Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McKinney v. Okoye

Supreme Court of Nebraska

January 31, 2014

Carla McKinney, Appellant,
Matthias I. Okoye and Nebraska Forensic Medical Services, P.C., Appellees.

Page 582

[Copyrighted Material Omitted]

Page 583

[Copyrighted Material Omitted]

Page 584

[Copyrighted Material Omitted]

Page 585

Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.


George H. Moyer, Madison, of Moyer & Moyer, for appellant.

James A. Snowden, Lincoln, and Nathan D. Anderson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.

Wright, Connolly, McCormack, and Miller-Lerman, JJ., and Pirtle, Judge.


1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Actions: Proof. In a malicious prosecution case, the conjunctive elements for the plaintiff to establish are (1) the commencement or prosecution of the proceeding against the plaintiff, (2) its legal causation by the present defendant, (3) its bona fide termination in favor of the plaintiff, (4) the absence of probable cause for such proceeding, (5) the presence of malice therein, and (6) damages.

3. Actions: Public Officers and Employees: Liability. A person who supplies information to prosecuting authorities is not liable for the prosecutors' action so long as any ensuing prosecution is left entirely to the officials' discretion.

4. Actions: Public Officers and Employees. A prosecution is not considered the result of the prosecuting authorities' independent discretion if the informant either (1) directs or counsels officials in such a way so as to actively persuade [287 Neb. 262] and induce the officers' decision or (2) knows that the information provided is false or misleading.

5. Actions: Public Officers and Employees. A person who knowingly provides false or misleading information to a public officer may be liable for malicious prosecution even if that person brought no pressure to bear on the public officer and left the decision to prosecute entirely in the hands of that public officer.

6. Negligence: Expert Witnesses: Testimony: Intent. Expert testimony may establish a professional's conduct was so far a field of accepted professional standards or so divergent from the conduct of any minimally competent professional that it is reasonable to infer a knowing or intentional state of mind.

7. Intent: Proof. State of mind is difficult to prove, and rarely will the plaintiff be able to provide a " smoking gun."

8. Summary Judgment: Intent. Cases where the underlying issue is one of motive or intent are particularly inappropriate for summary judgment.

Page 586

9. Actions: Intent: Proof. Legal causation in a malicious prosecution action is demonstrated when but for the false or misleading information, the decision to prosecute would not have been made.

10. Probable Cause: Proof. If there is insufficient undisputed evidence to show probable cause as a matter of law, the question of probable cause is a mixed question of fact and law.

11. Actions: Probable Cause. The element of probable cause in a malicious prosecution action is evaluated from the perspective of the defendant in the action who is allegedly legally responsible to the plaintiff for the prosecution, not from the perspective of the nonparty prosecuting officials.

12. Criminal Law: Probable Cause. The question of probable cause is whether a person in the defendant's position had reasonable grounds to suspect, based on the facts known or reasonably believed by the defendant at the time, that the crime prosecuted had been committed.

13. Probable Cause. Probable cause does not depend upon mere belief, however sincerely entertained; because if that were so, any citizen would be liable to arrest and imprisonment, without redress, whenever any person, prompted by malice, saw fit to swear that he believed the accused was guilty of the offense charged.

14. Criminal Law: Probable Cause. No probable cause exists if a defendant knew that the facts stated to prosecuting authorities supporting the suspicions of a crime were false or misleading.

15. Intent: Words and Phrases. Malice does not refer to mean or evil intent, as a layman might ordinarily think.

16. Intent. The lack of any personal ill will does not necessarily negate the existence of malice.

17. Actions: Intent: Words and Phrases. Malice, in the context of a malicious prosecution action, is any purpose other than that of bringing an offender to justice.

18. Public Officers and Employees: Evidence. Knowingly providing false or misleading information to prosecuting authorities may support the inference of malice.

McCormack, J.

[287 Neb. 263] NATURE OF CASE

A daycare provider brought a malicious prosecution action against the pathologist whose autopsy report was used to charge her with felony child abuse resulting in death. The charge was eventually dropped after two forensic pathologists retained by the daycare provider concluded the cause of death of the infant under her care was sudden infant death syndrome (SIDS). The district court granted summary judgment in favor of the pathologist on the malicious prosecution claim. We must determine whether the inference that the pathologist knowingly provided false or misleading information to law enforcement can reasonably be drawn from expert testimony that the pathologist's autopsy report was false and was " shockingly" unscientific.

Page 587


Carla McKinney had been providing licensed daycare out of her home for almost 21 years without incident. In 2007, McKinney started caring for a 6-week-old infant boy. Two ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.