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Phillips v. Liberty Mutual Ins. Co.

Supreme Court of Nebraska

March 25, 2016

JOAN C. PHILLIPS, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE, AND DOUGLAS COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, AND TIMOTHY DUNN ING, SHERIFF OF DOUGLAS COUNTY, NEBRASKA, THIRD-PARTY DEFENDANTS, APPELLEES

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[Copyrighted Material Omitted]

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Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge.

Raymond K. Wilson, Jr., Ronald E. Frank, and Mary M. Schott, of Sodoro, Daly, Shomaker & Selde, P.C., L.L.O., for appellant.

Sandra Connolly, Deputy Douglas County Attorney, for appellees Douglas County and Timothy Dunning.

HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, AND STACY, JJ. CONNOLLY, J., not participating.

OPINION

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[293 Neb. 125] Miller-Lerman, J.

NATURE OF CASE

On April 1, 2010, Joan C. Phillips, the appellant, was injured when she was a bystander while two deputies of the Douglas County Sheriff's Department were in the process of taking a minor student into custody. On June 13, 2011, Phillips filed her complaint in the district court for Douglas County against Douglas County (the County) and Timothy Dunning, the elected sheriff of the County, the appellees. Phillips alleged that she was injured as a result of the deputies' negligence and sought damages. On March 25, 2013, the district court filed an order in which it granted the motion for summary judgment in favor of the County and Dunning. Following

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resolution of several procedural challenges, the district court again granted summary judgment in favor of the County and Dunning on April 2, 2015. Phillips appeals. Although our reasoning differs from that of the district court, we affirm.

STATEMENT OF FACTS

The underlying facts in this case are generally not in dispute. Phillips is a resident of Omaha, Nebraska, in the County. The County is a political subdivision of Nebraska. Dunning, at all relevant times, was the elected sheriff of the County.

Phillips was employed at an alternative education center in Omaha. On April 1, 2010, deputies from the Douglas County Sheriff's Department arrived at the education center for the purposes of taking one of the minor students into custody. They had a warrant. As explained in our analysis, the parties and the district court treated the matter as effectuating an arrest, as do we.

Before arriving, the deputies had spoken to Phillips, who requested that they utilize the back door of the building so as not to disrupt the classroom. When the deputies arrived, Phillips led the student to the back door of the building. When Phillips and the student stepped out of the building, the student saw the deputies and ran back inside the building. The deputies ran after the student. While the deputies were in the process [293 Neb. 126] of chasing after the student, the deputies knocked Phillips into a wall and to the ground. A deputy grabbed the student as the student held onto the doorknob to a classroom. The deputies removed the student's hands from the doorknob, placed her on the ground, and placed handcuffs on her.

On June 13, 2011, Phillips filed her complaint against the County and Dunning, alleging that the deputies were negligent when they knocked her into a wall and to the ground while in the process of taking the student into custody. Phillips alleged that as a result of this incident, she sustained personal injuries which resulted in physical and mental pain and suffering and that she had incurred medical expenses and lost wages. Phillips alleged in her complaint that she had made a claim pursuant to the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), and that the claim had been withdrawn pursuant to the PSTCA.

Apart from this lawsuit, Phillips had received workers' compensation benefits as a result of this incident. In her complaint, Phillips listed Liberty Mutual Insurance Company (Liberty Mutual) as a defendant. Liberty Mutual was Phillips' employer's workers' compensation insurer. Liberty Mutual was later realigned as a third-party plaintiff, and it is not appearing in this appeal.

The County and Dunning filed an answer on July 14, 2011, in which they generally denied the allegations contained in Phillips' complaint and denied liability. The County and Dunning also raised various affirmative defenses, including: The deputies " acted reasonably and with due care," Phillips' claim was barred by § 13-910 of the PSTCA, and Phillips failed to state a claim.

On January 12, 2012, the County and Dunning filed a motion for judgment on the pleadings, which the district court overruled on February 10.

On April 23, 2012, the County and Dunning filed a motion for leave to amend their answer, which the district court granted [293 Neb. 127] on May 7. The County and Dunning amended their answer to add the affirmative defense of contributory negligence.

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On November 26, 2012, the County and Dunning filed a motion for summary judgment and sought a dismissal of Phillips' complaint. The County and Dunning alleged that there are no genuine issues of material fact in this case and that they are entitled to judgment as a matter of law. On March 25, 2013, the district court filed its order in which it granted summary judgment in favor of the County and Dunning based upon its determination that Phillips' claim was derived from a battery on the student and was therefore barred by § 13-910(7) of the PSTCA, which bars suits based on intentional torts.

On April 25, 2013, Phillips appealed from the March 25 order. This appeal was docketed in the Court of Appeals as case No. A-13-366. On July 17, the Court of Appeals dismissed Phillips' appeal, because the March 25 order did not explicitly dispose of the claim against Liberty Mutual, citing Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) and Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 ...


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