Wulf v. Kunnath

472 	285 NEBRASKA REPORTS
on remand. We need not address these three assignments
of error.
(d) Sufficiency of Evidence
[16] Having found reversible error, we must determine
whether the totality of the evidence admitted by the trial court
was sufficient to sustain Merchant’s conviction. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of
all the evidence admitted by a trial court would have been suf-
ficient to sustain a guilty verdict.34
The evidence admitted showed that Merchant purchased
and sold vehicles with NAA on June 1, 2011. The evidence
established that Merchant did so without a valid motor vehicle
dealer’s license. Furthermore, there was sufficient evidence
demonstrating that Merchant was a not a bona fide consumer
when he purchased and sold the vehicles. Thus, all the evi-
dence, whether properly admitted or not, was sufficient to
sustain a guilty verdict on the crime charged and the Double
Jeopardy Clause does not bar retrial.
VI. CONCLUSION
The trial court erred in admitting Jackson’s testimony inter-
preting § 60-1416 to apply to the “wholesale” transactions
conducted by Merchant. We remand the cause for a new trial
consistent with this opinion.
R eveRsed and Remanded foR a new tRial.
34 State v. Payne-McCoy, supra note 4.
susan C. wulf, appellant, v.
shaRad Kunnath, m.d., appellee.
827 N.W.2d 248
Filed March 8, 2013. 	No. S-12-307.
1. Appeal and Error. 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.
2. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on
a motion for directed verdict, an appellate court must treat the motion as an
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

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Cite as 285 Neb. 472
admission of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
3. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
4. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless
clearly wrong, and it is sufficient if any competent evidence is presented to the
jury upon which it could find for the successful party.
5. Verdicts: Appeal and Error. In determining the sufficiency of the evidence
to sustain a verdict in a civil case, an appellate court considers the evidence
most favorably to the successful party and resolves evidential conflicts in favor
of such party, who is entitled to every reasonable inference deducible from
the evidence.
6. Summary Judgment: Appeal and Error. The denial of a summary judgment
motion is neither appealable nor reviewable.
7. Jury Instructions: Appeal and Error. Jury instructions do not constitute preju-
dicial error if, taken as a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings and evidence.
8. Torts: Battery: Words and Phrases. In Nebraska, the intentional tort of battery
is defined as an actual infliction of an unconsented injury upon or unconsented
contact with another.
9. ____: ____: ____. Consent is willingness in fact for conduct to occur. It may be
manifested by action or inaction and need not be communicated to the actor.
10. Torts: Intent: Words and Phrases. Apparent consent—words or conduct rea-
sonably understood by another to be intended as consent—is as effective as
consent in fact.
11. 	Juries: Verdicts. A jury, by its general verdict, pronounces upon all or any of the
issues either in favor of the plaintiff or the defendant.
12. Torts: Battery. The time and place, and the circumstances under which an act is
done, will necessarily affect its unpermitted character, and so will the relations
between the parties.
13. ____: ____. Silence and inaction may manifest consent where a reasonable per-
son would speak if he or she objected.
14. ____: ____. It is only when notice is given that certain conduct will no longer be
tolerated that the defendant is no longer free to assume consent.
Appeal from the District Court for Douglas County: J Russell
deRR, Judge. Affirmed.
Terrence J. Salerno for appellant.
Christopher J. Tjaden, of Gross & Welch, P.C., L.L.O., for
appellee.

474 	285 NEBRASKA REPORTS
heaviCan, C.J., wRight, C onnolly, stephan, mCC oRmaCK,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
While in a lighthearted work setting, a doctor used his hand
to tap or strike the back of a nurse’s neck. The nurse claimed
that the contact caused serious injuries, and she sued the doctor
for battery, among other things. After the district court denied
the nurse’s motions for summary judgment and directed verdict
on the issue of battery, a jury returned a verdict in the doctor’s
favor. Because we conclude the evidence, viewed in the light
most favorable to the doctor, would support a finding either
that the nurse consented to the contact or that the contact did
not cause the nurse’s injuries, we affirm.
BACKGROUND
During the noon hour on October 23, 2007, nurses Susan C.
Wulf, Paula Kehm, and Chelsea Crocker were seated at their
desks in the nurse’s workroom, when Sharad Kunnath, M.D.,
and Crystal Knight, M.D., joined them. They joked around,
and the atmosphere was lighthearted. The group discussed
upcoming snow removal that might occur while Kunnath
was out of the country, and Wulf commented that it would
be funny to see Kunnath using a snowblower. According to
Kunnath, he said, “Hey, [Wulf], don’t make fun of me,” and
tapped Wulf on the nape of her neck. He intended to make
the contact at issue, but he did not intend to hurt Wulf. Wulf
described the contact as “a strike on the back of [her] neck.”
Knight testified that Kunnath touched Wulf in the middle of
the back of the head with the palm of his hand in “a playful,
joking manner . . . something that you would do to a friend or
a relative if they are making fun of you.” Crocker testified that
Kunnath “playfully tapped [Wulf] on the back of the neck.”
The laughing and joking in the workroom continued for a few
more minutes.
Wulf’s reaction to the contact is in dispute. She testified
that her head moved forward rapidly a significant distance,
that she dropped the telephone she was holding, and that she

WULF v. KUNNATH 	475
Cite as 285 Neb. 472
said, “Oh, my God, that hurt.” She immediately felt pain in
the back of her head and neck and suffered nausea, dizzi-
ness, and blurred vision. Kehm also recalled Wulf saying,
“Ow, that hurt.” But Knight did not recall Wulf’s making any
comments after the contact, nor did she see any movement of
Wulf’s head or conduct to suggest Wulf was experiencing any
discomfort. However, Knight testified that Wulf “got a dirty
look on her face”—which Knight described as an angry look.
Kunnath testified that Wulf’s head did not move, that he did
not recall her making any comments to him, and that he did
not observe anything to lead him to believe that there had
been an injury or that Wulf had any complaints. Crocker simi-
larly did not notice any reaction by Wulf and did not recall
Wulf’s dropping the telephone or making any comments.
Crocker testified that Wulf’s head moved forward very little,
if at all. Crocker did not notice anything different about Wulf
after the contact.
Within minutes of the incident, Wulf began an initial assess-
ment on a patient, but she began to feel dizzy and nauseated.
As she left the patient’s room, she encountered nurse Kathy
Krussel, who saw Wulf crying and rubbing her neck. Wulf told
Krussel that Kunnath hit her in the neck. Krussel took Wulf into
a treatment room, and Wulf reported that her neck hurt, that
she had pain going down her arm, that she was nauseated, and
that she was seeing spots. Kehm brought Wulf some ice, which
Wulf placed on the back of her neck. Wulf was later moved out
of the treatment room to a nurse practitioner’s office, where
she remained for the rest of the day. As Wulf walked to her car,
she got more nauseated and felt as if she were going to pass
out. Wulf drove herself to an emergency room.
Wulf, who was 58 years old at the time of trial, testified that
in her career, she had never been struck in a similar manner.
In her 30 years as a nurse, she had never seen a doctor “swat”
somebody in the back of the head, never felt that she needed
to announce to doctors that she did not want to be swatted in
the back of the head, and never believed that she had consented
to a doctor’s swatting her on the back of the head by not say-
ing anything. Although Krussel did not recall seeing anybody
“thump” or “tap” others at the office, she testified that she

476 	285 NEBRASKA REPORTS
would “[p]robably not” find it strange if that occurred. The
office atmosphere was that of a close-knit group, who joked
and teased one another. Wulf testified that the group had a
familial-like relationship. Kunnath testified that he and Wulf
had a very collegial and close relationship, that Wulf was like
a mother to him, and that they would joke and tease. Wulf
testified that prior to the incident, Kunnath had “[t]hump[ed]”
her on two or three occasions while walking in the hallway.
She said that they were “good-natured” thumps, as a brother
would do to a sister. Wulf never complained about the thump-
ing, never asked Kunnath not to do it again, and did not find it
to be offensive conduct.
Wulf saw her physician, Anthony L. Hatcher, M.D., approx-
imately 1 week after the incident. At that time, Wulf com-
plained of neck pain and pain radiating down her right arm.
Wulf told Hatcher that she was struck in the back of the head,
but she did not say how hard she was hit. Based on the his-
tory that Wulf provided Hatcher, he opined that “her pain was
related to the injury that occurred.” Upon Hatcher’s referral,
Wulf saw Michael C.H. Longley, M.D., an orthopedic spine
surgeon, on May 8, 2008, for her complaints of neck and right
arm pain. Wulf informed Longley that she received a “sub-
stantial blow” to the back of the head. Longley testified that
Wulf had “a tendency to magnify symptoms and exaggerate
complaints.” Ultimately, Wulf underwent two surgeries. When
Longley was asked whether he believed it was more likely
true that Wulf’s pain was a result of being struck in October
2007, he answered that precise etiology for Wulf’s ongoing
symptoms was unclear. But he testified that the condition of
the disk degeneration and spinal stenosis was clearly pre-
existent, so the condition itself was not caused by the October
2007 incident.
Wulf had prior neck issues, including falls in 1984, 1988,
and 1994 or 1995. But according to the history given to
Longley by Wulf, she denied any preexisting neck problems.
Records obtained by Hatcher’s office showed that Wulf had
degenerative disk disease in 1994 and that Wulf was being
treated for a complaint to her neck at that time. Kehm and
Crocker each testified that prior to the incident, Wulf sat very

WULF v. KUNNATH 	477
Cite as 285 Neb. 472
erect and would turn her body to talk to someone, rather than
just turning her neck. But Krussel never noticed Wulf to have
problems with turning her head or neck, and another witness
who worked with Wulf until April 2007 never saw Wulf appear
limited because of neck or arm pain.
At the close of all evidence, Wulf moved for a directed
verdict on the issues of battery and injury. The district court
overruled the motion. The jury subsequently returned a verdict
for Kunnath, and the court entered judgment accordingly. Wulf
timely appeals.
ASSIGNMENTS OF ERROR
Wulf assigns that the district court erred in (1) failing to
grant her motion for summary judgment, (2) failing to direct
a verdict for her on the issue of battery, and (3) submitting
jury instructions that allowed the jury to determine whether a
battery occurred or whether an injury resulted from the action.
Wulf also assigns that the verdict was contrary to the law and
to the evidence.
[1] Wulf further assigns that the court erred in misapply-
ing the law to the specific facts of the incident, but her brief
does not contain an argument on this error separate from the
arguments touching on the other assigned errors. To be consid-
ered by this court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error.1
STANDARD OF REVIEW
[2] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence.2
1 In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).
2 Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).

478 	285 NEBRASKA REPORTS
[3] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.3
[4,5] A jury verdict will not be set aside unless clearly
wrong, and it is sufficient if any competent evidence is pre-
sented to the jury upon which it could find for the successful
party.4 In determining the sufficiency of the evidence to sustain
a verdict in a civil case, an appellate court considers the evi-
dence most favorably to the successful party and resolves evi-
dential conflicts in favor of such party, who is entitled to every
reasonable inference deducible from the evidence.5
ANALYSIS
Denial of Summary Judgment.
[6] Wulf first assigns that the district court erred in failing to
grant her motion for summary judgment. The denial of a sum-
mary judgment motion is neither appealable nor reviewable.6
Because a trial has been held in this case and whether a motion
for summary judgment should have been granted generally
becomes moot after trial,7 we need not consider whether the
district court erred in denying Wulf’s motion.
Motion for Directed Verdict, Court’s Jury
Instructions, and Jury’s Verdict.
It is undisputed that Kunnath touched Wulf and that he
intended to do so. Thus, Wulf contends that the district court
should have directed a verdict in her favor on the issue of bat-
tery and that the court should have instructed the jury that a
battery occurred, rather than allowing the jury to determine the
issue. We disagree.
3 American Central City v. Joint Antelope Valley Auth., 281 Neb. 742, 807
N.W.2d 170 (2011).
4 Orduna v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006).
5 Id.
6 Lesiak v. Central Valley Ag Co-op, supra note 2.
7 See id.

WULF v. KUNNATH 	479
Cite as 285 Neb. 472
[7] Both Wulf’s argument regarding a directed verdict and
her argument on the jury instructions require an examination
of the evidence, and we consider them together. Jury instruc-
tions do not constitute prejudicial error if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and evidence.8
At oral argument, Wulf conceded that the instructions cor-
rectly stated the law and that her argument on the instructions
turned upon the evidence. And although Wulf assigned that the
jury’s verdict was contrary to the law and the evidence, she
advanced no argument regarding a conflict with the law and
barely mentioned the verdict in connection with the court’s
denial of a directed verdict. However, because the sufficiency
of the evidence to support the verdict dovetails our analysis of
her primary arguments, we discuss the evidence with all three
issues in mind.
[8-10] In Nebraska, the intentional tort of “battery” is defined
as an actual infliction of an unconsented injury upon or uncon-
sented contact with another.9 Consent ordinarily bars recovery,
because it “goes to negative the existence of any tort in the
first instance.”10 It does so by destroying the wrongfulness of
the conduct between the consenting parties.11 Consent is will-
ingness in fact for conduct to occur. It may be manifested by
action or inaction and need not be communicated to the actor.12
Apparent consent—words or conduct reasonably understood by
another to be intended as consent—is as effective as consent in
fact.13 For a battery to occur, there must be either a nonconsen-
sual contact or a nonconsensual injury.
8 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d
249 (2011).
9 Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
10 W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 18 at 112
(5th ed. 1984).
11 See id.
12 Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008) (quoting
Restatement (Second) of Torts § 892 (1979)).
13 See id.

480 	285 NEBRASKA REPORTS
[11] The general verdict rule controls our examination of
both definitions of a battery. The jury returned a general
verdict in favor of Kunnath. A jury, by its general verdict,
pronounces upon all or any of the issues either in favor of the
plaintiff or the defendant.14 Thus, we must treat the jury’s ver-
dict as having decided in favor of Kunnath and against Wulf
on both the contact and the injury grounds. We consider each
in turn.
[12-14] Viewed in the light most favorable to Kunnath, the
record contains evidence to demonstrate that Wulf consented
to the contact by Kunnath. “The time and place, and the cir-
cumstances under which the act is done, will necessarily affect
its unpermitted character, and so will the relations between the
parties.”15 Evidence established that the contact occurred over
the noon hour while doctors and nurses were joking around.
Further, Kunnath and Wulf had a familial-like relationship.
Such evidence tends to weaken Wulf’s claim that the contact
was nonconsensual. Moreover, “[s]ilence and inaction may
manifest consent where a reasonable person would speak if
he objected.”16 Evidence showed that Kunnath had “thumped”
Wulf on prior occasions at work—contact which Wulf testified
was not offensive to her—and that Wulf never objected to the
thumps by Kunnath. Further, Wulf never asked Kunnath not to
thump her. “It is only when notice is given that all such con-
duct will no longer be tolerated that the defendant is no longer
free to assume consent.”17 Based upon this evidence, reason-
able minds could conclude that Wulf consented to Kunnath’s
contact and, thus, that no battery occurred. Accordingly, the
district court did not err by denying Wulf’s motion for directed
verdict or by submitting the issue of battery to the jury, and the
jury’s verdict was not clearly wrong.
Evidence would also support a finding that Kunnath did not
actually inflict an injury upon Wulf or that any injury suffered
14 Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561 N.W.2d 212
(1997). See Neb. Rev. Stat. § 25-1122 (Reissue 2008).
15 Keeton et al., supra note 10, § 9 at 42.
16 Id., § 18 at 113.
17 Id. at 114.

WULF v. KUNNATH 	481
Cite as 285 Neb. 472
by Wulf was not caused by the contact at issue. Although
disputed, evidence was adduced that witnesses observed no
reaction by Wulf following the contact and had no reason to
believe she had been injured. Wulf obtained medical treat-
ment following the incident, but evidence established that
she suffered from neck problems prior to the incident. And
coworkers testified about Wulf’s erect posture and tendency
to turn her chair around in order to face a coworker when
communicating with that person rather than merely turning
her neck. Longley testified that Wulf had a “tendency to mag-
nify symptoms and exaggerate complaints.” Further, Longley
opined that Wulf’s condition of disk degeneration and spinal
stenosis was preexisting. The court instructed the jury that
Kunnath “takes [Wulf] as he finds her.” More specifically,
the jury was instructed that although Wulf had degenerative
changes in her neck prior to the incident, Kunnath was liable
only for damages caused by his act, and that if the jury could
not separate damages caused by the preexisting degenerative
changes from damages caused by Kunnath’s act, then Kunnath
was liable for all damages. But the jury found in favor of
Kunnath, and there is evidence to support its finding that Wulf
was not injured by the contact. Accordingly, we find no error
by the court in allowing the jury to determine whether a bat-
tery occurred based upon a nonconsensual injury as a result of
the contact. For the same reason, we cannot conclude that the
jury’s verdict was clearly wrong.
CONCLUSION
We conclude that the district court did not err by denying
Wulf’s motion for directed verdict or by submitting the issue
of battery to the jury, because reasonable minds could con-
clude that Wulf consented to the contact by Kunnath or that the
contact did not cause Wulf’s injuries. Because there was com-
petent evidence presented to the jury upon which it could find
for Kunnath, the verdict was not clearly wrong. Accordingly,
we affirm.
affiRmed.
milleR-leRman, J., participating on briefs.