Thurston v. Nelson ( 2014 )

Decisions of the Nebraska Court of Appeals
740 21 NEBRASKA APPELLATE REPORTS
in an analysis that is not necessary to adjudicate the case and
controversy before it. State v. Pangborn, 286 Neb. 363, 836
N.W.2d 790 (2013).
CONCLUSION
Having determined that the district court properly con-
strued § 31-224 and did not err when finding the Liermanns
had complied with this section, we affirm the district court’s
judgment.
Affirmed.
T. Sidney Thurston and Jean Thurston, appellants,
v. Robert Nelson, doing business as Nelson
Construction, and Nelson Construction
& Custom Homes, Inc., appellees.
___ N.W.2d ___
Filed February 4, 2014. No. A-13-056.
1. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant will be reversed
only when there has been an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
4. Trial: Witnesses. In order to predicate error upon a ruling of the court refusing to
permit a witness to testify, or to answer a specific question, the record must show
an offer to prove the facts sought to be elicited.
5. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case,
the admission or exclusion of evidence must unfairly prejudice a substantial right
of a litigant complaining about evidence admitted or excluded.
6. ____: ____: ____. An improper exclusion of evidence is ordinarily not prejudicial
where substantially similar evidence is admitted without objection.
7. Jury Instructions: Proof: Appeal and Error. 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 court’s failure to give the requested instruction.
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 741
Cite as 21 Neb. Ct. App. 7408. Jury Instructions: Appeal and Error. If the instructions given, which are taken
as a whole, correctly state the law, are not misleading, and adequately cover the
issues submissible to a jury, there is no prejudicial error concerning the instruc-
tions and necessitating a reversal.
9. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do
so or not, has a duty to instruct the jury on issues presented by the pleadings and
the evidence.
10. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact
or facts which give one a right to judicial relief against another; a theory of
recovery is not itself a cause of action.
11. Actions: Pleadings. Two or more claims in a complaint arising out of the same
operative facts and involving the same parties constitute separate legal theories,
of either liability or damages, and not separate causes of action.
12. Election of Remedies. Pleading alternative theories of recovery is permitted, and
ordinarily, an election between theories of recovery will not be required unless
the theories are so inconsistent that a party cannot logically choose one without
renouncing the other.
13. Negligence: Complaints: Contracts: Torts. In order to decide the form of
redress, whether contract or tort, it is necessary to know the source or origin of
the duty or the nature of the grievance, and the character of the action must be
determined from what is asserted concerning it in the complaint.
14. Actions: Breach of Contract: Torts: Words and Phrases. Contract actions,
which arise from a breach of a duty imposed on one by an agreement, protect a
plaintiff’s interest in or right to performance of another’s promises, whereas tort
actions, which arise from a breach of a duty imposed by law, protect a plaintiff’s
interest or right to be free from another’s conduct which causes damage or loss to
the plaintiff’s person or property.
15. Contractors and Subcontractors: Warranty. As a general rule, a contractor
constructing a building impliedly warrants that the building will be erected in a
workmanlike manner.
16. ____: ____. The implied warranty of workmanlike performance provides the
owner with an action against the contractor if the contractor’s work is not of good
quality and free from defects.
17. Contracts: Contractors and Subcontractors. In building and construction con-
tracts, in the absence of an express agreement to the contrary, the law implies that
the building will be erected in a reasonably good and workmanlike manner and
will be reasonably fit for the intended purpose.
Appeal from the District Court for Grant County: Travis P.
O’Gorman, Judge. Affirmed.
Gregory J. Beal for appellants.
James L. Zimmerman, of Zimmerman Law Firm, P.C.,
L.L.O., for appellees.
Decisions of the Nebraska Court of Appeals
742 21 NEBRASKA APPELLATE REPORTS
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Moore, Judge.
I. INTRODUCTION
T. Sidney Thurston and Jean Thurston filed suit in the
district court for Grant County against Robert Nelson, doing
business as Nelson Construction, and Nelson Construction
& Custom Homes, Inc. (referred to herein individually and
collectively as “Nelson”), seeking damages for alleged con-
struction defects resulting from Nelson’s work in building
an addition to and remodeling their house. Following a jury
trial, the jury found in favor of Nelson. The Thurstons have
appealed, assigning error to the court’s exclusion of certain
expert witness testimony and its refusal to give requested
jury instructions. Finding no abuse of discretion in the district
court’s exclusion of expert witness testimony and no error in
the instructions given to the jury, we affirm.
II. BACKGROUND
In their operative complaint, the Thurstons set forth claims
for breach of contract, negligence, and breach of the implied
warranty of workmanlike performance. Specifically, the
Thurstons alleged that as a result of the parties’ contact in
February 2009, they entered into an oral agreement for Nelson
to construct a substantial addition to the Thurstons’ house in
rural Grant County and to make certain improvements to the
existing structure. They alleged that Nelson held himself out
as an experienced homebuilder, that he represented he could
and would build the addition in accordance with industry
standards and building codes within a reasonable time, and
that they relied upon Nelson’s representations and prom-
ises. They further alleged that Nelson worked on their house
between May and October, that Nelson removed his tools
and equipment from the construction site in November and
never returned to complete the project, and that they had paid
Nelson $42,024.43 and had incurred $90,479.39 in material
and inspection costs.
With respect to breach of contract, the Thurstons alleged
that Nelson breached the contract by not completing the agreed
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 743
Cite as 21 Neb. Ct. App. 740construction within a reasonable time, by not performing the
work in a workmanlike manner, and by leaving both the old
structure and the new structure unprotected from the ele-
ments, resulting in damage to the property. They alleged that
they had suffered damages to the new construction totaling
approximately $132,503.82. They further alleged that they had
suffered personal injury due to dampness and mold existing in
both the old structure and the new structure, which dampness
and mold would require removal and replacement of the new
structure at an estimated cost of $116,000 and an estimated
additional $250,000 in damages if the old structure required
replacement. The Thurstons alleged consequential damages in
the nature of loss of use and occupancy of their house, severe
emotional distress and mental anguish, and other allowed
consequential damages. They alleged that their damages from
Nelson’s breach of contract were continuing and increasing due
to structural inadequacies or defects and continued exposure to
the elements.
With respect to negligence, the Thurstons alleged that
Nelson had a duty to use reasonable and workmanlike prac-
tices and procedures in the construction work and that he
breached his duty to do so. Specifically, they alleged that
Nelson failed to construct the foundation according to build-
ing code and workmanlike practices; supervise the work of
subcontractors; protect the property from the elements; use
proper-dimension lumber, beams, or support systems for the
structure; assess load-bearing capacity of the existing structure
or provide adequate structural support for new construction
joining the existing structure; and use venting where reason-
ably required. The Thurstons alleged Nelson’s negligence was
the sole and proximate cause of damages sustained to both the
new and existing structure in excess of $10,000. They alleged
that they suffered personal injury to their health due to mold
on the premises and also repeated their claim for consequen-
tial damages.
Finally, with respect to breach of warranty, the Thurstons
alleged that Nelson represented himself to be an experienced,
qualified homebuilder who was competent and experienced
enough to do the contemplated construction work and that
Decisions of the Nebraska Court of Appeals
744 21 NEBRASKA APPELLATE REPORTS
based on his representations and the Thurstons’ reliance on
those representations, Nelson began to construct an addition
and to make certain alterations to the existing house. The
Thurstons alleged that Nelson failed to perform the construc-
tion in a workmanlike manner and that there were numer-
ous structural and cosmetic defects in Nelson’s work. They
alleged that as a result of Nelson’s breach of the implied
warranty, they had been damaged in the minimum amount of
$250,000. The Thurstons again repeated their claim for conse-
quential damages.
In his answer, Nelson alleged that the work performed was
completed in a good and workmanlike manner in compliance
with construction standards in the area and that any claims
made by the Thurstons were the result of their interference
and refusal to allow Nelson to complete the contract. Nelson
denied any negligence and alleged that he was not responsible
for the hiring, supervision, or payment of any other contractors
or subcontractors who performed labor or provided material to
complete the construction. Nelson denied the nature and extent
of the damages alleged by the Thurstons and denied that they
suffered any personal injury to their health by reason of any
mold on the premises.
A jury trial was held in the district court beginning on
December 17, 2012, and over the course of the 5-day trial,
the jury heard testimony from the parties and various wit-
nesses as to the construction work performed by Nelson for the
Thurstons and the alleged structural defects and mold damage.
The court received numerous photographs and other docu-
mentary exhibits into evidence as well. The bill of exceptions,
excluding exhibits, is nearly 1,200 pages long. For the sake of
brevity and due to the nature of the assignments of error on
appeal, we decline to further summarize the evidence here. We
have set forth additional facts as necessary to our resolution of
this appeal in the analysis section below. We note that Nelson
made a motion for directed verdict, which the court granted
only to the extent that the Thurstons sought personal injury
damages for severe emotional distress, because it found no
evidence supporting such a claim.
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 745
Cite as 21 Neb. Ct. App. 740On December 21, 2012, the jury returned a verdict for
Nelson. The district court accepted the verdict and entered
judgment in favor of Nelson and against the Thurstons. The
Thurstons subsequently perfected their appeal to this court.
III. ASSIGNMENTS OF ERROR
The Thurstons assert that the district court erred in (1)
excluding testimony from a particular expert witness, (2) fail-
ing to give separate or alternate jury instructions on their
claims for negligent construction and implied warranty, and
(3) giving instructions that did not allow the jury to find
for the Thurstons on a theory of recovery other than breach
of contract.
IV. STANDARD OF REVIEW
[1,2] A trial court’s ruling in receiving or excluding an
expert’s testimony which is otherwise relevant will be reversed
only when there has been an abuse of discretion. Prime Home
Care v. Pathways to Compassion, 283 Neb. 77, 809 N.W.2d
751 (2012). A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. Fox v. Whitbeck,
286 Neb. 134, 835 N.W.2d 638 (2013).
[3] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides. InterCall, Inc.
v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
V. ANALYSIS
1. Expert Witness Testimony
The Thurstons assert that the district court erred in exclud-
ing testimony from their expert Darin Wilkerson as to whether
Nelson’s work was performed in a workmanlike manner.
Wilkerson is a general contractor, is a member of a profes-
sional builders’ association, and has been in the construction
business since 1988. Wilkerson testified that he was gener-
ally acquainted with the workmanship of homebuilders in
western Nebraska. He was contacted by the Thurstons in
February 2011, and as a result of that contact, he made a visual
Decisions of the Nebraska Court of Appeals
746 21 NEBRASKA APPELLATE REPORTS
inspection of the perimeter and the interior of both the addition
and the existing residence. Wilkerson inspected the premises in
greater detail a couple of weeks after his initial visit and again
in November 2012.
When the Thurstons’ attorney asked Wilkerson if, based
on his inspection, he reached any conclusion as to whether
Nelson’s work was completed in a workmanlike manner,
Nelson’s attorney requested a bench discussion, which was
held outside the hearing of the jury. During the discussion,
Nelson’s attorney represented to the court that, based on the
expert witness report, Wilkerson was supposed to be called
to testify as to the cost of remediation and that no opinions
about workmanship were disclosed in the report. At the con-
clusion of the discussion, the court stated, “All you have in
here is cost, there’s nothing about workmanship. Just limit it
to that.” Wilkerson then proceeded to testify that his estimate
of costs to reconstruct the addition and return the existing
structure to its original condition would be $240,360. He
also opined that it would not be economically feasible to
repair the addition. An exhibit received in evidence from
Wilkerson’s company included descriptions of proposed con-
struction work on the Thurstons’ home and the cost of such
work, but it did not include any opinions regarding the nature
of Nelson’s work.
After the conclusion of Wilkerson’s testimony, the Thurstons’
counsel sought permission to recall Wilkerson, directing the
court’s attention to previously filed expert witness lists, which
disclosed that Wilkerson was expected to opine, among other
things, about the construction work that was not done in a
workmanlike manner. After further argument from the parties,
the court denied the motion to recall Wilkerson as a witness,
finding that even if the matter was adequately disclosed, the
testimony would be cumulative because two previous expert
witnesses called by the Thurstons had already testified on the
issue of workmanship. The record shows that two separate
structural engineers testified at trial about the workmanship
issues with Nelson’s construction. Additionally, a masonry
contractor opined that the foundation work was not done in a
workmanlike manner.
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 747
Cite as 21 Neb. Ct. App. 740[4] The Thurstons did not make an offer of proof with
respect to the exact testimony they sought to elicit from
Wilkerson. Neb. Rev. Stat. § 27-103 (Reissue 2008) provides
that error may not be predicated upon a ruling admitting or
excluding evidence unless a substantial right of the party is
affected and, in case the ruling is one excluding evidence, the
substance of the evidence was made known to the judge by
offer or was apparent from the context within which questions
were asked. The Nebraska Supreme Court has stated that in
order to predicate error upon a ruling of the court refusing to
permit a witness to testify, or to answer a specific question, the
record must show an offer to prove the facts sought to be elic-
ited. Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb.
327, 754 N.W.2d 406 (2008).
In their brief on appeal, the Thurstons argue that Wilkerson’s
testimony “would have outlined to the jury that [Nelson]
breached his duty of care which he owed to the [Thurstons].”
Brief for appellants at 22. However, the substance of this
asserted evidence was not made known to the trial judge, and
it is not apparent from the record before us. As mentioned
previously, the exhibit from Wilkerson did not include any dis-
cussion of the standard or duty of care allegedly owed to the
Thurstons or allegedly breached by Nelson. Further, when the
trial judge noted the cumulative testimony previously given by
two other expert witnesses on the issue of Nelson’s workman-
ship, the Thurstons did not make an offer of proof indicating
how Wilkerson’s testimony might differ.
[5,6] To constitute reversible error in a civil case, the
admission or exclusion of evidence must unfairly prejudice
a substantial right of a litigant complaining about evidence
admitted or excluded. Martensen v. Rejda Bros., 283 Neb. 279,
808 N.W.2d 855 (2012). An improper exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. Cotton v. State, 281 Neb. 789,
810 N.W.2d 132 (2011).
The Thurstons have not shown how they were prejudiced by
the district court’s denial of their motion to recall Wilkerson
to testify about Nelson’s workmanship. Because there was
no offer of proof made and the evidence disallowed was not
Decisions of the Nebraska Court of Appeals
748 21 NEBRASKA APPELLATE REPORTS
apparent from the context of the questions asked, we can-
not say that the district court erred in excluding Wilkerson’s
testimony regarding workmanship and in finding that such
testimony would have been cumulative to other substantially
similar evidence which was admitted without objection. This
assignment of error is without merit.
2. Jury Instructions
The Thurstons assert that the district court erred in failing to
give separate or alternate jury instructions on their claims for
negligent construction and implied warranty. They also assert
that the court erred by giving instructions that did not allow
the jury to find for the Thurstons on a theory of recovery other
than breach of contract.
[7,8] 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 evi-
dence, and (3) the appellant was prejudiced by the court’s fail-
ure to give the requested instruction. InterCall, Inc. v. Egenera,
Inc., 284 Neb. 801, 824 N.W.2d 12 (2012). If the instructions
given, which are taken as a whole, correctly state the law, are
not misleading, and adequately cover the issues submissible to
a jury, there is no prejudicial error concerning the instructions
and necessitating a reversal. Id.
A jury instruction conference was held on December 21,
2012. The final instructions prepared by the district court
included the following statement of the case instruction,
instruction No. 2, to which the parties had no objection:
Instruction No. 2
STATEMENT OF THE CASE -
BREACH OF CONTRACT
I. Plaintiff’s Claims
A. ISSUES
This case involves the construction of an addition to
an existing home. The [Thurstons] claim [Nelson] entered
into an oral contract under which [he] would construct an
addition to the existing home and make certain improve-
ments to the structure which already exists.
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 749
Cite as 21 Neb. Ct. App. 740The [Thurstons] claim that [Nelson] breached the con-
tract in one or more of the following ways[:]
1. By not completing the construction agreed to in a
reasonable time;
2. By failing to complete the construction in a good
and workmanlike manner and in conformance with con-
struction standards in the following particulars:
A. Failing to construct the foundation according to
building code and workmanlike practices;
B. Failing to supervise subcontractors;
C. Failing to protect the property from elements, par-
ticularly rain, when construction work left the property
exposed to elements;
D. Failing to use proper dimension lumber, beams or
support systems for the structure;
E. Failing to assess load bearing capacity of existing
structure or providing adequate structural support for new
construction or joining existing structure;
F. Failure to use venting where reasonably required[.]
The [Thurstons] also claim that they were damaged as
a result of this breach of contract, and they seek a judg-
ment against [Nelson] for these damages.
[Nelson] admits that the parties entered into a contract,
but alleges that [the Thurstons] contracted with [Nelson]
to provide for the construction of the addition, excluding
plumbing, heating, air conditioning, electrical and shin-
gling the new addition and the old home.
[Nelson] denies that he did not complete the work in
a good and workmanlike manner and in conformance
with construction standards in the area that the work
was performed.
[Nelson] alleges that the [Thurstons] interfered with
and frustrated his ability to complete the contract and [that
the Thurstons] thereby breached the contract between the
parties. [Nelson] further alleges that the [Thurstons] were
the general contractor on the project and were responsible
for hiring, supervision and payment of any other contrac-
tors or subcontractors who performed labor or provided
material to complete the construction.
Decisions of the Nebraska Court of Appeals
750 21 NEBRASKA APPELLATE REPORTS
B. Burden of Proof
Before the [Thurstons] can recover against [Nelson] on
their claim, [they] must prove, by the greater weight of
the evidence, each and all of the following:
1. That the [Thurstons] and [Nelson] entered into the
contract;
2. The terms of the contract;
3. That [Nelson] breached the contract in one or more
ways claimed by [the Thurstons];
4. That the breach of contract was a proximate cause of
some damage to [the Thurstons]; and
5. The nature and extent of that damage.
C. Effect of Findings
If the [Thurstons] have not met this burden of proof,
then your verdict must be for [Nelson], and you should
cease any further deliberations.
On the other hand, if the [Thurstons] have met this
burden of proof, then you must consider [Nelson’s]
affirm­ative defense.
The remaining portion of instruction No. 2 outlined the
issues, burden of proof, and effect of findings with respect to
Nelson’s defenses.
The final instructions prepared by the court also included
instruction No. 3, which provided:
If you find that there was a contract, then the law
makes the following terms part of the contract:
1. Accompanying every contract is a common-law duty
to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done. A failure to
observe any of these conditions is a breach of contract.
2. The law implies that a building will be erected in
a reasonably good and workmanlike manner and will be
reasonably fit for its intended purpose.
3. Every contract for work or services includes an
implied duty to perform skillfully, carefully, diligently,
and in a workmanlike manner, and by taking a job, one
contracts that he has the requisite skill to perform it.
4. The implied covenant of good faith and fair deal-
ing exists in every contract and requires that none of
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 751
Cite as 21 Neb. Ct. App. 740the parties to the contract will do anything which will
injure the right of another party to receive the benefit of
the contract.
Neither party objected to instruction No. 3.
We note that instruction No. 2 as given defines the case as
a breach of contract case and requires that the Thurstons prove
the existence of a contract (which Nelson admits), the terms
of the contract, its breach, and damages that were proximately
caused by the breach. However, instruction No. 2, under para-
graph I.A.2. regarding the claimed failure of Nelson to com-
plete the construction in a workmanlike manner, also included
specific allegations of such failure in subparagraphs A. through
F., which directly correspond to the allegations of negligence
in the Thurstons’ complaint. And instruction No. 3 included
the allegations of breach of the implied warranty of work-
manlike performance contained in the Thurstons’ complaint.
Thus, the court essentially combined the various allegations
of the Thurstons’ breach of contract, negligence, and breach
of implied warranty of workmanlike performance into this one
jury instruction.
The Thurstons proposed certain additional instructions with
respect to negligent construction and implied warranty, which
instructions we address further below.
(a) Negligent Construction
[9] The Thurstons assert that the district court erred in fail-
ing to give separate or alternate jury instructions on their claim
for negligent construction. A trial court, whether requested
to do so or not, has a duty to instruct the jury on issues pre-
sented by the pleadings and the evidence. Centurion Stone
of Nebraska v. Trombino, 19 Neb. Ct. App. 643, 812 N.W.2d
303 (2012).
At the instruction conference, the Thurstons first requested
an instruction on professional negligence, pursuant to NJI2d
Civ. 12.04. We find no error in the district court’s decision
not to give an instruction on professional negligence in this
case. See Churchill v. Columbus Comm. Hosp., 285 Neb. 759,
830 N.W.2d 53 (2013) (professional act or service defined as
arising out of vocation, calling, occupation, or employment
Decisions of the Nebraska Court of Appeals
752 21 NEBRASKA APPELLATE REPORTS
involving specialized knowledge, labor, or skill, and labor or
skill involved is predominantly mental or intellectual, rather
than physical or manual).
The Thurstons also requested an instruction on damages
to property in negligence cases found at NJI2d Civ. 4.20 to
4.24 (alternative instructions depending on whether repairs
will restore property at cost lower than property’s predamage
value). The district court denied the requested instructions,
finding that this case, as pled, is a contract action and that the
damages were contract damages. On appeal, the Thurstons
assert that they were prejudiced by not having a separate or
alternative instruction on negligence in the event the jury found
that a contract was not proved.
[10-12] The Thurstons set forth in their complaint “causes
of action” for both breach of contract and negligence. A cause
of action consists of the fact or facts which give one a right
to judicial relief against another; a theory of recovery is not
itself a cause of action. InterCall, Inc. v. Egenera, Inc., 284
Neb. 801, 824 N.W.2d 12 (2012). Thus, two or more claims in
a complaint arising out of the same operative facts and involv-
ing the same parties constitute separate legal theories, of either
liability or damages, and not separate causes of action. Id. In
this case, Thurstons’ complaint contained separate legal theo-
ries of recovery, because their claims all arose out of the same
operative facts and involved the same parties. In Nebraska,
pleading alternative theories of recovery is permitted, and
ordinarily, an election between theories of recovery will not
be required unless the theories are so inconsistent that a party
cannot logically choose one without renouncing the other.
See Kenyon & Larsen v. Deyle, 205 Neb. 209, 286 N.W.2d
759 (1980).
While the Thurstons pled the alternative theories of breach
of contract and negligence, the question becomes whether
the court was required to instruct the jury on both theories
of recovery.
[13,14] In order to decide the form of redress, whether con-
tract or tort, it is necessary to know the source or origin of the
duty or the nature of the grievance, and the character of the
action must be determined from what is asserted concerning
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 753
Cite as 21 Neb. Ct. App. 740it in the complaint. Moglia v. McNeil Co., 270 Neb. 241,
700 N.W.2d 608 (2005). Contract actions, which arise from
a breach of a duty imposed on one by an agreement, protect
a plaintiff’s interest in or right to performance of another’s
promises, whereas tort actions, which arise from a breach of
a duty imposed by law, protect a plaintiff’s interest or right to
be free from another’s conduct which causes damage or loss
to the plaintiff’s person or property. Henriksen v. Gleason, 263
Neb. 840, 643 N.W.2d 652 (2002). In the case before us, the
Thurstons’ negligence allegations relate to Nelson’s construc-
tion work, which work is the object of the agreement forming
the basis for the breach of contract claim.
The district court in this case determined that the breach of
contract encompassed negligent construction and that based
on the damages requested, it was a contract action. The
Nebraska Supreme Court recently discussed the coexistence
of tort and contract actions in Lesiak v. Central Valley Ag
Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012). In that case,
the district court granted summary judgment to the defend­
ant on the plaintiffs’ negligence claim, finding that based
upon the economic loss doctrine, the plaintiffs could only
proceed under contractual theories of relief. On appeal, the
Supreme Court recognized the general economic loss doctrine
as a “‘judicially created doctrine that sets forth the circum-
stances under which a tort action is prohibited if the only
damages suffered are economic losses.’” Id. at 118-19, 808
N.W.2d at 80. The court clarified the economic loss doctrine
in Nebraska, however, limiting its application to the products
liability context and to situations where the alleged breach
is only of a contractual duty, and no independent tort duty
exists. The court stated:
[W]hen the alleged breach is of a purely contractual
duty—a duty which arises only because the parties
entered into a contract—only contractual remedies are
available. . . . Thus, the doctrine serves to “weed[ ] out
cases involving nothing more than an allegedly negligent
failure to perform a purely contractual duty—a duty that
would not otherwise exist.”
Id. at 122, 808 N.W.2d at 82.
Decisions of the Nebraska Court of Appeals
754 21 NEBRASKA APPELLATE REPORTS
The court in Lesiak concluded that where a plaintiff is suing
for breach of a contractual duty which would not have existed
but for the contractual relationship, it should be brought as a
breach of contract action and not as a tort claim. The court
recognized that this conclusion was somewhat at odds with
past statements in some of its case law. The court noted that
under Nebraska law, with each contract comes an accompany-
ing duty “‘“to perform with care, skill, reasonable expediency,
and faithfulness the thing agreed to be done.”’” Id., quoting
Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606
N.W.2d 85 (2000). The court in Lesiak also noted that it had
previously stated that a breach of that duty may give rise to
a breach of contract action or a tort action for negligent per-
formance of the contract. The court indicated that it was now
qualifying that statement to hold:
Where only economic loss is suffered and the alleged
breach is of only a contractual duty . . . , then the action
should be in contract rather than in tort. In other words,
the doctrine would apply to bar a tort action for the neg-
ligent performance of a contract when only economic
losses were incurred.
Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 123, 808
N.W.2d 67, 83 (2012). In sum, the court concluded that the
primary purpose of the economic loss doctrine is to main-
tain the separateness of tort law and contract law. “Generally
speaking, the doctrine limits a party’s ability to recover for
economic losses (or commercial losses), unaccompanied by
personal injury or damage to other property, allowing recovery
only under contract law.” Id. The court expressly restricted
the application of the doctrine to where economic losses are
(1) caused by a defective product or (2) caused by an alleged
breach of a contractual duty, where no tort duty exists indepen-
dent of the contract itself. Id. The court went on to define eco-
nomic losses as commercial losses, unaccompanied by personal
injury or “‘other property’” damage. Id. at 124, 808 N.W.2d at
83. The phrase “other property” means property other than the
property that was the subject of the contract. Id.
In connection with their negligence theory of recovery,
the Thurstons alleged that they suffered damages to the new
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 755
Cite as 21 Neb. Ct. App. 740addition and to the existing structure in excess of $10,000; per-
sonal injury to their health, as well as consequential damages
which included the loss of use and occupancy of their home;
and severe emotional distress. However, the evidence adduced
at trial related only to the economic losses allegedly resulting
from Nelson’s alleged failure to perform the work that he had
agreed to do in a workmanlike manner. In other words, these
are economic damages which can only be sought in a breach
of contract action. See Lesiak, supra. Although the Thurstons’
complaint sought damages for emotional distress and mental
anguish, as well as personal injury to their health, there was no
evidence adduced to support these damages and these claims
were properly not submitted to the jury.
We conclude that the district court did not err in failing to
give separate or alternate jury instructions on the Thurstons’
claim for negligent construction. The basis of the Thurstons’
negligence theory of recovery was Nelson’s allegedly negli-
gent failure to perform a purely contractual duty, which duty
would not otherwise exist without the oral contract between
the parties in this case. The damages for which evidence was
adduced in this case were purely related to economic losses. In
short, the evidence did not establish any duty or damages based
on negligence that was not “coextensive with those encom-
passed” by the breach of contract theory on which the jury was
instructed. See Sturzenegger v. Father Flanagan’s Boys’ Home,
276 Neb. 327, 353, 754 N.W.2d 406, 430 (2008).
This assignment of error is without merit.
(b) Implied Warranty
The Thurstons assert that the district court erred in failing
to give separate or alternate jury instructions on their claim for
implied warranty.
[15,16] As a general rule, a contractor constructing a build-
ing impliedly warrants that the building will be erected in a
workmanlike manner. Moglia v. McNeil Co., 270 Neb. 241,
700 N.W.2d 608 (2005). The implied warranty of workman-
like performance provides the owner with an action against the
contractor if the contractor’s work is not of good quality and
free from defects. Id.
Decisions of the Nebraska Court of Appeals
756 21 NEBRASKA APPELLATE REPORTS
[17] In building and construction contracts, in the absence
of an express agreement to the contrary, the law implies that
the building will be erected in a reasonably good and work-
manlike manner and will be reasonably fit for the intended
purpose. Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507
N.W.2d 465 (1993); Henggeler v. Jindra, 191 Neb. 317, 214
N.W.2d 925 (1974).
The Thurstons argue that they pled breach of the implied
warranty to perform in a workmanlike manner as a separate
cause of action and that, as such, an alternate instruction
was justified. During the jury instruction conference, they
directed the district court’s attention to NJI2d Civ. 11.44. The
court rejected the Thurstons’ proposed instruction, conclud-
ing that the instructions as written adequately injected the
issue of breach of implied warranty into the case on a breach
of contract theory. The court also observed that NJI2d Civ.
11.44 concerns the sale of goods, which is not at issue in
this case.
Pattern jury instruction NJI2d Civ. 11.44 addresses the
burden of proof with respect to breach of an implied war-
ranty of fitness for a particular purpose in the context of the
sale of goods. The comments to the instruction show that it
deals with only the implied warranty of fitness for a particular
purpose under Neb. U.C.C. § 2-315 (Reissue 2001). Because
this case does not involve the sale of goods or a claim under
Nebraska’s Uniform Commercial Code, the tendered instruc-
tion was not warranted in this case. As noted above, the
district court instructed the jury that if it found there was a
contract, the law made certain terms a part of that contract,
including the implied warranty that a building would be
erected in a reasonably good and workmanlike manner and
would be reasonably fit for its intended purpose. The instruc-
tions given were a correct statement of the law and adequately
covered the issues. We find no error.
(c) Conclusion
The court did not err in refusing to give separate or alterna-
tive instructions on the negligence or implied warranty theories
of recovery.
Decisions of the Nebraska Court of Appeals
THURSTON v. NELSON 757
Cite as 21 Neb. Ct. App. 740VI. CONCLUSION
The district court did not abuse its discretion in limiting
the testimony of one of the expert witnesses and did not err in
refusing to give separate jury instructions on the negligence or
implied warranty theories of recovery.
Affirmed.