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Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel 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.
Courts Consider Tort Claim Cases
Police Pursuit Case
In Williams v. City of Omaha, 291 Neb. 403, --- N.W.2d --- (2015), after a bench trial, the City appealed from a money judgment for injuries sustained by an innocent third party in a motor vehicle collision involving a vehicle allegedly being pursued by police officers. The City contended that the pursuit statute (Neb. Rev. Stat. § 13-911) did not apply because the officers intended only to stop the vehicle and not to "apprehend" the driver. The Supreme Court found because the district court's factual findings were not clearly erroneous and supported its conclusion that the police began a pursuit prior to the collision. Furthermore, the lower court's judgment was affirmed.
The Supreme Court began its analysis by examining provisions of the Political Subdivisions Tort Claims Act (PSTCA) pertaining to § 13-911, the pursuit statute. The statute provides that when an innocent third party suffers injury proximately caused by the action of a law enforcement officer during vehicular pursuit, the political subdivision employing the officer shall be liable for damages to the innocent third party. "Vehicular pursuit" is defined as:
an active attempt by a law enforcement officer operating a motor vehicle to apprehend one or more occupants of another motor vehicle, when the driver of the fleeing vehicle is or should be aware of such attempt and is resisting apprehension by maintaining or increasing his or her speed, ignoring the officer, or attempting to elude the officer while driving at speeds in excess of those reasonable and proper under the conditions.
The Court stated, "A police pursuit as defined in § 13-911 involves multiple elements and is a much more nuanced matter than simply deciding whether one vehicle is trying to catch up to, or maintain sight of, another." Three requirements must be met before a finding can be made that a vehicular pursuit under § 13-911 has occurred:
(1) There must be an active attempt by a law enforcement officer to apprehend occupants of another motor vehicle,
(2) The driver of the fleeing vehicle must be aware of the attempt to apprehend, and
(3) The driver must resist apprehension by taking some action, such as speeding, ignoring the officer, or attempting to elude the officer while driving at a speed which is not reasonable under the conditions.
The Court then considered each of these requirements. With respect to an active attempt to apprehend, It was found that the first component was established for a vehicular pursuit, in part because the officers activated the cruiser's overhead lights and the cruiser was increasing its speed. Next, the Court considered whether the driver was aware of the attempt to apprehend. Giving the benefit of this inference to the innocent third party with the fleeing car, the Court found the evidence supported the district court's conclusion where the driver of the fleeing vehicle increased his speed and "ran a stop sign". Lastly, the Court examined the resistance of apprehension by the driver of the fleeing car. There was no dispute that the driver resisted apprehension.
Final analysis by the Court was whether the pursuit was the proximate cause of the collision. The Court stated, "For the pursuit under § 13-911 to have been a proximate cause of the accident, the pursuit must have caused the motorist to resist apprehension by maintaining or increasing speed, or by attempting to elude the pursuing officer at unreasonable speeds." The City's basis for argument was that the pursuit was not the proximate cause of the collision based on the premise that there was no vehicular pursuit before the collision. However, the Court rejected that argument.
The full text of the case can be found here.
Political Subdivisions Tort Claims Act Case
In Kimminau v. City of Hastings, 291 Neb. 133, --- N.W.2d --- (2015), the appellant and her husband brought suit as the result of a motor vehicle accident in a rural area of the county. They alleged that the appellant lost control of her vehicle due to corn mash which had spilled from a truck onto the highway the previous day. The action was brought against the driver of the truck, and the truck driver's employer. Also, named as defendants, pursuant to the Political Subdivisions Tort Claims Act (PSTCA), were the City of Hastings, Hastings Rural Fire District, and the County. The district court for Adams County entered summary judgment in favor of all named defendants.
The appellants perfected a timely appeal, and the Supreme Court granted a petition to bypass. The Court reversed the judgment of the district court in favor of the political subdivisions and affirmed the judgment in favor of the driver and his employer.
The sole issue on appeal with respect to the three political subdivisions was whether they were immune from suit under the doctrine of sovereign immunity. The PSTCA provides limited waivers of sovereign immunity which are subject to statutory exceptions. One of those exceptions, section 13-910(12), provides in part that the PSTCA does not apply to the following:
Any claim arising out of the alleged insufficiency or want of repair of any highway as defined in such section, bridge, or other public thoroughfare. Insufficiency or want of repair shall be construed to refer to the general or overall condition and shall not refer to a spot or localized defect. A political subdivision shall be deemed to waive its immunity for a claim due to a spot or localized defect only if (a) the political subdivision has had actual or constructive notice of the defect within a reasonable time to allow repair prior to the incident giving rise to the claim . . . .
The Court had not previously construed the phrase "spot or localized defect" as it is used in this statute. Generally, a "defect" is defined as "[a]n imperfection or shortcoming, especially in a part that is essential to the operation or safety of a product." "Spot" is defined as "a small area visibly different . . . from the surrounding area." "Localize" is defined as "to accumulate in or be restricted to a specific or limited area."
Section 13-910(12) immunizes political subdivisions from liability claims relating to spot or localized defects in highways, bridges, or other public thoroughfares unless and until they have notice of the defect and a reasonable time to repair it. When the requisite notice exists, sovereign immunity is waived. The Court did not read § 13-910(12) as providing immunity to a political subdivision with respect to a claim alleging that it took inadequate measures to repair a spot or localized defect of which it had notice.
The Court was also not persuaded by the county's argument that section 13-910(2) provides an alternative source of immunity. Section 13-910(2) provides that the PTSCA does not apply to "[a]ny claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision, whether or not the discretion is abused." The Court stated, [The} "purpose of the discretionary function exception is to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Further, the Court stated, "The discretionary function exception extends only to basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. The exception does not extend to the exercise of discretionary acts at an operational level."
The Court concluded that the corn mash spill was a singular spot or localized defect on the boulevard which was still in existence at the time of the appellant's accident on the following day. All three political subdivisions had actual notice of the defect within a sufficient time to allow repair, and their sovereign immunity was therefore waived pursuant to § 13-910(12). Additionally, the Court concluded the district court erred in granting summary judgment to the political subdivisions on the basis of sovereign immunity. It was emphasized that this disposition focused solely on the issue of sovereign immunity. The full text of the case can be seen here.
Case Under the State Tort Claims Act
In D.M. v. State, 23 Neb. App. 17, --- N.W.2d --- (2015), a former inmate at the Omaha Correctional Center (OCC), filed a complaint against the State of Nebraska and the Nebraska Department of Correctional Services (DCS) and against the director of the DCS; John Doe #1 (Doe), an investigator for the DCS; a unit manager at the OCC; and a prison guard at the OCC, all in their individual and official capacities. The former inmate alleged that he was sexually assaulted by a prison guard while he was incarcerated at the OCC and that when the sexual assault was reported, he was placed in disciplinary segregation for over 30 days. The complaint contained several tort and constitutional violation claims against the above-named defendants; pursuant to a motion to dismiss filed by the State, the District Court dismissed the prior inmate's entire complaint with prejudice, concluding that all of his claims were barred by sovereign immunity. The Court of Appeals affirmed in part, and in part reversed and remanded for further proceedings.
The Court of Appeals began by reviewing the general principles of sovereign immunity upon which the district court relied to dismiss all claims against all the defendants. "The immunity of states from suit is a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the Constitution and which they retain today. A suit against a state agency is a suit against the State and is subject to sovereign immunity. A suit generally may not be maintained directly against an agency or department of the State, unless the State has waived its sovereign immunity. Statutes authorizing suits against the State are to be strictly construed because such statutes are in derogation of the State's sovereign immunity. Waiver of sovereign immunity will be found only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction."
Further the Court of Appeals stated, "Sovereign immunity has potential applicability to suits brought against state officials in their official capacities. Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. In an action for the recovery of money, the State is the real party in interest because a judgment against a public servant in his official capacity imposes liability on the entity that he represents. Unless waived, sovereign immunity bars a claim for money even if the plaintiff has named individual state officials as nominal defendants."
The State Tort Claims Act (STCA) waives the State's sovereign immunity with respect to certain, but not all, types of tort actions.
"In the absence of a waiver, sovereign immunity bars all suits against the State and state agencies, regardless of the relief sought. Sovereign immunity also has potential applicability to suits brought against state officials in their official capacities; official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. In an action for the recovery of money, the State is the real party in interest because a judgment against a public servant in his official capacity imposes liability on the entity that he represents. Unless waived, sovereign immunity bars a claim for money even if the plaintiff has named individual state officials as nominal defendants. Further, although a state employee or officer may be allegedly sued individually, if he or she is acting within the scope of employment or office, the STCA still applies and provides immunity, unless such has been waived."
The Court of Appeals found the complaint filed to contain tort claims against the Director of DCS, an investigator for DCS, and a unit manager at the OCC in both their official and individual capacities. However, while the former inmate purports to have brought his tort claims against those individuals in their individual capacities, in looking at his complaint, it is clear that his tort allegations on the part of the aforementioned in this paragraph individuals occurred while they were acting within the scope of their employment with the DCS, and therefore, the tort claims against those defendants all fall within the STCA.
The State's sovereign immunity is not waived with respect to the types of claims listed in § 81-8,219. For example, included among the claims for which sovereign immunity is not waived in subsection (4) are claims "arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." As stated by the Court of Appeals, this subsection is commonly referred to as the "intentional tort exception." After analyzing the various claims, the Court of Appeals affirmed the district court's dismissal of the tort claims for negligent hiring/supervising, failure to protect, and respondeat superior against the State and the DCS; the Director of DCS, an investigator for DCS, and a unit manager at the OCC, in both their individual and official capacities; and a prison guard, in his official capacity, on the basis that such claims arose out of his sexual assault and were therefore barred by sovereign immunity. See § 81-8,219(4).
However, the Court of Appeals concluded that the district court erred in dismissing the former inmate's claim against the prison guard in his individual capacity for intentional infliction of emotional distress. Finally, it concluded that the former inmate's tort claims for intentional and negligent infliction of emotional distress were based on separate wrongful conduct subsequent to his report, which conduct did not arise out of the prison guard's sexual assault within the meaning of § 81-8,219(4), and that the district court therefore erred in dismissing those two claims against the above defendants on that basis.
The former inmate's complaint contained three constitutional claims for which he sought monetary damages under 42 U.S.C. § 1983 and section 20-148: 1st Amendment retaliation, 5th and 14th Amendment equal protection and due process, and 8th Amendment cruel and unusual punishment. The Court of Appeals concluded that all of his constitutional claims were barred by sovereign immunity against the State, the DCS, and the named individuals in their official capacities.
The district court had dismissed all of the former inmate's constitutional claims under 42 U.S.C. § 1983 against the named individuals-DCS Director, an investigator for DCS, a unit manager at OCC and a prison guard at the OCC-in their individual capacities on the basis that such claims were barred by sovereign immunity. However, as stated by the Court of Appeals, "[S]overeign immunity does not apply when state officials are sued in their individual capacities-that is, when a suit seeks to hold state officials personally liable. This is true even when state officials are sued in their individual capacities for acts taken within the scope of their duties and authority as state officials. Personal-capacity suits seek to impose individual liability upon a government officer for actions taken under color of state law. As such, the district court erred when it dismissed [the former inmate's] constitutional claims against the named defendants in their individual capacities on the basis of sovereign immunity."
As to the constitutional claims, the Court of Appeals affirmed the dismissal of the former inmate's constitutional claims against the State, the DCS, and the named individuals in their official capacities, and against the Director of DCS in both his official and individual capacity. However, the Court of Appeals reversed, and remanded for further proceedings the former inmate's remaining constitutional claims against a unit manager at OCC, a prison guard at OCC and an investigator for DOC in their individual capacities. (Citations omitted throughout the case summary). The full text of the case can be seen here.
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