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Fales v. County of Stanton

Supreme Court of Nebraska

June 23, 2017

Dillon Fales, appellant and cross-appellee.
v.
County of Stanton, Nebraska. APPELLEE AND CROSS-APPELLANT.

         1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court must resolve independently of the trial court.

         2. 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.

         3. 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.

         4. 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 vehicular pursuit.

         5. 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.

         6. Police Officers and Sheriffs. Whether law enforcement sought to apprehend an individual is a mixed question of law and fact.

         [297 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.

         8. 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.

         Appeal from the District Court for Madison County: James G. Kube, Judge. Affirmed.

          Terry 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.

          CASSEL, J.

         INTRODUCTION

         During 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."[1]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.

         BACKGROUND

         Facts

         Dillon 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 passenger seat.

         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.

         As part 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 pickup.

         Irish 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 following them.

         As 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.

         Shortly 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.

         Near the Stanton County line, Petersen slowed and deactivated his emergency lights. It is unclear how far Petersen was behind the pickup at that time.

         As the 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.

         Pleadings

         Fales 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).

         The 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.

         After 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 ...


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