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City of Wahoo, Nebraska, 

appellant, v. NIFCO Mechanical 

Systems, Inc., appellee.

___ N.W.2d ___

Filed June 19, 2020. No. S-19-622.

1. Jury Instructions: Appeal and Error. Whether a jury instruction 

is correct is a question of law, which an appellate court independently decides.

2. ____: ____. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal 

absent plain error.

3. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

4. Jury Instructions: Appeal and Error. If the jury instructions given, 

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.

5. Appeal and Error. An appellate court may, at its discretion, discuss 

issues unnecessary to the disposition of an appeal where those issues are 

likely to recur during further proceedings.

Appeal from the District Court for Saunders County: 

Christina M. Marroquin, Judge. Reversed and remanded for 

a new trial.

John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, 

Tannehill & Hahn, L.L.P., for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/31/2020 08:10 AM CDT
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Cite as 306 Neb. 203

Daniel B. Shuck, of Shuck Law Firm, P.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

In this negligence action, the district court gave the jury two 

comparative negligence instructions. One instructed the jury 

that if it found that the plaintiff’s negligence was more than 

slight or that the remaining defendant’s negligence was less 

than gross, then its verdict must be for the remaining defendant. Another stated that if the jury found that the negligence 

of the plaintiff was equal to or greater than the negligence of 

the remaining defendant and a defendant that had been dismissed from the case by stipulation, then the plaintiff was not 

entitled to recover, but if the plaintiff’s negligence was less 

than the negligence of those defendants, it would be allowed 

to recover. Following a verdict for the remaining defendant, 

NIFCO Mechanical Systems, Inc. (NIFCO), the plaintiff, the 

City of Wahoo, Nebraska (Wahoo), appeals. We find that the 

comparative negligence instructions constituted plain error and 

thus reverse, and remand for a new trial.

BACKGROUND

Parties and Claims.

On January 7, 2014, a pipe in the sprinkler system of 

Wahoo’s public library burst. This caused the sprinkler system to activate and resulted in water damage to books, other 

items, and the building itself. Wahoo subsequently brought 

suit against Cheever Construction Company (Cheever) and 

NIFCO. Among other theories of recovery, Wahoo alleged that 

Cheever negligently installed the sprinkler system and that 

NIFCO negligently failed to inspect and maintain it. Cheever 

joined Midwest Automatic Fire Sprinkler Co. (Midwest) as a 

third-party defendant. Among the affirmative defenses asserted 

by NIFCO was a claim that Wahoo’s negligence was a proximate cause of any damages and that, as a result, either Wahoo 
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was completely barred from recovering or its recovery was 

subject to reduction by the percentage of its fault.

Because the details of the trial proceedings are not central 

to the issues on appeal, we will not recount them in great 

specificity here. For our purposes, it is sufficient to note 

that all claims asserted by or against Cheever and Midwest 

were dismissed by stipulation during the course of trial and 

that the case was submitted to the jury with NIFCO as the 

sole defendant.

Jury Instructions and Verdict Forms.

Among the instructions adopted by the court and submitted 

to the jury were instructions Nos. 2 and 5, both of which dealt 

with comparative negligence. Instruction No. 2 included language of “slight” and “gross” in the course of instructing the 

jury on comparative negligence. After explaining that Wahoo 

bore the burden of proving NIFCO was negligent and that 

NIFCO bore the burden of proving Wahoo was negligent, a 

section of that instruction directed the jury as to what it should 

do if it found that both parties met their burden to show the 

other was negligent. This section provided as follows:

C. EFFECT OF FINDINGS

If the plaintiff has met its burden of proof and the 

defendant has not met its burden of proof, then your verdict must be for the plaintiff.

If both the plaintiff and the defendant have met their 

burden of proof, then you must compare the negligence 

of each with that of the other.

1. If upon comparison you decide that the plaintiff’s 

negligence was more than slight, or that the defendant’s 

was less than gross, then your verdict must be for the 

defendant.

2. If, however, upon comparison, you decide that the 

plaintiff’s negligence was slight and that the defendant’s 

was gross, then your verdict must be for the plaintiff. . . . You must then decide what percent of the total 
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negligence was attributable to the plaintiff and reduce the 

amount of its total damages by that same percent, returning a verdict for the balance only.

The words “slight” and “gross” as used here are comparative words. The negligence of a party is not to be 

evaluated as slight or gross standing alone but only when 

compared with that of the other party.

(Emphasis in original.)

Instruction No. 5 also addressed comparative fault. It provided as follows:

COMPARATIVE NEGLIGENCE

If you find Plaintiff, [Wahoo], was damaged and that 

the damages were proximately caused by the negligence 

of [NIFCO] and [Midwest], then you must determine to 

what extent the negligent conduct of each contributed to 

the damages of the plaintiff, expressed as a percentage of 

100 percent.

If you find that both Plaintiff and one or more of the 

Defendants were negligent and that the negligence of 

the plaintiff was equal to or greater than the negligence 

of the defendants, then Plaintiff will not be allowed to 

recover.

If you find that [Wahoo] and one or more of the 

Defendants were negligent and that the negligence of 

one or more of the Defendants was greater than the negligence of [Wahoo], then the Plaintiff will be allowed to 

recover.

If Plaintiff is allowed to recover, you will first determine the Plaintiff’s total damages without regard to the 

percentage or degree of negligence.

If Plaintiff is allowed to recover, then the court will 

then reduce the total damages by the percentage of the 

plaintiff’s negligence.

In this regard please refer to the Verdict Form No. 3.

Neither party objected to instruction No. 2 or instruction 

No. 5 or proposed any alternative instructions regarding comparative negligence.
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Cite as 306 Neb. 203

The district court supplied the jury with several verdict 

forms. Verdict form No. 1 provided that Wahoo had not met 

its burden of proof and that the jury’s verdict was for NIFCO. 

Verdict form No. 2 provided that Wahoo had met its burden of 

proof, that NIFCO had not met its burden of proof, and that the 

jury’s verdict was for Wahoo. Verdict form No. 2 included a 

line upon which the jury could enter Wahoo’s damages.

Verdict form No. 3 allowed for a finding that Wahoo 

proved NIFCO was negligent and that NIFCO proved Wahoo 

was negligent. The form included blank lines upon which the 

jury could enter NIFCO’s and Midwest’s respective percentages of negligence. Just below those blank lines, the form 

stated that “[t]he total negligence must add up to 100%.” A 

space was not provided for Wahoo’s percentage of negligence, 

nor was there one for Cheever’s. Verdict form No. 3 then 

stated that if Wahoo’s negligence equaled 50 percent or more, 

a verdict should be returned for NIFCO using verdict form 

No. 1 and verdict form No. 3 should not be completed further. 

Verdict form No. 3 next stated that if Wahoo’s negligence 

was less than 50 percent, the jury must return a verdict for 

Wahoo and calculate Wahoo’s total damages; the court would 

then determine the award by reducing the total damages 

by the percentage of negligence apportioned to Wahoo and 

to Midwest.

Jury Verdict and Wahoo’s 

Motion for New Trial.

The jury completed verdict form No. 1 and rendered a verdict in favor of NIFCO. The district court accepted the verdict.

Wahoo filed a timely motion for a new trial. Wahoo asserted 

that instruction No. 2 contained an incorrect statement of the 

law. Following a hearing, the district court denied the motion 

in a written order.

In its order, the district court acknowledged that instruction No. 2 and its use of “slight” and “gross” was not a 

proper comparative negligence instruction. The district court 
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nonetheless concluded that Wahoo was not entitled to a new 

trial. It recited two reasons for that conclusion: First, the 

district court asserted that if instructions Nos. 2 and 5 were 

read together, they correctly stated the law and were not 

confusing or misleading. In this regard, the district court suggested that instructions Nos. 2 and 5 were not contradictory, 

but that instruction No. 2’s use of “slight” and “gross” was 

merely a “more general comparison” than the comparison 

called for in instruction No. 5. The district court reasoned 

that taken together, the instructions directed the jury to first 

make a determination as to whether the parties’ negligence 

was slight or gross, but then, in conjunction with verdict form 

No. 3, directed it to express negligence in percentage terms. 

Alternatively, the district court concluded that the jury did not 

reach the issue of comparative negligence and that, thus, any 

error in instruction on the issue was harmless.

Wahoo appeals.

ASSIGNMENTS OF ERROR

Wahoo asserts multiple assignments of error, but each rests 

on the contention that the district court erred by instructing the 

jury with the “slight” and “gross” formulation in instruction 

No. 2.

STANDARD OF REVIEW

[1] Whether a jury instruction is correct is a question of 

law, which an appellate court independently decides. Kuhnel 

v. BNSF Railway Co., 287 Neb. 541, 844 N.W.2d 251 (2014).

ANALYSIS

Propriety of Instruction No. 2.

[2] Wahoo contends that the verdict against it must be 

reversed because of the inclusion of the “slight” and “gross” 

comparative negligence formulation in instruction No. 2. 

Wahoo, however, did not object to instruction No. 2 at trial. 

We have stated that failure to object to a jury instruction after 

it has been submitted to counsel for review precludes raising 
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an objection on appeal absent plain error. Id. Our review is 

thus limited to plain error here.

As for instruction No. 2, no one involved in this case 

believes that the “slight” and “gross” comparative negligence 

formulation should have been included in the jury instructions. 

The district court acknowledged it should not have been given 

in its order on Wahoo’s motion for a new trial. And although 

NIFCO maintains that reversal is not appropriate, it too concedes that the “slight” and “gross” formulation should not have 

been included in the instructions to the jury.

We agree that instruction No. 2 should not have been given, 

but before turning to the disputed issue on which this appeal 

turns—whether the jury instructions rise to the level of plain 

error—we pause to clarify a misunderstanding regarding the 

“slight” and “gross” comparative negligence formulation held 

by the district court and the parties to this case, a misunderstanding that appears to have arisen as a result of comments to 

the Nebraska Jury Instructions.

The district court explained in its order denying Wahoo’s 

motion for a new trial that instruction No. 2 was taken from 

NJI2d Civ. 2.02A. A “Special Note” in the comments to that 

instruction states that it applies to “causes of action that accrue 

before February 8, 1992.” The Special Note goes on to say that 

“[i]t seems” that the NJI2d Civ. 2.02A pattern instruction containing the “slight” and “gross” formulation

also applies to causes of action that accrue on or after 

February 8, 1992, when there is only one defendant in 

the case when it goes to the jury (and, presumably, no 

defendant who has been discharged from a lawsuit by 

a release, a covenant not to sue, or a similar agreement 

entered into by a claimant and a person liable).

In its order denying Wahoo’s motion for a new trial, the district court, with a citation to the Special Note, concluded that 

the instruction patterned after NJI2d Civ. 2.02A should not 

have been given, because Cheever and Midwest had been 

discharged from the lawsuit. Wahoo and NIFCO also appear 
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to take the position that the instruction should not have been 

given for that reason.

We agree that the jury should not have been instructed with 

the “slight” and “gross” language, but we do not believe the 

propriety of that instruction turns on the discharge of Cheever 

and Midwest from the suit. As we will explain, under the governing statutes, the “slight” and “gross” formulation applies 

only to what must be an ever-shrinking category of cases that 

accrued before February 8, 1992.

At common law, if any negligence of the plaintiff contributed to his or her injury, the doctrine of contributory 

negligence barred recovery completely. See, e.g., Niemeyer 

v. Tichota, 190 Neb. 775, 212 N.W.2d 557 (1973). Nebraska 

adopted a statutory version of comparative negligence that 

departed from the common law rule in 1913. See id. The statute allowed for the possibility of some recovery for a plaintiff 

even if his or her negligence contributed to the injury, so long 

as the plaintiff’s negligence was “slight” and the defendant’s 

negligence was “gross.” If that was the case, the damages 

awarded to the plaintiff would be reduced in proportion to the 

amount of negligence attributable to the plaintiff. See id.

In 1992, the comparative negligence statute was amended 

again. See 1992 Neb. Laws, L.B. 262. Under the 1992 amendments, the “slight” and “gross” formulation was left in place 

for actions accruing before February 8, 1992. See Neb. Rev. 

Stat. § 25-21,185 (Reissue 2016). But a new comparative negligence regime was put in place for actions accruing on or after 

February 8, 1992. See Neb. Rev. Stat. § 25-21,185.07 (Reissue 

2016). For those actions, the “slight” and “gross” language was 

removed and then replaced with the following:

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 
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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.

Neb. Rev. Stat. § 25-21,185.09 (Reissue 2016).

Other sections of the 1992 statutory amendments address 

how liability is to be allocated among multiple defendants. See 

Neb. Rev. Stat. §§ 25-21,185.10 and 25-21,185.11 (Reissue 

2016). We have previously held that § 25-21,185.10 applies 

only where there are multiple defendants in a lawsuit at the 

time the case is submitted to the finder of fact. See Maxwell 

v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). Section 

25-21,185.11 applies when a claimant enters into a release, 

covenant not to sue, or similar agreement with a person liable 

for negligence. See, e.g., Tadros v. City of Omaha, 273 Neb. 

935, 735 N.W.2d 377 (2007). But there is nothing in those 

statutes or any of the other comparative negligence statutes 

suggesting that the “slight” and “gross” formulation is to be 

used in any cases accruing on or after February 8, 1992. We 

disapprove of the Special Note following NJI2d Civ. 2.02A to 

the extent it suggests otherwise.

Because the “slight” and “gross” formulation applies only in 

cases accruing before February 8, 1992, it does not apply here 

and the jury should not have been instructed as if it did.

Plain Error Analysis.

[3] Because Wahoo did not object to the jury instructions 

at issue, we may reverse on that basis only if there was plain 

error. Plain error exists where there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. Kuhnel v. BNSF Railway Co., 

287 Neb. 541, 844 N.W.2d 251 (2014).

NIFCO argues that the inclusion of instruction No. 2 did 

not amount to plain error for two reasons: First, it argues that 
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there was no plain error, because instruction No. 5 correctly 

set forth the governing comparative negligence standards. 

Second, it argues that any error was harmless, because the jury 

did not reach the question of comparative negligence. The district court identified essentially the same reasons for denying 

Wahoo’s motion for a new trial. As we will explain below, we 

find plain error.

[4] Starting with NIFCO’s argument that the jury was properly instructed on the subject of comparative negligence, it 

is true that if the jury instructions given, 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. 

See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 

N.W.2d 435 (2018). In our view, however, that proposition has 

no application here, because the instructions, taken as a whole, 

did not correctly state the law.

Instruction No. 5 may have correctly stated the governing 

comparative negligence law, but instruction No. 2 did not. 

And it is not difficult to see how the jury could have been 

led astray by instruction No. 2. Consider a case in which 

the jury believed that Wahoo’s damages were caused by the 

negligence of both Wahoo and NIFCO, with Wahoo’s share 

of responsibility approaching but not reaching 50 percent. A 

jury likely would not deem that level of negligence on the 

part of Wahoo “slight” or that level of negligence on the part 

of NIFCO “gross,” and if the jury so found, instruction No. 2 

would direct it to enter a verdict in favor of NIFCO. But this 

would, of course, run directly counter to the current comparative negligence law, which allows Wahoo some recovery 

under those same circumstances. See § 25-21,185.09. As 

this example illustrates, instruction No. 2 was not, as the 

district court suggested, a general statement of comparative 

negligence law, which was ultimately clarified by instruction 

No. 5. Rather, instruction No. 2 “misstate[d] the law upon 

a vital issue” and was not “cured by another which state[d] 
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the law correctly.” Kaspar v. Schack, 195 Neb. 215, 220, 237 

N.W.2d 414, 417 (1976).

This leaves NIFCO’s argument that any error in the comparative negligence instructions was harmless. Here, NIFCO 

relies on several cases in which Nebraska appellate courts 

have held that any error in instructing the jury on comparative 

negligence was harmless, because the jury’s return of a special 

verdict form stating the jury found no negligence on the part 

of the defendant showed that it did not reach the question of 

comparative negligence. See, e.g., Corcoran v. Lovercheck, 

256 Neb. 936, 594 N.W.2d 615 (1999); Hoover v. Burlington 

Northern RR. Co., 251 Neb. 689, 559 N.W.2d 729 (1997); 

Ammon v. Nagengast, 24 Neb. App. 632, 895 N.W.2d 729 

(2017). NIFCO argues that the jury did not reach the issue of 

comparative negligence in this case, because it returned its 

verdict on verdict form No. 1, which stated that Wahoo had not 

met its burden of proof.

Unlike the cases cited by NIFCO, however, we cannot 

be certain in this case that the jury did not reach the issue 

of comparative negligence. As we have noted, the jury was 

directed via instruction No. 2 that if it found that both parties were negligent and that Wahoo’s negligence was more 

than slight and NIFCO’s negligence was less than gross, its 

verdict must be for NIFCO. The only verdict form given to 

the jury which allowed it to return a verdict for NIFCO was 

verdict form No. 1. Accordingly, while it is possible that the 

jury did not reach the issue of comparative negligence, it is 

equally possible that the jury did reach the issue of comparative negligence and understood its instructions to require it to 

use verdict form No. 1.

Not only do we believe that the district court erred by giving 

instruction No. 2 and that this error was not harmless, it also 

bears all of the attributes of plain error. The error was plainly 

evident from the record and affected Wahoo’s substantial right 

to have the jury decide the case under the governing law. We 

also believe that if we were to leave this error uncorrected, it 
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would result in damage to the integrity, reputation, and fairness 

of the judicial process. The Legislature decided nearly three 

decades ago that, moving forward, comparative negligence 

would no longer be decided through the “slight” and “gross” 

formulation. The district court’s use of that formulation in this 

case failed to give effect to the Legislature’s policy choice.

Because the district court’s comparative negligence jury 

instructions were plainly erroneous, we reverse, and remand 

for a new trial.

Issue Likely to Recur on Remand.

[5] An appellate court may, at its discretion, discuss issues 

unnecessary to the disposition of an appeal where those issues 

are likely to recur during further proceedings. Bohling v. 

Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020). Prior to concluding, we exercise that discretion here to note one additional 

problem with the district court’s directions to the jury concerning comparative negligence.

According to instruction No. 5, verdict form No. 3 was to be 

used if the jury found that the negligence of both Wahoo and 

one or more of the defendants proximately caused Wahoo’s 

damages. Verdict form No. 3 included spaces for the jury to 

list the respective percentages of negligence of certain parties. But the only blank lines provided were for NIFCO and 

Midwest. No blank line was provided for Wahoo or Cheever. 

Just below those lines, the jury was told that “[t]he total negligence must add up to 100%.”

At the jury instructions conference, NIFCO objected to the 

fact that a line was not included for Cheever on verdict form 

No. 3. The district court overruled that objection, finding 

that there was no evidence of Cheever’s negligence presented 

at trial.

Although neither party objected to the fact that a line 

was not provided for Wahoo’s percentage of negligence, that 

appears to have been erroneous. For the jury to properly consider the issue of Wahoo’s comparative negligence as directed 
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by instruction No. 5, it would have to assess, in percentage 

terms, the extent to which Wahoo’s negligence proximately 

caused its damages. But verdict form No. 3 not only did not 

provide a space for the jury to list a percentage of negligence 

for Wahoo, by directing that the negligence of NIFCO and 

Midwest must total 100 percent, it seemed to suggest that the 

jury was not to consider the issue at all. If, when this matter 

is retried, the district court finds that the evidence warrants 

instruction on the issue of Wahoo’s comparative negligence, 

the relevant verdict form should make clear the jury is to consider and list a percentage of negligence for Wahoo.

CONCLUSION

For the reasons explained above, we reverse, and remand for 

a new trial.

Reversed and remanded for a new trial.