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Reiber v. County of Gage

Supreme Court of Nebraska

June 7, 2019

Rhonda Reiber, Special Administrator of the Estate of Chad Gesin, deceased, appellant.
v.
County of Gage, Nebraska, and Millard Gustafson, Gage County Sheriff, appellees.

         1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the factual findings of a trial court will not be disturbed on appeal unless they are clearly wrong.

         2. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, the appellate court does not reweigh the evidence, but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

         3. Statutes. Statutory interpretation presents a question of law.

         4. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews for abuse of discretion a trial court's decision whether to admit or exclude an expert's testimony.

         5. Rules of Evidence: Expert Witnesses. In a bench trial, an expert's testimony will be admitted under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), and given the weight to which it is entitled.

         6. Negligence: Evidence. While the existence of a duty and the identification of the applicable standard of care are questions of law, the ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact.

         7. Negligence: Expert Witnesses. When the conduct in question involves specialized knowledge, skill, or training, expert testimony may be helpful or even necessary to a determination of what the standard of care requires under particular circumstances.

         [303 Neb. 326] 8. Trial: Expert Witnesses. The determination of the weight that should be given expert testimony is uniquely the province of the fact finder.

         9. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political Subdivisions Tort Claims Act reflects a limited waiver of governmental immunity and prescribes the exclusive procedure for maintenance of a tort claim against a political subdivision or its officers, agents, or employees.

         10. Political Subdivisions Tort Claims Act: Immunity: Negligence. The Political Subdivisions Tort Claims Act eliminates, in part, the traditional immunity of political subdivisions for the negligent acts of their employees.

         11. Actions: Dismissal and Nonsuit: Immunity. A suit that is barred by sovereign immunity is dismissed for lack of subject matter jurisdiction.

         12. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.

         13. Political Subdivisions Tort Claims Act: Immunity: Waiver: Appeal and Error. In order to strictly construe the Political Subdivisions Tort Claims Act against a waiver of sovereign immunity, an appellate broadly reads exemptions from a waiver of sovereign immunity.

          Appeal from the District Court for Gage County: Julie D. Smith, Judge.

          Lyle J. Koenig, of Koenig Law Firm, for appellant.

          Brandy R. Johnson, of Governmental Law, L.L.C., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FUNKE, J.

         Chad Gesin committed suicide while in the Gage County jail. Gesin's mother Rhonda Reiber, the special administrator of Gesin's estate, brought this negligence action against the County of Gage, Nebraska, the Gage County sheriff, and unknown Gage County sheriff's employees under the Nebraska Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012). Reiber alleged that the defendants failed to follow the jail's established protocol [303 Neb. 327] and knew, or in the exercise of reasonable care should have known, that Gesin was suicidal. Following a bench trial solely on the issue of liability, the district court found that the defendants had exercised due care and that Reiber's action was barred by sovereign immunity under § 13-910(1). Reiber appeals from that judgment. We agree with the findings of the district court. Accordingly, we affirm.

         BACKGROUND

         Arrest

         On July 4, 2013, at 4:30 p.m., Gesin was arrested by Nebraska State Patrol Investigator Neal Trantham in downtown Beatrice, Nebraska, after Trantham observed Gesin making "punching-type motions" toward occupants of a mini-van. Trantham testified that Gesin was initially noncompliant. Trantham drew his baton, verbally commanded Gesin to get on the ground, and placed Gesin in handcuffs. Trantham smelled alcohol on Gesin and described him as upset, angry, and agitated. Trantham called for backup, and Officer Shane Maloley of the Beatrice Police Department arrived on the scene.

         While at the scene, Maloley told Trantham about a previous contact Maloley had had with Gesin. Maloley stated that in September 2011, he arrested Gesin, and that during that arrest, Gesin was heavily intoxicated with a blood alcohol content of 0.214. Gesin stabbed himself with a knife numerous times in the chest and while in police custody told Maloley that he wanted to die. Maloley determined that Gesin was an immediate danger to himself or others and placed him in emergency protective custody (EPC). Gesin was transported to the hospital and released 3 days later.

         Gesin's girlfriend told Trantham that Gesin had assaulted her earlier in the day and had sent her a text message which she thought might be threatening suicide. Trantham asked her go to the Beatrice Police Department where he could later conduct a more indepth interview with her. Trantham then transported Gesin to the Gage County jail.

         [303 Neb. 328] Booking

         At 5:13 p.m., Trantham and Maloley arrived at the jail facility with Gesin. The correctional officers on duty at that time were Christina Lock and Trevor Rue. Trantham told Rue that Gesin was "amped up," which Trantham testified meant to be careful because Gesin might be "likely to fight." Trantham also relayed Maloley's comments that Gesin had stabbed himself during a prior incident.

         In accordance with jail policy and procedures, Trantham completed a custody authorization form. One of the questions listed on the form was, "Has this arrestee demonstrated any behaviors that might suggest suicidal tendencies? If yes, what?" Trantham wrote, "Possibly - text message earlier threatening." At that time, Trantham had not actually read the text message. He testified that this written comment referred to "the vague statement that [Gesin's girlfriend] had made to me at the scene." Trantham testified that at the time of booking, based upon his observations and experience, he did not believe that Gesin was at risk to commit suicide, but was merely angry and frustrated about being arrested.

         Trantham later read the text message while at the Beatrice Police Department. The message read, "[R]emember what I said kill you for myself." After reading the message, Trantham did not think that the message was a suicidal comment. Trantham testified there was another message that stated, "It's a good thing you can't see what I'm about to do." Trantham described the message as "very vague and open ended" and said that he "absolutely did not think [Gesin] was suicidal."

         During the booking process, Trantham did not verbally express a concern to the jail staff that Gesin might be suicidal. The custody authorization form posed the question, "Has there been any indication that the arrestee is acting so negatively toward [his or her] charge(s) that [he or she] might engage in self-harming behavior? If yes, what have you observed?" Trantham wrote, "Not observed." He also wrote that he had [303 Neb. 329] not observed Gesin to have displayed any behaviors that would indicate mental illness.

         Gesin's booking process lasted approximately 1 hour and was recorded by the jail's stationary surveillance camera which captured video and audio. The following exchange was recorded and played at trial:

[Trantham:] How do you spell your last name, Chad?
[Gesin:] Figure it out, you're an investigator, investigate.
[Maloley:] G-E-S-I-N, I've arrested him before.
[Gesin:] On a domestic, right?
[Maloley:] Terroristic threats.
[Gesin:] Terroristic threats, stabbed myself nine fucking times in the fucking chest . . . yeah, shit happens . . . and I didn't go to jail then, did I?
[Maloley:] I EPCed you.
[Gesin:] I was out in three fucking days.
[Maloley:] Good, I'm glad you got better.
[Gesin:] And I beat the charges too, yeah.
[Maloley:] That's good, I heard that, I believe your mom went in and signed a release of prosecution, didn't she?
[Gesin:] I believe she didn't, she says she didn't, she didn't do shit.

         Trantham characterized this exchange as Gesin's "bragging about the charges that were dismissed and that he didn't face any consequences for that arrest." Trantham left the jail shortly thereafter.

         Maloley testified that Gesin was angry and agitated with Trantham. Maloley did not think an EPC was necessary, because Gesin did not seem suicidal and, unlike the 2011 incident, Gesin had not made a specific threat to end his life. Maloley testified that he would not have anticipated what Gesin later would do and that he would have said something if he thought Gesin was a suicide risk. Prior to leaving the jail facility, Maloley asked Gesin if he could leave without Gesin's giving the jail staff any trouble. Gesin replied, "I [303 Neb. 330] gotta live with these fuckers, you think I'm gonna give them hell?" Maloley testified that based on Gesin's comments, he was reassured that Gesin had calmed down and did not have any concerns about Gesin's safety. Lock testified ...


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