JOSEPH F. BATAILLON, District Court.
This matter comes before the Court on plaintiff's motion in limine (filing 102) and the defendant's motion for summary judgment (filing 95). Both parties have filed respective indices of evidence on the motions (filings 97, 104, 113 115) and submitted supporting and opposing briefs. Following a careful review of the record, the Court will deny both motions.
I. Statement of Facts
On the evening of February 23, 1995, the plaintiff was driving north on Country Road 103 when her automobile was struck by a westbound Union Pacific train in the crossing bed of the Union Pacific Railroad Crossing, #817838T, located four miles west of Sidney, Nebraska. The impact of the train caused the plaintiff's vehicle to roll and her to be ejected from the vehicle. The plaintiff sustained severe injuries which have left her permanently disabled, paralyzed and T6-7-8 paraplegic.
Immediately following the accident, emergency vehicles were dispatched to the scene and Ms. Hopper was transported via ambulance to Sidney Memorial Health Center for medical treatment. At the accident scene Patrick Jenks, a Cheyenne County Sheriff's Department deputy, was the first to investigate. Because emergency medical personnel were attending to the plaintiff, Deputy Jenks was not able to get within fifteen feet of Ms. Hopper, but some unidentified person at the accident scene informed Deputy Jenks that Ms. Hopper smelled of alcohol. Based on the information, Deputy Jenks requested that an officer from the Sidney Police Department drop off a blood kit for alcohol testing at the Sidney Memorial Health Center. Sergeant Dwight Pruss of the Sidney Police Department dropped off the blood kit in the emergency room at the health center and advised the medical personnel that the blood kit was for the Sheriff's Office personnel when they came to the health center. Sometime later, Deputy Jenks arrived at the health center and collected the completed blood kit. By the time Deputy Jenks arrived at the health center to collect the blood kit, the plaintiff had been transferred to Regional West Medical Center in Scottsbluff, Nebraska. The blood kit was sent to the State Department of Health for testing. The test results showed that Ms. Hopper had a blood alcohol level of 0.177 grams/100ML.
Following the accident, the plaintiff filed this action alleging that the defendant's negligent acts were the proximate cause of the accident. The defendant denies liability and claims as an affirmative defense that the plaintiff was contributorily negligent to a degree barring recovery. The defendant also claims that the plaintiff failed to mitigate damages.
II. Motion in Limine
The plaintiff has moved the Court for an order precluding the defendant from offering in evidence the drawing of the plaintiff's blood on February 23, 1995, the blood alcohol testing of the plaintiff's blood by the State of Nebraska Department of Health, and the results of the blood alcohol test. Furthermore, the plaintiff moves for an order precluding defense expert Dr. Henry C. Nipper from testifying because his opinions are based solely on the results of an inadmissible blood test. The defendant opposes the motion in limine, arguing that the plaintiff's blood alcohol test and Dr. Nipper's opinions are admissible.
The Court has reviewed both indices of evidence as well as Nebraska case law and finds that the plaintiff's motion in limine must be denied. The rule in Nebraska is that "the percentage of alcohol content of body fluids is relevant in a civil case when accompanied by expert opinion evidence of the effect thereof." Sandberg v. Hoogensen, 201 Neb. 190, 195, 266 N.W.2d 745, 748 (1978) (citing Raskey v. Hulewicz, 185 Neb. 608, 177 N.W.2d 744 (1970)).
I have reviewed the motor vehicle statutes cited by the plaintiff as well as their annotations and conclude that the cited statutes are applicable only to state actions. If this case were a prosecution for driving under the influence or an administrative licence revocation hearing, the plaintiff's arguments would prevail. However, this is a civil negligence case, and I find no legal authority extending the cited statutes to civil law cases brought by private parties. Even assuming arguendo that the motor vehicle statutes, namely Neb. Rev. Stat. § 60-6,197(10), were applicable, subsection one of the statute declares that any person who operates a motor vehicle in Nebraska is deemed to have given her consent to submit to a chemical test of her blood for the purpose of determining the concentration of alcohol in her blood. Id. at § 60-6,197(1). There is no evidence before the Court that the plaintiff either refused consent or was unable to consent. The only facts before the Court are that the plaintiff's blood was drawn by someone at the Sidney Memorial Health Center sometime before the plaintiff was transported to Scottsbluff for specialized medical treatment and that the blood kit was forwarded to the Department of Health without a signed consent form. The law is well settled that a person who is unconscious or otherwise in a condition rendering her incapable of refusal shall be deemed not to have withdrawn consent and the chemical test may be given. Mackey v. Director of Dep't of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975). Given the incomplete factual record and the absence of legal authority finding the statute applicable to civil law actions, I shall deny the plaintiff's motion in limine.
III. Motion for Summary Judgment
The defendant has moved for summary judgment on the plaintiff's claim of negligence (filing 95). The plaintiff opposes the motion, arguing that the defendant has failed to show that the plaintiff's alleged contributory negligence was the sole proximate cause of the accident. The Court agrees. A genuine issue of material fact exists whether the condition of the railroad crossing at County Road 103 on February 23, 1995, was a proximate cause of the accident. As such, the defendant's motion for summary judgment on the plaintiff's negligence claim must be denied, and the questions of the defendant's negligence and plaintiff's contributory negligence must be properly submitted to a jury.
IT IS HEREBY ORDERED:
The defendant's motion for summary judgment (filing 95) is denied; and
The plaintiff's motion in limine (filing 102) is denied.