Daubenmier v. Spence

philip daubenmieR, appellant , v .
chaRles s. spence , appellee .
745 N.W.2d 348
Filed February 19, 2008. 	No. A-06-433.
1. Negligence: Words and Phrases. The defense of assumption of risk is derived
from the maxim “volenti non fit injuria,” which means that where one, knowing
and comprehending the danger, voluntarily exposes himself to it, although not
negligent in so doing, he is deemed to have assumed the risk and is precluded
from a recovery for an injury resulting therefrom.
2. ____: ____. As currently codified, “assumption of risk” as an affirmative defense
means that (1) the person knew of and understood the specific danger, (2) the
person voluntarily exposed himself or herself to the danger, and (3) the person’s
injury or death or the harm to property occurred as a result of his or her exposure
to the danger.
3. Negligence. The doctrine of assumption of risk applies a subjective standard,
geared to the individual plaintiff and his or her actual comprehension and apprecia-
tion of the nature of the danger he or she confronts.
4. Constitutional Law: Courts: Jurisdiction: Statutes. Cases involving the consti-
tutionality of a statute bypass the Nebraska Court of Appeals and are taken directly
to the Nebraska Supreme Court.
5. ____: ____: ____: ____. The mere assertion that a statute may be unconstitutional
does not automatically deprive the Nebraska Court of Appeals of jurisdiction over
the case.
6. Constitutional Law: Statutes: Appeal and Error. For the constitutionality of a
statute to be genuinely involved in an appeal, the constitutional issue must be real
and substantial, not merely colorable.
7. Constitutional Law: Courts: Jurisdiction: Statutes. Where the constitutional
challenge being raised has previously been resolved by the Nebraska Supreme
Court, the case merely requires an application of unquestioned and unambiguous
constitutional provisions, and jurisdiction to so hold lies in the Nebraska Court
of Appeals.
8. Constitutional Law: Statutes: Appeal and Error. In addition to raising a real and
substantial constitutional issue, a litigant seeking to challenge the constitutionality
of a statute is required to comply with other clearly established procedural steps.
9. Constitutional Law: Courts: Jurisdiction: Statutes. When necessary to a deci-
sion in the case before it, the Nebraska Court of Appeals does have jurisdiction to
determine whether a constitutional question has been properly raised.
10. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error.
To properly raise a challenge to the constitutionality of a statute, a litigant is
required to strictly comply with Neb. Ct. r. of prac. 9E (rev. 2006) and to properly
raise and preserve the issue before the trial court.
11. Constitutional Law: Statutes: Service of Process. If a statute is alleged to be
unconstitutional, the Attorney General must be served with a copy of the proceed-
ing and be entitled to be heard.
DAUbENMIEr v. SpENCE 	435
Cite as 16 Neb. App. 435
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

12. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
13. Jury Instructions: Appeal and Error. Jury instructions are subject to the harm-
less error rule, and an erroneous jury instruction requires reversal only if the error
adversely affects the substantial rights of the complaining party.
Appeal from the District Court for Douglas County: J ames t.
G leason, Judge. Affirmed.
Christopher 	D. 	Jerram, 	of 	kelley 	& 	Lehan, 	p.C., 	for
appellant.
robert S. keith and kellie r. Harry, of Engles, ketcham,
Olson & keith, p.C., for appellee.
iRwin , sieveRs, and mooRe, Judges.
iRwin, Judge.
I. bACkGrOUND
This case originated as a result of a single vehicle accident
on April 5, 2003, in which philip Daubenmier was a passenger
and Charles S. Spence was the driver. The record indicates that
both Daubenmier and Spence spent several hours at various
bars in downtown Omaha, purchasing alcohol for each other
and drinking, before the two got into Spence’s vehicle, began
to leave the area, and Spence hit a light pole. Daubenmier suf-
fered injuries as a result of the accident and brought suit against
Spence. Spence pled, as affirmative defenses, that Daubenmier
assumed the risk and that he failed to mitigate his injuries by
wearing a seat belt. Spence admitted liability for the accident,
and the issue at trial was what, if any, monetary damages
Daubenmier should be awarded. The jury found in favor of
Spence, returning a verdict for $0. This appeal followed. The
primary question presented on appeal concerns the application
of the assumption of risk doctrine. More detailed facts will be
set forth, as necessary, in the discussion section below.
II. ASSIGNMENTS OF ErrOr
Daubenmier has assigned the following errors: that the dis-
trict court erred in instructing the jury on Spence’s assumption
436 	16 NEbrASkA AppELLATE rEpOrTS

of risk defense, that the district court erred in instructing the
jury on Spence’s defense that Daubenmier failed to mitigate his
damages by wearing a seatbelt, that the district court gave erro-
neous verdict forms, and that the district court erred in sustain-
ing objections to Daubenmier’s questioning of Spence.
We note that although Daubenmier has assigned error to the
district court’s sustaining of objections to Daubenmier’s ques-
tioning of Spence, he failed to specifically argue this assign-
ment of error in his brief. To be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error.
Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354
(2007). We therefore will not consider this assigned error.
III. ANALYSIS
1. assumption of R isk instRuction
Daubenmier first asserts that the district court erred in
instructing the jury on Spence’s defense that Daubenmier
assumed the risk of injury in this case. Daubenmier asserts that
the evidence was insufficient to support instructing the jury on
assumption of risk; that the instructions actually given were
cumulative, confusing, and misleading to the jury; and that the
statute authorizing assumption of risk as an affirmative defense
violates equal protection.
(a) Sufficiency of Evidence
First, Daubenmier argues that the evidence was insufficient to
support instructing the jury on assumption of risk. Daubenmier
primarily argues that there was insufficient evidence to demon-
strate that Daubenmier had knowledge of the specific danger
of getting into Spence’s vehicle after Spence had consumed
an excessive amount of alcohol. We find sufficient evidence to
demonstrate all of the required elements of assumption of risk,
and we find this argument to be without merit.
[1,2] The defense of assumption of risk is derived from the
maxim “‘volent[i] non fit injuria,’” which means that “‘where
one, knowing and comprehending the danger, voluntarily exposes
himself to it, although not negligent in so doing, he is deemed
to have assumed the risk and is precluded from a recovery for
DAUbENMIEr v. SpENCE 	437
Cite as 16 Neb. App. 435

an injury resulting therefrom.’” Burke v. McKay, 268 Neb. 14,
20-21, 679 N.W.2d 418, 424 (2004), quoting Hollamon v. Eagle
Raceway, Inc., 187 Neb. 221, 188 N.W.2d 710 (1971). As cur-
rently codified, “assumption of risk” as an affirmative defense
means that “(1) the person knew of and understood the specific
danger, (2) the person voluntarily exposed himself or herself
to the danger, and (3) the person’s injury or death or the harm
to property occurred as a result of his or her exposure to the
danger.” Neb. rev. Stat. § 25-21,185.12 (reissue 1995). Accord
Burke v. McKay, supra. See, Jay v. Moog Automotive, 264 Neb.
875, 652 N.W.2d 872 (2002); Pleiss v. Barnes, 260 Neb. 770,
619 N.W.2d 825 (2000).
Spence argues that “[t]he Supreme Court of Nebraska has
ruled, on several occasions, an intoxicated guest passenger
can assume the risk of riding with a drunk driver.” brief
for appellee at 9. Spence cites, in support of this statement,
the cases of Fortin v. Hike, 205 Neb. 344, 287 N.W.2d 681
(1980); Sandberg v. Hoogensen, 201 Neb. 190, 266 N.W.2d 745
(1978); Circo v. Sisson, 193 Neb. 704, 229 N.W.2d 50 (1975);
Raskey v. Hulewicz, 185 Neb. 608, 177 N.W.2d 744 (1970); and
Brackman v. Brackman, 169 Neb. 650, 100 N.W.2d 774 (1960).
Spence further asserts that “[i]n Brackman, supra, the court held
the plaintiff passenger assumed the risk of his injury because he
rode in the car with a driver who[m] he knew, or in the exercise
of ordinary care and diligence should have known, was intoxi-
cated. Id. at 659.” brief for appellee at 10.
Our review of Brackman v. Brackman, supra, however, indi-
cates that the case does not involve an intoxicated guest passen-
ger, a drunk driver, or the use of alcohol at all. rather, the case
involved an injury sustained by the operator of a cornpicker and
a suit against the operator’s employer. Although the case includes
a discussion of assumption of the risk, the case neither stands
for the proposition set forth by Spence nor includes the holding
indicated by Spence and supported by Spence with a pinpoint
cite. Similarly, Fortin v. Hike, supra, also cited by Spence as a
case wherein the Supreme Court found a guest passenger had
assumed the risk of riding with a drunk driver, involved nei-
ther a guest passenger nor any assertion of assumption of risk;
438 	16 NEbrASkA AppELLATE rEpOrTS

rather, the case involved questions of intoxication as evidence
of negligence, not assumption of risk.
The inexplicable references to and erroneous discussion of
Brackman v. Brackman, supra, and Fortin v. Hike, supra, not-
withstanding, Spence is correct in asserting that the Nebraska
Supreme Court has previously held that a guest passenger may
be held to have assumed the risk of riding with a drunk driver.
In Sandberg v. Hoogensen, supra, Dean M. Sandberg was a
guest passenger in a vehicle driven by DeVern Hoogensen after
the two men had been drinking together for several hours and
an intoxicated Hoogensen had an accident that resulted in the
death of both Hoogensen and Sandberg. The Supreme Court
specifically held that a guest may be guilty of contributory
negligence or assumption of risk by riding or continuing to
ride with a driver whom the guest knows or, in the exercise of
ordinary care and diligence, should know is so intoxicated that
the driver is unable to operate the vehicle with proper prudence
or skill. The court found the evidence sufficient to demonstrate
that Sandberg knew or should have known that Hoogensen’s
state of intoxication was such that it would be dangerous to
ride with him, and the court held that it was appropriate for it
to instruct the jury on Hoogensen’s estate’s affirmative defense
of assumption of risk. See, also, Raskey v. Hulewicz, supra (evi-
dence warranted assumption of risk instruction in case involv-
ing guest passenger and drunk driver).
It is worth noting that since the Nebraska Supreme Court’s
decisions in Sandberg v. Hoogensen, supra, and Raskey v.
Hulewicz, supra, the statute authorizing and defining assumption
of risk has undergone one minor change. As Spence recognizes
in his brief, Nebraska implemented its current form of com-
parative negligence in 1992. See Neb. rev. Stat. § 25-21,185.07
et seq. (reissue 1995). In so doing, the Legislature used
§ 25-21,185.12 to add the word “specific” to the element that
assumption of risk requires the person to have known and
understood the specific danger. See, also, Pleiss v. Barnes,
260 Neb. 770, 619 N.W.2d 825 (2000). As such, a review of
the Supreme Court’s assumption of risk cases since this statu-
tory change is necessary to determining the application of the
DAUbENMIEr v. SpENCE 	439
Cite as 16 Neb. App. 435

assumption of risk statute to a case involving a guest passenger
riding with a drunk driver.
In Pleiss v. Barnes, supra, the plaintiff brought a negligence
action against a homeowner for injuries the plaintiff suffered
as a result of a fall from a ladder while assisting in shingling
the homeowner’s roof. The evidence demonstrated that the fall
occurred when the ladder “‘flipped, twisted, and started to
slide,’ causing [the plaintiff] to fall from the ladder.” Id. at 771,
619 N.W.2d at 827. The plaintiff argued that an assumption of
risk instruction was not warranted because the homeowner had
failed to show that the plaintiff understood the specific danger
which caused him to fall. Although there was evidence that
the plaintiff knew ladders could “‘get shaky and fall,’” there
was no evidence that the plaintiff was aware that the particular
ladder, either because of its placement or because it was not
tied down, created a specific danger that it could flip, twist,
and slide, causing the plaintiff to fall. Id. because the evidence
failed to demonstrate any knowledge on the part of the plain-
tiff concerning the specific danger that caused his injury—the
ladder flipping, twisting, and sliding, causing him to fall—an
instruction on assumption of risk was not warranted.
Conversely, in Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418
(2004), the Supreme Court found that the plaintiff had assumed
the risk as a matter of law. In Burke v. McKay, the plaintiff was
injured while competing in a high school rodeo when the horse
he was riding “‘stood up on his back legs and threw himself to
the rear in such a way that [the horse] fell over backwards, sud-
denly crushing [the plaintiff] between [the horse’s] back and the
ground.’” Id. at 18-19, 679 N.W.2d at 422. In Burke v. McKay,
the evidence demonstrated that the plaintiff had observed the
same horse act in the same manner, falling backward onto its
rider, on a previous occasion. As such, the Supreme Court held
that the evidence demonstrated that the plaintiff knew of and
understood the specific risk posed by the horse.
[3] The doctrine of assumption of risk applies a subjective
standard, geared to the individual plaintiff and his or her actual
comprehension and appreciation of the nature of the danger
he or she confronts. Burke v. McKay, supra; Pleiss v. Barnes,
supra. In Pleiss v. Barnes, the evidence failed to demonstrate
440 	16 NEbrASkA AppELLATE rEpOrTS

that the plaintiff had actual comprehension or appreciation of
the danger that the ladder might flip, twist, and slide, causing
him to fall, and thus the plaintiff did not assume the risk of that
injury. In Burke v. McKay, the evidence did demonstrate that the
plaintiff had actual comprehension or appreciation of the danger
that the horse might fall over backward, suddenly crushing the
plaintiff between the horse and the ground, and thus the plaintiff
did assume the risk of that injury. We find the present case to be
more similar to Burke v. McKay than Pleiss v. Barnes.
The record in the present case demonstrates that Daubenmier
knew that it was dangerous to get into a car with somebody who
had been drinking and knew that doing so could lead to death
or serious injury. Daubenmier knew that both he and Spence
had “more than average” to drink and had been drinking “fairly
heavy.” Daubenmier knew of the specific danger that caused
his injury in this case: a driver who has had too much to drink
might have an accident, resulting in death or serious injury. Just
as the evidence supported a finding that the plaintiff in Burke v.
McKay knew of the specific danger that caused his injury, the
evidence supported such a finding in the present case. As such,
the evidence was sufficient to support the giving of an assump-
tion of risk instruction.
(b) Cumulative, Confusing, and Misleading
Daubenmier next argues that the assumption of risk instruc-
tions actually given were cumulative, confusing, and misleading.
We find no merit to this assertion.
The instructions given to the jury included two instruc-
tions that explained the assumption of risk defense. These two
instructions followed the recommended pattern jury instructions
and only repeated the burden placed upon Spence to prove all
three elements of the assumption of risk defense. The instruc-
tions also correctly set forth Nebraska law concerning assump-
tion of risk, consistent with the above discussion of the defense.
The instructions were not cumulative, were not confusing and
misleading, and were not erroneous.
(c) Constitutionality of Statute
Finally, Daubenmier argues that the statute authorizing and
defining assumption of risk as an affirmative defense violates
DAUbENMIEr v. SpENCE 	441
Cite as 16 Neb. App. 435

plaintiffs’ equal protection rights and is unconstitutional. We
conclude that Daubenmier failed to properly raise this claim
involving the constitutionality of the statute.
[4,5] As 	the 	Nebraska 	Supreme 	Court 	recently 	noted,
cases “‘involving the constitutionality of a statute’” bypass
the Nebraska Court of Appeals and are taken directly to the
Nebraska Supreme Court. State v. Nelson, 274 Neb. 304,
308, 739 N.W.2d 199, 203 (2007). See, also, Neb. rev. Stat.
§ 24-1106(1) (reissue 1995). However, the mere assertion
that a statute may be unconstitutional does not automatically
deprive the Court of Appeals of jurisdiction over the case. State
v. Nelson, supra. rather, for a claim concerning the constitu-
tionality of a statute to deprive the Nebraska Court of Appeals
of jurisdiction, a variety of other requirements must be met.
[6,7] First, for the constitutionality of a statute to be gen-
uinely involved in an appeal, the constitutional issue must
be real and substantial, not merely colorable. Id. For exam-
ple, where the constitutional challenge being raised has previ-
ously been resolved by the Nebraska Supreme Court, the case
merely requires an application of unquestioned and unam-
biguous constitutional provisions, and jurisdiction to so hold
lies in the Nebraska Court of Appeals. Id. Our research indi-
cates that the constitutionality of § 25-21,185.12 was raised
in Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000),
but the Supreme Court declined to resolve the issue. As such,
it appears that Daubenmier has raised a real and substantial
constitutional issue.
[8-11] Nonetheless, in addition to raising a real and sub-
stantial constitutional issue, a litigant seeking to challenge the
constitutionality of a statute is required to comply with other
clearly established procedural steps. When necessary to a deci-
sion in the case before us, the Nebraska Court of Appeals does
have jurisdiction to determine whether a constitutional question
has been properly raised. Olson v. Olson, 13 Neb. App. 365,
693 N.W.2d 572 (2005). To properly raise a challenge to the
constitutionality of a statute, a litigant is required to strictly
comply with Neb. Ct. r. of prac. 9E (rev. 2006) and to properly
raise and preserve the issue before the trial court. See, Olson
v. Olson, supra (requiring strict compliance with rule 9E);
442 	16 NEbrASkA AppELLATE rEpOrTS

State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997) (requir-
ing raising and preserving the issue before trial court). See,
also, State v. Schreck, 226 Neb. 172, 409 N.W.2d 624 (1987)
(failure to properly raise constitutionality issue in trial court
results in waiver of issue). Additionally, if a statute is alleged to
be unconstitutional, the Attorney General must be served with
a copy of the proceeding and be entitled to be heard. Neb. rev.
Stat. § 25-21,159 (Cum. Supp. 2006).
Although 	the 	record 	in 	the 	present 	case 	indicates 	that
Daubenmier asserted his challenge to the constitutionality of
§ 25-21,185.12 at the trial level and the trial court ruled on the
challenge, and that Daubenmier complied with the requirements
of rule 9E, the record does not indicate that Daubenmier served
the Attorney General with a copy of the proceeding at the trial
level. As a result, we conclude that Daubenmier’s constitutional
question has not been properly raised.
2. seatbelt instRuction
Daubenmier next asserts that the district court erred in
instructing the jury on Spence’s defense that Daubenmier failed
to mitigate his damages because he failed to wear his seatbelt.
Daubenmier argues that the evidence was insufficient to support
giving the instruction because the evidence did not establish
that Daubenmier failed to wear his seatbelt and because the
evidence indicated that he could have suffered the injuries even
if he had been wearing a seatbelt. We conclude that we do not
need to address whether the evidence was sufficient to warrant
this instruction because the record demonstrates that the jury did
not reach this issue.
[12,13] In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. McClure v. Forsman,
9 Neb. App. 669, 617 N.W.2d 640 (2000). Jury instructions are
subject to the harmless error rule, and an erroneous jury instruc-
tion requires reversal only if the error adversely affects the sub-
stantial rights of the complaining party. Id.
Instruction No. 2 directed the jury, if it found that Spence
had proven his affirmative defense of assumption of risk, to
DAUbENMIEr v. SpENCE 	443
Cite as 16 Neb. App. 435

use verdict form No. 1 and enter an award of $0. Instruction
No. 2 also directed the jury, if it found that Daubenmier had not
assumed the risk, to use verdict form No. 2 and then compute
the amount of monetary damages to be awarded to Daubenmier.
Instruction No. 14 directed the jury, if it assessed monetary
damages against Spence, to reduce the amount of damages
awarded according to directions given by the court. because the
jury returned verdict form No. 1, it is clear that the jury found
that Spence had proven his affirmative defense of assumption
of risk, awarded no monetary damages to Daubenmier, and
never considered the instruction concerning how to reduce the
damages award because of the seatbelt defense.
The record makes it clear in this case that the jury never
reached the issue of the seatbelt defense. As such, we need not
consider Daubenmier’s arguments concerning the validity of the
instruction. This assigned error is without merit.
3. veRdict foRms
Daubenmier next asserts that the verdict forms given by the
district court were confusing. Specifically, Daubenmier argues
that the combination of the seatbelt instruction and verdict form
No. 2 was confusing to the jury because verdict form No. 2
failed to mention the seatbelt instruction or its calculation for
reducing the damages award.
As noted, the jury in this case used verdict form No. 1, found
that Spence had proven his assumption of risk defense, and
awarded no monetary damages to Daubenmier. The jury did not
reach verdict form No. 2 and never considered how to reduce
a damages award, pursuant to the seatbelt instruction or other-
wise. As such, the potential confusion argued by Daubenmier
could not have occurred in this case. This assigned error is
without merit.
IV. CONCLUSION
We find no merit to Daubenmier’s assignments of error. We
find that the evidence was sufficient to support instructing the
jury on assumption of risk and that the instructions given were
not cumulative, confusing, or misleading. This court cannot
address the constitutional issue raised by Daubenmier. We also
find that any potential errors concerning the seatbelt instruction
444 	16 NEbrASkA AppELLATE rEpOrTS

or verdict form No. 2 would have been harmless error because
the jury never reached the seatbelt defense. We affirm.
affiRmed .
state of nebRaska , appellant , v .
scott a. antoniak , appellee .
744 N.W.2d 508
Filed February 19, 2008. 	No. A-07-457.
1. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a district court that is
within the statutorily prescribed limits will not be disturbed on appeal unless there
appears to be an abuse of the trial court’s discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
3. Sentences: Probation and Parole: Appeal and Error. When the State appeals
from a sentence, contending that it is excessively lenient, an appellate court
reviews the record for an abuse of discretion, and a grant of probation will not be
disturbed unless there has been an abuse of discretion by the sentencing court.
4. Sentences: Appeal and Error. In excessively lenient sentence cases, an appellate
court does not review the sentence de novo and the standard is not what sentence
the appellate court would have imposed.
5. Sentences. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: J oseph s.
tRoia, Judge. Affirmed.
Jeffrey 	J. 	Lux, 	Deputy 	Douglas 	County 	Attorney, 	for
appellant.
Emil M. Fabian, of Fabian & Thielen, for appellee.
inbody, Chief Judge, and caRlson and cassel, Judges.
cassel, Judge.
INTrODUCTION
Following a bench trial, the district court for Douglas County
convicted Scott A. Antoniak of first degree sexual assault and
STATE v. ANTONIAk 	445
Cite as 16 Neb. App. 445