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Dewark v. Hoffman9/14/2004
Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004); Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001). The exercise of judicial discretion is implicit in determinations of relevancy and unfair prejudice, and the trial court's decision will not be reversed absent an abuse of discretion. Id. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Detter v. Miracle Hills Animal Hosp., 12 Neb. App. 480, 677 N.W.2d 512 (2004).
ANALYSIS
Van Dewark asserts that the district court erred in excluding Rannells' statements regarding the severity of the impact and force of the collision and evidence of Rannells' injuries. Van Dewark argues that he was unduly prejudiced by not having the opportunity to present this evidence to the jury because it was relevant and probative to the severity of the impact, the force of the collision, and the injuries suffered by Van Dewark. Van Dewark also argues that the evidence in connection with Rannells would have contributed to the credibility of Van Dewark's testimony. Hoffman, on the other hand, argues that this particular evidence is not relevant to the issue of the severity of the impact and force to Van Dewark's vehicle and, in the alternative, that if it is relevant, its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issue before the jury. Hoffman argues that the issue before the jury was Van Dewark's injuries, not Rannells', and allowing this particular evidence could be misleading to the jury in that it suggests that if Rannells was injured, then Van Dewark must have also been injured. Hoffman also argues that there was limited information about Rannells' overall health and physical condition prior to the time of the collision. Further, Hoffman asserted prejudice in that she would have been precluded from any type of cross-examination of Rannells because he was deceased at the time of trial. Lastly, Hoffman asserts that the jury had sufficient information before it to determine the extent, if any, of Van Dewark's injuries.
The Nebraska Evidence Rules define "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb. Rev. Stat. § 27-401 (Reissue 1995). See Kvamme v. State Farm Mut. Auto. Ins. Co., supra. Neb. Rev. Stat. § 27-403 (Reissue 1995) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Wagner v. Union Pacific RR. Co., 11 Neb. App. 1, 642 N.W.2d 821 (2002). For purposes of applying § 27-403, probative value is a relative concept which involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Wagner, supra. Unfair prejudice means an undue tendency to suggest a decision on an improper basis. Id.
Assuming without deciding that the evidence Van Dewark sought to introduce was relevant, we turn to an analysis of the evidence under § 27-403. While Van Dewark complains that he was unfairly prejudiced by the inability to adduce Rannells' statement concerning the force and imp
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