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In an Automobile Negligence Action, What Damages Must Be Presented for Plaintiff to Prevail? If Specifics Are Not Proffered, Will the Jury Find for the Defendant?

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In Lewison v. Renner, No. S-17-173, (298 Neb. 654) the Supreme Court of Nebraska determined what is necessary.

Barbara Lewison (“Lewison”) sued Carol Renner (“Renner”) for negligence. On December 21, 2012, in Kearney, Nebraska, Renner made a left turn in front of a vehicle being driven by Lewison and the two vehicles collided. Lewison was treated in the emergency room for complaints of neck and back pain. In 2014, Lewison filed a negligence action against Renner. She alleged the collision caused injuries to her neck, back, and wrists. She claimed to have medical expenses of $53,270. Renner admitted her negligence and further admitted the collision was the cause of some injury to Lewison. Renner denied the nature and extent of the damage and injury claimed by Lewison.

At trial, Lewison had three of her doctors testify as to the nature of her injuries. She had her general practitioner, who gave opinions on her neck and wrist injuries. He also testified that Lewison had many unexplained aches and pains. Lewison’s doctor referred her to an orthopedic hand surgeon. He saw Lewison approximately 3 months after the collision. At that time, Lewison complained of numbness and tingling in both hands. The hand surgeon testified that Lewison had undergone a carpal tunnel surgery in 1992, and he ultimately performed additional carpal tunnel surgeries in 2014. When asked if the car accident caused the carpal tunnel injures, he said it was possible.

Eleven months after the collision, Lewison visited a pain specialist for back pain. He testified Lewison had an extensive history of back problems, including: a back surgery when she was 19; a lumbar diskectomy and fusion surgery in 1989; and a series of nerve ablation surgeries. As for the cause of Lewison’s recent back pain, he was unsure.

The defense expert, a neurologist, was hired by Renner to examine Lewison and review her medical records. He testified that Lewison had a long history of neck, back, and wrist pain before the collision. This expert did not testify about the cost of such treatment, and no bills for this period of treatment, or any other, were offered.

In spite of Renner’s admission that her negligence caused the accident, the jury found for Renner. Lewison appealed claiming the jury erred. Her request for a new trial was denied. The Supreme Court of Nebraska examined whether the trial court abused its discretion.

In this case, Renner admitted she was negligent in operating her vehicle and that her negligence was the proximate cause of the collision with Lewison. Based on those unconditional admissions, the trial court correctly found, as a matter of law, that Renner was negligent and that her negligence proximately caused the collision. The Court, after examining the facts, found it was proper for the trial court to instruct the jury that before the plaintiff could recover against the defendant, the plaintiff had the burden to prove, by a preponderance of the evidence that as a proximate result of the accident, the plaintiff sustained injuries and damages, and the extent of the damages, if any, which the plaintiff has sustained.

Lewison had to prove the nature and extent of her damages proximately caused by Renner’s negligence. The Court can find no abuse of discretion in the trial court’s conclusion that the jury’s verdict was supported by the evidence. Lewison’s neck, back, and wrist complaints were subjective in nature and, as such, the cause and the nature/extent of such injuries had to be proved through expert medical testimony. At trial, her treating doctors’ opinions on causation were vague and were couched in terms of possibilities, rather than probabilities. Lewison did not argue otherwise on appeal.

Lewison failed to meet her burden of proof regarding the cause of her injuries and the nature and extent of her damages. The trial court did not abuse its discretion in overruling Lewison’s motion for new trial. Therefore the district court’s denial of a new trial is affirmed.

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