## Facts

- A 17-year-old motorcyclist, Robert James Nelson, rode with passenger Kevin Coffin in Grand Island, Nebraska, in the early morning of June 22, 1984.
- After leaving the scene of a fight, Nelson noticed an automobile driven by Paul J. Dolan following and accelerated to elude it, reaching about 85 m.p.h. on an asphalt road while Dolan followed closely.
- Coffin testified Dolan’s vehicle approached to within 1–2 feet; Coffin turned and struck Dolan’s hood with his hand because he was scared.
- After Coffin struck the hood, Dolan backed off, then sped up and struck the motorcycle; the vehicles locked together and traveled about 268 feet over roughly 5 seconds before the motorcycle hit a light pole and Nelson went under Dolan’s car.
- Nelson was crushed; the estate conceded death was instantaneous.
- Dolan admitted negligence and causation.
- The plaintiff (as personal representative) pursued both wrongful death damages for next of kin and a survival claim for the estate.
- Before evidence, the trial court granted Dolan’s motion in limine excluding evidence of (1) the next of kin’s mental anguish and (2) Nelson’s own mental anguish.
- The jury awarded $37,968.26; the plaintiff appealed the exclusions as improperly limiting damages.

## Issues

1. Whether Nebraska’s wrongful death statute permits recovery for the beneficiaries’ mental anguish (grief and bereavement) caused by the decedent’s death.
2. Whether, in a survival action, the estate may recover for the decedent’s conscious pre-impact mental anguish (fear and apprehension) experienced before a fatal collision.

## Decision

- The Nebraska Supreme Court affirmed the exclusion of evidence of the next of kin’s mental anguish in the wrongful death claim.
- The court reversed the exclusion of evidence of the decedent’s pre-impact mental anguish in the survival claim.
- The case was remanded for a new trial limited to damages for the estate’s survival claim based on pre-impact mental anguish.

## Legal Principles

- Under Nebraska wrongful death law, damages for beneficiaries are limited to pecuniary loss and do not include grief, bereavement, or survivors’ mental anguish absent legislative change.
- Legislative inaction following longstanding judicial construction of a statute supports continued application of that construction.
- Nebraska survival statutes permit the estate to recover damages the decedent could have recovered had he lived, including conscious pain and suffering.
- Conscious pre-impact fear and apprehension may be compensable as mental suffering in a survival action when supported by evidence that the decedent was aware of impending injury and the fear was causally linked to the defendant’s negligence.
- Categorical exclusion of pre-impact mental anguish is improper where an offer of proof supports a reasonable inference of conscious awareness during the event leading to impact.

## Conclusion

Nebraska maintained a strict pecuniary-loss measure for wrongful death damages that excludes survivors’ grief, but allowed the decedent’s estate to seek survival damages for conscious pre-impact fear when evidence permits a finding that the decedent perceived imminent harm.


Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (Neb. 1989)