Volume 260 — Nebraska Reports

1. <bold>Judgments: Appeal and Error.</bold> On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. 2. <bold>Jury Instructions: Proof: Appeal and Error.</bold> To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction, (2) the tendered instruction is a correct statement of the law, and (3) the tendered instruction is warranted by the evidence. 3. <bold>Jury Instructions: Appeal and Error.</bold> In reviewing a claim of prejudice from instructions given or refused, the instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.<page_number>Page 490</page_number> 4. <bold>Motions for New Trial: Appeal and Error.</bold> A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of discretion. A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. 5. <bold>Damages: Appeal and Error.</bold> The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. 6. <bold>Torts: Compromise and Settlement: Damages.</bold> A nonsettling defendant against whom a jury verdict is entered is entitled to a pro tanto reduction in that verdict to the extent the plaintiff has received satisfaction from a settling defendant for the same injuries as the jury awarded damages. 7. <bold>Products Liability: Negligence.</bold> Assumption of risk, under appropriate circumstances, may be an affirmative defense in an action brought for a manufacturer's strict liability in tort for a design defect. 8. <bold>Pleadings: Appeal and Error.</bold> An affirmative defense not raised or litigated in the trial court cannot be urged for the first time on appeal. 9. <bold>Products Liability: Words and Phrases.</bold> In the law of products liability, misuse of a product is the use of a product in a way not reasonably foreseeable by the supplier or manufacturer. Misuse of the product is a defense to strict liability. 10. <bold>Products Liability: Pleadings.</bold> The state-of-the-art affirmative defense is set forth in Neb. Rev. Stat. § <cross_reference>25-21,182</cross_reference> (Reissue 1995). 11. <bold>Products Liability: Jury Instructions: Proof.</bold> It is a defendant's burden to demonstrate that an instruction on the state-of-the-art affirmative defense is warranted by the evidence. 12. <bold>Statute of Frauds: Contracts: Parties.</bold> The defense of the statute of frauds is personal to the parties to the contract and their privies. It cannot be raised by a nonparty to the contract. 13. <bold>Trial: Evidence: Waiver.</bold> If, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object to the introduction of such evidence, and otherwise fails to raise the question as to its admissibility, that party is considered to have waived whatever objection he or she may have had thereto, and the evidence is in the record for consideration the same as other evidence. 14. <bold>Workers' Compensation: Subrogation: Tort-feasors.</bold> Subrogation under the Nebraska workers' compensation statutes is governed by Neb. Rev. Stat. § <cross_reference>48-118</cross_reference> (Cum. Supp. 1996), which section grants an employer's insurance company which has paid workers' compensation benefits to an employee injured by the actions of a third individual or entity a subrogation interest against that third individual or entity as a tort-feasor. 15. <bold>Workers' Compensation: Subrogation: Damages.</bold> Neb. Rev. Stat. § <cross_reference>48-118</cross_reference> (Cum. Supp. 1996) does not distinguish between settlement proceeds paid for pain and suffering, medical benefits, or any other category of damages or injury in awarding an insurance company a subrogation interest in the settlement proceeds. 16. <bold>Workers' Compensation: Subrogation: Attorney Fees.</bold> Neb. Rev. Stat. § <cross_reference>48-118</cross_reference> (Cum. Supp. 1996) governs the payment of attorney fees and expenses in a workers' compensation subrogation claim.<page_number>Page 491</page_number>