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27 Nebraska Appellate Reports

SCHUEMANN v. MENARD, INC.

Cite as 27 Neb. App. 977

Richard G. Schuemann and Janice Schuemann, 

appellants, v. Menard, Inc., doing business 

as Menards, a foreign corporation 

doing business in Nebraska, 

appellee.

___ N.W.2d ___

Filed January 21, 2020. No. A-18-1021.

1. Jury Instructions. Whether a jury instruction is correct is a question 

of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

3. Rules of Evidence. 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 

discretion a factor in determining admissibility.

4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

5. ____: ____. A trial court’s decision to admit habit evidence based on 

opinion under Neb. Rev. Stat. § 27-406 (Reissue 2016) is reviewed for 

an abuse of discretion.

6. Negligence: Evidence: Trial. Before the defense of assumption of risk 

is submissible to a jury, the evidence must show that the plaintiff (1) 

knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused 

the damage.

7. Negligence. The doctrine of assumption of risk applies to known 

dangers and not to those things from which, in possibility, danger 

may flow.

Nebraska Supreme Court Online Library

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

01/21/2020 09:05 AM CST
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Cite as 27 Neb. App. 977

8. Jury Instructions: Evidence. A tendered jury instruction is warranted 

by the evidence only if there is enough evidence on the issue to produce 

a genuine issue of material fact for the jury to decide.

9. Juries: Verdicts. A jury, by its general verdict, pronounces upon all or 

any of the issues in favor of either the plaintiff or the defendant.

10. Juries: Verdicts: Presumptions. Because a general verdict does not 

specify the basis for an award, Nebraska law presumes that the winning 

party prevailed on all issues presented to the jury.

11. Rules of Evidence. The rule of completeness allows a party to admit 

the entirety of an act, declaration, conversation, or writing when the 

other party admits a part and when the entirety is necessary to make it 

fully understood.

12. ____. The rule of completeness is concerned with the danger of admitting a statement out of context, but when this danger is not present, it 

is not an abuse of discretion to refuse to require the production of the 

remainder or, if it cannot be produced, to exclude all the evidence.

13. Presumptions: Proof: Words and Phrases. A rebuttable presumption 

is generally defined as a presumption that can be overturned upon the 

showing of sufficient proof.

14. Presumptions: Words and Phrases. Nonevidentiary presumptions, 

commonly referred to as “bursting bubble” presumptions, shift only 

the burden of production, and if that burden is met, the presumption disappears.

15. 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.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellants.

Robert W. Futhey and Daniel J. Gutman, of Fraser Stryker, 

P.C., L.L.O., for appellee.

Pirtle, Riedmann, and Welch, Judges.
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Cite as 27 Neb. App. 977

Riedmann, Judge.

INTRODUCTION

Richard G. Schuemann and Janice Schuemann sued Menard, 

Inc., doing business as Menards (Menards), in the district court 

for Sarpy County for negligence and premises liability after 

Richard sustained injuries due to the alleged negligence of 

Menards. A jury found in favor of Menards. The Schuemanns 

appeal. Finding no error by the district court, we affirm.

BACKGROUND

On July 1, 2010, the Schuemanns went to the Menards store 

located in Bellevue, Sarpy County, Nebraska, and purchased 

a storage shed packaged in a large box. A Menards employee 

lifted the shed box with a forklift and placed it into the bed 

of Richard’s truck. Once back at their house, the Schuemanns 

left the box in the truck and took the pieces out of the box 

individually in order to assemble the shed. At trial, Richard 

was asked whether he tried to lift the box itself, and he said 

no, but that each individual piece was heavy. He knew that the 

contents of the box, before they had been unpacked, were too 

heavy for him to lift.

The Schuemanns returned to the same Menards store the 

following day and purchased an identical shed packaged in 

the same fashion. On that occasion, Richard backed his truck 

into the loading area of the store. A Menards employee, later 

identified as Nicholas Moore, took Richard’s purchase ticket, 

and the two men walked over to the shed boxes. Moore pulled 

a large cart up next to the boxes and got on one side of the 

box. Richard testified that Moore said they had to pick up 

the box and put it on the cart and that Moore then started 

lifting one side of the box. According to Richard, Moore 

“directed” or “requested” that Richard help pick up the other 

side of the box. Richard said he felt that he needed to help at 

that point, because Moore was struggling with the box and 

Richard thought Moore was going to hurt himself. Richard 

acknowledged that he could have declined to help lift the 
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box, but that he did not do so. As Richard started lifting the 

other side of the box, he suddenly experienced searing pain in 

his back.

As a result of his back pain, Richard went to a hospital 

and notified Menards of his injury. Thereafter, he underwent medical treatment for his injuries. On July 1, 2014, the 

Schuemanns filed a complaint against Menards. They alleged 

that as a result of the negligence of Menards and its employees, Richard suffered injuries to his back, neck, and shoulder 

and Janice suffered a loss of consortium for the loss of service 

and companionship of Richard. Menards’ answer raised several affirmative defenses, including assumption of risk.

The matter proceeded to a jury trial in 2018. At trial, 

Menards offered into evidence an audio recording of a statement Richard made to an adjuster for an insurance company 

presumably for Menards. Menards offered into evidence only 

the first 13 minutes 25 seconds of the recorded conversation, redacting the final 3 minutes 32 seconds of the conversation. The recording was received into evidence over the 

Schuemanns’ objection on the rule of completeness. Thereafter, 

the Schuemanns requested a jury instruction on the rebuttable 

presumption that the statement had been taken under duress 

pursuant to Neb. Rev. Stat. § 25-12,125 (Reissue 2016). The 

district court refused to give the instruction. The jury ultimately found in favor of Menards. The Schuemanns filed a 

motion for new trial and/or a motion to alter or amend. The 

motions were denied. The Schuemanns now appeal.

ASSIGNMENTS OF ERROR

The Schuemanns assign that the district court erred in (1) 

instructing the jury on the defense of assumption of risk, 

(2) failing to file and show all refused jury instructions or 

amendments to instructions resulting in the given instructions, 

(3) admitting into evidence the audio recording over their 

objection, (4) refusing to give their proposed jury instruction 

on the presumption of duress, and (5) failing to sustain their 
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objections to Moore’s testimony on the grounds of foundation 

and speculation.

STANDARD OF REVIEW

[1,2] Whether a jury instruction is correct is a question of 

law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 

247 (2018). When reviewing questions of law, an appellate 

court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court. Id.

[3,4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. State v. Savage, 301 Neb. 873, 920 N.W.2d 692 

(2018), modified on denial of rehearing 302 Neb. 492, 924 

N.W.2d 64 (2019). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. Id.

[5] A trial court’s decision to admit habit evidence based 

on opinion under Neb. Rev. Stat. § 27-406 (Reissue 2016) is 

reviewed for an abuse of discretion. Borley Storage & Transfer 

Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006).

ANALYSIS

Assumption of Risk Instruction.

The Schuemanns assign that the district court erred in 

instructing the jury on the defense of assumption of risk, arguing that the instruction was not supported by the evidence 

because there was no evidence that Richard was apprised of 

any specific risk of potential injury in helping to lift the box 

onto the cart.

[6,7] Before the defense of assumption of risk is submissible 

to a jury, the evidence must show that the plaintiff (1) knew of 

the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately 
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caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 

N.W.2d 825 (2000). See, also, Neb. Rev. Stat. § 25-21,185.12 

(Reissue 2016). The doctrine of assumption of risk applies a 

subjective standard, geared to the individual plaintiff and his 

or her actual comprehension and appreciation of the nature 

of the danger he or she confronts. Pleiss v. Barnes, supra. 

A plaintiff does not assume a risk of harm arising from the 

defendant’s conduct unless he then knows of the existence of 

the risk and appreciates its unreasonable character, or the danger involved, including the magnitude thereof, and voluntarily 

accepts the risk. Id. The doctrine of assumption of risk applies 

to known dangers and not to those things from which, in possibility, danger may flow. Id.

In Pleiss v. Barnes, supra, the plaintiff was injured when a 

ladder on which he was standing flipped, twisted, and started 

to slide, causing him to fall. The plaintiff testified that he knew 

that ladders could “‘get shaky and fall’” but that he had never 

seen a ladder “flip, twist, and slide” prior to his injury. Id. at 

775, 619 N.W.2d at 829. Applying the subjective standard set 

forth above, the Nebraska Supreme Court recognized that the 

question was not whether the plaintiff knew that in general ladders could be dangerous, but whether he knew and understood 

that this particular ladder, either because of its placement or 

because it was not tied down, created a specific danger that it 

could flip, twist, and slide, causing him to fall. And where the 

record did not indicate any such specific knowledge or understanding, the Supreme Court held that the trial court erred in 

instructing the jury on assumption of risk.

In Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418 (2004), an 

action involving a claim that a rodeo stock provider furnished 

an unusually dangerous bucking horse to a high school rodeo, 

the Supreme Court noted that the plaintiff rider’s acknowledged familiarity with the general risks of injury inherent in 

rodeo competition could not form the basis of an assumption 

of risk defense. However, the Supreme Court concluded that 

the rider had actual knowledge of the specific danger posed 
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by the horse because he had observed a previous incident in 

which a rider was injured when the same horse performed in 

the same unusual manner which caused his injury.

In the present case, the evidence supports a finding that 

given Richard’s experience with this specific type of shed box 

on the day prior to his injury, he had actual knowledge of the 

specific risk. Richard had purchased the same type of shed the 

day before his injury, and although a Menards employee put 

the shed box into Richard’s truck, Richard said that once he 

got the box home, he and his wife took the individual pieces 

out of the box, and that each individual piece was heavy. 

He knew that the contents of the box, before they had been 

unpacked, were too heavy for him to lift.

Richard admitted that the following day at Menards, Moore 

requested that Richard help him lift the box onto the cart and 

Richard hesitated and said, “[N]o, I don’t think I should.” In 

an attempt to impeach Richard, counsel read an excerpt from 

Richard’s deposition in which Richard related his statement to 

Moore that “‘I have a neck injury and I don’t think I should 

lift that.’” Although a subsequent objection was sustained, the 

testimony was not stricken. We recognize that Richard adduced 

conflicting evidence tending to prove that he was unaware of 

the danger of lifting the box; however, determining which party’s evidence is credible or not is a question for the jury. See 

Higginbotham v. Sukup, 15 Neb. App. 821, 737 N.W.2d 910 

(2007). Richard acknowledged that he could have refused to 

help lift the box, but decided to assist Moore because it looked 

like Moore was struggling and Richard was afraid Moore was 

going to “hurt himself.” Richard testified that he, himself, had 

had “a lot of lower and middle and upper back problems in 

[his] life.”

[8] Given (1) that Richard purchased the same type of shed 

on July 1, 2010, and knew that because each piece was heavy, 

the whole box was heavy; (2) that he was hesitant to assist 

Moore and initially stated he did not think he should; and (3) 

that he saw Moore struggling to lift the box and was afraid 
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Moore would hurt himself, the evidence could support a finding that Richard appreciated the specific danger posed by 

lifting the heavy shed box and the risk of injury. Additionally, 

Richard acknowledged that he could have declined to help lift 

the box, and thus, a jury could conclude that he voluntarily 

exposed himself to the danger. A tendered jury instruction is 

warranted by the evidence only if there is enough evidence 

on the issue to produce a genuine issue of material fact for 

the jury to decide. Armstrong v. Clarkson College, 297 Neb. 

595, 901 N.W.2d 1 (2017). We therefore find no error in the 

district court’s decision to instruct the jury on assumption 

of risk.

The Schuemanns also claim that the assumption of risk 

defense was improperly included in jury instruction No. 11. 

Menards argues that the Schuemanns did not object on these 

grounds at trial. At the jury instruction conference, the 

Schuemanns acquiesced to including affirmative defenses as 

part of instruction No. 11. But they reiterated their objection 

that the evidence did not support an assumption of risk instruction, as discussed above. Thus, this issue has been preserved 

for appeal. But because we have determined that the jury was 

properly instructed on assumption of risk, we find no error in 

its inclusion as part of instruction No. 11.

Menards contends that the giving of the assumption of risk 

instruction was proper, but even if the court erred by instructing the jury as to this affirmative defense, the general verdict 

rule bars the Schuemanns’ challenge. We agree.

[9,10] A jury, by its general verdict, pronounces upon all or 

any of the issues in favor of either the plaintiff or the defendant. Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 

Neb. 777, 906 N.W.2d 1 (2018). Because a general verdict 

does not specify the basis for an award, Nebraska law presumes that the winning party prevailed on all issues presented 

to the jury. Id.

Applying the general verdict rule here, we presume the jury 

found in Menards’ favor on all issues submitted, including 
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whether it was negligent and if it maintained its premises in 

a reasonably safe condition. It is within this framework that 

we analyze the Schuemanns’ assignment of error that the jury 

was erroneously instructed.

Here, the jury was instructed to consider Menards’ affirmative defenses only if it found the Schuemanns had met 

their burden of proof on their negligence and premises liability claims. Specifically, jury instruction No. 10 stated, 

“[I]f the [Schuemanns] have met this burden of proof on one 

of their claims, then you must consider [Menards’] affirmative defenses.” Under the general verdict rule, we presume the 

jury determined the negligence and premises liability issues 

in favor of Menards. Thus, the jury never reached the question of Menards’ affirmative defenses, and any alleged error in 

instructing the jury on the assumption of risk defense would 

necessarily be harmless. See Facilities Cost Mgmt. Group v. 

Otoe Cty. Sch. Dist., supra. The Schuemanns’ assigned error 

relating to the assumption of risk defense cannot form the basis 

for reversible error. See id.

Failure to File and Mark 

Jury Instructions.

The Schuemanns argue that the district court committed 

reversible error when it failed to abide by Neb. Rev. Stat. 

§§ 25-1113 and 25-1114 (Reissue 2016). Section 25-1113 

requires that the court write the words “given” or “refused,” as 

the case may be, on the margin of each jury instruction. Under 

§ 25-1114, all instructions requested and given must be filed by 

the clerk before being read to the jury and shall be preserved 

as part of the record. The Schuemanns argue that there is no 

such filing in the present case, and although the instructions 

contained in the transcript appear to be those that were given 

to the jury, they are not marked as such.

The record indicates that the Schuemanns did not raise an 

objection on these statutory grounds at trial. The objection 

that the instructions were not filed must be made when or 
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before the instructions are read; otherwise, the objection is 

waived. See, Minzer v. Willman Mercantile Co., 59 Neb. 410, 

81 N.W. 307 (1899); Fire Ass’n of Philadelphia v. Ruby, 58 

Neb. 730, 79 N.W. 723 (1899). Failure to mark an instruction 

“‘given’” is not available as error, in the absence of an exception on that ground. Hurlbut v. Proctor, 88 Neb. 491, 492, 

129 N.W. 995, 996 (1911). Because no objection was made 

to the district court, the Schuemanns are precluded from raising the issue on appeal. We therefore decline to address this 

assigned error.

Recorded Conversation.

The Schuemanns assert that the district court erred in 

receiving into evidence, over their objection, the audio recording of the statement Richard gave to an insurance adjuster. 

They claim that they were unaware that the recording Menards 

was going to offer into evidence at trial was a redacted version of the recording and argue that Menards’ failure to 

offer the entire recording into evidence violates the rule of 

completeness.

[11,12] The rule of completeness allows a party to admit the 

entirety of an act, declaration, conversation, or writing when 

the other party admits a part and when the entirety is necessary 

to make it fully understood. State v. Savage, 301 Neb. 873, 

920 N.W.2d 692 (2018), modified on denial of rehearing 302 

Neb. 492, 924 N.W.2d 64 (2019). See Neb. Rev. Stat. § 27-106 

(Reissue 2016). The rule of completeness comes into play when 

a statement is admitted into evidence out of context. Nickell v. 

Russell, 260 Neb. 1, 614 N.W.2d 349 (2000). Because § 27-106 

is concerned with the danger of admitting certain statements 

taken out of context, additional evidence is admissible only if it 

qualifies or explains the previous testimony. Nickell v. Russell, 

supra. When this danger is not present, it is not an abuse of 

discretion to refuse to require the production of the remainder 

or, if it cannot be produced, to exclude all the evidence. State 

v. Savage, supra.
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In the present case, the entire recorded conversation between 

Richard and the insurance adjuster lasted 16 minutes 57 seconds. Menards offered into evidence the first 13 minutes 25 

seconds of the conversation. The Schuemanns objected on the 

ground of rule of completeness, arguing that it was inappropriate to offer a redacted version. The objection was overruled, 

and the recording was received into evidence and played for 

the jury. On appeal, the Schuemanns do not argue that the 

portion played for the jury was taken out of context or needed 

additional explanation; rather, they assert that the remaining 

3 minutes 32 seconds of the conversation added additional 

details and bolstered Richard’s credibility.

We have listened to the entire recorded conversation and 

conclude that the admitted portion of the conversation was 

not taken out of context and that the redacted portion of the 

conversation does not qualify or explain the admitted portion. 

Rather, in the minutes of the conversation that were omitted, there is a discussion regarding insurance coverage and 

Richard’s Medicare coverage, which is inadmissible at trial 

not only by law, see Neb. Rev. Stat. § 27-411 (Reissue 2016) 

and Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 

677 N.W.2d 122 (2004), but, also, because the district court 

granted Menards’ pretrial motion in limine which prohibited 

the introduction of any evidence related to insurance coverage. Intertwined with this discussion, Richard made additional 

statements regarding the incident such as there was no one 

around to help him and he is sure there would be “videos” of 

the incident. But because the danger of admitting certain statements out of context is not present here, it was not an abuse of 

discretion for the district court to decline to exclude the recording offered by Menards.

Jury Instruction Regarding Duress.

The Schuemanns argue that the district court erred in 

refusing to give their proffered jury instruction pursuant 

to § 25-12,125, because the jury was entitled to know the 
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statutory presumption that the statement Richard gave to the 

insurance adjuster was made under duress. We find no error in 

the court’s refusal to so instruct the jury.

Section 25-12,125 provides:

(1) There shall be a rebuttable presumption that any 

statement secured from an injured person by an adverse 

person at any time within thirty days after such injuries 

were sustained shall have been taken under duress for 

purposes of a trial of any action for damages for injuries 

sustained by such person or for the death of such person 

as the result of such injuries.

(2) The presumption described in subsection (1) of this 

section may be rebutted by evidence. The presumption 

shall be deemed rebutted as a matter of law if the adverse 

person taking the statement discloses to the injured person prior to taking the statement:

(a) Whom he or she represents;

(b) That the injured person may make the statement in 

the presence of counsel or any other representative; and

(c) That a copy of the statement is available at no cost 

to the injured person.

There is no dispute that the factors required to rebut the 

presumption as a matter of law under § 25-12,125(2) were 

not present here. Thus, in order to rebut the presumption, 

Menards was required to present evidence that the statement 

that Richard gave was not made under duress. And because 

the district court refused the Schuemanns’ jury instruction 

on the statutory presumption, we infer that the court found 

that sufficient evidence had been presented to rebut the 

presumption.

[13] A rebuttable presumption is generally defined as a 

presumption that can be overturned upon the showing of sufficient proof. Dawes v. Wittrock Sandblasting & Painting, 

266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other 

grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 

N.W.2d 229 (2005). In most instances, a presumption imposes 
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on the party against whom it is directed the burden of proving 

that the nonexistence of the presumed fact is more probable 

than its existence. See id. See, also, Neb. Rev. Stat. § 27-301 

(Reissue 2016).

In Nebraska, we have two types of true presumptions: evidentiary presumptions and nonevidentiary presumptions. NJI2d 

Civ. 2.14A, comment IV. Evidentiary presumptions are those 

created by § 27-301, which states, “In all cases not otherwise 

provided for by statute or by these rules a presumption imposes 

on the party against whom it is directed the burden of proving 

that the nonexistence of the presumed fact is more probable 

than its existence.” Section 27-301 shifts the burden of persuasion and production, as to a particular issue. See Hopkins 

v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). With evidentiary presumptions, the jury is instructed as to the effect of 

the presumption depending upon the evidence presented. See, 

generally, NJI2d Civ.2.14A through 2.14D.

[14] Nonevidentiary presumptions do not shift the burden 

of persuasion; rather, they shift the burden of production. 

Hopkins v. Hopkins, supra; NJI2d Civ. 2.14A, comment IV(B). 

They are commonly referred to as “bursting bubble” presumptions. Hopkins v. Hopkins, supra; NJI2d Civ. 2.14A, comment 

IV(B). Once opposing counsel produces evidence to rebut the 

presumed fact, the presumption disappears. NJI2d Civ. 2.14A, 

comment IV(B). It is then left to the jury to determine the credibility of the evidence.

One commentator has identified the rebuttable presumption 

of § 25-12,125 as not fitting into any category of presumptions, further explaining, “I put this in this category because 

in so far as I can see this presumption is meaningless.” 

G. Michael Fenner, Presumptions: 350 Years of Confusion and 

It Has Come to This, 25 Creighton L. Rev. 383, 422 (1992). 

It seems to us that because the presumption contained in 

§ 25-12,125 can be rebutted by evidence, and can be rebutted 

as a matter of law by certain evidence, it is concerned with 

the burden of production, and not the burden of persuasion, 
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making it a nonevidentiary presumption, if it is a presumption 

at all.

In the present case, the evidence established that the insurance adjuster called Richard on July 6, 2010, 4 days after he 

sustained his injuries. As can be heard on the recording of the 

call, Richard was able to follow along and answer questions 

appropriately. He explained what happened while he was at 

Menards, volunteered information where appropriate, and did 

not appear to be confused. Thus, the evidence supports the district court’s determination that the presumption of duress had 

been rebutted by the evidence.

Even though the jury was not instructed on the presumption, 

the basic facts surrounding the statement were in evidence 

for the jury’s consideration and credibility assessment. As 

explained in the Nebraska Jury Instructions:

While the presumption vanishes, the basic facts, that 

is, the facts that kicked in the presumption, remain in 

the case. They remain in evidence. And the trier of fact 

weighs those basic facts exactly as it weighs every other 

fact in evidence. They can find the basic facts to be true 

or not. And if they find the basic facts to be true, they 

can infer therefrom the formerly presumed fact. That is, 

the weight added when the presumption kicks in is the 

shift in the burden of production; when the presumption 

bursts, that weight is removed; nothing else changes. 

The facts that created the presumption have not vanished 

and trier-of-fact still considers them for whatever they 

are worth.

NJI2d Civ. § 2.14A, comment IV(C).

In addition to the evidence detailed above, Richard testified 

at trial that when the adjuster called, he had just woken up, 

and that Richard told him he “was on a lot of medication and 

[he] didn’t know exactly how [the call] was going to go.” He 

later reiterated that although it was not included on the recording played for the jury, at the beginning of the call, he told 

the caller that he had taken a lot of pain pills and he “didn’t 
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know how accurate [he] would be with things.” All of these 

facts were presented to the jury for its consideration in reaching its verdict.

[15] 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. Rodriguez v. Surgical 

Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). However, 

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. 

Because the district court determined that evidence had been 

presented to rebut the presumption of duress, the Schuemanns’ 

proposed jury instruction was not warranted by the evidence. 

The court therefore did not err in refusing to give the tendered instruction.

Objections to Moore’s Testimony.

The Schuemanns assert that the district court erred in overruling their objections to Moore’s testimony on the grounds 

of foundation and speculation. They claim that because 

Moore admitted that he had no personal recollection of the 

events involving the Schuemanns, he should have been prohibited from testifying as to what he would or would not 

have done relative to his interactions with Richard. We find 

that Moore was properly permitted to testify as to his habit 

under § 27-406.

Evidence of the habit of a person or of the routine practice 

of an organization, whether corroborated or not and regardless 

of the presence of eyewitnesses, is relevant to prove that the 

conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

§ 27-406(1). The exercise of judicial discretion is implicit in 
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SCHUEMANN v. MENARD, INC.

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determinations of relevancy and admissibility under § 27-406, 

and as a result, the trial court’s decision will not be reversed 

absent an abuse of discretion. Hoffart v. Hodge, 9 Neb. App. 

161, 609 N.W.2d 397 (2000). Under § 27-406, the trial court 

determines whether the predicate evidence necessary to prove 

conduct by habit has been introduced. Habit may be shown by 

opinion or specific instances of conduct. Hoffart v. Hodges, 

supra. See § 27-406(2). It is within the trial court’s discretion 

to determine if there is sufficient foundation for a witness to 

give his or her opinion about an issue in question. Hoffart v. 

Hodge, supra.

The Nebraska appellate courts have previously allowed testimony by witnesses as to their habits in order to prove conformity on a particular occasion. In Hoffart v. Hodge, supra, 

this court upheld the admission of the testimony of a defendant medical doctor in a medical malpractice action as to his 

regular practice and routine of advising his patients. In doing 

so, we recognized the practical reality that a doctor cannot be 

expected to specifically recall the advice or explanation he or 

she gives to each and every patient he or she treats. Thus, evidence of habit may be the only vehicle available for a doctor 

to prove that he or she acted in a particular way on a particular 

occasion. Id.

Relying upon the rationale of Hoffart v. Hodge, supra, the 

Supreme Court upheld the admission of the testimony of a 

lawyer in a legal malpractice case regarding the advice he routinely gave to his clients under particular circumstances. See 

Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 

N.W.2d 71 (2006).

In the present case, Moore testified that he began working 

at Menards around 2008 or 2009. He worked in the building materials department for approximately 3 years before he 

was promoted to management and was employed at Menards 

for a total of 51⁄2 or 6 years. At the beginning of his employment, he received training and guidance on assisting customers and loading and unloading items. He was taught to help 
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all customers he encountered, particularly if a customer was 

lifting something that appeared too heavy. He explained that 

Menards referred to its customers as “guests” and that he was 

taught to treat customers as if they were guests in his own 

home. During his employment, he assisted hundreds, if not 

thousands, of customers and established habits and routines 

associated with assisting customers, which habits he would 

use on a general basis.

Although it is undisputed that Moore was the Menards 

employee who assisted Richard on July 2, 2010, Moore admitted that he did not specifically recall his interactions with 

Richard. However, he testified over objection that based on 

the habits and routines that he had established, he did not 

think he would have told a customer that the customer had 

to help him load a shed box onto a cart, because doing so 

would not be consistent with how he treated his guests. 

He also testified over objection that he believed he would 

recall if he had been helping a customer and the customer suddenly started limping and visibly experiencing pain, because 

that is not something he would have typically seen from a customer, and that he would have noticed something was wrong 

if a customer started limping. He also said that if he had seen 

a customer in visible pain, he would not have asked the customer for assistance.

Moore’s testimony as to his habits when assisting his guests 

while working at Menards tends to establish how he acted 

when assisting Richard. Habit evidence makes it more probable that the person acted in a manner consistent with that 

habit. See Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 

397 (2000). Like the witnesses in Hoffart v. Hodge, supra, 

and Borley Storage & Transfer Co. v. Whitted, supra, Moore 

explained that he assisted hundreds, if not thousands, of customers during his employment at Menards and that he could 

not specifically remember the events at issue here. Thus, evidence of habit may be the only vehicle available to prove that 

someone acted in a particular way on a particular occasion. 
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SCHUEMANN v. MENARD, INC.

Cite as 27 Neb. App. 977

See Hoffart v. Hodge, supra. The fact that Moore did not 

specifically remember assisting Richard does not render his 

testimony inadmissible, because § 27-406 allows proof of 

habit by opinion. See Hoffart v. Hodge, supra. As a result, 

the district court did not abuse its discretion in overruling the 

Schuemanns’ objections to Moore’s testimony.

CONCLUSION

Having rejected the arguments raised on appeal, we affirm 

the district court’s order.

Affirmed.