Dillon Fales, appellant and cross-appellee.
County of Stanton, Nebraska. APPELLEE AND CROSS-APPELLANT.
Statutes: Appeal and Error. Statutory interpretation is a
question of law, which an appellate court must resolve
independently of the trial court.
Political Subdivisions Tort Claims Act: Appeal and Error. In
actions brought under the Political Subdivisions Tort Claims
Act, an appellate court will not disturb the factual findings
of the trial court unless they are clearly wrong.
Political Subdivisions Tort Claims Act: Judgments: Appeal and
Error. In actions brought pursuant to the Political
Subdivisions Tort Claims Act, when determining the
sufficiency of the evidence to sustain the trial court's
judgment, it must be considered in the light most favorable
to the successful party; every controverted fact must be
resolved in favor of such party, and it is entitled to the
benefit of every inference that can reasonably be deduced
from the evidence.
Political Subdivisions Tort Claims Act: Police Officers and
Sheriffs: Motor Vehicles: Damages. Neb. Rev. Stat. §
13-911 (Reissue 2012) provides a remedy to an innocent third
party for damages caused by a law enforcement officer's
Political Subdivisions Tort Claims Act: Police Officers and
Sheriffs: Motor Vehicles: Words and Phrases. An
"innocent third party" under Neb. Rev. Stat. §
13-911 (Reissue 2012) is one who has not promoted, provoked,
or persuaded the driver to engage in flight from law
enforcement personnel and one who is not sought to be
apprehended in the fleeing vehicle.
Police Officers and Sheriffs. Whether law enforcement sought
to apprehend an individual is a mixed question of law and
Neb. 42] 7. Political Subdivisions Tort Claims Act: Police
Officers and Sheriffs: Motor Vehicles. If during a pursuit
under Neb. Rev. Stat. § 13-911 (Reissue 2012) a
passenger takes some action that makes him or her become a
person sought to be apprehended, the passenger does not
remain an innocent third party by virtue of the fact that law
enforcement began the pursuit to apprehend the driver only.
Appeal and Error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it.
from the District Court for Madison County: James G. Kube,
M. Anderson and Timothy J. O'Brien, of Hauptman,
O'Brien, Wolf & Lathrop, P.C., for appellant.
Vincent Valentino and Brandy R. Johnson for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
an alleged vehicular pursuit by law enforcement, an underage
passenger threw out beer containers to avoid being
apprehended with the evidence. After his vehicle crashed and
he was seriously injured, he sued the County of Stanton,
Nebraska (County), claiming to be an "innocent third
party."Following a trial, the district court
determined that when the passenger tossed the beer, he became
a subject of the pursuit, thereby disqualifying him as an
innocent third party. Because the court's factual
findings were not clearly erroneous and its conclusion
followed our case law, we affirm the judgment.
Fales and Bryant Irish-both minors-attended a party in a
trailer park and consumed beer while there. At [297 Neb. 43]
approximately 12:45 a.m. on February 9, 2014, they left the
party. Irish drove a pickup truck, and Fales sat in the
trailer park was located south of County Road 844 and just
east of where that road intersects Highway 35 in Stanton
County. A more direct route back to Norfolk, Nebraska, would
have been to turn west onto County Road 844 and then turn
onto Highway 35. But because Fales and Irish heard that law
enforcement officers were on the way, they took "back
roads." Irish therefore turned east out of the trailer
park onto County Road 844.
of his patrol, Stanton County Deputy Sheriff Michael Petersen
had parked his vehicle on the northeast corner of the trailer
park. He observed Irish's pickup "fishtail"
as it turned east onto County Road 844 and decided to follow
it. Petersen could not see how many people were inside the
proceeded east on County Road 844 and then turned south onto
County Road 560. Petersen followed. He observed the pickup
turn west onto County Road 842 without signaling its turn.
Fales testified that when they turned onto County Road 842,
they were able to confirm that a sheriff's vehicle was
Petersen turned onto County Road 842, he activated his
emergency lights in an attempt to initiate a traffic stop. He
intended to stop the vehicle for a turn signal violation and
possibly for speeding. Petersen "called in to
dispatch" at 12:54 a.m. When Fales and Irish saw the
emergency lights and realized the deputy was following them,
Irish asked Fales if they "should run for it or pull
over." Fales testified that he shrugged his shoulders
and replied, '"I don't know.'"
According to Fales, Irish then "[p]retty much
floored" the pickup.
after Irish accelerated, Fales threw an unopened 30-pack box
of beer out of the window. He did so because he was scared
that they would be pulled over by law enforcement, and he
"figured it was better if we didn't have any beer in
the [297 Neb. 44] vehicle." Petersen observed several
beer cans and a beer box on the road. A transcript of the
"radio traffic" shows that at 12:55 a.m., Petersen
reported "[b]eer box out, maybe two" and
"[t]hey are throwing out more Bud Light beverages."
Petersen considered this to be destruction of evidence and to
be a part of his apprehension. He formed the opinion that the
occupant or occupants in the pickup were minors.
the Stanton County line, Petersen slowed and deactivated his
emergency lights. It is unclear how far Petersen was behind
the pickup at that time.
pickup approached a sharp curve, it was traveling too fast
for the conditions and left the roadway. An accident
reconstructionist opined that the vehicle's minimum speed
at the time it began to brake was 86.74 miles per hour. At
12:57 a.m., Petersen radioed: "[T]hey just wrecked. They
are in the ditch." The pickup struck a concrete culvert.
As a result of the accident, Fales suffered a severe head
wound and paralysis from the chest down.
sued the County, alleging that he was an innocent third party
and that the County was strictly liable to him by operation
of § 13-911. Fales also alleged that the County was
negligent in its pursuit of the vehicle in violation of Neb.
Rev. Stat. § 60-6, 114(1) and (3) (Reissue 2010).
County filed an answer and an amended counterclaim for
declaratory judgment. The counterclaim alleged that §
13-911(1) and (5) were unconstitutional in violation of Neb.
Const, art. Ill. § 14. It claimed that the legislation
was "logrolled by amendment to a non-germane bill that
was already engrossed and read pursuant to Legislative
Rule." The County also asserted that § 13-911(1)
and (2) were unconstitutional because the strict liability
standard conflicted with or implicitly amended § 60-6,
114(1), (2), and (3), which imposed an ordinary negligence
standard on '"police vehicles'" during a
pursuit. The County requested, among other things, [297 Neb.
45] a declaration that 1981 Neb. Laws, L.B. 273, was facially
unconstitutional, null, and void.
the district court overruled a motion for summary judgment by
the County on its amended counterclaim for declaratory
judgment, the County filed an amended answer and second
amended counterclaim for declaratory judgment. The amended
answer alleged that the County was entitled to sovereign
immunity under Neb. Rev. Stat. § 13-910(1) (Reissue
2012). With respect to the County's amended counterclaim,
it alleged that § 13-911(1) and (5) were
unconstitutional, because their strict liability standard
"conflicts with and/or implicitly amends" the
ordinary negligence standard contained in Neb. Rev. Stat.
§§ 13-903(4) (Reissue 2012) and 13-910(1). It
further alleged that a ...