Claims of negligent placement of ladder and failure to tie down ladder require separate jury instructions

Law Reporter, May 2001

Pleiss v. Barnes, 619 N.W.2d 825 (Neb. 2000).

The Nebraska Supreme Court held that a jury instruction concerning failure to tie down a ladder did not encompass another allegation that the ladder had been negligently placed against a structure. The court also held that juries should be specifically instructed on allocation of negligence between the parties.

Here, Barnes was replacing roofing shingles on his house, and his friend Pleiss was helping. Barnes placed an aluminum ladder against an aluminum gutter on the house. While Pleiss was climbing this ladder, it twisted and started to slide. Pleiss fell and was injured.

Pleiss sued Barnes for negligence. At a jury instruction conference, plaintiff objected to one of the instructions on the ground that it only included plaintiffs allegation that defendant was negligent in failing to tie the ladder down, and did not mention plaintiffs contention that the placement of an aluminum ladder against an aluminum gutter is itself a negligent act. Plaintiff also requested an instruction explaining the effect of the allocation of negligence between plaintiff and defendant. The trial court ruled against plaintiff on both these points. The jury found for defendant.

Reversing, the state high court found that the instruction concerning the failure to tie down the ladder did not encompass the substance of plaintiffs other allegation of negligence. Placement of a ladder and tying it down are two distinct acts. Unlike the instructions at issue in a case relied on by defendant, there was no broad instruction in this case that could be said to encompass the allegation of negligent placement.

The state high court also found for plaintiff on the issue of instructing the jury on allocation of negligence. Nebraska Rev. Star. 25-21, 185.09 mandates that trial courts instruct juries on the effect of allocation of negligence, and that failure to do so constitutes prejudicial error requiring reversal.

Accordingly, the court remanded the case for further proceedings.

Plaintiff's Counsel

*Christopher D. Jerram, Omaha, Neb.

Jeffery R Kirkpatrick, Lincoln, Neb.