Sinsel v. Olsen

the court stated in Meunier v. Ogurek,15 the liability of “dog
owners depends on the terms of the statute, not on judge-made
law.” The current terms of § 54-601 do not require the court,
or the trier of fact, to make the difficult evaluation of a dog’s
intent in inflicting injury,16 although the trier of fact may be
asked to decide whether the dog was provoked,17 or whether
the plaintiff was aware of the dog’s propensities and assumed
the risk of injury.18 But those issues have not been presented in
this appeal.
I conclude that the district court erred in entering summary
judgment based upon this court’s decision in Donner and not
the plain language of the current version of § 54-601. And I
would therefore reverse the judgment of the district court and
remand the cause for further proceedings.
M iller-lerMan, J., joins in this dissent.
15 Meunier v. Ogurek, supra note 11, 140 Wis. 2d at 786, 412 N.W.2d at
156.
16 Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993) (White, J.,
dissenting).
17 Paulsen v. Courtney, supra note 4.
18 See Corley v. Hubbard, 129 Neb. 38, 260 N.W. 551 (1935).
Virginia SinSel , Mother and next friend of heidi SinSel ,
a Minor child, appellee and croSS-appellant, V.
linda olSen, parent and next friend of
Jacob olSen, a Minor child, and
Jacob olSen, appellantS
and croSS-appelleeS.
777 N.W.2d 54
Filed December 24, 2009. 	No. S-09-003.
1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
38 	279 NeBrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

3. Parent and Child. The parent-child relationship is a special relationship that can
require parents in some circumstances to control the conduct of their child.
4. Parent and Child: Liability. parents can be liable for failing to exercise reason-
able care to prevent injury to others only when their child has a dangerous habit
of causing harm to others and the parents know of the child’s habitual, danger-
ous propensity.
5. Negligence: Parent and Child: Liability. parents are not liable for negligent
supervision where the record lacks any evidence indicating the parents were
aware the child was prone to commit the particular act or course of conduct
which led to the plaintiff’s injury.
Appeal from the District Court for kearney County: Stephen
r. illingworth, Judge. reversed and vacated in part, and cause
remanded for further proceedings.
Betty L. egan and richard C. Gordon, of Walentine, o’Toole,
McQuillan & Gordon, for appellants.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister,
Snyder & Chaloupka, and Bryan S. McQuay, of person &
McQuay, for appellee.
heaVican, 	c.J., 	wright, 	connolly, 	gerrard, 	Stephan,
MccorMack , and M iller-lerMan, JJ.
per curiaM.
NATUre oF THe CASe
Virginia Sinsel, mother and next friend of Heidi Sinsel,
sued the appellants, Jacob olsen, a minor, and his mother,
Linda olsen. Sinsel claimed Jacob was negligent in throw-
ing fireworks at Heidi and injuring her. She also claimed that
olsen was negligent in failing to supervise him. The district
court overruled olsen’s motion for a directed verdict regard-
ing Sinsel’s claim of negligent supervision. The jury returned
separate verdict forms, awarding Sinsel $50,000 for Jacob’s
negligence and $75,000 for olsen’s negligence.
The issues are whether the court erred in failing to (1)
find, as a matter of law, that the evidence was insufficient to
show olsen’s negligent supervision and (2) instruct the jury to
allocate negligence between olsen and Jacob for Heidi’s non-
economic damages.
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Cite as 279 Neb. 38

BACkGroUND
factS releVant to claiM of Jacob’S negligence
on July 4, 2005, Jacob, who was then age 15, attended a
fireworks display in Minden, Nebraska; olsen did not accom-
pany him. He brought his own fireworks and, at some point,
threw fireworks toward a group of teenagers, injuring Heidi.
Heidi was sitting in a golf cart with friends when she was
struck by particles from the fireworks that Jacob had thrown.
The particles burned Heidi on her chest and neck. The injury
left a small scar on her chest.
factS releVant to negligent SuperViSion claiM
To support her negligent supervision claim, Sinsel presented
evidence of Jacob’s behavior problems after his parents sepa-
rated, his conflicts with olsen, and olsen’s difficulty in con-
trolling his behavior.
Jacob’s parents separated in 2002, and divorced in 2004.
During their separation, olsen had custody of Jacob during
the week. In January 2004, when he was age 13, the police
responded to a call at a middle school basketball game because
Jacob had displayed a pocketknife while engaging in name-
calling with students from another school. olsen grounded
Jacob for 2 weeks.
When Jacob was 14, his father cosigned on a loan so Jacob
could purchase a pickup. Jacob paid for his pickup by work-
ing for his father’s feedlot company. olsen, however, did not
allow Jacob to drive on his school driving permit unless she
was with him because she was concerned that he would not
drive safely or would drive to places other than school. But
in August 2004, Jacob drove his pickup to school and had an
accident in the parking lot. The other driver claimed that Jacob
backed his pickup into her vehicle; he denied it. According to
Jacob, the other vehicle had a scratched bumper and the police
could not determine that he had backed his pickup into the
other vehicle.
olsen admitted that Jacob had been a rebellious teenager
and made bad decisions. She and Jacob had had arguments
over his behavior problems, some of which had become physi-
cal. In october 2004, olsen confronted Jacob about driving his
40 	279 NeBrASkA reporTS

pickup to a place she had told him not to go, but he had left
while she was still at work. When olsen tried to take his keys
away, he pushed or shoved her, causing her to fall and hit the
back of her head. She got up and slapped him. Jacob went to
his father’s house, and his father called the police.
Later, in May 2005, one of Jacob’s teachers wrote on his
progress report that his behavior and attitude needed monitor-
ing. Also, a teacher had previously told olsen during a parent
conference that Jacob had behavior problems. olsen testified
that she tried to monitor Jacob closely to make him behave, do
his homework, and be at home. Jacob stated that olsen made
him do many chores.
Jacob testified that olsen occasionally permitted him to
go out alone. About a week before Heidi was injured, olsen
allowed Jacob to go out unsupervised for an hour or two.
During this time, someone reported to the police that Jacob,
while a passenger in another minor’s vehicle, was throwing
fireworks out the window into a residential yard. A police
officer issued him a warning but did not contact olsen. olsen
was not aware that Jacob had obtained fireworks or that he had
thrown them into a residential yard until the night of July 4,
2005—when officers came to her house to tell her Heidi had
been burned.
pretrial proceedingS and Jury’S awardS
Before trial, the court sustained Sinsel’s motion for partial
summary judgment, finding that Jacob was negligent as a mat-
ter of law. It overruled olsen and Jacob’s motions for summary
judgment. The court did not instruct the jury to allocate negli-
gence between olsen and Jacob. on separate verdict forms, the
jury returned an award for Sinsel against Jacob for $50,000 and
against olsen for $75,000.
ASSIGNMeNTS oF error
olsen and Jacob assign, restated, that the court erred in
overruling their motion for directed verdict on the negligent
supervision claim, failing to properly instruct the jury on the
allocation of negligence, and entering judgment on an exces-
sive verdict.
SINSeL V. oLSeN 	41
Cite as 279 Neb. 38

on cross-appeal, Sinsel assigns that the court erred in assess-
ing prejudgment interest using the rate in effect on the day of
the judgment.
STANDArD oF reVIeW
[1] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.1
[2] Whether a jury instruction is correct is a question of law,
which we independently decide.2
ANALYSIS
Jacob’S negligence waS not reaSonably foreSeeable
[3] Under the restatement (Second) of Torts,3 the parent-
child relationship is a special relationship that can require
parents in some circumstances to control the conduct of
their child.
Section 315 of the restatement provides:
There is no duty so to control the conduct of a third
person as to prevent him from causing physical harm to
another unless
(a) a special relation exists between the actor and the
third person which imposes a duty upon the actor to con-
trol the third person’s conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to protection.4
The parent-child relation is a special relationship under
§ 315(a).5 Section 316 of the restatement provides:
A parent is under a duty to exercise reasonable care
so to control his minor child as to prevent it from
1 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
2 See Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831
(2007).
3 See restatement (Second) of Torts § 315 (1965).
4 Id. at 122.
5 See id., comment c.
42 	279 NeBrASkA reporTS

intentionally harming others or from so conducting itself
as to create an unreasonable risk of bodily harm to them,
if the parent
(a) knows or has reason to know that he has the ability
to control his child, and
(b) knows or should know of the necessity and oppor-
tunity for exercising such control.6
[4,5] relying on these provisions, we concluded in Popple
v. Rose,7 that a parent can have a duty to warn third persons of
their child’s past conduct to protect them from harm in limited
situations. But we recognized that parents are not liable for
failing to control their children’s conduct to prevent injury to
others in the same way owners are responsible for harboring
a vicious animal. And we specifically stated that courts have
“refused to impose liability in situations where the child was
generally incorrigible, heedless, or vicious.”8 We held that
parents can be liable for failing to exercise reasonable care to
prevent injury to others only when their child has a dangerous
habit of causing harm to others and the parents know of the
child’s “habitual, dangerous propensity.”9 In contrast, parents
are not liable for negligent supervision where the record lacks
any evidence indicating the parents were aware the child was
prone to commit the particular act or course of conduct which
led to the plaintiff’s injury.10
In Popple, the evidence showed that the parents knew their
son had a history of physically violent behavior. But they did
not know he had a habitual propensity to commit a sexual
assault or sexual abuse. We concluded that the parents had no
duty to warn of an unknown dangerous sexual propensity. This
reasoning tracks the comments to the restatement’s § 316 and
decisions from other jurisdictions.
6 restatement, supra note 3, § 316 at 123-24.
7 Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765 (1998).
8 Id. at 9, 573 N.W.2d at 770.
9 See id. at 10, 573 N.W.2d at 771.
10 See id.
SINSeL V. oLSeN 	43
Cite as 279 Neb. 38

Comment a. to § 316 provides that parents are responsible
for their child’s conduct if they have the ability to control it.11
But comment b. clarifies that
[t]he duty of a parent is only to exercise such ability to
control his child as he in fact has at the time when he
has the opportunity to exercise it and knows the neces-
sity of so doing. The parent is not under a duty so to
discipline his child as to make it amenable to parental
control when its exercise becomes necessary to the
safety of others.12
So parents who have the ability to restrain or correct their
child have a duty to do so when their child’s conduct is pos-
ing an obvious danger to others in their presence. And we
recognize that some courts have held that parents can be liable
for failing to take steps to correct or restrain a child’s conduct
when they know the child has a dangerous habit that is likely
to cause injury to others.
For instance, in Popple,13 we discussed a case in which
the father knew his 7-year-old child habitually struck other
children in the face with a stick but had encouraged, rather
than restrained, this behavior, thus condoning the act.14 We
discussed another case in which the court held that the par-
ents could be liable for failing to warn a babysitter that their
4-year-old child had a habit of violently attacking and throw-
ing himself against other people.15 But we did not apply this
line of cases in Popple because the plaintiff could not show
foreseeability: the parents did not know of any dangerous
sexual propensity. Consistent with our discussion in Popple,
other courts have generally held that the child must have a
habit of wrongdoing which gives the parent reason to know
with some specificity of a present opportunity and need
11 restatement, supra note 3, § 316, comment a.
12 Id., comment b. at 124.
13 Popple, supra note 7.
14 See Norton v. Payne, 154 Wash. 241, 281 p. 991 (1929).
15 See Ellis v. D’Angelo, 116 Cal. App. 2d 310, 253 p.2d 675 (1953). See,
also, Condel v. Savo, 350 pa. 350, 39 A.2d 51 (1944).
44 	279 NeBrASkA reporTS

to restrain the child to prevent some imminently foresee-
able harm.16
For example, the Alaska Supreme Court affirmed summary
judgment for the parents against a negligent supervision claim.
There, the defendant’s 17-year-old son murdered two other
boys with a stolen gun during a verbal altercation.17 The boy
had been emotionally disturbed since childhood, and when he
was 15, he had shot another boy in the hand with a stolen gun
and been placed on probation. Five months before the murders,
but unknown to his parents, he and his friends had beaten
another boy with a bat and a cane at a party. But at the time
of the murders, the evidence showed nothing that should have
led the parents to foresee a specific need to keep their son from
hurting someone.
The court noted that many courts have recognized that
parents have diminished ability and opportunity to control
the conduct of their older children. It agreed that parents
could have an opportunity to control a child even if they were
not present at the precise moment that a tort occurs. And it
agreed that the parents were on general notice of the child’s
dangerous propensities. But it held that a plaintiff must show
more than the parents’ general knowledge of a child’s danger-
ous propensity.18
Here, Jacob’s past rebellious conduct did not show a habitual
dangerous propensity that would have put olsen on notice that
Jacob would throw fireworks at others. And clearly, a child’s
“fender bender” in a school parking lot would not alert parents
that their child might negligently harm others with fireworks.
Similarly, olsen’s physical altercation with Jacob in october
2004 was in response to her attempt to discipline him by taking
16 See, Dinsmore-Poff v. Alvord, 972 p.2d 978 (Alaska 1999); Gissen v.
Goodwill, 80 So. 2d 701 (Fla. 1955); Norton, supra note 14.
17 See Dinsmore-Poff, supra note 16.
18 Accord, e.g., Parsons v. Smithey, 109 Ariz. 49, 504 p.2d 1272 (1973);
Barth v. Massa, 201 Ill. App. 3d 19, 558 N.e.2d 528, 146 Ill. Dec. 565
(1990); Wells v. Hickman, 657 N.e.2d 172 (Ind. App. 1995); Barrett v.
Pacheco, 62 Wash. App. 717, 815 p.2d 834 (1991); Nielsen v. Spencer, 287
Wis. 2d 273, 704 N.W.2d 390 (Wis. App. 2005).
SINSeL V. oLSeN 	45
Cite as 279 Neb. 38

away his pickup. This altercation did not indicate that Jacob
might negligently harm others if permitted to attend a fire-
works display. We agree that Jacob’s display of a pocketknife
in the 2004 dispute with other students who had called him
names exhibited poor judgment. But it was not indicative of the
conduct that injured Heidi.
We conclude that all of the previous incidents of Jacob’s
misconduct failed to show that Jacob had a dangerous, habit-
ual propensity that made his throwing fireworks at Heidi
imminently foreseeable. We hold that olsen did not have a
duty to confine him to the house to prevent an unforeseeable
act. To hold otherwise would require parents to pull an unend-
ing 24-hour guard duty because of their child’s past incorri-
gible or careless behavior. Sinsel points us to no case holding
that parents have this duty, and such a rule would be neither
reasonable nor consistent with the restatement’s comments.
Although Jacob’s conduct the week before the fireworks
display indicated that he would obtain fireworks without per-
mission and could not be trusted to responsibly use them, the
evidence showed that olsen did not know of his earlier con-
duct before July 4, 2005. We conclude that the district court
erred in failing to direct a verdict for olsen on Sinsel’s claim
of negligent supervision.
the court erred in failing to inStruct
Jury to allocate fault
As noted, the court did not instruct the jurors to allocate
negligence between olsen and Jacob. Instead, the court gave
the jurors separate verdict forms for olsen and Jacob. on the
first form, they found “for the plaintiff and against the defend-
ant Linda olsen and assess damages at $75,000.00.” on the
second form, they found “for the plaintiff and against the
defendant Jacob olsen and assess damages at $50,000.”
olsen argues that the court erred in failing to instruct the
jury to allocate negligence between olsen and Jacob. Sinsel
argues that olsen did not object to the jury instructions or offer
an alternative.
Because we have concluded that a verdict should have been
directed for olsen, whether the jury was properly instructed
46 	279 NeBrASkA reporTS

regarding allocation of damages may, at first glance, appear
moot. But we conclude that we must examine this issue to
determine the effect of our holding with respect to olsen on
both Sinsel and Jacob.
The elements of damage submitted to the jury included
Heidi’s alleged past and future disfigurement, pain, and suffer-
ing. Under Nebraska’s comparative negligence statutes, these
constitute “noneconomic damages.” Where, as here, there was
no claim that multiple defendants acted as a part of a common
enterprise or plan,
the liability of each defendant for noneconomic damages
shall be several only and shall not be joint. each defend-
ant 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 sepa-
rate judgment shall be rendered against that defendant for
that amount.19
This provision contemplates a process by which the finder
of fact determines the total noneconomic damages suffered
by the plaintiff as the result of injuries proximately caused by
the negligence of multiple defendants; then, it allocates a por-
tion of the total to each defendant “in direct proportion to that
defendant’s percentage of negligence.”20
In this case, however, the court instructed the jury to deter-
mine the “nature and extent” of damages caused by the negli-
gence of each named defendant without reference to the total
noneconomic damages sustained by Heidi or the “percentage
of negligence” attributable to Jacob and olsen. Thus, we can-
not conclude from the record that the jury determined the
total damages to be $125,000, the sum of its verdicts against
Jacob and olsen, and we do not reach the issue of whether a
verdict in this amount would be excessive. We note, however,
that in denying the motion for new trial, the district court
expressed concern that portions of Sinsel’s closing argument,
to which no objection was made, “appealed to passion and
19 Neb. rev. Stat. § 25-21,185.10 (reissue 2008). See, also, Lackman v.
Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999).
20 § 25-21,185.10.
SINSeL V. oLSeN 	47
Cite as 279 Neb. 38

prejudice of the jury rather than reason and logic.” We share
that concern.
But the record does establish that the jury found Heidi’s
damages to be at least $50,000, for which it found Jacob liable,
and we conclude that this amount is not excessive. Having
established her entitlement to a judgment for $50,000, fair-
ness requires that Sinsel should have an opportunity to accept
it in satisfaction of her claim as an alternative to a new trial.21
Accordingly, we remand the cause and direct that Sinsel shall
have 10 days from the spreading of the mandate in the district
court to file acceptance of a remittitur for all amounts in excess
of $50,000. If that occurs, the judgment shall draw interest
from the date the remittitur is accepted. If Sinsel does not elect
to accept the remittitur, the district court shall conduct a new
trial limited to determining the nature, extent, and amount of
Heidi’s damages caused by Jacob’s negligence.
We also vacate the award of prejudgment interest and do
not reach the issues raised by the cross-appeal, because at this
point, Sinsel has not obtained a judgment exceeding her pre-
trial settlement offer pursuant to Neb. rev. Stat. § 45-103.02
(reissue 2004).
CoNCLUSIoN
We reverse and vacate the judgment against olsen and the
award of prejudgment interest and remand the cause for further
proceedings consistent with this opinion regarding Sinsel’s
claim against Jacob.
reVerSed and Vacated in part, and cauSe
reManded for further proceedingS.
21 See, Kirby v. Liska, 217 Neb. 848, 351 N.W.2d 421 (1984); McMillan
Co. v. Nebraska E. G. & T. Coop., Inc., 192 Neb. 744, 224 N.W.2d 184
(1974).
48 	279 NeBrASkA reporTS