Neb. Rev. Stat. § 25-21

In a partition proceeding, when the shares confirmed by the judgment are accurately pleaded in the original petition, the statute mandates awarding the plaintiff's attorney fees entirely to the plaintiff's attorney.

Sweet v. Fairbairn · filed 1981-03-13

In this case the shares confirmed by the judgment of the trial court were correctly pleaded in the original and amended petitions. Thus, the award of attorney fees for the plaintiffs’ attorney was proper, having been mandated by the provisions of § 25-21,108.

Section 25-21,149 requires an actual controversy and a justiciable issue when declaratory relief is sought, so it cannot resolve the legal effect of future, contingent, or uncertain facts.

Allstate Insurance v. Novak · filed 1981-12-18

In order to maintain an action for declaratory judgment under the provisions of Neb. Rev. Stat. § 25-21,149 (Reissue 1979), there must be an actual controversy. It cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain. There must, at the time that the declaration is sought, be an actual justiciable issue.

Section 25-21,150 permits a person whose rights, status, or other legal relations are affected by a statute to seek declaratory relief, requiring proof of an actual justiciable controversy and an affected legal interest.

Mullendore v. Nuernberger · filed 1989-01-20

Therefore, a plaintiff in a declaratory judgment action challenging the validity of a statute must prove that the plaintiff is a person “whose rights, status or other legal relations are affected” by the challenged statute. See § 25-21,150.

Section 25-21,112 permits a quiet-title action to determine adverse claims or interests in real estate even when the plaintiff’s legal remedy would otherwise be adequate.

Connealy v. Mueller · filed 1982-05-07

An action may be brought under the statute which, by the strict rules of equity, could not have been maintained. An allegation that the legal remedy is adequate is not a defense to an action to quiet title brought under the statute.

The declaratory judgment statute does not provide an additional remedy when another full, adequate, and exclusive statutory remedy—here, an election contest—is available.

Eriksen v. Ray · filed 1982-06-25

“Where an exclusive remedy is provided, the declaratory judgment act does not provide an additional remedy. A declaratory judgment action can afford no relief to one who has failed to pursue a full, adequate, and exclusive statutory remedy.”

Section 25-21,150 permits a person whose rights, status, or other legal relations are affected by a statute to obtain a determination of those rights or status through a declaratory-judgment action under the Uniform Declaratory Judgments Act.

State Ex Rel. Jakes v. Nebraska Board of Parole · filed 1982-07-16

The discussion above makes it readily apparent that the appellant is one “whose rights, status or other legal relations are affected by a statute.” Neb. Rev. Stat. § 25-21,150 (Reissue 1979). As such, appellant is entitled to have his rights or status under the law determined in an action seeking a declaratory judgment pursuant to the Uniform Declaratory Judgments Act. Neb. Rev. Stat. §§25-21,149 to 25-21,164 (Reissue 1979).

Section 25-21,150 requires a declaratory-judgment plaintiff challenging a statute to show that the statute affects the plaintiff’s rights, status, or other legal relations.

H. H. N. H., Inc. v. Department of Social Services · filed 1990-02-09

Therefore, a plaintiff in a declaratory judgment action challenging the validity of a statute must prove that the plaintiff is a person “whose rights, status or other legal relations are affected” by the challenged statute. See § 25-21,150.

Sections 25-21,112 and 25-21,120 allow a person claiming title by adverse possession to bring a quiet-title action and provide that it is an equitable action tried by the court without a jury.

Vogel v. Bartels · filed 1993-08-1025-21,112 and 25-21,120

A person claiming title through adverse possession may maintain an action to quiet title.

Section 25-21,180 defines a product liability action as one seeking recovery for personal injury, death, or property damage caused by a product, and does not encompass purely economic loss.

National Crane Corp. v. Ohio Steel Tube Co. · filed 1983-03-25

In addition, Neb. Rev. Stat. § 25-21,180 (Reissue 1979) defines a product liability action as an action brought “for or on account of personal injury, death, or property damage caused by” the product. The statute refers only to physical harm, not to economic loss.

A product liability action includes a claim against a product seller for personal injury or property damage caused by negligent installation, regardless of the substantive legal theory.

Thomas v. Countryside of Hastings, Inc. · filed 1994-12-0225-21,180

In this case, the plaintiffs filed their causes of action against the defendant, the seller of their mobile home, for the negligent installation of the furnace in their mobile home, which caused personal injury and property damage to the plaintiffs.

Nebraska's declaratory-judgment statutes make a declaration of rights in a justiciable controversy binding in later adjudication between the parties as to those declared rights.

Heimbouch v. Victorio Insurance Service, Inc. · filed 1985-06-28

Pursuant to Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1979), an action for declaratory judgment determines the rights of the parties in a justiciable controversy and is binding on any further adjudication between the parties as to the rights so declared.

Section 25-21,185 requires a plaintiff’s contributory negligence that does not bar a personal-injury action to be considered by the jury to mitigate damages in proportion to the plaintiff’s fault.

City of LaVista v. Andersen · filed 1992-02-2125-21,185

Because § 25-21,185 requires such mitigation, we reverse and remand for a comparison of the respective percentages of fault and a reduction of Armstrong’s award accordingly.

For actions accruing before February 8, 1992, slight contributory negligence does not bar recovery when the defendant's negligence is gross in comparison.

Huntwork v. Voss · filed 1995-01-13

Therefore, we reverse the order of the district court granting summary judgment in favor of Voss and remand the cause for trial, whereupon the comparative negligence of Huntwork and Voss may properly be determined pursuant to the comparative negligence statute in existence at the time Huntwork’s cause of action accrued. See Neb. Rev. Stat. § 25-21,185 (Cum. Supp. 1994) (stating that for all actions accruing prior to February 8, 1992, “the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence ... of the defendant was gross in comparison . . .”).

For negligence actions accruing before February 8, 1992, a plaintiff's negligence does not bar recovery when it is only slight and the defendant's negligence is gross in comparison.

Melick v. Schmidt · filed 1997-01-03

The statute applicable to this cause of action is Neb. Rev. Stat. § 25-21,185 (Reissue 1995), which provides that in a cause of action for negligence accruing before February 8, 1992, the plaintiff’s negligence will not bar recovery if his or her negligence is only slight and the defendant’s negligence is gross in comparison.

Nebraska's comparative-negligence statutes allow a plaintiff's contributory negligence to reduce, but do not necessarily eliminate, another tortfeasor's liability when both parties' negligence proximately caused the accident.

Woollen v. State · filed 1999-05-07

Under current comparative negligence principles, see Neb. Rev. Stat. § 25-21,185 et seq. (Reissue 1995), a plaintiff’s contributory negligence as a contributing proximate cause of an accident may but does not necessarily discharge the other tort-feasor or tort-feasors, including the State, of liability for damages resulting from its or their negligence.

The statute preserves the “slight” and “gross” comparative-negligence formulation only for actions accruing before February 8, 1992; later actions use the amended comparative-negligence regime.

City of Wahoo v. NIFCO Mech. Systems · filed 2020-06-19

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.

Section 25-21,182 makes conformity with the best technology reasonably available at the time a defense in product-liability actions based on negligent or defective design, testing, or labeling.

Rahmig v. Mosley MacHinery Co. · filed 1987-09-11

Of no small importance is § 25-21,182, which clearly and emphatically states that, if a product conforms with the “best technology reasonably available at the time,” such condition or status “shall be a defense.”

Section 25-21,182 makes proof that a product's design, testing, or labeling conformed to the generally recognized and prevailing state of the art at the time of first sale a defense in specified product-liability actions, defining state of the art as the best technology reasonably available at the time.

Jameson v. Liquid Controls Corp. · filed 2000-10-06

The state-of-the-art affirmative defense is set forth in Neb. Rev. Stat. § 25-21,182 (Reissue 1995), which provides: ... In any product liability action based upon negligent or defective design, testing, or labeling, proof establishing that such design, testing, or labeling was in conformity with the generally recognized and prevailing state of the art in the industry at the time the specific product involved in the action was first sold to any person not engaged in the business of selling such product shall be a defense. State of the art as used in this section shall be defined as the best technology reasonably available at the time. ... There is no testimony directly stating what the generally recognized and prevailing state of the art was in the industry regarding the sufficiency of strainer screens, the custom regarding acceptable associated warnings, or the necessity of pressure gauges or that the Liquid Controls meter was or was not in conformity therewith. ... Weins’ comment, without more, is insufficient to support a jury instruction on the affirmative defense of state of the art. ... The district court did not err in refusing Liquid Controls’ state-of-the-art jury instruction.

The Declaratory Judgments Act permits a declaratory action to determine a statute’s validity, construction, or interpretation, and its remedial provisions are liberally construed.

Mullendore v. SCH. D. NO. 1 OF LANCASTER CTY. · filed 1986-06-0625-21,149 and 25-21,160

An action for a declaratory judgment is an appropriate remedy to determine the validity, construction, or interpretation of a statute.

Nebraska's declaratory judgment statutes permit an action to determine the constitutional validity of a statute.

Bosselman, Inc. v. State · filed 1988-12-02

We agree the suit was properly brought, but conclude the enactment unconstitutionally delegates the State’s legislative power to local governing bodies. ... Contrary to the regulators’ claim that the constitutionality of the enactment cannot be tested by a suit for declaratory judgment, such an action has long been recognized as an appropriate remedy for determining the validity, construction, or interpretation of a statute.

Section 25-21,157 entitles parties to a jury trial in a declaratory-judgment action when the case presents questions of fact.

Hemenway v. MFA Life Insurance · filed 1982-04-0925-21,157

generis and may involve questions of both law and equity. The particular decision from which this appeal is taken involves, at the outset, questions of fact. As such, the parties were entitled to a jury trial.

The declaratory-judgment statutes do not provide a substitute for appeal or permit a collateral attack on a lower tribunal’s decision absent fraud or lack of jurisdiction.

Moore v. Black · filed 1985-05-3125-21,149 to 25-21,150

teach that an original action which does not state a valid, independent cause of action apart from the appeal of a lower tribunal’s decision constitutes an impermissible collateral attack on that decision and is not maintainable as an action for a declaratory judgment unless the decision was procured by fraud or the lower tribunal lacked jurisdiction, thus rendering its decision void.

The Uniform Declaratory Judgments Act permits an action to determine paternity because paternity is a right, status, or legal relation.

White v. Mertens · filed 1987-04-1725-21,149 et seq.

dictum recognizes that paternity is a “right,” “status,” or “legal relation” within the ambit of a declaratory judgment action.

The Uniform Declaratory Judgments Act is available only when a present actual controversy exists, all interested persons are parties, and a justiciable issue remains capable of present judicial enforcement.

Koenig v. Southeast Community College · filed 1989-04-27

The Uniform Declaratory Judgments Act, Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1985), is available when a present actual controversy exists and all interested persons are parties to the proceedings, and then only when a justiciable issue exists for resolution. ... In order to grant declaratory relief, there must be a justiciable issue. A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement.

The declaratory-judgment statutes require all persons whose interests would be affected by the declaration to be parties and permit contract-rights declarations only when a legally protectible interest exists under an actual contract.

Omaha Public Power District v. Nuclear Electric Insurance · filed 1988-09-09

Section 25-21,159 provides: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration . . . .” We have held that the statute authorizing a declaratory judgment action is applicable only where all interested persons are made parties to the proceeding. ... Section 25-21,150 provides that “[a]ny person interested under a . . . written contract or other writings constituting a contract . . . may have determined any question of construction or validity arising under the . . . contract. . . and obtain a declaration of rights, status or other legal relations thereunder.” ... We cannot agree with the plaintiffs’ contention that these letters constituted a contract within the meaning of § 25-21,150. The record shows, without dispute, that the parties have not yet entered into any contract.

Section 25-21,159 does not require every taxpayer who might be affected by declaratory-judgment litigation to be joined as an indispensable party.

Christensen v. City of Tekamah · filed 1988-12-0925-21,159

There is no requirement that all taxpayers who might be affected in some manner by the result of the litigation be made parties to the action.

The Uniform Declaratory Judgments Act permits a declaratory judgment action to construe a statute or determine its validity, including its constitutionality.

State v. Nebraska Ass'n of Public Employees, Local 61 · filed 1991-12-13

Under Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1989), a declaratory judgment action is an appropriate method to obtain a judicial construction of a statute or determination of a statute’s validity, including resolution of a challenge to the constitutionality of a statute.

The Uniform Declaratory Judgments Act allows prisoners to bring a declaratory judgment action against state correctional officials concerning the proper application of good-time statutes.

Richardson v. Clarke · filed 1994-02-1525-21,149 to 25-21,164

After having reviewed the law in this area, this court holds that these prisoners are entitled to bring a declaratory judgment action against Clarke and the Department in connection with the proper application of the good time statutes.

Section 25-21,150 permits a declaratory judgment action seeking only a determination of rights, without immediate money damages, and such an action is not a claim requiring a notice of claim under § 14-804.

Calabro v. City of Omaha · filed 1995-05-1225-21,150

The plaintiffs did not need to file a notice of claim under § 14-804 in order to obtain a judicial declaration of their rights.

Section 25-21,149 permits a declaratory-judgment action to test the constitutionality of a tax statute.

Jones v. State, Dept. of Revenue · filed 1995-06-02

Pursuant to Neb. Rev. Stat. § 25-21,149 (Reissue 1989), a declaratory judgment is available to test the constitutionality of a tax statute.

Section 25-21,150 permits a person whose rights are affected by a statute to obtain a judicial determination of the statute’s construction or validity and a declaration of rights.

Baker's Supermarkets, Inc. v. State · filed 1995-12-1525-21,150

However, the Uniform Declaratory Judgments Act provides that any person whose rights are affected by a statute may have determined any question of construction or validity under the ... statute and obtain a declaration of rights.

Section 25-21,150 permits a suit for declaratory judgment to determine the constitutionality and validity of state statutes.

Joseph S. George, Jr. And Ricky D. Jackson v. Robert Parratt, Warden, Nebraska Penal Complex · filed 1979-07-11

An action could be and should be brought by plaintiffs under Neb.Rev.Stat. § 25-21,150 which permits suit for a declaratory judgment to determine the constitutionality and validity of state statutes.

Section 25-21,187 invalidates a construction-contract indemnity provision to the extent it requires indemnification for the indemnitee's own negligence, but the invalid portion may be severed from the remainder.

Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc. · filed 1989-07-07

As conceded by the appellant Tri-County, the final clause in this agreement, stating that the subcontractor must indemnify the general contractor even if the harm is caused by the negligence of the general contractor, is clearly invalid by application of § 25-21,187. Abild, however, contends that the inclusion of this invalid clause in the agreement renders the whole indemnification provision void and unenforceable. This contention is in error. The portion regarding Abild’s potential liability for the negligence of Tri-County can be stricken from the remainder of the indemnification clause, and the language that remains may nonetheless be interpreted to impose liability on Abild. However, even if the clause were completely invalidated, because of the common-law right of indemnification which exists in this state, Abild could be required to indemnify Tri-County for the damage caused by Abild’s negligence, even absent an agreement to indemnify.

Section 25-21.187 strikes only the portion of a construction indemnity agreement that indemnifies another for that person's own negligence, while the remaining language may still impose liability on the indemnitor.

Rose Marie Day v. Toman · filed 2001-09-17

Under Nebraska law, only the portion prohibited by section 25-21,187 is stricken from the indemnification clause and the language remaining may be interpreted to impose liability on the indemnitor.

Section 25-21,149 authorizes courts of record to declare rights, status, and other legal relations within their jurisdictions, and the Nebraska Workers’ Compensation Court qualifies as a court of record with authority to enter a declaratory judgment.

Bituminous Casualty Corp. v. Deyle · filed 1990-02-23

Thus, we conclude that the Nebraska Workers’ Compensation Court is a “court of record” and, as such, has the authority to enter a declaratory judgment pursuant to the Uniform Declaratory Judgments Act, Neb. Rev. Stat. §§ 25-21,149 et seq. (Reissue 1985).

Section 25-21,187(1) voids indemnity provisions in construction-related contracts that cover another party's own negligence, but its reference to building maintenance does not include ordinary commercial-property management.

Kuhn v. WELLS FARGO BANK OF NEBRASKA · filed 2009-08-28(1)

Based on those principles, and well-reasoned authority from other jurisdictions, we hold that "maintenance of a building," within the meaning of § 25-21,187(1), does not encompass the ordinary activities associated with management of commercial property.

Section 25-21,206 permits the State to be sued in district court on a contract, express or implied, authorized or ratified by the Legislature, or founded on state law.

Omer v. Tagg · filed 1990-06-01

If the appellee is correct, then the first assigned error is without merit, as Neb. Rev. Stat. § 25-21,206 (Reissue 1989) provides in part that “[t]he state may be sued in the district court of the county wherein the capital is situated in any matter founded upon or growing out of a contract, express or implied, originally authorized or subsequently ratified by the Legislature, or founded upon any law of the state.” ... We conclude, as the district court did, that the promises made at the time of employment were for compensation to be enjoyed at retirement and constituted a contract enforceable against the State.

The Nebraska Uniform Declaratory Judgments Act does not waive the State’s sovereign immunity, so declaratory relief against a state department requires authorization outside the Act.

County of Lancaster v. State · filed 1995-03-3125-21,149 to 25-21,164

Since the state has not waived its sovereign immunity, the trial court did not have jurisdiction to hear this case as it applied to the department.

Section 25-21,206 waives the State’s sovereign immunity only for matters founded upon or growing out of a contract; it does not waive immunity for federal-law claims that merely bear a tangential relation to a contract.

King v. State · filed 2000-07-21

The plain language and the requisite strict construction can dictate only one result: § 25-21,206 does not waive the State’s sovereign immunity from a suit brought against it for alleged FLSA violations when the FLSA claims are not founded upon or growing out of the contracts themselves.

Section 25-21,206 waives the State’s immunity for contract actions and permits class actions, allowing retirement-benefit suits in district court without a presuit filing requirement.

Livengood v. Nebraska State Patrol Retirement System · filed 2007-03-2325-21,206

While the waiver of sovereign immunity in § 25-21,206 does not specifically mention class actions, we conclude that it is broad enough to encompass class actions.

Section 25-21,206 waives the State’s sovereign immunity only when its statutory requirements, including the complaint allegations required by § 25-21,202, are satisfied.

Burke v. Board of Trustees · filed 2019-03-15

Here, § 25-21,206 expressly waives the State’s sovereign immunity, but only if the requirements of the statute are met. Burke’s complaint does not contain the necessary factual allegations to satisfy § 25-21,202, and therefore she cannot rely on § 25-21,206 to waive the State’s sovereign immunity here.

Nebraska’s declaratory-judgment provisions create a sui generis action treated as legal or equitable according to the nature of the dispute.

Donaldson v. Farm Bureau Life Insurance · filed 1989-05-1225-21,149 et seq.

The essence of the dispute before us sounds in contract. That being so, the action is to be treated as one at law.

The declaratory-judgment provisions create a sui generis action whose treatment as one at law or in equity depends on the nature of the dispute.

Union Insurance v. Bailey · filed 1990-01-2625-21,149 et seq.

The essence of the dispute before us sounds in contract. That being so, the action is to be treated as one at law.

The Uniform Declaratory Judgments Act does not relax ordinary pleading and demurrer standards; demurrers in declaratory-judgment actions are governed by the same principles as in other cases.

Sanitary & Improvement District No. 272 v. Marquardt · filed 1989-08-0425-21,149 et seq.

It has, however, long been the rule in this state that “ ‘[t]he use and determination of the demurrer in actions arising under Declaratory Judgment Act is controlled by the same principles as apply in other cases.’ ”

Section 25-21,156 permits a court in a declaratory-judgment action to retain jurisdiction and grant further relief as circumstances require.

S.N. Mart, Ltd. v. Maurices Inc. · filed 1990-02-0225-21,156

The trial court has the power to retain jurisdiction in order to grant further relief for the amounts of percentage rent as they ... may be determined each year until the expiration of the lease.

Section 25-21,185 requires contributory negligence to mitigate damages in proportion to the decedent’s share, rather than bar recovery.

Crewdson v. Burlington Northern Railroad · filed 1990-03-0925-21,185

We direct that the jury should be instructed that if it find that the decedent was guilty of contributory negligence, such shall be considered by it only in mitigation of damages and in proportion to the amount of contributory negligence which it may attribute to the ... decedent.

An action for declaratory judgment under §§ 25-21,149 through 25-21,164 is treated as an action at law or in equity according to the nature of the dispute; a claim seeking only recovery of money and no equitable relief is treated as an action at law.

Krzycki v. Genoa National Bank · filed 1993-03-12

Whether an action for declaratory judgment under the provisions of Neb. Rev. Stat. §§ 25-21,149 through 25-21,164 (Reissue 1989) is to be treated as one at law or one in equity is to be determined by the nature of the dispute. ... Since no equitable relief is sought, the action is to be treated as one at law.

A declaratory-judgment action is sui generis and is treated as an action at law or in equity according to the nature of the dispute.

Perry v. Esch · filed 1992-03-2025-21,149 et seq.

“An action for declaratory judgment under the provisions of Neb. Rev. Stat. §§ 25-21,149 etseq. (Reissue 1985) is sui generis [citations omitted]; whether such an action is to be treated as one at law or one in equity is to be determined by the nature of the dispute [citations omitted]. The essence of the dispute before us sounds in contract. That being so, the action is to be treated as one at law.”

An action for declaratory judgment under § 25-21,149 et seq. is sui generis, and whether it is treated as an action at law or in equity depends on the nature of the dispute.

Drew v. Walkup · filed 1992-06-2625-21,149 et seq.

whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

The declaratory-judgment provisions create a sui generis action whose legal or equitable character is determined by the nature of the dispute, based on how the issues would be treated without the declaratory-judgment prayer.

Boyles v. Hausmann · filed 1994-06-2425-21,149 et seq.

The test is whether, in the absence of the prayer for declaratory judgment, the issues presented should properly be disposed of in an equitable as opposed to a legal action.

Section 25-21,188 bars causes of action for alienation of affections and criminal conversation, including claims recast under other tort labels.

Speer v. Dealy · filed 1993-02-26

It is evident from the plaintiff’s petition that the damages he seeks for this first cause of action stem from loss of consortium with his wife. Although the plaintiff’s first theory of recovery is characterized as an action for tortious interference with a marital contract, it is, in essence, one for alienation of affections and is barred by § 25-21,188.

Section 25-21,188 bars causes of action for alienation of affections or criminal conversation commenced after January 9, 1986, so a loss-of-consortium claim essentially based on those causes cannot support recovery.

Schieffer v. Catholic Archdiocese of Omaha · filed 1993-12-1725-21,188

Causes of action based on criminal conversation or alienation of affection are barred by Neb. Rev. Stat. § 25-21, 188 (Reissue 1989).

Section 25-21,188 abolishes the cause of action for alienation of affections.

Carlson v. Chain · filed 1992-09-29

The cause of action for alienation of affections was abolished by the Legislature in 1986. See Neb.Rev.Stat. § 25-21,188 (Reissue 1989).

When a statute's constitutionality is challenged, the Attorney General must be served with the proceeding and given an opportunity to be heard; failure to comply prevents the constitutional issue from being properly before the court.

How v. Mars · filed 1994-03-25

Neb. Rev. Stat. § 25-21,159 (Reissue 1989) provides that “if [a] statute ... is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.” ... Because the plaintiffs failed to comply with the terms of § 25-21,159, the constitutionality of § 21-1914 was never properly before the trial court, and the plaintiffs were not entitled to declaratory relief on this issue.

Section 25-21,185.12 defines assumption of risk as knowing and understanding a specific danger, voluntarily exposing oneself to it, and suffering injury as a result, but applies only to civil actions accruing on or after February 8, 1992.

Murrish v. Burkey · filed 1993-04-06

The definition became effective upon approval by the Governor February 8,1992, but it applies only to civil actions that accrued on or after that date. Murrish’s cause of action accrued on August 2, 1986. Thus, the definition, of assumption of risk applicable to the case now before us is the one in force in August 1986: One who knows of a dangerous condition, appreciates its dangerous nature, and deliberately exposes himself or herself to the danger assumes the risk of injury from it.

Section 25-21,185.12 makes assumption of risk an affirmative defense requiring proof that the person knew and understood the specific danger, voluntarily exposed themselves to it, and was harmed as a result.

Krajewski v. Enderes Tool Company · filed 2006-12-04

As codified in Nebraska, assumption of risk is an affirmative defense, and the defendant must show that “(1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person’s injury or death or the harm to property occurred as a result of his or her exposure to the danger.” Neb. Rev. Stat. § 25-21,185.12. The doctrine “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, 619 N.W.2d 825, 829 (Neb. 2000). Under Nebraska law, the plaintiff’s knowledge of a general danger or hazard is insufficient, and the assumption of risk defense requires proof that a plaintiff had knowledge of a specific danger and deliberately exposed himself to the danger.

Section 25-21,185.12 defines assumption of risk as an affirmative defense requiring knowledge and understanding of the specific danger, voluntary exposure to it, and resulting injury, death, or property harm.

Hughes v. Omaha Public Power District · filed 2007-07-27

As currently codified, “assumption of risk” as an affirmative defense means that (1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person’s injury or death or the harm to property occurred as a result of his or her exposure to the danger.

Section 25-21,185.12 makes assumption of risk an affirmative defense requiring proof that the person knew and understood the specific danger, voluntarily exposed himself or herself to it, and was injured as a result.

Daubenmier v. Spence · filed 2008-02-19

As currently codified, "assumption of risk" as an affirmative defense means that "(1) the person knew of and understood the specific danger, (2) the person voluntarily exposed himself or herself to the danger, and (3) the person's injury or death or the harm to property occurred as a result of his or her exposure to the danger."

Section 25-21,185.12 makes assumption of risk an affirmative defense requiring proof that the plaintiff knew and understood the specific danger, voluntarily exposed himself or herself to it, and was injured as a result.

Schuemann v. Menard, Inc. · filed 2020-01-2125-21,185.12

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.

Section 25-21,159 requires every person whose interest would be affected by declaratory relief to be joined and bars a declaration from prejudicing the rights of nonparties.

Krohn v. Gardner · filed 1991-06-2825-21,159

We note first that under Nebraska law, “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

Section 25-21,159 does not require every taxpayer who might be affected by a declaratory judgment to be joined as an indispensable party.

Iverson v. City of North Platte · filed 1993-05-2825-21,159

There is no requirement that all taxpayers who might be affected in some manner by the result of the litigation be made parties to the action.

Section 25-21,159 requires all persons with an interest affected by declaratory relief to be joined, and makes the presence of necessary or indispensable parties jurisdictional.

Concerned Citizens of Kimball County, Inc. v. Department of Environmental Control · filed 1993-09-03

Section 25-21,159 provides in part: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” ... The presence of all necessary or indispensable parties is jurisdictional in a declaratory judgment action and cannot be waived by the parties.

Section 25-21,159 requires all persons with an interest that would be affected by declaratory relief to be made parties, and their presence is jurisdictional.

Sanitary & Improvement District 57 v. City of Elkhorn · filed 1995-08-18

Finally, neither Skyline Ranches nor any resident thereof was a party to this declaratory judgment action. Under Nebraska law, “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration . . . .” Neb. Rev. Stat. § 25-21,159 (Reissue 1989). In addition, we have said that the presence of necessary parties is jurisdictional and cannot be waived, and if such persons are not made parties then the district court has no jurisdiction to determine the controversy.

Section 25-21,159 requires service on the Attorney General when a proceeding seeking declaratory relief alleges that a statute is unconstitutional.

State v. Kelley · filed 1996-01-12

Therefore, in order for § 25-21,159 to apply, this action must be for declaratory relief. ... Therefore, her request is not for declaratory relief, and § 25-21,159 does not apply. ... We hold that § 25-21,159 does not apply in this case.

The Uniform Declaratory Judgments Act does not independently confer original jurisdiction on the Nebraska Supreme Court; a declaratory judgment action must also satisfy a jurisdictional basis under article V, § 2, of the Nebraska Constitution.

State Ex Rel. Wieland v. Moore · filed 1997-04-04

In addition to the mandamus relief discussed above, the second amended petition in the present case requested relief pursuant to the Uniform Declaratory Judgments Act, Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 1995). Bringing an action pursuant to the Uniform Declaratory Judgments Act does not, in and of itself, satisfy the jurisdictional requirements of article V, § 2, because article V, § 2, does not include declaratory relief as one of the grounds for relief that we may address pursuant to our limited original jurisdiction. Consequently, absent a concurrent basis for jurisdiction over the subject matter of a declaratory judgment action, this court has no original jurisdiction under article V, § 2, to address declaratory judgment actions.

Section 25-21,159 requires joinder of all persons whose interests a declaratory judgment would affect and the municipality in a proceeding involving a municipal ordinance's validity; the requirement is jurisdictional.

Dunn v. Daub · filed 2000-05-26

In considering the impact of the failure to join a necessary party under § 25-21,159, we have stated that “ ‘[t]he presence of necessary parties [in declaratory judgment actions] is jurisdictional and cannot be waived, and if such persons are not made parties then the district court has no jurisdiction to determine the controversy.’ ”

The Declaratory Judgments Act is sui generis, and whether an action is treated as one at law or in equity depends on the nature of the dispute.

Jeffrey Lake Development, Inc. v. Central Nebraska Public Power & Irrigation District · filed 2001-09-07

An action for declaratory judgment under the provisions of Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 1995) is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

Section 25-21,159 requires joinder of persons whose interests would be affected by declaratory relief, but does not require joinder of a person whose absence does not prevent a complete determination of the controversy affecting that person’s interest.

McCombs v. Haley · filed 2005-07-26

Neb. Rev. Stat. § 25-21,159 (Cum. Supp. 2004) provides in part: “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” ... We conclude on this record that John was not a necessary party to the declaratory judgment action pursuant to § 25-21,159.

Section 25-21,157 requires factual issues in declaratory judgment actions to be tried in the same manner as factual issues in other civil actions.

Breci v. St. Paul Mercury Ins. Co. · filed 2014-07-25

Issues of fact in a declaratory judgment action may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

Section 25-21,159 requires every person whose interest would be affected by a declaratory judgment to be joined, and failure to join all indispensable parties deprives the district court of jurisdiction.

SID No. 2 of Knox Cty. v. Fischer · filed 2021-04-0225-21,159

The rule in a declaratory judgment action, restated using the statutory language, is that all who have or claim any interest which would be affected by the declaration sought are indispensable parties, ... and when all such parties have not been joined, the district court has no jurisdiction to determine the controversy.

Section 25-21,159 requires all persons with an interest that would be affected by a declaratory judgment to be joined as parties and bars a declaration from prejudicing nonparties.

Powers v. Board of Directors of Elmwood Tower · filed 2026-03-06

When, as here, declaratory relief is sought, Neb. Rev. Stat. § 25-21,159 (Reissue 2016) requires that “all persons shall be made parties who have or claim an interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

Section 25-21,150 allows a person interested in a written contract to obtain a judicial determination of questions concerning the contract's construction or validity.

City of Omaha v. City of Elkhorn · filed 2008-07-11

Omaha filed its lawsuits pursuant to Nebraska's Uniform Declaratory Judgments Act, Neb.Rev. Stat. § 25-21,149 et seq. (Reissue 1995 & Cum.Supp.2006). A section of that act, § 25-21,150, provides that "[a]ny person interested under a ... written contract or other writings constituting a contract ... may have determined any question of construction or validity arising under the ... contract[.]" ... Once the annexation ordinance became effective, Omaha was liable under the severance provisions and Omaha became "interested" in those provisions. See § 25-21,150. Thus, contrary to the appellants' jurisdictional challenge, Omaha's interest gave it standing to seek a declaratory judgment regarding the enforceability of the severance provisions.

Section 25-21,158 does not authorize attorney fees to be taxed as costs in a declaratory judgment action.

Wetovick v. County of Nance · filed 2010-04-29

Finally, we conclude that § 25-21,158 is not statutory authority for taxing attorney fees as costs and that no uniform course of procedure generally permitted the court to tax attorney fees as costs in this declaratory judgment action.

Section 25-21,121 permits a quo warranto action against a person unlawfully holding or exercising a public office or franchise.

State Ex Rel. Spire v. Conway · filed 1991-07-2625-21,121

Neb. Rev. Stat. § 25-21,121 (Reissue 1989) permits the filing of an action in quo warranto “against any person unlawfully holding or exercising any public office or franchise within this state .. . or when any public officer has done or suffered any act which works a forfeiture of his office . . ..”

Section 25-21,149 makes declaratory relief available only when a present controversy exists between parties with adverse interests, the claimant has a legally protectable interest, and the issue can be judicially determined.

Barelmann v. Fox · filed 1992-01-1025-21,149

The remedy of declaratory judgment may be available to a litigant when a controversy exists as a result of a claim asserted against one who has an interest in contesting such claim, the controversy is between persons whose interests are adverse, the party seeking declaratory relief has a legally protectable interest or right in the subject matter of the controversy, and the issue involved is capable of present judicial determination.

Nebraska's declaratory judgment statutes are remedial and should be liberally construed to settle and relieve uncertainty about rights, status, and other legal relations.

Hoiengs v. County of Adams · filed 1994-05-13

The declaratory judgment statutes are remedial; their purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered. § 25-21,160.

Section 25-21,149 requires a justiciable, actual controversy ripe for determination and does not permit a prospective tort defendant to obtain an anticipatory declaration of nonliability when ordinary remedies remain available.

Ryder Truck Rental, Inc. v. Rollins · filed 1994-07-0125-21,149

A court should refuse a declaratory judgment unless the pleadings present a justiciable controversy which is ripe for judicial determination.

Section 25-21,150 permits a person whose rights, status, or other legal relations are affected by a statute to seek declaratory relief, requiring an actual justiciable controversy.

Jaksha v. State · filed 1992-07-2425-21,150

The case or controversy requirement “applies with equal, if not stronger, force to an action for a declaratory judgment, since the right to maintain the action is expressly granted only to those ‘person[s] . . . whose rights, status or other legal relations are affected by a statute.’ ”

Section 25-21,150 permits a declaratory-judgment action only by a person whose rights, status, or other legal relations are affected by a statute.

Professional Firefighters of Omaha, Local 385 v. City of Omaha · filed 1993-04-0925-21,150

“Therefore, a plaintiff in a declaratory judgment action challenging the validity of a statute must prove that the plaintiff is a person ‘whose rights, status or other legal relations are affected’ by the challenged statute. See § 25-21,150.”

Section 25-21,150 permits declaratory relief only for a person whose rights, status, or legal relations are affected by a statute and therefore requires an actual, justiciable controversy.

Galyen v. Balka · filed 1997-11-0725-21,150

The Uniform Declaratory Judgments Act as adopted in Nebraska, Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 1995), provides in pertinent part that any person “whose rights, status or other legal relations are affected by a statute... may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal relations thereunder.” § 25-21,150. ... Therefore, appellants presented no actual controversy capable of judicial resolution.

Section 25-21,149 authorizes courts to declare rights and legal relations, but declaratory relief requires a present, justiciable controversy rather than future, contingent, or uncertain facts.

City of Fremont v. Kotas · filed 2010-04-23

Actions for declaratory judgment pursuant to § 18-2538 are subject to § 25-21, 149, which specifies in part that "[c]ourts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." However, an action for declaratory judgment cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain. ... A justiciable issue requires a present substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement. ... If the residents of Fremont have not yet voted on the Measure, it may not be adopted. Thus, Fremont presents us with a state of facts that are contingent and uncertain. Fremont's request for declaratory judgment as to the constitutionality of the Measure before the citizens of Fremont have adopted the Measure is a request for an advisory opinion. Accordingly, it is outside the jurisdiction of the courts.

Section 25-21,181 bars a strict-liability product-liability action against a seller or lessor unless the seller or lessor is also the product’s manufacturer.

Kudlacek v. Fiat S.P.A. · filed 1994-01-07

No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller or lessor of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, of consumer unless the seller or lessor is also the manufacturer of this product or the part thereof claimed to be defective. ... In any event, § 25-21,181 bars any action based on strict liability in tort brought against the seller or lessor of a defective or unreasonably dangerous product unless the seller is also the manufacturer of the product.

Section 25-21,181 bars a product-liability action based on strict liability against a seller or lessor unless the seller or lessor is also the product’s manufacturer or the manufacturer of the defective part.

Sherman v. Sunsong America, Inc. · filed 2007-02-28

I find that neither Winco nor Shiu Fung are manufacturers, and under Neb.Rev. Stat. § 25-21, 181, cannot be held strictly liable in the current action.

Nebraska’s forcible entry and detainer statutes apply to farm leases and permit a landlord to evict a tenant who unlawfully and forcibly detains farmland after the lease expires.

Stuthman v. Stuthman · filed 1994-05-13

An examination of the forcible entry and detainer statutes, URLTA, and their legislative histories shows that excluding farm leases from the forcible entry and detainer statutes is inconsistent with the purposes of those statutes. ... Therefore, we find that Nebraska’s forcible entry and detainer statutes do apply to farm leases, and we reverse the decision of the Court of Appeals on this issue.

The forcible entry and detainer statutes do not govern a farm lease covering premises used primarily for agricultural purposes.

Stuthman v. Stuthman · filed 1993-11-0225-21,219

It is clear that if the statutory language in the act is considered in its plain, ordinary, and popular sense, the farm lease at issue in this case is not governed by the rules delineated in the act or in the Forcible Entry and Detainer statutes.

Section 25-21,233 requires an appeal from a forcible entry and detainer judgment to proceed as an appeal in a civil action, so § 25-1315 governs immediate appealability when the action includes multiple claims or parties.

TDP Phase One v. The Club at the Yard · filed 2020-11-13

Section 25-21,233, by its plain language, directs that the party against whom judgment has been entered in a FED action may appeal only “as provided for in a civil action.” And § 25-1315 governs civil actions. Thus, by the plain language of § 25-21,233, when the FED claim is part of an action involving multiple claims or multiple parties, § 25-1315 governs the immediate appealability of an order determining the FED claim.

Nebraska's forcible-entry-and-detainer statutes govern an action outside the Uniform Residential Landlord and Tenant Act and require the necessary three-day notice before the action is brought.

Lund Co. v. Clark · filed 2021-11-02

Accordingly, the Uniform Residential Landlord and Tenant Act did not apply in this case, and the action is controlled by §§ 25-21,219 to 25-21,235. The Lund Company provided Clark the necessary 3-day notice to quit the apartment pursuant to § 25-21,221. See, also, I.P. Homeowners v. Morrow, supra. When Clark did not vacate the premises, The Lund Company brought a forcible entry and detainer action against Clark. See § 25-21,220(5) (forcible entry and detainer proceedings may be had in all cases when defendant is settler or occupier of lands or tenements, without color of title, and to which complainant has right of possession).

Nebraska's forcible-entry-and-detainer statutes authorize that action when a tenant holds over the lease term after failing to pay rent when it became due.

132 Ventures v. Active Spine Physical Therapy · filed 2024-11-22

Under Neb. Rev. Stat. §§ 25-21,219 through 25-21,235 (Reissue 2016 & Cum. Supp. 2022), forcible entry and detainer is appropriate when the tenant is holding over the lease term by failing to pay rent when it became due, and the district court found that the rent was due despite Active Spine’s allegation of an ongoing COVID-19 abatement period.

Section 25-21,132 is a general quo warranto costs provision that yields to the more specific § 24-204.01 when the action challenges the constitutionality of a legislative act.

State Ex Rel. Stenberg v. Murphy · filed 1995-02-03

Flowever, the situation presented here is unusual, for respondent was appointed to the commission under the color of statutory law precisely because he lawfully held another office, that of a duly qualified and acting district court judge. Under this peculiar circumstance, § 25-21,132 is the more general statute and must yield to the more specific and conflicting Neb. Rev. Stat. § 24-204.01 (Reissue 1989).

Neb. Rev. Stat. § 25-21,149 permits a declaratory-judgment action only when an actual controversy and justiciable issue exist; it cannot be used to decide future, contingent, or uncertain legal effects.

Union Ins. Co. v. Land and Sky, Inc. · filed 1995-03-31

In order to maintain an action for declaratory judgment under the provisions of Neb. Rev. Stat. § 25-21,149 (Cum. Supp. 1994), there must be an actual controversy. It cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain. There must, at the time that declaration is sought, be an actual justiciable issue.

Section 25-21,147 does not authorize removal by quo warranto of the holder of a constitutional office.

Opinion No. (1984) · filed 1984-08-21

We do not believe he would be subject to removal by quo warranto pursuant to Neb.Rev.Stat. § 25-21,147 (Reissue 1979), because inFitzgerald v. Kuppinger, 163 Neb. 286, 79 N.W.2d 547 (1956), the court said that it was not within the power of the Legislature to provide for the removal or suspension of the holder of a constitutional office. It is true that the court was relying primarily on Article III, Section 23 of the Constitution, which has since been repealed, but it also relied on Article IV, Section 5, and we believe the rule is still applicable.

The quo warranto statutes authorize an action to remove a person unlawfully holding or exercising a public office, and require the Attorney General to bring such an action against a state officer.

Opinion No. (1996) · filed 1996-03-11

Those statutes allow an action to be filed for removal of any person "unlawfully holding or exercising any public office or franchise within this state." Under § 25-21,122, quo warranto actions against state officers or judges of the district court must be filed by the Attorney General.

Nebraska's quo warranto statutes authorize an action against a person unlawfully holding public office.

Opinion No. (1997) · filed 1997-08-07

Also, the Attorney General's Office could file an action to remove an unqualified member of a State board based on the quo warranto statutes, Neb. Rev. Stat. §§ 25-21,121 through 25-21,148 (1995). These statutes allow an action to be filed against any person unlawfully holding any public office in the state.

Section 25-21,122 requires an elector who files a quo warranto information after the county attorney refuses to do so to allege the required notice and refusal and file a bond securing prompt prosecution and payment of costs and attorney fees if unsuccessful.

Hynes v. Hogan · filed 1996-07-2325-21,122

Pertinent provisions of the quo warranto statutes require that an information be filed by the Attorney General or by the county attorney of the proper county against any person unlawfully holding or exercising a public office. Any elector may file the information if the county attorney refuses to do so within 10 days after being, notified in writing by an elector that a person unlawfully holds or exercises a public office. In that event, the person filing is required to file a bond of not less than $500 conditioned upon prosecution of the action without delay and payment of all costs, including a reasonable attorney fee to the person against whom the information is filed, if the action is unsuccessful. Attorney fees are to be fixed by the court and taxed as costs. Hynes’ petition contains no allegation that he notified the county attorney in writing about filing an information, that the county attorney refused to file the information, or that Hynes filed the appropriate bond.

The quo warranto statutes allow a person's right to hold office to be tested and authorize the Attorney General or the proper county attorney to initiate the proceeding, subject to the stated limitation on county attorneys.

Opinion No. (2002) · filed 2002-02-06

These statutes permit one to test a person's right to hold office. According to Neb. Rev. Stat. § 25-21,122 (1995), a quo warranto proceeding may be initiated by the Attorney General or by the county attorney of the proper county, except that the county attorney may not file against state officers or judges of the district court.

The statute bars recovery only when the claimant's negligence is equal to or greater than the defendant's, so a finding that negligence was more than slight under the former standard does not automatically bar recovery.

Dutton v. Travis · filed 1996-07-30

Under Nebraska’s revised law, a plaintiff is not barred from recovery unless his or her negligence is equal to or greater than the negligence of the defendant. § 25-21,185.09. Thus, under the new law, a plaintiff can recover even if his or her percentage share of negligence is 49 percent. Therefore, the determination that a plaintiffs negligence was more than slight as a matter of law under the slight/gross standard does not automatically translate into a finding that the same plaintiffs right to recovery would be barred under § 25-21,185.09. The rules have changed. Precedent under the old standard is not dispositive.

Section 25-21,185.09 bars recovery when the claimant’s contributory negligence equals or exceeds the combined negligence of the persons sued, and requires the relative fault to be apportioned under the comparative-negligence standard.

Traphagan v. Mid-America Traffic Marking · filed 1996-11-22

Under the applicable contributory negligence standard, if the claimant’s contributory negligence is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. See Neb. Rev. Stat. § 25-21,185.09 (Reissue 1995). ... Neither have we, heretofore, addressed the relationship between case law finding the plaintiff guilty of negligence more than slight under the old standard and cases arising under the new comparative negligence statute, § 25-21,185.09. We now hold that such cases decided under the slight-gross standard are not dispositive of whether a plaintiff’s contributory negligence bars recovery as a matter of law under the new standard. ... We now hold that where reasonable minds may draw different conclusions and inferences regarding the negligence of the plaintiff and the negligence of the defendant such that the plaintiff’s negligence could be found to be less than 50 percent of the total negligence of all persons against whom recovery is sought, the apportionment of fault must be submitted to the jury. Only where the evidence and the reasonable inferences therefrom are such that a reasonable person could reach only one conclusion, that the plaintiff’s negligence equaled or exceeded the defendant’s, does the apportionment of negligence become a question of law for the court.

Section 25-21,122 requires a person filing an information in quo warranto to file a bond of at least five hundred dollars, conditioned on prosecuting the action without delay and paying specified costs and attorney fees if unsuccessful.

Hynes v. Hogan · filed 1997-01-03

But even if Hynes’ complaint states a cause of action in quo warranto, a determination we need not and do not make, he has failed to establish such a case. If for no other reason, this is so because the record does not establish that he met one of the requirements set by Neb. Rev. Stat. § 25-21,122 (Reissue 1995) for such an action. That statute requires one filing an information in quo warranto to file “with such information in the office of the clerk of the district court a bond . . . the amount of which bond shall be not less than five hundred dollars and be fixed by . . . the clerk,” conditioned that the action shall be prosecuted “without delay” and that the elector “shall pay the costs of such suit including a reasonable attorney fee to the person against whom such information is filed should the action be unsuccessful.”

Section 25-21,185.09 bars a plaintiff from recovering when the plaintiff's negligence is equal to or greater than the defendant's.

Pohl v. County of Furnas · filed 2012-06-26

Under Nebraska law, a plaintiff is barred from recovery if his negligence is equal to or greater than that of the defendant. See Neb. Rev. Stat. § 25-21,185.09. ... Given this conflicting testimony, we cannot say that the district court clearly erred by not finding that Pohl's negligence exceeded that of the county.

The statute bars a claimant from recovering when the claimant's contributory negligence is equal to or greater than the total negligence of the persons sued.

Kozlov v. Associated Wholesale Grocers, Inc. · filed 2016-03-23

Here, because the jury found Kozlov 84% at fault, he was barred from recovery. Kozlov's contributory negligence in the accident, according to the jury's sole discretion, was greater than AWG's negligence (8%). Similarly, Tchikobava's contributory negligence (8%) was equal to AWG's negligence, and thus, he was also barred from recovery.

Section 25-21,185.09 bars a plaintiff from recovering when the plaintiff's negligence is equal to or greater than the defendant's.

Kent v. Crocker · filed 1997-05-09

In cases where the plaintiff’s negligence is equal to or greater than the negligence of the defendant, the plaintiff is barred from recovery. See Neb. Rev. Stat. § 25-21,185.09 (Reissue 1995). Therefore, even if the jury found that Rosalie Crocker was negligent, the jury was not required to return a verdict for Marjorie Kent. This requested instruction was not a correct statement of the law, and therefore, it was not error for the district court to refuse to give it.

The Uniform Declaratory Judgments Act permits a declaratory action to determine rights under revenue-and-taxation enactments, but requires the plaintiff’s rights, status, or legal relations to be affected for standing.

Boettcher v. Balka · filed 1997-05-23

It is clear under the language of § 25-21,150 that a declaratory judgment action may be used to determine one’s rights, status, or other legal relations under a legislative enactment relating to revenue and taxation. ... As the amendments do not in and of themselves operate such as to affect any taxpayer’s rights, status, or other legal relations, they do not confer upon the taxpayers the standing required by § 25-21,149.

The Uniform Declaratory Judgments Act permits courts to declare rights, status, and other legal relations, but its power is limited to declaring existing legal relationships and does not extend to additional relief.

Blecha Ex Rel. Raney v. Blecha · filed 1999-08-2025-21,149

The additional relief requested by Shelby is outside the scope of the act.

The Uniform Declaratory Judgments Act does not waive Nebraska's sovereign immunity, so a declaratory-judgment suit against the State is barred.

Perryman v. NEB. DEPT. OF CORR. SERVS. · filed 1997-08-29

Such suit is barred because the Uniform Declaratory Judgments Act does not waive the State of Nebraska's sovereign immunity.

The Uniform Declaratory Judgments Act does not waive the State’s sovereign immunity.

Pratt v. Clarke · filed 1999-03-1625-21,149 et seq.

A declaratory judgment action seeking to compel action on the part of a state official is barred by the doctrine of sovereign immunity; however, if such a suit simply seeks to restrain the state official from performing affirmative acts, it is not within the rule of immunity.

For actions accruing before February 8, 1992, contributory negligence does not bar recovery when it is slight and the defendant’s negligence is gross in comparison; contributory negligence instead mitigates damages, while a plaintiff whose negligence is more than slight may be barred as a matter of law when the defendant’s negligence is not gross in comparison.

Schiffern v. Niobrara Valley Electric Membership Corp. · filed 1996-05-1025-21,185

Thus, this court has previously concluded that a plaintiff may be barred from recovering as a matter of law if his or her contributory negligence is more than slight and the defendant’s negligence was not gross in comparison.

For negligence actions accruing before February 8, 1992, a plaintiff’s negligence does not bar recovery when it is only slight and the defendant’s negligence is gross in comparison.

Harrison v. Seagroves · filed 1996-07-0525-21,185

The statute applicable to this cause of action is Neb. Rev. Stat. § 25-21,185 (Reissue 1995), which provides that in a cause of action for negligence accruing before February 8, 1992, the plaintiff’s negligence will not bar recovery if his or her negligence is only slight and the defendant’s negligence is gross in comparison.

For actions accruing before February 8, 1992, a defendant prevails as a matter of law under the slight-gross comparison when the plaintiff's contributory negligence is more than slight or the defendant's negligence is not gross in comparison.

Nickell v. Russell · filed 2000-07-21

A defendant is entitled to judgment as a matter of law under the slight-gross comparison of § 25-21,185 for actions accruing before February 8, 1992, if he or she proves that (1) a plaintiff’s contributory negligence was more than slight as a matter of law or (2) the defendant’s negligence was not gross in comparison to the plaintiff’s negligence as a matter of law.

A declaratory judgment under § 25-21,150 is inappropriate when the alleged harm has already occurred and another equally serviceable remedy is available.

Hauserman v. Stadler · filed 1996-11-0825-21,149 et seq.

Accordingly, we hold that a declaratory judgment is inappropriate in this case and should not have been issued.

Section 25-21,187(1) voids construction-contract provisions requiring indemnification for another person’s own negligence, but its exception for insurance contracts leaves agreements requiring liability insurance outside the prohibition.

Anderson v. Nashua Corp. · filed 1997-02-2825-21,187

Thus, we determine that § 25-21,187 does not render the instant agreement invalid because its exception for insurance agreements is applicable.

The Uniform Declaratory Judgments Act does not waive Nebraska’s sovereign immunity for suits against the State or its agencies.

Perryman v. Nebraska Department of Correctional Services · filed 1997-08-2925-21,149 et seq.

Such suit is barred because the Uniform Declaratory Judgments Act does not waive the State of Nebraska’s sovereign immunity.

Section 25-21,108 authorizes an attorney fee for the plaintiff’s attorney only when the partition is amicable.

Anania v. Anania · filed 1998-03-03

While attorney fees are frequently allowed in partition actions under § 25-21,108, the attorney fee authorized by that statute is for the plaintiff’s attorney and then only when the partition is amicable.

In contributory-negligence cases arising on or after February 8, 1992, the jury must be instructed on how its allocation of negligence affects recovery, including proportional reduction of damages when the claimant may recover.

Wheeler v. Bagley · filed 1998-03-20

Therefore, for those cases where the cause of action accrued on or after February 8, 1992, and in which contributory negligence is a defense, we hold that it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with § 25-21,185.09.

Section 25-21,185.09 requires the jury to be instructed about the effect of its allocation of negligence, and failure to give that instruction is prejudicial error.

Fiscel v. Beach · filed 1998-05-2225-21,185.09

We find the district court committed plain error by failing to instruct the jury or provide the jury with a verdict form regarding the effect of the allocation of negligence. We reverse, and remand for a new trial.

Section 25-21,185.09 requires the jury to be instructed on the effects of allocating negligence, but failure to give that instruction is harmless and not reversible when the jury never reaches contributory negligence.

Hess v. Heger · filed 2000-11-1425-21,185.09

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 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.

Section 25-21,185.09 requires the trial court to instruct the jury on the effect of allocating negligence, and failure to give that instruction is prejudicial error requiring reversal.

Pleiss v. Barnes · filed 2000-12-0825-21,185.09

Barnes’ contention is without merit. ... rejected the so-called blindfold rule and held that § 25-21,185.09 mandates that the trial court instruct the jury on the effect of the allocation of negligence and that failure to do so is prejudicial error requiring reversal.

Section 25-21,185.10 makes multiple defendants jointly and severally liable for economic damages, but generally only severally liable for noneconomic damages in proportion to each defendant’s negligence; the jury must separately find both damage categories and judgments must reflect that allocation.

Lackman v. Rousselle · filed 1998-09-29

Without a joint enterprise, the statute makes them jointly and severally liable for Clinten’s economic damages, but only severally liable for his noneconomic damages. See § 25-21,185.10. When there are multiple defendants, the plain language of § 25-21,185.10 requires that the trial court instruct the jury to make separate findings as to the amount of economic and noneconomic damages, which are defined in § 25-21,185.08, assuming, of course, that the evidence justifies the submission of either type of damage. This must be done in order for the statute to be correctly applied. Such findings determine the amount for which defendants such as Roger and Jack will be jointly and severally liable and the amount for which they will be only severally liable.

Section 25-21,185.09 makes apportionment of damages a fact-finder determination that appellate courts will not disturb when supported by credible evidence and reasonably related to the proven elements of negligence.

Baldwin v. City of Omaha · filed 2000-03-24

Because its purpose is to allow triers of fact to compare relative negligence and to apportion damages on that basis, the determination of apportionment is solely a matter for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by credible evidence and bears a reasonable relationship to the respective elements of negligence proved at trial.

Section 25-21,185.10 permits allocation of noneconomic damages among defendants only when multiple defendants remain in the case when it is submitted to the fact finder.

Maxwell v. Montey · filed 2001-07-13

Section 25-21,185.10 is narrow in scope in that it addresses only a situation where there are multiple defendants in a lawsuit. Under § 25-21,185.10, it is possible, under certain circumstances, for multiple defendants to have a percent of noneconomic damages allocated to them by the finder of fact based on each defendant’s percentage of negligence. However, under the plain language of § 25-21,185.10, there must first be multiple defendants in the case before the allocation provisions of § 25-21,185.10 will operate. Therefore, in situations where there is only one defendant remaining in a case, the provisions of § 25-21,185.10 simply do not operate.

Nebraska’s comparative negligence law applies only in civil actions where contributory negligence is a defense, and a defendant seeking judgment must show the plaintiff’s contributory negligence is at least as great as the total negligence of all persons against whom recovery is sought.

Gonzalez v. Union Pacific RR. Co. · filed 2015-12-18

Nebraska’s comparative negligence law, Neb. Rev. Stat. §§ 25-21,185 to 25-21,185.12 (Reissue 2008), applies only to civil actions in which contributory negligence is a defense. Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001). To entitle a defendant to judgment under the comparative negligence statutory scheme, the defendant must prove that any contributory negligence chargeable to the plaintiff is equal to or greater than the total negligence of all persons against whom recovery is sought. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007), modified on denial of rehearing 274 Neb. 267, 759 N.W.2d 113.

Nebraska’s comparative-negligence statutory scheme for apportioning liability among joint tortfeasors applies only to civil actions in which contributory negligence is a defense.

Doe v. Scotts Bluff Country Club · filed 2020-06-29

Finally, the parties each cited to Nebraska's comparative negligence scheme, Neb. Rev. Stat. § 25-21,185.07 et seq., in support of their various arguments. However, this statutory scheme for apportioning liability among joint tortfeasors pertains to civil actions to which contributory negligence is a defense. The pleadings in this case do not demonstrate that the plaintiff's cause of action is one to which contributory negligence is a defense.

Section 25-21,185 compares the negligence of the plaintiff and defendant and permits reducing the plaintiff's recovery for the plaintiff's negligence; it does not provide for comparative fault or apportionment among negligent defendants.

Menne v. Celotex Corp. · filed 1988-11-28

Nebraska has only a limited comparative negligence statute, Neb.Rev.Stat. § 25-21, 185 (Reissue of 1985), which requires a comparison of levels of negligence between plaintiff and defendant. Where the defendant is liable, the statute provides that the plaintiffs recovery may be reduced in proportion to the negligence attributable to the plaintiff. There is no statutory provision for assessment of comparative fault or apportionment of damages among negligent defendants.

Section 25-21,185.10 makes defendants acting in concert as part of a common enterprise jointly and severally liable for economic and noneconomic damages, while in other cases liability for noneconomic damages is several in proportion to each defendant’s negligence.

Bahrs v. R M B R Wheels, Inc. · filed 1998-01-1325-21,185.10

In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.

Section 25-21,180 broadly defines a product liability action to include claims against a manufacturer, seller, or lessor for personal injury or death regardless of the legal theory, while § 25-21,181 limits strict-liability claims to the manufacturer of the defective product.

Germain v. Teva Pharmaceuticals, USA, Inc · filed 2014-06-2725-21,180 and 25-21,181

Nebraska has a statute defining a “product liability action” as “any action brought against a manufacturer, seller, or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury [or] death.”

Sections 25-21,185.07 and 25-21,185.10 make the comparative-negligence joint-and-several-liability scheme applicable only when contributory negligence may be a defense, so § 25-21,185.10 does not govern strict-liability actions.

Certain Underwriters At Lloyd's & Those Cos. Severally Subscribing to Boeing Policy No. Marcw150053 & Related Policies G · filed 2018-01-3025-21,185.07 and 25-21,185.10

§ 25-21,185.10 allows joint and several liability ... to that tort-feasor’s proportionate liability.

Section 25-21,159 requires all persons with interests that could be affected by declaratory relief to be joined, and makes the presence of necessary parties a jurisdictional requirement.

Taylor Oil Co., Inc. v. Retikis · filed 1998-03-2725-21,159

Therefore, we must first consider whether Adams is a necessary party to Taylor Oil’s petition for declaratory relief and, accordingly, whether the district court had jurisdiction to hear this action.

Section 25-21,180 broadly defines a product liability action to include a manufacturer's personal-injury claim based on failure to warn, regardless of the substantive legal theory.

Yah v. Church & Dwight Corporation · filed 2023-04-14

Liberally construed, Plaintiff alleges a products liability claim under Nebraska law. See Neb. Rev. Stat. § 25-21,180 (“Product liability action shall mean any action brought against a manufacturer, . . . regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury . . . caused by or resulting from . . . the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product.”).

Section 25-21,180 defines a product-liability action broadly by the nature of the product-related injury or conduct, regardless of the legal theory pleaded.

Groth v. Sandoz, Inc. · filed 1984-12-26

Furthermore, Neb.Rev.Stat. § 25-21,180 (1979) defines a product liability action as: [A]ny action brought against a manufacturer, seller, or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging or labeling of any product, or the failure to warn or protect against a danger or hazard in the use, misuse or intended use of any product, or the failure to provide proper instructions for the use of any product. ... Plaintiff designates her causes of action as negligence, strict liability, warranty and fraud. Clearly, under Nebraska law, the first three causes are in the nature of product liability actions, Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500 (1981), and are barred by the ten-year statute of repose of Section 25-224. ... Therefore, plaintiff’s “fraud” cause of action is unsupported in the record by any specific allegations of fraudulent conduct and is substantively nothing more than a restatement of plaintiff’s strict liability, negligence and breach of warranty causes of action grounded in product liability.

Section 25-21,180 broadly defines a product liability action to include any action against a manufacturer, seller, or lessor for personal injury, death, or property damage caused by a product, regardless of the legal theory.

Stuart ex rel. Craven v. American Cyanamid Co. · filed 1998-09-21

We find additional support in Nebraska’s broad definition of product liability actions. The Nebraska legislature defined product liability actions to encompass: any action brought against a manufacturer, seller or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging, or labeling of any product, or the failure to warn or protect against a danger, or hazard, in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product. Neb.Rev.Stat. § 25-21, 180 (1995). Because Craven seeks “personal injury” damages due to Cyanamid’s faulty “manufacture,” “preparation,” and “testing” of Orimune, her claims constitute a “product liability” action subject to Nebraska’s statute of repose. See Follette, 41 F.3d at 1236 (breadth of Arkansas’ product liability statute mandated application of product liability statute of limitations, rather than U.C.C. limitations period).

Section 25-21,180 treats claims against a seller for property damage caused by a product as product liability actions regardless of the substantive legal theory pleaded.

BNSF Railway Co. v. L.B. Foster Co. · filed 2013-01-08

I find that under Nebraska law, BNSF’s six causes of action are all essentially “product liability actions” as that term is defined in Revised Statutes of Nebraska *967section 25-21,180.

Section 25-21,185.09 requires a defendant seeking summary judgment on contributory negligence to show, viewing the facts favorably to the plaintiff, that the plaintiff’s contributory negligence was at least as great as the defendant’s negligence.

Hawkins v. Kane · filed 1998-06-2325-21,185.09

Under the current standard, to obtain summary judgment on the issue of contributory negligence, the defendant has the burden to prove, under the facts viewed most favorably to the plaintiff, that the contributory negligence of the plaintiff is equal to or greater than the negligence of the defendant as a matter of law.

The declaratory-judgment statute does not permit an insurer to obtain a noncoverage declaration binding on an injured person before the underlying controversy is resolved when more effective relief is available in later proceedings.

Medical Protective Co. v. Schrein · filed 1998-07-1725-21,149

In these circumstances, we hold that Medical Protective’s attempt to obtain a declaration of noncoverage that would be binding on an injured person in a later action is inappropriate, since more effective relief can and should be obtained in other proceedings.

Sections 25-21,149 and 25-21,150 authorize declaratory judgments to determine parties’ rights and legal relations, including questions of construction or validity arising under a statute.

Bentley v. SCHOOL DIST. 025 CUSTER COUNTY · filed 1998-10-2325-21,149 and 25-21,150

A declaratory judgment action is to declare the rights, status, or other legal relations between the parties.

Section 25-21,154 permits, but does not require, a court to refuse a declaratory judgment when the judgment would not terminate the uncertainty or controversy.

State Ex Rel. Jacob v. Bohn · filed 2006-04-14

Under Neb. Rev. Stat. § 25-21,154 (Reissue 1995), a court “may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” We have stated that § 25-21,154 indicates discretionary rather than mandatory power and that whether to entertain an action for declaratory judgment is within the discretion of the trial court.

Section 25-21,149 permits an insurer to seek a declaratory judgment on whether an insured’s conduct or a specific event is excluded from coverage, subject to limits on justiciability and available remedies.

Farm Bureau Insurance v. Witte · filed 1999-05-1425-21,149

An insurer may petition a court to declare, pursuant to Neb. Rev. Stat. § 25-21,149 (Reissue 1995) of Nebraska’s Uniform Declaratory Judgments Act, whether an insured’s conduct or a specific event is excluded from coverage under a policy of insurance.

Section 25-21,149 permits an insurer to seek a declaration about whether an insured’s conduct or a specific event is excluded from coverage and permits declaratory relief when the conduct is shown to fall outside the policy.

American Family Mutual Insurance v. Hadley · filed 2002-07-2625-21,149

An insurer may petition a court to declare, pursuant to Neb. Rev. Stat. § 25-21,149 (Reissue 1995) of Nebraska’s Uniform Declaratory Judgments Act, whether an insured’s conduct or a specific event is excluded from coverage under a policy of insurance.