Jacobson v. Shresta

288 Neb. 615

849 N.W.2d 515

Michael L. Jacobson, Special Administrator of the Estate of Virginia A. Jacobson, deceased, and Myron J. Jacobson, appellants,

v.Sherry K. Shresta, M.D., and Gaston Cornu–Labat, M.D., appellees.

No. S–11–438

Supreme Court of Nebraska.

Filed July 25, 2014

Petition for further review from the Court of Appeals, Sievers, Pirtle, and Riedmann, Judges, on appeal thereto from the District Court for Sheridan County, Randall L. Lippstreu, Judge. Judgment of Court of Appeals affirmed.

Christopher P. Welsh and James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for appellants.

Mark A. Christensen, Tracy A. Oldemeyer, Cristin McGarry Berkhausen, and Elizabeth A. Tiarks, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

Heavican, C.J., Connolly, Stephan, McCormack, and Miller–Lerman, JJ.

Syllabus by the Court

1. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

2. Constitutional Law: Jury Trials. The guaranty of a jury trial is part of Nebraska's fundamental law, but Neb. Const. art. I, § 6, preserves the right to a jury trial as it existed under the common law when the Nebraska Constitution was adopted in 1875.

3. Negligence: Jury Trials. Negligence and personal injury actions are actions at law that are tried by a jury under the common law.

4. Constitutional Law: Jury Trials: Waiver. A waiver of a jury trial in district court is statutorily governed by Neb.Rev.Stat. § 25–1126 (Reissue 2008), because it sets reasonable limits on a constitutional right.

5. Jury Trials: Waiver. In district court, a party's waiver of a jury trial occurs only if a court determines that one of three circumstances under Neb.Rev.Stat. § 25–1126 (Reissue 2008) applies.

6. Immunity: Legislature: Waiver: Political Subdivisions: Torts. The Legislature has the right to decide the terms under which it will waive its sovereign and governmental immunity for tort actions against the State or its political subdivisions.

7. Immunity: Political Subdivisions: Public Officers and Employees. The common-law doctrine of governmental immunity applies to a political subdivision's employees who are acting within the scope of their employment.

8. Immunity: Legislature: Waiver: Appeal and Error. Because the Legislature has determined when and how it will waive the State's sovereign and governmental immunity, an appellate court will find a waiver of such immunity only where stated by express language or clear implications.

9. Political Subdivisions Tort Claims Act: Immunity: Jury Trials: Waiver. Because a jury trial is not one of the terms of its waiver of governmental immunity under Political Subdivisions Tort Claims Act, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee.

Connolly, J.

SUMMARY

Virginia A. Jacobson (Virginia) was admitted to Gordon Memorial Hospital after she began coughing while eating a piece of meat. On March 29, 2003, Sherry K. Shresta, M.D., admitted her, and Gaston Cornu–Labat, M.D., performed an esophagogastroscopy. During the procedure, Virginia “coded.” A piece of meat was found in her throat and suctioned out; a subsequent x ray showed aspiration pneumonia. After remaining under the care of Shresta and Cornu–Labat (collectively the defendants) for the next 3 days, Virginia died from complications. Virginia's husband and the special administrator for her estate (collectively the Jacobsons) filed a wrongful death action against the defendants in the district court for Sheridan County.

The defendants subsequently filed a motion to bifurcate. The threshold issue was whether the defendants were employees of the hospital. The parties stipulated that the hospital was a political subdivision and that the Jacobsons did not comply with the 1–year statute of limitations for presenting a claim under the Political Subdivisions Tort Claims Act (PSTCA).¹ So, if the defendants were hospital employees, the PSTCA barred the Jacobsons' action.

Before hearing the bifurcated employment issue, the court rejected the Jacobsons' claim that they were entitled to a jury trial. On the employment issue, the court found that the defendants were employees. It dismissed the Jacobsons' complaint. On appeal, the Nebraska Court of Appeals determined that the Jacobsons had waived their right to a jury trial and affirmed the trial court's decision.² The Jacobsons seek further review.

We conclude that the Jacobsons, by their silence, could not have waived their right to a jury trial. Nevertheless, because we conclude that the Jacobsons did not have a right to have a jury decide whether the defendants were political subdivision employees, we affirm.

BACKGROUND

The record shows that the trial court heard the defendants' motion for a bifurcated bench trial in a telephonic hearing. Although the Jacobsons argued that they objected to a bench trial at this hearing, a transcript of the hearing is not part of the record. The record does show, however, that the Jacobsons moved the court to reconsider its ruling and that the court overruled their request. And before the bench trial began, the Jacobsons renewed their objection. They argued that under Neb.Rev.Stat. § 25–221 (Reissue 2008), they were entitled to a jury trial on the employment issue. The district court overruled that objection without comment from the bench.

In rejecting the Jacobsons' assignment that the trial court erred in denying them their right to a jury trial, the Court of Appeals reasoned that the Jacobsons had waived that right:

Based on the record before us, we find no objection by the Jacobsons to the defendants' motion to bifurcate before the court ruled on it.... The record does not contain any objection by the Jacobsons until after the motion was sustained and the Jacobsons filed a motion to reconsider. Although the Jacobsons state in their brief that they objected to the motion, there is nothing in the record before us to support that contention. We recognize that the Jacobsons “renewed” their objection to the bench trial before trial began, but there is no original objection in the record. Therefore, we are unable to determine whether an original objection was made at all, whether it was timely made, and on what grounds it was made. It is incumbent upon the appellant to present a record supporting errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors....

The defendants' motion to bifurcate the employment issue specifically stated that they were requesting a bench trial on the issue. If the Jacobsons believed they were entitled to a jury trial on the issue, they had an opportunity to object and, based on the record before us, did not. Generally, failure to make a timely objection waives the right to assert prejudicial error on appeal.... By failing to object to the motion to bifurcate, the Jacobson cannot now challenge the court's ruling.³

ASSIGNMENT OF ERROR

The Jacobsons assign that the Court of Appeals erred in determining that they were not entitled to a jury trial on the bifurcated issue whether the PSTCA barred their medical malpractice claim against the defendants.

STANDARD OF REVIEW

Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.⁴

ANALYSIS

The Jacobsons argue that the trial court denied them their constitutional right to a jury trial and that the Court of Appeals erred in concluding that they had waived this right. They acknowledge that the issue whether the defendants were employees would have been statutorily required to be tried to a court if they had commenced an action against the hospital under the PSTCA.⁵ But they argue that because they did not bring their action under the PSTCA, a jury should have decided the issue. They further argue that their conduct did not show a clear and unequivocal intent to waive their right to have a jury decide issues concerning whether the statutory time limitation applied.

The defendants argue that the Court of Appeals' reasoning was correct. Alternatively,they argue that even if the Court of Appeals had reached the merits of the assigned error, the district court did not abuse its discretion in granting a bifurcated bench trial on the employment issue. They contend that the PSTCA required the issue to be tried to the court.

Right to a Jury Trial and Waiver of the Right

Whether a party waives a right to a jury trial implicates a constitutional right. We now clarify when and how a party waives that constitutional right.

Neb. Const. art. I, § 6, provides the constitutional right to a jury trial:

The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may by general law authorize a verdict in civil cases in any court by not less than five-sixths of the jury.

We have held that the guaranty of a jury trial is part of Nebraska's fundamental law.⁶ But we have also held that this constitutional provision preserves the right to a jury trial as it existed under the common law when the Nebraska Constitution was adopted in 1875.⁷ Negligence and personal injury actions are actions at law.⁸ At common law, legal claims were tried by a jury and equitable claims were tried by a court.⁹

The issue is whether a plaintiff waives the right to a jury trial by failing to object to a defendant's motion for a bench trial before the court sustains the motion. Under the Court of Appeals' reasoning—despite the Jacobsons' objection to the bench trial before it began—they had already waived their right to a jury trial and could not cure their waiver by objecting before trial. We believe this rule is contrary to Nebraska's statutes related to jury trials. Neb.Rev.Stat. § 25–1104 (Reissue 2008) provides:

Issues of law must be tried by the court...