Decisions of the Nebraska Court of Appe

740 21 NEBRASKA APPELLATE REPORTS

in an analysis that is not necessary to adjudicate the case and 

controversy before it. State v. Pangborn, 286 Neb. 363, 836 

N.W.2d 790 (2013).

CONCLUSION

Having determined that the district court properly construed § 31-224 and did not err when finding the Liermanns 

had complied with this section, we affirm the district court’s 

judgment.

Affirme

T. Sidney Thurston and Jean Thurston, appell

v. Robert Nelson, doing business as Ne

Construction, and Nelson Construc

& Custom Homes, Inc., appelle

___ N.W.2d ___

Filed February 4, 2014. No. A-13-056.

1. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving 

or excluding an expert’s testimony which is otherwise relevant will be reversed 

only when there has been an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a 

question of law, which an appellate court independently decides.

4. Trial: Witnesses. In order to predicate error upon a ruling of the court refusing to 

permit a witness to testify, or to answer a specific question, the record must show 

an offer to prove the facts sought to be elicited.

5. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, 

the admission or exclusion of evidence must unfairly prejudice a substantial right 

of a litigant complaining about evidence admitted or excluded.

6. ____: ____: ____. An improper exclusion of evidence is ordinarily not prejudicial 

where substantially similar evidence is admitted without objection.

7. Jury Instructions: Proof: Appeal and Error. To establish reversible error from 

a court’s failure to give a requested jury instruction, an appellant has the burden 

to show that (1) the tendered instruction is a correct statement of the law, (2) the 

tendered instruction was warranted by the evidence, and (3) the appellant was 

prejudiced by the court’s failure to give the requested instruction.
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 741

Cite as 21 Neb. App. 740

8. Jury Instructions: Appeal and Error. If the instructions given, which are taken 

as a whole, correctly state the law, are not misleading, and adequately cover the 

issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

9. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do 

so or not, has a duty to instruct the jury on issues presented by the pleadings and 

the evidence.

10. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact 

or facts which give one a right to judicial relief against another; a theory of 

recovery is not itself a cause of action.

11. Actions: Pleadings. Two or more claims in a complaint arising out of the same 

operative facts and involving the same parties constitute separate legal theories, 

of either liability or damages, and not separate causes of action.

12. Election of Remedies. Pleading alternative theories of recovery is permitted, and 

ordinarily, an election between theories of recovery will not be required unless 

the theories are so inconsistent that a party cannot logically choose one without 

renouncing the other.

13. Negligence: Complaints: Contracts: Torts. In order to decide the form of 

redress, whether contract or tort, it is necessary to know the source or origin of 

the duty or the nature of the grievance, and the character of the action must be 

determined from what is asserted concerning it in the complaint.

14. Actions: Breach of Contract: Torts: Words and Phrases. Contract actions, 

which arise from a breach of a duty imposed on one by an agreement, protect a 

plaintiff’s interest in or right to performance of another’s promises, whereas tort 

actions, which arise from a breach of a duty imposed by law, protect a plaintiff’s 

interest or right to be free from another’s conduct which causes damage or loss to 

the plaintiff’s person or property.

15. Contractors and Subcontractors: Warranty. As a general rule, a contractor 

constructing a building impliedly warrants that the building will be erected in a 

workmanlike manner.

16. ____: ____. The implied warranty of workmanlike performance provides the 

owner with an action against the contractor if the contractor’s work is not of good 

quality and free from defects.

17. Contracts: Contractors and Subcontractors. In building and construction contracts, in the absence of an express agreement to the contrary, the law implies that 

the building will be erected in a reasonably good and workmanlike manner and 

will be reasonably fit for the intended purpose.

Appeal from the District Court for Grant County: Travis P

O’Gorman, Judge. Affirme

Gregory J. Beal for appellants.

James L. Zimmerman, of Zimmerman Law Firm, P.C., 

L.L.O., for appellees.
Decisions of the Nebraska Court of Appe

742 21 NEBRASKA APPELLATE REPORTS

Inbody, Chief Judge, and Moore and Riedmann, Ju

Moore, Judge

I. INTRODUCTION

T. Sidney Thurston and Jean Thurston filed suit in the 

district court for Grant County against Robert Nelson, doing 

business as Nelson Construction, and Nelson Construction 

& Custom Homes, Inc. (referred to herein individually and 

collectively as “Nelson”), seeking damages for alleged construction defects resulting from Nelson’s work in building 

an addition to and remodeling their house. Following a jury 

trial, the jury found in favor of Nelson. The Thurstons have 

appealed, assigning error to the court’s exclusion of certain 

expert witness testimony and its refusal to give requested 

jury instructions. Finding no abuse of discretion in the district 

court’s exclusion of expert witness testimony and no error in 

the instructions given to the jury, we affirm.

II. BACKGROUND

In their operative complaint, the Thurstons set forth claims 

for breach of contract, negligence, and breach of the implied 

warranty of workmanlike performance. Specifically, the 

Thurstons alleged that as a result of the parties’ contact in 

February 2009, they entered into an oral agreement for Nelson 

to construct a substantial addition to the Thurstons’ house in 

rural Grant County and to make certain improvements to the 

existing structure. They alleged that Nelson held himself out 

as an experienced homebuilder, that he represented he could 

and would build the addition in accordance with industry 

standards and building codes within a reasonable time, and 

that they relied upon Nelson’s representations and promises. They further alleged that Nelson worked on their house 

between May and October, that Nelson removed his tools 

and equipment from the construction site in November and 

never returned to complete the project, and that they had paid 

Nelson $42,024.43 and had incurred $90,479.39 in material 

and inspection costs.

With respect to breach of contract, the Thurstons alleged 

that Nelson breached the contract by not completing the agreed 
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 743

Cite as 21 Neb. App. 740

construction within a reasonable time, by not performing the 

work in a workmanlike manner, and by leaving both the old 

structure and the new structure unprotected from the elements, resulting in damage to the property. They alleged that 

they had suffered damages to the new construction totaling 

approximately $132,503.82. They further alleged that they had 

suffered personal injury due to dampness and mold existing in 

both the old structure and the new structure, which dampness 

and mold would require removal and replacement of the new 

structure at an estimated cost of $116,000 and an estimated 

additional $250,000 in damages if the old structure required 

replacement. The Thurstons alleged consequential damages in 

the nature of loss of use and occupancy of their house, severe 

emotional distress and mental anguish, and other allowed 

consequential damages. They alleged that their damages from 

Nelson’s breach of contract were continuing and increasing due 

to structural inadequacies or defects and continued exposure to 

the elements.

With respect to negligence, the Thurstons alleged that 

Nelson had a duty to use reasonable and workmanlike practices and procedures in the construction work and that he 

breached his duty to do so. Specifically, they alleged that 

Nelson failed to construct the foundation according to building code and workmanlike practices; supervise the work of 

subcontractors; protect the property from the elements; use 

proper-dimension lumber, beams, or support systems for the 

structure; assess load-bearing capacity of the existing structure 

or provide adequate structural support for new construction 

joining the existing structure; and use venting where reasonably required. The Thurstons alleged Nelson’s negligence was 

the sole and proximate cause of damages sustained to both the 

new and existing structure in excess of $10,000. They alleged 

that they suffered personal injury to their health due to mold 

on the premises and also repeated their claim for consequential damages.

Finally, with respect to breach of warranty, the Thurstons 

alleged that Nelson represented himself to be an experienced, 

qualified homebuilder who was competent and experienced 

enough to do the contemplated construction work and that 
Decisions of the Nebraska Court of Appe

744 21 NEBRASKA APPELLATE REPORTS

based on his representations and the Thurstons’ reliance on 

those representations, Nelson began to construct an addition 

and to make certain alterations to the existing house. The 

Thurstons alleged that Nelson failed to perform the construction in a workmanlike manner and that there were numerous structural and cosmetic defects in Nelson’s work. They 

alleged that as a result of Nelson’s breach of the implied 

warranty, they had been damaged in the minimum amount of 

$250,000. The Thurstons again repeated their claim for consequential damages.

In his answer, Nelson alleged that the work performed was 

completed in a good and workmanlike manner in compliance 

with construction standards in the area and that any claims 

made by the Thurstons were the result of their interference 

and refusal to allow Nelson to complete the contract. Nelson 

denied any negligence and alleged that he was not responsible 

for the hiring, supervision, or payment of any other contractors 

or subcontractors who performed labor or provided material to 

complete the construction. Nelson denied the nature and extent 

of the damages alleged by the Thurstons and denied that they 

suffered any personal injury to their health by reason of any 

mold on the premises.

A jury trial was held in the district court beginning on 

December 17, 2012, and over the course of the 5-day trial, 

the jury heard testimony from the parties and various witnesses as to the construction work performed by Nelson for the 

Thurstons and the alleged structural defects and mold damage. 

The court received numerous photographs and other documentary exhibits into evidence as well. The bill of exceptions, 

excluding exhibits, is nearly 1,200 pages long. For the sake of 

brevity and due to the nature of the assignments of error on 

appeal, we decline to further summarize the evidence here. We 

have set forth additional facts as necessary to our resolution of 

this appeal in the analysis section below. We note that Nelson 

made a motion for directed verdict, which the court granted 

only to the extent that the Thurstons sought personal injury 

damages for severe emotional distress, because it found no 

evidence supporting such a claim.
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 745

Cite as 21 Neb. App. 740

On December 21, 2012, the jury returned a verdict for 

Nelson. The district court accepted the verdict and entered 

judgment in favor of Nelson and against the Thurstons. The 

Thurstons subsequently perfected their appeal to this court.

III. ASSIGNMENTS OF ERROR

The Thurstons assert that the district court erred in (1) 

excluding testimony from a particular expert witness, (2) failing to give separate or alternate jury instructions on their 

claims for negligent construction and implied warranty, and 

(3) giving instructions that did not allow the jury to find 

for the Thurstons on a theory of recovery other than breach 

of contract.

IV. STANDARD OF REVIEW

[1,2] A trial court’s ruling in receiving or excluding an 

expert’s testimony which is otherwise relevant will be reversed 

only when there has been an abuse of discretion. Prime Home 

Care v. Pathways to Compassion, 283 Neb. 77, 809 N.W.2d 

751 (2012). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition. Fox v. Whitbeck, 

286 Neb. 134, 835 N.W.2d 638 (2013).

[3] Whether a jury instruction is correct is a question of law, 

which an appellate court independently decides. InterCall, Inc. 

v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).

V. ANALYSIS

1. Expert Witness Testimo

The Thurstons assert that the district court erred in excluding testimony from their expert Darin Wilkerson as to whether 

Nelson’s work was performed in a workmanlike manner.

Wilkerson is a general contractor, is a member of a professional builders’ association, and has been in the construction 

business since 1988. Wilkerson testified that he was generally acquainted with the workmanship of homebuilders in 

western Nebraska. He was contacted by the Thurstons in 

February 2011, and as a result of that contact, he made a visual 
Decisions of the Nebraska Court of Appe

746 21 NEBRASKA APPELLATE REPORTS

inspection of the perimeter and the interior of both the addition 

and the existing residence. Wilkerson inspected the premises in 

greater detail a couple of weeks after his initial visit and again 

in November 2012.

When the Thurstons’ attorney asked Wilkerson if, based 

on his inspection, he reached any conclusion as to whether 

Nelson’s work was completed in a workmanlike manner, 

Nelson’s attorney requested a bench discussion, which was 

held outside the hearing of the jury. During the discussion, 

Nelson’s attorney represented to the court that, based on the 

expert witness report, Wilkerson was supposed to be called 

to testify as to the cost of remediation and that no opinions 

about workmanship were disclosed in the report. At the conclusion of the discussion, the court stated, “All you have in 

here is cost, there’s nothing about workmanship. Just limit it 

to that.” Wilkerson then proceeded to testify that his estimate 

of costs to reconstruct the addition and return the existing 

structure to its original condition would be $240,360. He 

also opined that it would not be economically feasible to 

repair the addition. An exhibit received in evidence from 

Wilkerson’s company included descriptions of proposed construction work on the Thurstons’ home and the cost of such 

work, but it did not include any opinions regarding the nature 

of Nelson’s work.

After the conclusion of Wilkerson’s testimony, the Thurstons’ 

counsel sought permission to recall Wilkerson, directing the 

court’s attention to previously filed expert witness lists, which 

disclosed that Wilkerson was expected to opine, among other 

things, about the construction work that was not done in a 

workmanlike manner. After further argument from the parties, 

the court denied the motion to recall Wilkerson as a witness, 

finding that even if the matter was adequately disclosed, the 

testimony would be cumulative because two previous expert 

witnesses called by the Thurstons had already testified on the 

issue of workmanship. The record shows that two separate 

structural engineers testified at trial about the workmanship 

issues with Nelson’s construction. Additionally, a masonry 

contractor opined that the foundation work was not done in a 

workmanlike manner.
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 747

Cite as 21 Neb. App. 740

[4] The Thurstons did not make an offer of proof with 

respect to the exact testimony they sought to elicit from 

Wilkerson. Neb. Rev. Stat. § 27-103 (Reissue 2008) provides 

that error may not be predicated upon a ruling admitting or 

excluding evidence unless a substantial right of the party is 

affected and, in case the ruling is one excluding evidence, the 

substance of the evidence was made known to the judge by 

offer or was apparent from the context within which questions 

were asked. The Nebraska Supreme Court has stated that in 

order to predicate error upon a ruling of the court refusing to 

permit a witness to testify, or to answer a specific question, the 

record must show an offer to prove the facts sought to be elicited. Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 

327, 754 N.W.2d 406 (2008).

In their brief on appeal, the Thurstons argue that Wilkerson’s 

testimony “would have outlined to the jury that [Nelson] 

breached his duty of care which he owed to the [Thurstons].” 

Brief for appellants at 22. However, the substance of this 

asserted evidence was not made known to the trial judge, and 

it is not apparent from the record before us. As mentioned 

previously, the exhibit from Wilkerson did not include any discussion of the standard or duty of care allegedly owed to the 

Thurstons or allegedly breached by Nelson. Further, when the 

trial judge noted the cumulative testimony previously given by 

two other expert witnesses on the issue of Nelson’s workmanship, the Thurstons did not make an offer of proof indicating 

how Wilkerson’s testimony might differ.

[5,6] To constitute reversible error in a civil case, the 

admission or exclusion of evidence must unfairly prejudice 

a substantial right of a litigant complaining about evidence 

admitted or excluded. Martensen v. Rejda Bros., 283 Neb. 279, 

808 N.W.2d 855 (2012). An improper exclusion of evidence is 

ordinarily not prejudicial where substantially similar evidence 

is admitted without objection. Cotton v. State, 281 Neb. 789, 

810 N.W.2d 132 (2011).

The Thurstons have not shown how they were prejudiced by 

the district court’s denial of their motion to recall Wilkerson 

to testify about Nelson’s workmanship. Because there was 

no offer of proof made and the evidence disallowed was not 
Decisions of the Nebraska Court of Appe

748 21 NEBRASKA APPELLATE REPORTS

apparent from the context of the questions asked, we cannot say that the district court erred in excluding Wilkerson’s 

testimony regarding workmanship and in finding that such 

testimony would have been cumulative to other substantially 

similar evidence which was admitted without objection. This 

assignment of error is without merit.

2. Jury Instruction

The Thurstons assert that the district court erred in failing to 

give separate or alternate jury instructions on their claims for 

negligent construction and implied warranty. They also assert 

that the court erred by giving instructions that did not allow 

the jury to find for the Thurstons on a theory of recovery other 

than breach of contract.

[7,8] To establish reversible error from a court’s failure to 

give a requested jury instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement of 

the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction. InterCall, Inc. v. Egenera, 

Inc., 284 Neb. 801, 824 N.W.2d 12 (2012). If the instructions 

given, which are taken as a whole, correctly state the law, are 

not misleading, and adequately cover the issues submissible to 

a jury, there is no prejudicial error concerning the instructions 

and necessitating a reversal. Id.

A jury instruction conference was held on December 21, 

2012. The final instructions prepared by the district court 

included the following statement of the case instruction, 

instruction No. 2, to which the parties had no objection:

Instruction No. 2

STATEMENT OF THE CASE - 

BREACH OF CONTRACT

I. Plaintiff’s Claims

A. ISSUES

This case involves the construction of an addition to 

an existing home. The [Thurstons] claim [Nelson] entered 

into an oral contract under which [he] would construct an 

addition to the existing home and make certain improvements to the structure which already exists.
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 749

Cite as 21 Neb. App. 740

The [Thurstons] claim that [Nelson] breached the contract in one or more of the following ways[:]

1. By not completing the construction agreed to in a 

reasonable time;

2. By failing to complete the construction in a good 

and workmanlike manner and in conformance with construction standards in the following particulars:

A. Failing to construct the foundation according to 

building code and workmanlike practices;

B. Failing to supervise subcontractors;

C. Failing to protect the property from elements, particularly rain, when construction work left the property 

exposed to elements;

D. Failing to use proper dimension lumber, beams or 

support systems for the structure;

E. Failing to assess load bearing capacity of existing 

structure or providing adequate structural support for new 

construction or joining existing structure;

F. Failure to use venting where reasonably required[.]

The [Thurstons] also claim that they were damaged as 

a result of this breach of contract, and they seek a judgment against [Nelson] for these damages.

[Nelson] admits that the parties entered into a contract, 

but alleges that [the Thurstons] contracted with [Nelson] 

to provide for the construction of the addition, excluding 

plumbing, heating, air conditioning, electrical and shingling the new addition and the old home.

[Nelson] denies that he did not complete the work in 

a good and workmanlike manner and in conformance 

with construction standards in the area that the work 

was performed.

[Nelson] alleges that the [Thurstons] interfered with 

and frustrated his ability to complete the contract and [that 

the Thurstons] thereby breached the contract between the 

parties. [Nelson] further alleges that the [Thurstons] were 

the general contractor on the project and were responsible 

for hiring, supervision and payment of any other contractors or subcontractors who performed labor or provided 

material to complete the construction.
Decisions of the Nebraska Court of Appe

750 21 NEBRASKA APPELLATE REPORTS

B. Burden of Proof

Before the [Thurstons] can recover against [Nelson] on 

their claim, [they] must prove, by the greater weight of 

the evidence, each and all of the following:

1. That the [Thurstons] and [Nelson] entered into the 

contract;

2. The terms of the contract;

3. That [Nelson] breached the contract in one or more 

ways claimed by [the Thurstons];

4. That the breach of contract was a proximate cause of 

some damage to [the Thurstons]; and

5. The nature and extent of that damage.

C. Effect of Findings

If the [Thurstons] have not met this burden of proof, 

then your verdict must be for [Nelson], and you should 

cease any further deliberations.

On the other hand, if the [Thurstons] have met this 

burden of proof, then you must consider [Nelson’s] 

affirmative defense.

The remaining portion of instruction No. 2 outlined the 

issues, burden of proof, and effect of findings with respect to 

Nelson’s defenses.

The final instructions prepared by the court also included 

instruction No. 3, which provided:

If you find that there was a contract, then the law 

makes the following terms part of the contract:

1. Accompanying every contract is a common-law duty 

to perform with care, skill, reasonable expedience, and 

faithfulness the thing agreed to be done. A failure to 

observe any of these conditions is a breach of contract.

2. The law implies that a building will be erected in 

a reasonably good and workmanlike manner and will be 

reasonably fit for its intended purpose.

3. Every contract for work or services includes an 

implied duty to perform skillfully, carefully, diligently, 

and in a workmanlike manner, and by taking a job, one 

contracts that he has the requisite skill to perform it.

4. The implied covenant of good faith and fair dealing exists in every contract and requires that none of 
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 751

Cite as 21 Neb. App. 740

the parties to the contract will do anything which will 

injure the right of another party to receive the benefit of 

the contract.

Neither party objected to instruction No. 3.

We note that instruction No. 2 as given defines the case as 

a breach of contract case and requires that the Thurstons prove 

the existence of a contract (which Nelson admits), the terms 

of the contract, its breach, and damages that were proximately 

caused by the breach. However, instruction No. 2, under paragraph I.A.2. regarding the claimed failure of Nelson to complete the construction in a workmanlike manner, also included 

specific allegations of such failure in subparagraphs A. through 

F., which directly correspond to the allegations of negligence 

in the Thurstons’ complaint. And instruction No. 3 included 

the allegations of breach of the implied warranty of workmanlike performance contained in the Thurstons’ complaint. 

Thus, the court essentially combined the various allegations 

of the Thurstons’ breach of contract, negligence, and breach 

of implied warranty of workmanlike performance into this one 

jury instruction.

The Thurstons proposed certain additional instructions with 

respect to negligent construction and implied warranty, which 

instructions we address further below.

(a) Negligent Construction

[9] The Thurstons assert that the district court erred in failing to give separate or alternate jury instructions on their claim 

for negligent construction. A trial court, whether requested 

to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence. Centurion Stone 

of Nebraska v. Trombino, 19 Neb. App. 643, 812 N.W.2d 

303 (2012).

At the instruction conference, the Thurstons first requested 

an instruction on professional negligence, pursuant to NJI2d 

Civ. 12.04. We find no error in the district court’s decision 

not to give an instruction on professional negligence in this 

case. See Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 

830 N.W.2d 53 (2013) (professional act or service defined as 

arising out of vocation, calling, occupation, or employment 
Decisions of the Nebraska Court of Appe

752 21 NEBRASKA APPELLATE REPORTS

involving specialized knowledge, labor, or skill, and labor or 

skill involved is predominantly mental or intellectual, rather 

than physical or manual).

The Thurstons also requested an instruction on damages 

to property in negligence cases found at NJI2d Civ. 4.20 to 

4.24 (alternative instructions depending on whether repairs 

will restore property at cost lower than property’s predamage 

value). The district court denied the requested instructions, 

finding that this case, as pled, is a contract action and that the 

damages were contract damages. On appeal, the Thurstons 

assert that they were prejudiced by not having a separate or 

alternative instruction on negligence in the event the jury found 

that a contract was not proved.

[10-12] The Thurstons set forth in their complaint “causes 

of action” for both breach of contract and negligence. A cause 

of action consists of the fact or facts which give one a right 

to judicial relief against another; a theory of recovery is not 

itself a cause of action. InterCall, Inc. v. Egenera, Inc., 284 

Neb. 801, 824 N.W.2d 12 (2012). Thus, two or more claims in 

a complaint arising out of the same operative facts and involving the same parties constitute separate legal theories, of either 

liability or damages, and not separate causes of action. Id. In 

this case, Thurstons’ complaint contained separate legal theories of recovery, because their claims all arose out of the same 

operative facts and involved the same parties. In Nebraska, 

pleading alternative theories of recovery is permitted, and 

ordinarily, an election between theories of recovery will not 

be required unless the theories are so inconsistent that a party 

cannot logically choose one without renouncing the other. 

See Kenyon & Larsen v. Deyle, 205 Neb. 209, 286 N.W.2d 

759 (1980).

While the Thurstons pled the alternative theories of breach 

of contract and negligence, the question becomes whether 

the court was required to instruct the jury on both theories 

of recovery.

[13,14] In order to decide the form of redress, whether contract or tort, it is necessary to know the source or origin of the 

duty or the nature of the grievance, and the character of the 

action must be determined from what is asserted concerning 
Decisions of the Nebraska Court of Appe

THURSTON v. NELSON 753

Cite as 21 Neb. App. 740

it in the complaint. Moglia v. McNeil Co., 270 Neb. 241, 

700 N.W.2d 608 (2005). Contract actions, which arise from 

a breach of a duty imposed on one by an agreement, protect 

a plaintiff’s interest in or right to performance of another’s 

promises, whereas tort actions, which arise from a breach of 

a duty imposed by law, protect a plaintiff’s interest or right to 

be free from another’s conduct which causes damage or loss 

to the plaintiff’s person or property. Henriksen v. Gleason, 263 

Neb. 840, 643 N.W.2d 652 (2002). In the case before us, the 

Thurstons’ negligence allegations relate to Nelson’s construction work, which work is the object of the agreement forming 

the basis for the breach of contract claim.

The district court in this case determined that the breach of 

contract encompassed negligent construction and that based 

on the damages requested, it was a contract action. The 

Nebraska Supreme Court recently discussed the coexistence 

of tort and contract actions in Lesiak v. Central Valley Ag 

Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012). In that case, 

the district court granted summary judgment to the defendant on the plaintiffs’ negligence claim, finding that based 

upon the economic loss doctrine, the plaintiffs could only 

proceed under contractual theories of relief. On appeal, the 

Supreme Court recognized the general economic loss doctrine 

as a “‘judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only 

damages suffered are economic losses.’” Id. at 118-19, 808 

N.W.2d at 80. The court clarified the economic loss doctrine 

in Nebraska, however, limiting its application to the products 

liability context and to situations where the alleged breach 

is only of a contractual duty, and no independent tort duty 

exists. The court stated:

[W]hen the alleged breach is of a purely contractual 

duty—a duty which arises only because the parties 

entered into a contract—only contractual remedies are 

available. . . . Thus, the doctrine serves to “weed[ ] out 

cases involving nothing more than an allegedly negligent 

failure to perform a purely contractual duty—a duty that 

would not otherwise exist.”

Id. at 122, 808 N.W.2d at 82.
Decisions of the Nebraska Court of Appe

754 21 NEBRASKA APPELLATE REPORTS

The court in Lesiak concluded that where a plaintiff is suing 

for breach of a contractual duty which would not have existed 

but for the contractual relationship, it should be brought as a 

breach of contract action and not as a tort claim. The court 

recognized that this conclusion was somewhat at odds with 

past statements in some of its case law. The court noted that 

under Nebraska law, with each contract comes an accompanying duty “‘“to perform with care, skill, reasonable expediency, 

and faithfulness the thing agreed to be done.”’” Id., quoting 

Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606 

N.W.2d 85 (2000). The court in Lesiak also noted that it had 

previously stated that a breach of that duty may give rise to 

a breach of contract action or a tort action for negligent performance of the contract. The court indicated that it was now 

qualifying that statement to hold:

Where only economic loss is suffered and the alleged 

breach is of only a contractual duty . . . , then the action 

should be in contract rather than in tort. In other words, 

the doctrine would apply to bar a tort action for the negligent performance of a contract when only economic 

losses were incurred.

Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 123, 808 

N.W.2d 67, 83 (2012). In sum, the court concluded that the 

primary purpose of the economic loss doctrine is to maintain the separateness of tort law and contract law. “Generally 

speaking, the doctrine limits a party’s ability to recover for 

economic losses (or commercial losses), unaccompanied by 

personal injury or damage to other property, allowing recovery 

only under contract law.” Id. The court expressly restricted 

the application of the doctrine to where economic losses are 

(1) caused by a defective product or (2) caused by an alleged 

breach of a contractual duty, where no tort duty exists independent of the contract itself. Id. The court went on to define economic losses as commercial losses, unaccompanied by personal 

injury or “‘other property’” damage. Id. at 124, 808 N.W.2d at 

83. The phrase “other property” means property other than the 

property that was the subject of the contract. Id.

In connection with their negligence theory of recovery, 

the Thurstons alleged that they suffered damages to the new 
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addition and to the existing structure in excess of $10,000; personal injury to their health, as well as consequential damages 

which included the loss of use and occupancy of their home; 

and severe emotional distress. However, the evidence adduced 

at trial related only to the economic losses allegedly resulting 

from Nelson’s alleged failure to perform the work that he had 

agreed to do in a workmanlike manner. In other words, these 

are economic damages which can only be sought in a breach 

of contract action. See Lesiak, supra. Although the Thurstons’ 

complaint sought damages for emotional distress and mental 

anguish, as well as personal injury to their health, there was no 

evidence adduced to support these damages and these claims 

were properly not submitted to the jury.

We conclude that the district court did not err in failing to 

give separate or alternate jury instructions on the Thurstons’ 

claim for negligent construction. The basis of the Thurstons’ 

negligence theory of recovery was Nelson’s allegedly negligent failure to perform a purely contractual duty, which duty 

would not otherwise exist without the oral contract between 

the parties in this case. The damages for which evidence was 

adduced in this case were purely related to economic losses. In 

short, the evidence did not establish any duty or damages based 

on negligence that was not “coextensive with those encompassed” by the breach of contract theory on which the jury was 

instructed. See Sturzenegger v. Father Flanagan’s Boys’ Home, 

276 Neb. 327, 353, 754 N.W.2d 406, 430 (2008).

This assignment of error is without merit.

(b) Implied Warranty

The Thurstons assert that the district court erred in failing 

to give separate or alternate jury instructions on their claim for 

implied warranty.

[15,16] As a general rule, a contractor constructing a building impliedly warrants that the building will be erected in a 

workmanlike manner. Moglia v. McNeil Co., 270 Neb. 241, 

700 N.W.2d 608 (2005). The implied warranty of workmanlike performance provides the owner with an action against the 

contractor if the contractor’s work is not of good quality and 

free from defects. Id.
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756 21 NEBRASKA APPELLATE REPORTS

[17] In building and construction contracts, in the absence 

of an express agreement to the contrary, the law implies that 

the building will be erected in a reasonably good and workmanlike manner and will be reasonably fit for the intended 

purpose. Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 

N.W.2d 465 (1993); Henggeler v. Jindra, 191 Neb. 317, 214 

N.W.2d 925 (1974).

The Thurstons argue that they pled breach of the implied 

warranty to perform in a workmanlike manner as a separate 

cause of action and that, as such, an alternate instruction 

was justified. During the jury instruction conference, they 

directed the district court’s attention to NJI2d Civ. 11.44. The 

court rejected the Thurstons’ proposed instruction, concluding that the instructions as written adequately injected the 

issue of breach of implied warranty into the case on a breach 

of contract theory. The court also observed that NJI2d Civ. 

11.44 concerns the sale of goods, which is not at issue in 

this case.

Pattern jury instruction NJI2d Civ. 11.44 addresses the 

burden of proof with respect to breach of an implied warranty of fitness for a particular purpose in the context of the 

sale of goods. The comments to the instruction show that it 

deals with only the implied warranty of fitness for a particular 

purpose under Neb. U.C.C. § 2-315 (Reissue 2001). Because 

this case does not involve the sale of goods or a claim under 

Nebraska’s Uniform Commercial Code, the tendered instruction was not warranted in this case. As noted above, the 

district court instructed the jury that if it found there was a 

contract, the law made certain terms a part of that contract, 

including the implied warranty that a building would be 

erected in a reasonably good and workmanlike manner and 

would be reasonably fit for its intended purpose. The instructions given were a correct statement of the law and adequately 

covered the issues. We find no error.

(c) Conclusion

The court did not err in refusing to give separate or alternative instructions on the negligence or implied warranty theories 

of recovery.
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VI. CONCLUSION

The district court did not abuse its discretion in limiting 

the testimony of one of the expert witnesses and did not err in 

refusing to give separate jury instructions on the negligence or 

implied warranty theories of recovery.

Affirme