Kelly v. Cutch, Inc.

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
Nebraska Court of Appeals
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Dock Kelly III, appellant, v. Cutch, Inc.,
a Nebraska corporation, doing business as
Burger Star Restaurant, and Cutchall
Management Company, Inc., appellees.
938 N.W.2d 102
Filed December 31, 2019. 	No. A-18-761.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, which an appellate court independently
decides.
2. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the failure to give the
requested instruction.
3. Negligence: Jury Instructions: Damages. A court is required to instruct
a jury on damages for the aggravation of a preexisting condition where
there is evidence to support a finding that the defendant’s negligence
had aggravated a preexisting condition.
4. Damages: Liability. A defendant, under Nebraska law, can be liable
for the total harm to a plaintiff from an accident even though the injury
was greater because of the plaintiff’s preexisting physical condition than
would usually be caused by such an accident.
5. Expert Witnesses. Where injuries are objective, expert testimony is
not required.
6. Actions: Negligence: Damages: Proof. The plaintiff has the burden of
proving duty, breach, causation, and resultant harm to recover in a suit
in negligence.
7. Negligence: Damages: Proximate Cause: Proof. Once the plaintiff
presents evidence from which a jury reasonably can find that damages
were proximately caused by the tortious act, the burden of apportioning
damages resulting from the tort rests squarely on the defendant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:45 AM CDT

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
8. Jury Instructions: Damages. The apportionment instruction is appro-
priate where there is evidence of a preexisting condition but the
degree to which that condition may have been aggravated could not
be determined.
9. ____: ____. In the absence of proof of aggravation, an instruction on
apportionment of damages would be inappropriate.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
James E. Harris and Britany S. Shotkoski, of Harris &
Associates, P.C., L.L.O., and Daniel L. Draisen, of Krause,
Moorhead & Draisen, P.A., for appellant.
David D. Ernst and Jeffrey A. Nix, of Pansing, Hogan, Ernst
& Bachman, L.L.P., for appellees.
Riedmann, Arterburn, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Dock Kelly III appeals a jury verdict in his favor award-
ing him damages for injuries he sustained in a slip-and-fall
accident. On appeal, he alleges that the district court for
Douglas County erred in refusing to give his proposed jury
instruction on the aggravation of a preexisting condition and
failed to properly instruct the jury on the burden of proof on
damages. We conclude that Kelly’s proposed jury instruc-
tion was not warranted by the evidence and that the jury was
properly instructed on damages. Therefore, the district court
did not err in refusing to give the proposed instruction, and
we affirm.
BACKGROUND
At the time of the slip-and-fall accident, Kelly was a
resident of South Carolina and the head wrestling coach at
a university located there. On March 10, 2010, Kelly was in
Omaha, Nebraska, for a wrestling tournament and went to
eat dinner at Burger Star Restaurant, which was owned and

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
operated by Cutch, Inc., and Cutchall Management Company,
Inc. (collectively the appellees). Kelly slipped on a wet floor
at the restaurant and fell, sustaining injuries to his left knee
and back.
Kelly has a congenital deformity of his right arm, and his
right leg was amputated below the knee when he was a child.
He was wearing a prosthetic leg at the time of the fall. Despite
this, the record indicates that Kelly had no significant health
problems prior to his fall, including no history of pain, injury,
or limitation with his left knee or back. To the contrary, Kelly
was a “NCAA Division I” wrestler and was inducted into the
National Wrestling Hall of Fame in 1997. He testified that he
never had any problems due to having only one leg.
After falling at the restaurant, Kelly experienced sharp,
shooting pain in his lower back as well as pain, weakness,
and instability in his left knee. In September 2010, Kelly fell
in the shower, resulting in additional injuries to his left knee,
including a torn anterior cruciate ligament, torn lateral collat-
eral ligament, frayed and/or torn lateral meniscus, and avulsed
lateral hamstring tendon. He had surgery on his left knee in
March 2015.
Kelly filed a negligence action against the appellees in 2012,
asserting that the appellees created a dangerous condition at the
restaurant by mopping the floor and failing to warn its custom-
ers of the condition. He filed an amended complaint in 2013.
A jury trial was held in this matter in July 2018. During
trial, Kelly proposed a jury instruction on the aggravation of a
preexisting condition based on a standard jury instruction. See
NJI2d Civ. 4.09. The district court refused to give the instruc-
tion. The jury ultimately found in favor of Kelly and awarded
him $95,000 in damages. Kelly timely appeals.
ASSIGNMENTS OF ERROR
Kelly assigns that the district court erred in failing to give
his proposed jury instruction on the aggravation of a preexist-
ing condition and in failing to properly instruct the jury regard-
ing the burden of proof on damages.

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. Bank v.
Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019).
[2] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the failure to
give the requested instruction. Id.
ANALYSIS
Jury Instruction on Aggravation
of Preexisting Condition.
Kelly argues that the district court erred in refusing to give
his proposed jury instruction on the aggravation of a preexist-
ing condition. The jury instruction that Kelly requested stated:
There is evidence that [Kelly] had a prosthetic right leg
prior to the slip and fall of March 10, 2010. [The appel-
lees] are liable only for any damages that you find to be
caused by the [appellees’] negligence.
If you cannot separate damages caused by the preexist-
ing condition from those caused by the slip and fall, then
the [appellees] are liable for all of those damages.
This is true even if [Kelly’s] preexisting condition
made him more susceptible to the possibility of ill effects
than a normally healthy person would have been, and
even if a normally healthy person probably would not
have suffered any substantial injury.
The first paragraph of the proposed instruction is the standard
jury instruction, NJI2d Civ. 4.09, for determining damages
when the plaintiff has a preexisting condition. See Golnick v.
Callender, 290 Neb. 395, 860 N.W.2d 180 (2015). The second
paragraph is frequently called the apportionment instruction.
Id. It is appropriately used when the jury may be unable to
precisely determine which of the plaintiff’s damages were not
preexisting. Id.

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
[3] The first two paragraphs of Kelly’s proposed instruc-
tion are a correct statement of the law. See Ketteler v. Daniel,
251 Neb. 287, 556 N.W.2d 623 (1996). A court is required to
instruct a jury on damages for the aggravation of a preexisting
condition where there is evidence to support a finding that the
defendant’s negligence had aggravated a preexisting condition.
See, Golnick v. Callender, supra; Castillo v. Young, 272 Neb.
240, 720 N.W.2d 40 (2006).
We conclude that the evidence did not warrant instructing
the jury on the aggravation of a preexisting condition, because
Kelly had no preexisting condition that was aggravated by the
March 2010 fall. As a result of the slip-and-fall accident, Kelly
sustained injuries to his left knee and back. Although there are
references in the record to a history of osteoarthritis in the left
knee and scoliosis of the spine, neither condition ever caused
Kelly any pain or limitation. Kelly appeared unaware that he
had scoliosis and testified that if he did, it never stopped him
from doing anything he wanted to do.
In general, Kelly said that he had no history of problems
with his knee or back that interfered with his life. And his med-
ical records establish that he had no back or leg pain prior to
the March 2010 fall, that his left knee was “highly functional”
before the fall, and that he was able to do everything without
any disability or limitation. Therefore, because the record lacks
evidence of a preexisting condition in Kelly’s left knee or back,
the first two paragraphs of Kelly’s proposed instruction were
not warranted by the evidence, and the district court properly
refused to so instruct the jury.
[4] The notion embodied by the third paragraph of Kelly’s
proposed instruction must be given when the plaintiff produces
evidence to support the “eggshell-skull” theory, which gener-
ally includes evidence of a preexisting condition which predis-
poses the plaintiff to injury or greater injury than would occur
without the preexisting condition. See, Ketteler v. Daniel,
supra; Aflague v. Luger, 8 Neb. App. 150, 589 N.W.2d 177
(1999). While the first two paragraphs of Kelly’s proposed

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
instruction address the question of apportionment of damages,
the third paragraph addresses a different matter—“a subtle
facet of causation.” See Aflague v. Luger, 8 Neb. App. at 159,
589 N.W.2d at 183. This paragraph enables a jury to understand
that a defendant, under Nebraska law, can be liable for the total
harm to a plaintiff from an accident even though the injury was
greater because of the plaintiff’s preexisting physical condition
than would usually be caused by such an accident. Aflague v.
Luger, supra.
In Castillo v. Young, supra, the trial court gave the jury
instructions similar to the first two paragraphs of Kelly’s
proposed instruction, but refused to give the third paragraph
on the eggshell-skull theory. The evidence indicated that the
plaintiff had broken her jaw several years before she was
injured in the operative car accident, but her jaw completely
recovered and she had had no symptoms for a number of years
prior to the accident. At trial, there was testimony from the
plaintiff’s treating physician that the accident aggravated a
preexisting condition and that the plaintiff was fragile due to
her prior injury. Therefore, the Nebraska Supreme Court con-
cluded that the proffered instruction correctly stated the law
and was warranted by the evidence offered by the expert wit-
ness and that the failure to give the instruction was prejudicial
to the plaintiff. It iterated that if a plaintiff has a preexisting
condition and the defendant’s conduct resulted in greater dam-
ages because of that preexisting condition, the defendant is
nonetheless liable for all damages proximately caused by the
defendant’s conduct.
In reaching its decision in Castillo v. Young, supra, the
Supreme Court relied upon Ketteler v. Daniel, 251 Neb. 287,
556 N.W.2d 623 (1996). There, the plaintiff proposed the
three-paragraph instruction proffered by Kelly in the instant
case, but the trial court declined to give the second and third
paragraphs. In reversing that decision, the Supreme Court
found that the instruction was warranted by evidence offered
by two separate physicians who testified that the plaintiff

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KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
suffered from a preexisting condition, fibromyalgia, and that
she suffered from back and neck conditions prior to the car
accident which were aggravated by the accident.
Subsequently, in Aflague v. Luger, supra, this court found
that an eggshell-skull instruction was warranted where there
was expert testimony that because the plaintiff had suffered a
severe head injury in the past, she was more vulnerable to side
effects even after relatively minor trauma that might do very
little in a person who has never had an injury.
It is clear that under the eggshell-skull theory, a defendant is
liable for all damages proximately caused by its conduct even
when a plaintiff has a preexisting condition and the defend-
ant’s conduct resulted in greater damages because of that
preexisting condition. See, Castillo v. Young, 272 Neb. 240,
720 N.W.2d 40 (2006); Aflague v. Luger, 8 Neb. App. 150,
589 N.W.2d 177 (1999). In other words, the defendant takes
the plaintiff as the defendant finds him or her. See Aflague
v. Luger, supra. The commonality among the aforementioned
cases is that the instruction was found to be warranted by the
evidence because there was expert testimony that the accident
aggravated a preexisting condition, the plaintiff was more sus-
ceptible to injury due to a preexisting condition, or the plaintiff
was injured more severely than would be expected because of
a preexisting condition. This expert testimony was lacking in
the instant case.
Despite testimony from Kelly’s treating physician and sur-
geon regarding the injuries he sustained to his left knee,
neither testified as to what effect, if any, having a below-
the-knee prosthetic on his right side had on his ability to
ambulate or function postinjury. His primary care physician
testified that a consulting physician, who in December 2010
recommended surgery, reported that Kelly “‘walks fine with
a prosthesis and gets around well except for the problems he
is having with his left leg.’” Kelly identified a problem walk-
ing on uneven ground, but that was limited to “instability, a
feeling his knee is going to give way and buckle on him and

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
then it actually does start to give way, buckle and also causes
him pain.”
After Kelly’s surgery in March 2015, his surgeon rec-
ommended closely supervised rehabilitation for a couple
of weeks due to his other impairments, but as with other
patients, his rehabilitation began the day after surgery. His
surgeon narrated a videotaped rehabilitation session in which
he described Kelly as “non-weightbearing on his left leg[,]
which is the leg that we surgically repaired and he’s bearing
weight on his prosthetic leg on the right side.” He explained
rehabilitation was “somewhat more difficult than normal” due
to Kelly’s other issues. Nonetheless, the surgeon expected
that Kelly would be able to get down on the ground and
demonstrate wrestling moves to college athletes within a year
of surgery. Kelly’s physical therapy discharge notes reveal
that at the time of discharge, he was ambulating with his
normal gait, meaning that his ability to walk had returned
to the point that it was prior to his fall. He also demon-
strated the ability to “transfer back and forth from right to
left [without] discrepancy in terms of the use of his legs.”
Importantly, he was able to “get up off the floor to a stand-
ing position without help or difficulty.” By November 2015,
Kelly was able to go up and down stairs without the use of
a handrail. Other than his other abnormalities resulting in a
“somewhat more difficult” rehabilitation process, the expert
testimony did not suggest that they caused Kelly to suffer
any ill effects greater than he would have suffered without
a prosthetic leg.
[5] We recognize that where injuries are objective, expert
testimony is not required. See, Storjohn v. Fay, 246 Neb. 454,
519 N.W.2d 521 (1994); Hamer v. Henry, 215 Neb. 805, 341
N.W.2d 322 (1983). Kelly had a below-the-knee amputation of
his right leg and a deformity of his right arm which are objec-
tive and need no expert testimony to explain their existence.
The undisputed evidence, however, established that despite
these conditions, Kelly had no pain or limitation and was able

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
to function properly—if not at an above-average level—con-
sidering his athletic accomplishments. Thus, in order to support
the necessity of an eggshell-skull jury instruction, evidence
was necessary to suggest that due to his conditions, Kelly was
more susceptible to injury or was injured worse than someone
without his conditions would have been. No such evidence was
presented in this case.
Kelly and his lay witnesses testified that following the
injury, he was slower, less confident, and had the sensation
that his left knee was going to give out. They testified that he
was no longer able to get down on the mat and demonstrate
moves to his wrestlers. However, there was no testimony that
these resultant effects were any different, more severe, or more
pronounced than if Kelly did not have a prosthetic leg. In other
words, the evidence did not support a conclusion that the left
knee injury was not the sole cause of these limitations or that
Kelly’s right leg amputation contributed or magnified the ill
effects of his left knee injury. Although there was testimony
that Kelly had difficulty maneuvering stairs, the testimony did
not explain whether that was because of his left knee instabil-
ity or because he does not or cannot bear weight on his pros-
thetic leg. Given the expert testimony that Kelly was able to
shift his weight from leg to leg at the time he was discharged
from physical therapy, his insecurity on stairs seems to be a
product of his left knee injury, without exacerbation due to his
prosthesis. Because there was no testimony describing how his
right leg abnormality made his condition worse, it was proper
for the district court to refuse Kelly’s proposed eggshell-skull
jury instruction.
In addition, as discussed above, there are indications in the
record that Kelly had osteoarthritis in his left knee and scolio-
sis of the spine, but the evidence establishes that neither condi-
tion caused him any pain or limitation prior to his fall. Kelly’s
treating physician and his surgeon were each asked whether the
underlying osteoarthritis was contributing to Kelly’s knee pain
after the fall, and they both said it “could” be. However, expert

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
medical testimony based on “‘could’” lacks the definiteness
required to prove causation. See Paulsen v. State, 249 Neb.
112, 121, 541 N.W.2d 636, 643 (1996). Therefore, we conclude
that the evidence did not warrant instructing the jury on the
eggshell-skull theory and that the district court did not err in
refusing to do so.
Apportioning Damages.
In his second assigned error, Kelly argues that by refusing
to give his proposed jury instruction, the district court failed
to properly instruct the jury on the burden of proof regarding
damages. We disagree.
[6,7] The plaintiff has the burden of proving duty, breach,
causation, and resultant harm to recover in a suit in neg-
ligence. David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726
(1996). Once the plaintiff presents evidence from which a jury
reasonably can find that damages were proximately caused by
the tortious act, the burden of apportioning damages resulting
from the tort rests squarely on the defendant. Id.
[8,9] The portion of the proposed instruction at issue in
this argument would have informed the jury that if it could
not separate damages caused by the preexisting condition
from those caused by the slip and fall, then the appellees
were liable for all of those damages. As explained above, this
paragraph is frequently called the apportionment instruction.
See Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180
(2015). The apportionment instruction is appropriate where
there is evidence of a preexisting condition but the degree to
which that condition may have been aggravated could not be
determined. Gustafson v. Burlington Northern RR. Co., 252
Neb. 226, 561 N.W.2d 212 (1997). In the absence of proof
of aggravation, an instruction on apportionment of damages
would be inappropriate. Id.
In Kirchner v. Wilson, 251 Neb. 56, 554 N.W.2d 782 (1996),
the Supreme Court found the apportionment instruction was
warranted by the evidence because there was evidence that a

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
collision aggravated the preexisting degenerative and weak-
ened condition of the plaintiff’s lumbar spine but that the
degree to which said preexisting condition was aggravated
could not be determined. Similarly, in David v. DeLeon, supra,
the Supreme Court concluded that the apportionment instruc-
tion was properly given where the defendant’s expert witnesses
agreed that a collision aggravated the plaintiff’s preexisting
injuries, but could not state what portion of the plaintiff’s
injuries was caused by the collision. The Supreme Court noted
that the aggravation instruction prevented the result of a jury’s
finding that damages were proximately caused by the tortious
act, but failing to award damages because it could not demar-
cate preexisting illnesses from new losses.
As we determined above, the evidence did not support
instructing the jury on apportionment of damages, because
Kelly had no preexisting injury to his back or left knee. Thus,
there was no need for the jury to attempt to separate damages
caused by a preexisting condition from those caused by the
slip-and-fall accident. And the danger recognized in David v.
DeLeon, supra, of the jury’s failing to award damages because
it could not demarcate preexisting illnesses from new losses,
was not present here.
In addition, the jury was instructed that the appellees were
also liable for any subsequent injury that was the proximate
result of the original injury. In other words, the jury was
instructed that the appellees were liable for the damages Kelly
suffered as a result of the fall in the shower if the jury found
that that fall was the proximate result of the slip and fall at
the restaurant. As a result, the jury was properly instructed
on the burden of proof regarding damages, and therefore,
the district court did not err in refusing to give the proposed
jury instruction.
The jury posed a question during deliberations, asking:
“What does damages mean?” Kelly claims that this question
“highlighted” the jury’s confusion on the apportionment issue.
See brief of appellant at 18. We disagree.

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27 Nebraska Appellate Reports
KELLY v. CUTCH, INC.
Cite as 27 Neb. App. 921
In response to the jury’s question, the court directed it to
the jury instruction which identified damages as the nature
and extent of the injury, including whether the injury was
temporary or permanent and whether any resulting disability
was partial or total; the reasonable value of the earning capac-
ity that Kelly was reasonably certain to lose in the future; and
the physical pain and mental suffering Kelly had experienced
and was reasonably certain to experience in the future. Due to
reasons not involved in this appeal, damages did not include
medical expenses or lost wages. Due to the absence of these
two typical elements of damages, it would have been specula-
tion on the part of the court to assume the basis for the jury’s
question was confusion regarding apportionment.
CONCLUSION
We conclude that the jury instruction Kelly proposed on
the aggravation of a preexisting condition was not warranted
by the evidence presented at trial. In addition, the jury was
properly instructed on the burden of proof regarding dam-
ages. Accordingly, the district court’s refusal to give the pro-
posed jury instruction was not erroneous, and we affirm the
court’s decision.
Affirmed.