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Maclovi-Sierra v. City of Omaha

Supreme Court of Nebraska

March 27, 2015

WALTER MACLOVI-SIERRA, APPELLANT,
v.
CITY OF OMAHA, NEBRASKA, APPELLEE

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[Copyrighted Material Omitted]

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Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.

Robert M. Knowles and Christina M. Knowles, of Knowles Law Firm, for appellant.

Thomas O. Mumgaard, Deputy Omaha City Attorney, for appellee.

WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., participating on briefs.

OPINION

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[290 Neb. 444] Stephan, J.

Walter Maclovi-Sierra brought this action against the City of Omaha under the Political Subdivisions Tort Claims Act (the Act),[1] seeking damages for injuries he sustained when he was struck by a stolen vehicle allegedly being pursued by Omaha police officers. Following a bench trial, the district court for Douglas County dismissed the action after finding that any pursuit had terminated prior to the accident and that the actions of the officers did not proximately cause the accident and resulting injuries. Maclovi-Sierra perfected this timely appeal, which we moved to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state.[2] The issues presented on appeal are primarily factual. Because we conclude that the factual findings of the district court are not clearly erroneous, we affirm its judgment.

I. BACKGROUND

This action was brought pursuant to a section of the Act which provides in part: " In case of death, injury, or property damage to any innocent third party proximately caused by the action of a law enforcement officer employed by a political subdivision during vehicular pursuit, damages shall be paid to such third party by the political subdivision employing the officer." [3] Maclovi-Sierra contends that at all relevant times, the stolen vehicle that struck him was being pursued by Omaha police officers.

1. Evidence

On January 14, 2011, at approximately 11:05 a.m., Maclovi-Sierra was standing on the south side of Q Street near the southbound entrance ramp to Highway 75 in Omaha, Nebraska. He was struck by a stolen vehicle operated by Gino Main and sustained permanent injuries.

[290 Neb. 445] Earlier that morning, Monica Anderson, an off-duty Sarpy County deputy sheriff, learned from her father that his blue Chevrolet Silverado pickup had been stolen from the driveway of his home near 28th and Washington Streets. At approximately 10 a.m., Anderson and her husband set out in their personal vehicle to try to find the stolen pickup.

They first drove around downtown Omaha and then went to South Omaha. At approximately 10:30 a.m., they spotted the pickup traveling southbound on 24th Street. Anderson called the 911 emergency dispatch service and told her husband, who was operating their vehicle, to follow the pickup. Anderson saw that the pickup was being driven by a man subsequently identified as Main. The pickup turned

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right on J Street and parked near a medical facility between 26th and 27th Streets. Anderson and her husband parked nearby, and she reported its location to the dispatcher. Over the next 5 to 10 minutes, Anderson observed Main sitting in the parked pickup while a passenger went in and out of the medical facility two or three times.

Anderson and her husband followed as the pickup left its parked location and proceeded west on J Street and then north on 27th Street. She testified that the pickup was traveling at a normal rate of speed at that time. As the northbound pickup approached the intersection of 27th and H Streets, Anderson saw an Omaha police cruiser driving south on 27th Street. The cruiser was operated by Omaha police officer Mark Cupak, who was alone in the cruiser.

While on patrol that morning, Cupak was dispatched to the area of 27th and J Streets where a stolen pickup had been spotted. Cupak proceeded south on 27th Street with his cruiser's flashing, rotating lights activated, but not his siren. Just before he reached the intersection of 27th and H Streets, Cupak saw the northbound pickup approaching his cruiser from approximately 1 to 11/2 blocks away. At that location, 27th Street was a two-lane street in a primarily residential area with a speed limit of 25 miles per hour. When Cupak first observed the stolen pickup, it was being operated at a normal rate of speed, and if the pickup had not been reported stolen, it would not have drawn Cupak's attention.

[290 Neb. 446] Cupak attempted to stop the pickup at the intersection of 27th and H Streets by turning his southbound cruiser into the northbound lane of 27th Street and stopping with his cruiser's lights activated. Cupak remained inside his cruiser, and he drew his sidearm and pointed it at the approaching northbound pickup, hoping to block the pickup from proceeding north. But, in Cupak's words, the pickup " just went into the southbound lane, and . . . just nonchalantly just drove around my cruiser and kept going northbound" toward F Street. Cupak explained that the pickup " didn't accelerate, didn't go up over the curb to get around me. It was just -- he just maintained his speed, and it was just like a Sunday drive, just drifted around me and continued north."

At that point, Cupak told his dispatcher what had occurred, put away his sidearm, and turned his cruiser around. This took several seconds. He then proceeded northbound on 27th Street with his cruiser's lights flashing but did not activate his siren. At that point, he could not see the pickup. Cupak testified that he accelerated to between 35 and 40 miles per hour in an effort to catch up to the pickup, but never did. He explained that to " catch up" to a vehicle is different than to chase or pursue it in that there is no intent to stop the vehicle. He did not advise his dispatcher that he was in pursuit of the pickup.

As Cupak approached the intersection of 27th and F Streets, he saw another police cruiser westbound on F Street with its lights activated, so he assumed the stolen pickup had turned onto F Street. When he heard a radio report that the pickup had struck another vehicle at the Highway 75 ramp on F Street and left the scene, Cupak proceeded to that location and completed an accident report. In his report, Cupak described the stolen pickup as " fleeing an attempted traffic stop."

Anderson gave a somewhat different account of Cupak's encounter with the stolen pickup. She testified that when the northbound pickup approached Cupak's southbound cruiser near the intersection of 27th and H Streets, the driver of the pickup

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" gunned it" and " accelerated to a high rate of speed," which she estimated to be at 45 miles per hour. She said that [290 Neb. 447] Cupak turned his cruiser around and followed the pickup at the same speed with its lights flashing. Anderson saw the pickup proceed north on 27th Street and then turn west on F Street, with two other police cruisers following.

Anderson and her husband drove to a point on 28th Street where they could observe traffic on Highway 75. From there, Anderson saw the pickup enter the southbound lanes of Highway 75 at a speed which she estimated to be 70 miles per hour, followed by two police cruisers with their lights activated traveling at the same speed. She lost sight of the vehicles as they approached J Street. Anderson told the police dispatcher that the cruisers were " 'in pursuit'" of the pickup. Anderson and her husband then proceeded to the Q Street overpass on Highway 75, where they saw that the pickup had crashed.

The two cruisers which Anderson saw following the pickup on F Street were operated by Omaha police officer Makayla Stiles and Omaha police sergeant Timothy Brown, with Brown in the lead cruiser. Both were at a police assembly area approximately one-half mile from 27th and F Streets when they heard a police dispatch concerning a stolen vehicle at that location. Each proceeded to that intersection, traveling east on F Street. Brown arrived first, and Stiles arrived a few seconds later. As she approached the intersection, Stiles saw Brown's cruiser stopped at the intersection, facing west on F Street. Stiles then saw the stolen pickup turn left from 27th Street onto F Street in front of Brown's cruiser. Brown followed the pickup, and Stiles followed Brown. Both officers had activated the flashing lights on their cruisers, and both activated their sirens after several blocks.

Stiles' cruiser was equipped with a system which made a video and audio recording of events beginning at 11:02:46 a.m. when the pickup turned left onto F Street and proceeded west in front of Brown's westbound cruiser. The recording, which was received in evidence, depicts the subsequent events from Stiles' perspective as she followed Brown's cruiser and eventually came upon the scene of the accident on Q Street at the top of the Highway 75 southbound exit ramp. The recording shows an elapsed time of 1 minute 45 seconds from ...


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