Warner v. Simmons

472 	288 NEBRASKA REPORTS
L ana L. Warner, appeLLant and cross -appeLLee, v.
L ee M. siMMons and niobrara river ranch, L.L.c.,
appeLLees and cross -appeLLants.
849 N.W.2d 475
Filed July 3, 2014. 	No. S-13-392.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
2. Jury Instructions. The general rule is that whenever applicable, the Nebraska
Jury Instructions are to be used.
3. 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.
4. Invitor-Invitee: Negligence: Liability. A land possessor is not liable to a lawful
entrant on the land unless the land possessor had or should have had superior
knowledge of the dangerous condition on the land.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.
Gregory R. Coffey, of Friedman Law Offices, P.C., L.L.O.,
for appellant.
Robert S. Lannin, of Shively & Lannin, P.C., L.L.O., and
Victor E. Covalt III, of Ballew, Covalt & Hazen, P.C., L.L.O.,
for appellees.
heavican, c.J., Wright, connoLLy, stephan, MccorMack,
M iLLer-L erMan, and casseL, JJ.
heavican, c.J.
INTRODUCTION
Appellant, Lana L. Warner, was injured when she fell while
using a wooden plank walkway at a cabin owned by appellee
Lee M. Simmons, doing business as Niobrara River Ranch,
L.L.C. Warner sued Simmons and Niobrara River Ranch, alleg-
ing negligence for failure to maintain, failure to inspect, or
failure to warn of a dangerous condition. A jury returned a
verdict in favor of Simmons and Niobrara River Ranch. Warner
appeals, arguing that the Nebraska jury instruction on burden
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

WARNER v. SIMMONS 	473
Cite as 288 Neb. 472
of proof in premises condition liability cases is not compat-
ible with Nebraska’s comparative fault statute, Neb. Rev. Stat.
§ 25-21,185.09 (Reissue 2008). We affirm.
BACKGROUND
On Thursday, August 24, 2006, Warner and a group of
friends took a “float trip” on the Niobrara River. The group had
arranged to stay near Valentine, Nebraska, at a Niobrara River
Ranch cabin owned by Simmons. The cabin was in a group
of three that Simmons built in 1998. The cabins were labeled
“south,” “middle,” and “north.” Warner’s group was assigned
to the north cabin. Between the road and the north cabin,
Simmons had placed 3-foot-long 2- by 8-inch cedar planks end
to end, forming a walkway, ending approximately 6 feet from
the cabin at a grassless patch.
On the evening of Friday, August 25, 2006, Warner and her
friends returned from dinner in Valentine and walked toward
the cabin where they were staying. According to Warner,
Warner was walking behind her sister and as her sister stepped
on the end of the last plank, the board tilted and hit Warner’s
foot, causing Warner to fall. Warner was taken by ambulance to
a hospital in Valentine, where an x ray showed that Warner had
suffered a fracture of the left tibial plateau and that she would
need surgery. Warner was transferred to a Lincoln, Nebraska,
hospital, where there was an orthopedic surgeon. After sur-
gery, Warner was unable to put her full weight on her leg
for approximately 4 months and used a walker to get around.
Warner testified that for 21⁄2 years, she experienced pain in her
leg when walking.
On August 20, 2010, Warner filed an amended complaint
against Simmons and Niobrara River Ranch, alleging that she
was injured as a direct and proximate result of the defendants’
negligence in failing to inspect the premises, maintain the
premises in a reasonably safe manner, or warn Warner of the
dangerous condition on the premises. In his answer, Simmons
alleged that Warner’s injury was the result of her own acts or
her contributory negligence. The case proceeded to a jury trial
on April 4, 2013.

474 	288 NEBRASKA REPORTS
Simmons stated during his deposition that he was primar-
ily responsible for maintenance and upkeep on the property
and that although he did not perform periodic inspections, per
se, he is “always looking or seeing if there’s something that
needs to be fixed. And if there is, then [he] fix[es] it.” When
shown a photograph of Warner and her friends on the porch of
the cabin, Simmons suggested that the photograph must have
been taken the morning after Warner and her friends arrived,
because he brought the group dinner the night they arrived and
“would have noticed if there was a protruding board like that.”
Simmons was asked whether he agreed that the board closest to
the cabin was protruding at the grassless patch, and Simmons
answered, “It appears to be in this photo. And it appears that
it isn’t in a straight line with the other boards.” Simmons testi-
fied that the board in the photograph looked like something he
would have noticed needed to be fixed.
One of Warner’s friends who was on the trip in 2006 testi-
fied that when she first arrived at the cabin and saw the plank
walkway, she immediately thought “it looked much easier to
me not to walk on the planks.” Clarke testified,
They just didn’t look even to me. And when you’re car-
rying things, I just thought not to have to look down at
these planks and think about where you’re walking, it
was just easier to walk on the sides. So I always did.
And there was — you could see where other people had
thought the same thing because . . . there was grass there
but there was a path there where you could see other
people had done the same thing.
Warner testified that when the group returned from dinner
on August 25, 2006, she noticed the planks for the first time
and “thought, well, those planks are there for a reason. I — you
know, I’m going to walk on them because I’m steady on my
feet, you know, I don’t fall.”
After the parties rested, the court held a jury instruction
conference. At the jury instruction conference, Warner objected
to the burden of proof section of jury instruction No. 2, which
followed the language of NJI2d Civ. 8.26 and read:

WARNER v. SIMMONS 	475
Cite as 288 Neb. 472
Before the Plaintiff can recover against the Defendants,
they [sic] must prove, by the greater weight of the evi-
dence, each and all of the following with respect to one
or more of the Defendants:
1. That the Defendants either created the condition,
knew of the condition, or by the exercise of reasonable
care, would have discovered the condition;
2. That the Defendants should have realized that the
condition involved an unreasonable risk of harm to law-
ful entrants;
3. That the Defendants should have expected that law-
ful entrants such as the Plaintiff either:
a. would not discover or realize the danger; or
b. would fail to protect themselves against the danger;
4. That one or more of Defendants failed to use reason-
able care to protect lawful entrants against the danger;
5. That the condition was a proximate cause of some
damage to the Plaintiff; and
6. The nature and extent of that damage.
Warner submitted a proposed instruction that essentially
omitted the third element and would have required Warner to
prove the following:
1. That there was a condition on the Defendant[s’]
property that represented an unreasonable risk of harm to
lawful entrance [sic] on the property;
2. That the Defendant[s] either created the condition,
knew of the condition, or by the exercise of reasonable
care, would have discovered the condition;
3. That the Defendant[s] failed to use reasonable care
to protect lawful entrance [sic] against the danger;
4. That the condition was a proximate cause of some
damage to . . . Warner; and
5. The nature and extent of that damage.
The court overruled Warner’s objection, noting that it would
follow the Nebraska pattern jury instructions.
The jury returned a verdict in favor of Simmons and
Niobrara River Ranch. Warner appealed and filed a petition

476 	288 NEBRASKA REPORTS
to bypass the Nebraska Court of Appeals. We moved the case
to our docket.
ASSIGNMENTS OF ERROR
Warner asserts that the district court erred in giving NJI2d
Civ. 8.26 on burden of proof in premises condition liability
cases because, she asserts, that jury instruction is not com-
patible with § 25-21,185.09. Simmons cross-appeals, arguing
that the district court erred in refusing to give Nebraska jury
instruction NJI2d Civ. 3.01 on the right to assume another’s
reasonable care.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.1
ANALYSIS
Warner asserts that the district court erred in giving Nebraska
jury instruction NJI2d Civ. 8.26 on burden of proof in premises
condition liability cases because, she asserts, that jury instruc-
tion is not compatible with § 25-21,185.09. Warner argues that
her proposed replacement instruction would have “shift[ed]
issues related to the plaintiff’s knowledge of or ability to avoid
the condition [from] a burden of proof under plaintiff’s prima
facie case to the defendant[s’] burden of proof under their
affirmative defenses.”2
[2,3] The general rule is that whenever applicable, the
Nebraska Jury Instructions are to be used.3 In an appeal based
1 Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 828
N.W.2d 147 (2013); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824
N.W.2d 12 (2012); Gary’s Implement v. Bridgeport Tractor Parts, 281
Neb. 281, 799 N.W.2d 249 (2011); Robinson v. Dustrol, Inc., 281 Neb.
45, 793 N.W.2d 338 (2011); Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54
(2009).
2 Brief for appellant at 7.
3 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006);
Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71
(2006); Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95
(2004); Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474 (1998).

WARNER v. SIMMONS 	477
Cite as 288 Neb. 472
on a claim of an erroneous jury instruction, the appellant has
the burden to show that the questioned instruction was preju-
dicial or otherwise adversely affected a substantial right of
the appellant.4
Warner correctly asserts that the elements of a plaintiff’s
burden of proof in premises liability cases as outlined in
NJI2d Civ. 8.26 are derived from case law from a time when
the law in Nebraska was that a plaintiff’s recovery was barred
if her contributory negligence was simply more than slight.
Warner cites to Burns v. Veterans of Foreign Wars,5 in which
we held that “[t]he open or obvious nature of a dangerous
condition in or on a possessor’s land does not automati-
cally relieve the possessor from liability for injury resulting
from the dangerous condition.” We went on to state that a
possessor of land may be liable if he should expect that the
invitee will fail to protect himself against the dangerous con-
dition.6 NJI2d Civ. 8.26 reflects our holding in that case by
requiring proof that the defendants should have expected that
lawful entrants such as the plaintiff either would not discover
or realize the danger or would fail to protect themselves
against the danger.
Three years after Burns was decided, in 1992, § 25-21,185.09
replaced the “more than slight” bar with a comparative fault
standard allowing a plaintiff to recover so long as her negli-
gence was less than the total negligence of all persons against
whom recovery was sought. In 1996, this court abolished the
distinction between invitee and licensee in Heins v. Webster
County.7 However, in 2003, this court reaffirmed the elements
4 InterCall, Inc. v. Egenera, Inc., supra note 1; Karel v. Nebraska Health
Sys., 274 Neb. 175, 738 N.W.2d 831 (2007); Domjan v. Faith Regional
Health Servs., 273 Neb. 877, 735 N.W.2d 355 (2007); Worth v. Kolbeck,
273 Neb. 163, 728 N.W.2d 282 (2007); Orduna v. Total Constr. Servs., 271
Neb. 557, 713 N.W.2d 471 (2006).
5 Burns v. Veterans of Foreign Wars, 231 Neb. 844, 853, 438 N.W.2d 485,
491 (1989).
6 Id. (quoting Corbin v. Mann’s Int’l Meat Specialties, 214 Neb. 222, 333
N.W.2d 668 (1983)).
7 Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

478 	288 NEBRASKA REPORTS
for a land possessor’s liability for injury to a lawful visitor in
Herrera v. Fleming Cos.,8 including the requirement that “the
defendant should have expected that a lawful visitor such as
the plaintiff either (a) would not discover or realize the dan-
ger or (b) would fail to protect himself or herself against the
danger.” This element follows the language of the Restatement
(Second) of Torts § 343.9 The requirement is further clarified
in the context of known or obvious dangers in § 343A of the
Restatement, which we cited in Aguallo v. City of Scottsbluff,10
when we said,
Generally, when the danger posed by a condition is
open and obvious, the owner or occupier is not liable
for harm caused by the condition. [Citation omitted.]
However, “[d]espite the fact that the danger may be open
and obvious or known, the possessor of the land may owe
the duty if he should expect that the [lawful visitor] will
fail to protect himself against the hazard.”
Warner suggests that the elements outlined in our prior case
law are not compatible with the comparative fault standard
adopted in 1992 because, she asserts, the elements require
the plaintiff to disprove her own contributory negligence.
Warner argues that the third element in particular is properly
placed as part of the defendant’s affirmative defense. We dis-
agree. Although Warner suggests that this element requires
a plaintiff to prove what she specifically did not know in a
particular case, that argument mischaracterizes the purpose of
the element.
[4] Though we have abolished the distinction between
invitee and licensee, it remains true that a land possessor
is not liable to a lawful entrant on the land unless the land
possessor had or should have had superior knowledge of the
dangerous condition on the land.11 The third element of NJI2d
8 Herrera v. Fleming Cos., 265 Neb. 118, 122, 655 N.W.2d 378, 382 (2003).
9 Restatement (Second) of Torts § 343 (1965).
10 Aguallo v. City of Scottsbluff, 267 Neb. 801, 814, 678 N.W.2d 82, 93
(2004).
11 See Kliewer v. Wall Constr. Co., 229 Neb. 867, 429 N.W.2d 373 (1988).

WARNER v. SIMMONS 	479
Cite as 288 Neb. 472
Civ. 8.26 clarifies the scope of a land possessor’s duty by
addressing what a land possessor could reasonably expect a
lawful entrant to know.
As previously mentioned, NJI2d Civ. 8.26 follows the lan-
guage of the Restatement (Second) of Torts, but it is also
consistent with the Restatement (Third) of Torts.12 As com-
ment a. to the Restatement (Third) of Torts § 51 explains,
land possessors have a duty to attend “to the foreseeable risks
in light of the then-extant environment, including foreseeable
precautions by others.”13 This is true regarding all dangerous
conditions on the land, but as comment k. explains, “[k]nown
or obvious dangers pose less of a risk than comparable latent
dangers because those exposed can take precautions to pro-
tect themselves.”14
Jury instruction No. 2 was a correct statement of the law
regarding a plaintiff’s burden of proof in premises condi-
tion liability cases, and the district court did not err in giving
that instruction. Because we find no error, we do not reach
Simmons’ argument on cross-appeal.
CONCLUSION
For the foregoing reasons, the decision of the district court
is affirmed.
affirMed.
12 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
(2012).
13 Id., § 51, comment a. at 243 (emphasis supplied).
14 Id., § 51, comment k. at 251.