood-Ostergard collision. I say this because my colleagues
apparently do not find significance in the nature of this acci-
dent. In this accident, the northbound driver, podoll, ignored
all of the same warning signs and traffic control devices as did
Ostergard, but it is of major import that the Johnson vehicle
turned left in front of the podoll vehicle in ignorance of robert
Johnson’s duty to yield the right of way to an oncoming vehicle
which was obviously not slowing down, let alone stopping. See
Neb. rev. Stat. § 60-6,147 (reissue 2004) (“[t]he driver of a
vehicle who intends to turn to the left within an intersection . . .
shall yield the right-of-way to any vehicle approaching from the
opposite direction which is within the intersection or approach-
ing so close as to constitute an immediate hazard”).
Admittedly, robert Johnson had a right to assume that the
oncoming vehicle driven by podoll would obey the two over-
sized stop signs which were facing podoll and the backs of
which would have been directly in front of robert Johnson
when he stopped for cross traffic on Highway 30. But, there
is no evidence from podoll that he slowed down, stopped, or
braked; yet robert Johnson blithely turned in front of a vehicle
whose driver gave no apparent sign or indication of being aware
of the fact that he was dutybound to stop. When I put the fact
of robert Johnson’s left turn in front of the onrushing podoll
kIrkWOOD v. StAte 	503
Cite as 16 Neb. App. 459

vehicle into the calculus of proximate cause and efficient inter-
vening cause, I can only conclude that even if the State was
negligent in its signing of the intersection, such was not a prox-
imate cause, and that even if it could be considered a proximate
cause, podoll’s negligence (and he can be no less negligent than
Ostergard) combined with the negligence of robert Johnson
constitute efficient intervening causes. My colleagues advance
three reasons why the fact that robert Johnson turned left in
front of the podoll vehicle is not properly part of the analysis
of the accident. I acknowledge that the State, while pleading
such fact as a proximate cause and as an efficient intervening
cause, did not actually advance such argument in the trial court.
Nonetheless, that robert Johnson turned left in front of podoll
is an undisputed fact about how the accident occurred, which,
in my view, neither a trial court nor an appellate court can
ignore merely because defense counsel may not have grasped
its significance.
For these reasons, I would reverse all of the judgments
entered in these two cases against the State and remand the
matter to the trial court with directions to enter judgments in
favor of the State and against each of the plaintiffs.
504 	16 NeBrASkA AppeLLAte repOrtS