Matthew Van Dewark v. Cynthia Hoffman.

Matthew Van Dewark appeals from a judgment entered by the district court for Douglas County which found in favor of Cynthia Hoffman and against Van Dewark on Van Dewark's claim for damages arising out of an automobile accident. Based on the jury's verdict, no damages were awarded and Van Dewark's petition was dismissed. We affirm.

BACKGROUND

On June 23, 2000, a vehicle operated by Hoffman collided with the rear of an automobile operated by Van Dewark near the intersection of 31st Street and Ed Creighton Boulevard in Omaha, Nebraska. As a result of the collision, Van Dewark's automobile collided with the vehicle directly in front of him that was operated by Ron Rannells. Van Dewark sued Hoffman for negligence and alleged that he sustained severe and disabling injuries as a result of the accident, including physical pain and suffering, disability and loss of enjoyment of life, medical expenses in the approximate amount of $6,120, and lost wages in the amount of $640.

Prior to trial, on October 8, 2002, Van Dewark filed a motion for a pretrial ruling on the admissibility of certain evidence in connection with damages sustained to Rannells' vehicle as well as the injuries Rannells suffered as a result of the accident. Because Rannells was deceased (unrelated to the accident) at the time of trial, the evidence Van Dewark sought to be admitted was testimony of the claims representative of Hoffman's insurance company, testimony of Hoffman, or a copy of the insurance company's settlement agreements with Rannells regarding his property damage and personal injury damage. Van Dewark also filed a notice of intent to offer a statement given by Rannells to the claims representative under Neb. Rev. Stat. § 27-804(2)(e) (Reissue 1995). Van Dewark's motion was overruled. Thereafter, Hoffman filed a motion in limine requesting the court to prohibit Van Dewark from adducing evidence in relation to Rannells, including his personal injuries or any amounts paid to Rannells in connection with his claim for personal injuries, arguing that such evidence is not relevant and would be unduly prejudicial. Hoffman's motion was sustained in part, and the jury was not allowed to hear evidence of Rannells' statement regarding the severity of the impact or regarding Rannells' injuries.

A jury trial was held on February 18 and 19, 2003. At the time of trial, the parties stipulated that the accident was caused by Hoffman's negligence. Therefore, the primary issues to be determined were whether Hoffman's negligence was the proximate cause of Van Dewark's injuries, if any, and the nature and extent of any such injuries. The evidence considered by the jury consisted of Van Dewark's testimony, Hoffman's testimony, Van Dewark's property damage estimate, photographs of all three vehicles involved in the incident, and the property damage estimate of Rannells' vehicle. The jury returned a verdict in favor of Hoffman and against Van Dewark. Van Dewark's petition was dismissed pursuant to the court's order entered February 20, 2003. Van Dewark timely appealed.

ASSIGNMENTS OF ERROR

Van Dewark alleges, restated, that the district court erred in excluding (1) Rannells' statement regarding the severity of the impact of the collision and (2) evidence of the injuries Rannells suffered in the accident.

STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004); Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001). The exercise of judicial discretion is implicit in determinations of relevancy and unfair prejudice, and the trial court's decision will not be reversed absent an abuse of discretion. Id. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Detter v. Miracle Hills Animal Hosp., 12 Neb. App. 480, 677 N.W.2d 512 (2004).

ANALYSIS

Van Dewark asserts that the district court erred in excluding Rannells' statements regarding the severity of the impact and force of the collision and evidence of Rannells' injuries. Van Dewark argues that he was unduly prejudiced by not having the opportunity to present this evidence to the jury because it was relevant and probative to the severity of the impact, the force of the collision, and the injuries suffered by Van Dewark. Van Dewark also argues that the evidence in connection with Rannells would have contributed to the credibility of Van Dewark's testimony. Hoffman, on the other hand, argues that this particular evidence is not relevant to the issue of the severity of the impact and force to Van Dewark's vehicle and, in the alternative, that if it is relevant, its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issue before the jury. Hoffman argues that the issue before the jury was Van Dewark's injuries, not Rannells', and allowing this particular evidence could be misleading to the jury in that it suggests that if Rannells was injured, then Van Dewark must have also been injured. Hoffman also argues that there was limited information about Rannells' overall health and physical condition prior to the time of the collision. Further, Hoffman asserted prejudice in that she would have been precluded from any type of cross-examination of Rannells because he was deceased at the time of trial. Lastly, Hoffman asserts that the jury had sufficient information before it to determine the extent, if any, of Van Dewark's injuries.

The Nebraska Evidence Rules define "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb. Rev. Stat. § 27-401 (Reissue 1995). See Kvamme v. State Farm Mut. Auto. Ins. Co., supra. Neb. Rev. Stat. § 27-403 (Reissue 1995) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002). For purposes of applying § 27-403, probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Wagner, supra. Unfair prejudice means an undue tendency to suggest a decision on an improper basis. Id.

Assuming without deciding that the evidence Van Dewark sought to introduce was relevant, we turn to an analysis of the evidence under § 27-403. While Van Dewark complains that he was unfairly prejudiced by the inability to adduce Rannells' statement concerning the force and impact of the collision and evidence of Rannells' injuries, the record reflects that Van Dewark was permitted to adduce evidence regarding the property damage incurred by Rannells through the introduction of photographs of all the vehicles involved in the accident and the property damage estimate of Rannells' vehicle. See Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993) (photographs of vehicles in collision admissible even though liability for accident admitted where defendant denies nature and extent of injuries caused thereby). The jury was also able to consider Van Dewark's testimony regarding the circumstances surrounding the accident, the force of the impact, and the damage sustained to his vehicle. Further, the jury also considered Van Dewark's testimony about the alleged injuries he sustained and his chiropractor's assessment and treatment of his alleged injuries, as well as Van Dewark's wife's testimony concerning Van Dewark's physical condition and the condition of Van Dewark's vehicle involved in the accident. Thus, we fail to see how Van Dewark was unduly prejudiced by the exclusion of the evidence in connection with Rannells in determining the issue of Van Dewark's damages. Further, we agree with Hoffman's assertion that if the jury had been allowed to consider the excluded evidence, confusion of the issues may have occurred or misled the jury regarding the issue to be determined, which was Van Dewark's damages rather than Rannells'. In sum, the probative value of the excluded evidence was substantially outweighed by the danger of confusion of the issues or misleading the jury, particularly given the admitted evidence concerning the force of the impact and the damage to all three vehicles. Therefore, we conclude that the district court did not abuse its discretion in excluding evidence of Rannells' statement concerning the impact and force of the collision or evidence of Rannells' personal injuries. These assignments of error are without merit.

CONCLUSION

We conclude that the district court did not err in excluding Rannells' statement concerning the impact and force of the accident or evidence of Rannells' personal injuries. Accordingly, we affirm the judgment of the district court.

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Affirmed in favor of Defendent.

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Reported by L. Hargraves