25-21,185.09. Civil actions to which contributory negligence is a defense; effect on recovery.

Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant's contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. The jury shall be instructed on the effects of the allocation of negligence.

Source

Annotations

The language of this section allows a jury to compare a plaintiff's contributory negligence to the negligence of a defendant or defendants. It does not provide that the plaintiff's negligence may be applied in the plaintiff's cause of action based upon strict liability in tort. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).

It is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with this section. The Nebraska Supreme Court has consistently understood the plain meaning of the word "instructed" in this section to require formal jury instructions. The verdict form is not a substitute for a proper instruction. The Nebraska Legislature has chosen to require that the jury be fully and openly informed before making its determinations with respect to contributory negligence and the attendant allocation of negligence. Russell v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001).

Failure to instruct a jury with respect to the effects of its allocation of negligence in accordance with this section is prejudicial error. Moreover, a verdict form is not a substitute for a proper instruction. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000).

This section requires the jury to be instructed regarding the effect of the allocation of negligence. Failing to instruct the jury as to the effect of the allocation of negligence is plain error. Fiscel v. Beach, 254 Neb. 678, 578 N.W.2d 52 (1998).

In those cases where the cause of action accrued on or after February 8, 1992, and in which contributory negligence is a defense, it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with this section. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998).

The fact that plaintiff's negligence may have been more than slight as a matter of law under the prior slight-gross contributory negligence standard does not automatically equate with negligence that equals or exceeds defendant's under this section. Where reasonable minds may draw different conclusions and inferences regarding the negligence of plaintiff and the negligence of defendant such that plaintiff's negligence could be found to be less than 50 percent of the total negligence of all persons against whom recovery is sought, the apportionment of fault must be submitted to the jury. Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996).

A wrongful death action brought in the name of a 6-year-old child's mother, as representative of the child's estate, was brought for the exclusive benefit of the child's next of kin, and thus, the child's father, as next of kin and beneficiary of the child's estate, was properly included in the court's instruction to the jury regarding the allocation of percentages of contributory negligence, even though the father was not brought into the action either as a claimant within the meaning of the statute that governed the defense of contributory negligence or as a third-party defendant. Curtis v. States Family Practice, 20 Neb. App. 234, 823 N.W.2d 224 (2012).

The trial court's refusal to determine a party negligent as a matter of law did not prejudice the other party, where evidence that both parties were negligent required the trial court to instruct the jury to weigh the relative contributions of the parties' negligence and the jury found both parties to be negligent. Howe v. Hinzman, 14 Neb. App. 544, 710 N.W.2d 669 (2006).

Where reasonable minds may draw different conclusions and inferences regarding the negligence of the parties, the apportionment of negligence is for the finder of fact. The purpose of the comparative negligence law is to allow triers of fact to compare relative negligence and to apportion damages on that basis. The determination of apportionment is solely a matter for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by credible evidence and bears a reasonable relationship to the respective elements of negligence proved at trial. Stinson v. City of Lincoln, 9 Neb. App. 642, 617 N.W.2d 456 (2000).

A determination that a plaintiff's negligence was more than slight as a matter of law under the slight/gross standard does not automatically translate into a finding that the same plaintiff's right to recovery would be barred under this section. Dutton v. Travis, 4 Neb. App. 875, 551 N.W.2d 759 (1996).