Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (Neb. 2013)

Facts

  • A nurse and a physician worked in the same medical office and had a history of joking interactions.
  • During a lunch-hour conversation in a lighthearted work setting, the nurse joked about the physician using a snowblower.
  • The physician responded and made contact with the back of the nurse’s neck; defense witnesses described it as a playful tap consistent with prior interactions.
  • The nurse described the contact as a forceful strike that caused immediate pain and symptoms, followed by emergency-room treatment and later medical care including surgery.
  • Evidence showed the nurse had preexisting neck problems, creating a dispute over whether the contact caused the alleged injuries.
  • The parties agreed the physician had previously tapped the nurse playfully on several occasions without her objection.

Issues

  1. Whether the evidence required judgment for the nurse on civil battery, or instead permitted a jury finding of implied consent to the contact.
  2. Whether causation of the nurse’s claimed injuries was established as a matter of law, or whether conflicting evidence and preexisting conditions created a jury question.
  3. Whether the trial court erred in denying summary judgment and a directed verdict, submitting consent and causation to the jury, or instructing the jury on battery-related issues.

Decision

  • The Nebraska Supreme Court affirmed judgment for the physician after a jury verdict for the defense.
  • The court held that, viewing the evidence most favorably to the physician, a reasonable jury could find either implied consent to the contact or that the contact did not cause the nurse’s injuries.
  • The trial court properly denied the nurse’s motions for summary judgment and directed verdict because material factual disputes existed on consent and causation.
  • The court upheld submission of the battery claim (including consent and causation questions) to the jury and found no reversible instructional error.
  • The verdict was not set aside because competent evidence supported the jury’s defense verdict and it was not clearly wrong.
  • Civil battery requires proof of an unconsented contact with another, or the actual infliction of an unconsented injury.
  • Consent is a defense to battery and may be express or implied from conduct, inaction, surrounding circumstances, and the parties’ relationship.
  • Denial of a directed verdict is reviewed by viewing evidence most favorably to the nonmoving party; if reasonable minds can differ on a material fact, the issue is for the jury.
  • A jury verdict will not be disturbed on appeal unless clearly wrong; appellate courts do not reweigh evidence or resolve credibility conflicts when competent evidence supports the verdict.

Conclusion

The court affirmed a defense verdict because evidence of prior similar workplace interactions supported a possible finding of implied consent, and conflicting testimony and preexisting conditions supported a possible finding of no causation, making both issues appropriate for jury resolution.