Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel, a member of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.
In Ginapp v. City of Bellevue
, 282 Neb. 1027, -- N.W. 2d -- (2012), a registered nurse was injured on the job in an assault committed by a patient who had been admitted to the hospital after he was taken into emergency protective custody by a city police department. The Supreme Court considered whether the City's duty to control the assailant's behavior ended when he was admitted to the hospital and whether the City breached that duty by taking him to the hospital in the first place.
The Court explained, "When a person is taken into emergency protective custody by [city] police, the protectee is handcuffed and is not free to leave police custody. But emergency protective custody is a medical issue, and the protectee is neither under arrest nor charged with a crime. Any final determination as to whether the protectee is a threat is made by a mental health board." It was the City Police Department's policy, when leaving a protectee in an emergency room, not to leave until the officers believed the protectee was under control; however, if the protectee later became disruptive and law enforcement support was required, the hospital was to call police in a nearby community, because of the location of the hospital.
The registered nurse sued the City in district court pursuant to the Political Subdivisions Tort Claims Act, alleging that her injuries resulted from the City Police Department's negligence. The City moved to join the health system that the hospital is a part of as a necessary party for purposes of both apportionment of negligence and workers' compensation subrogation. The court denied the City's motion as it related to apportionment, but added the health system as a party to protect its workers' compensation subrogation interest.
After a bench trial, the lower court found that the patient was still in police custody while at the hospital, so the City had a duty to prevent the patient from injuring third persons. The court also found that the City knew or should have known that the patient was a substantial risk to cause serious harm. The court found that the City's Police Department was negligent in transporting the patient to the hospital, which had no psychiatric ward. The court refused to allocate negligence to the health system, and entered judgment for the nurse against the City in the amount of $350,000. The City appealed the lower court's decision.
Following discussion about the duty of care, the Supreme Court stated, "There is little question in this case that when [City] police took [the patient] into emergency protective custody, they assumed a duty to exercise reasonable care to prevent him from causing harm to others.[Citation omitted]. The questions presented in this appeal are when that duty ended and whether it was discharged sufficiently before it did.
The Supreme Court reiterated that as they have previously explained, the duty of a custodian to prevent a person in custody from causing harm to others is premised on the degree of control afforded to one who "'takes charge'" of another. [Citation omitted.]
As further explained by the Court, under the Nebraska Mental Health Commitment Act, a law enforcement officer who has probable cause to believe that a person is mentally ill and dangerous may take such person into emergency protective custody. The person taken into emergency protective custody "shall be admitted to an appropriate- and available medical facility," and the officer executes a written certificate alleging the officer's belief that the person in custody is mentally ill and dangerous and summarizing the behavior supporting such allegations. A copy of that certificate is immediately forwarded to the county attorney. The administrator of the medical facility then has the person evaluated by a mental health professional as soon as reasonably possible but not later than 36 hours after admission, and the person is released from emergency protective custody after the evaluation unless the mental health professional determines, in his or her clinical opinion, that the person is mentally ill and dangerous. A mental health professional reaching that conclusionŽ also completes a written certificate that is immediately forwarded to the county attorney. And if the county attorney elects to petition for involuntary commitment, the subject of the petition is held in the "nearest appropriate and available medical facility." [Citations omitted.]
The Supreme Court determined that the procedure was properly initiated by law enforcement in this case.
The Court found that there is no basis in the record for finding that the City was liable for the nurse's injuries. While the nurse's injuries are clearly substantial, her remedy is from her employer for workers' compensation or from the patient himself. The Supreme Court found the district court erred in concluding that the patient was in the City's custody at the time of the assault and that the City law enforcement acted unreasonably in transporting the patient to the hospital and permitting him to be admitted. The judgment of the district court is reversed, and the cause is remanded with directions to enter judgment in favor of the City.
Court of Appeals Decides Wrongful Termination Case
In Teetor v. Dawson Public Power District
, 19 Neb. App. 474, -- N.W.2d -- (2012), a terminated employee appealed an order of the district court granting summary judgment in favor of the employer in this action for wrongful termination of employment. On appeal, the terminated employee assigned numerous errors challenging the court's grant of summary judgment and its finding that there was no genuine issue of material fact concerning his employment status and concerning there being sufficient grounds for terminating his employment. The Supreme Court found no merit to the issues, and affirmed the lower court's decision.
The Court stated, "The general rule in Nebraska is that unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason. Under the public policy exception, however, an employee can claim damages for wrongful discharge when the motivation for the firing contravenes public policy."[Citation omitted.]
The terminated employee asserted a number of causes of action to support his claim that his employment was wrong fully terminated. They were based on his assertion that his employment was terminated:
* in retaliation for his filing a grievance against his supervisor (the Court concluded that while the terminated employee was able to show a proximity in time between his claim and discharge, he was unable to demonstrate any additional evidence which would support a finding that the termination was in retaliation),
* in retaliation for his filing a workers' compensation claim (the Court found that the terminated employee failed to satisfy his burden of establishing pretext and that he failed to point the Court to any evidence suggesting a causal connection between his filing of a claim and the employer's decision to terminate the employee),
* in exchange for the District employees' not forming a labor union (the Court did not find sufficient evidence in support of the terminated employee's claim that the termination was close in time to the employee vote rejecting the creation of a union),
* in contravention of the terms of an employee manual (the Court found that there was no evidence in the record creating any genuine issue of fact concerning whether the employee manual somehow altered the terminated employee's employment status or obligated the employer to impose progressive discipline prior to termination), and
* in contravention of a requirement of good faith and fair dealing (the Court found the employee manual specifically did not create an employment contract that altered the terminated employee's at-will employment status, and there was no evidence that any portion of the manual created a covenant of good faith and fair dealing). The Court commented, "Such a covenant is not implied in Nebraska relating to the termination of at-will employees." [Citations omitted.]
Additional causes of action included assertions that:
* there was interference with a business relationship (the Court cited Neb. Rev. Stat. § 13-902
and § 13-907
(7) and found no issue of material fact concerning the ability to bring suit against the employer and the terminated employee's supervisor for alleged interference with contractual rights), and
* the termination of his employment was in violation of federal law (the initial allegation pertained to a violation of the Employee Retirement Income Security Act of 1974; however, this issue was not challenged on appeal).
In summary, the Court of Appeals found no merit to the terminated employee's claims on appeal that the district court erred in granting summary judgment on these claims.