Anderson By and Through Anderson/Couvillon v. Nebraska Dept. of Social Services

• Decision Date: 20 October 1995
• Docket Number: No. S-94-547,S-94-547
• Citation: Anderson By and Through Anderson/Couvillon v. Nebraska Dept. of Social Services, 538 N.W.2d 732, 248 Neb. 651 (Neb. 1995)
• Parties: Bridgette A. ANDERSON and Candy S. Anderson, By and Through their mother, Cindy ANDERSON/COUVILLON, Appellee and Cross-Appellant, v. NEBRASKA DEPARTMENT OF SOCIAL SERVICES, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 732

538 N.W.2d 732

248 Neb. 651

Bridgette A. ANDERSON and Candy S. Anderson, By and Through their mother, Cindy ANDERSON/COUVILLON, Appellee and Cross-Appellant, v.NEBRASKA DEPARTMENT OF SOCIAL SERVICES, Appellant and Cross-Appellee.

No. S-94-547.

Supreme Court of Nebraska.

Oct. 20, 1995.

Syllabus by the Court

1.Summary Judgment.Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2.Judgments: Appeal and Error.On questions of law, an appellate court has an obligation to reach its own independent conclusions.

3.Appeal and Error.A claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party; an appellate court will not consider assignments of error which are not discussed in the brief.

4.Negligence: Proof.In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5.Negligence.The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

6. Negligence.Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.

7.Negligence: Words and Phrases.Duty in negligence cases may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.

8.Negligence.The risk reasonably to be perceived defines the duty to be obeyed.

9.Negligence: Proximate Cause: Words and Phrases.The proximate cause of an injury is that which, in a natural and continuous sequence, without any efficient intervening cause, produces the injury, and without which the injury would not have occurred.

10.Negligence: Proximate Cause: Proof.A plaintiff must establish three basic requirements in establishing proximate cause, namely, that (1) without the negligent action, the injury would not have occurred, commonly known as the "but for" rule; (2) the injury was a natural and probable result of the negligence; and (3) there was no efficient intervening cause.

11.Negligence: Words and Phrases.An efficient intervening cause is a new, independent force intervening between the defendant's negligent act and the plaintiff's injury by the negligence of a third person who had full control of the situation, whose negligence the defendant could not anticipate or contemplate, and whose negligence resulted directly in the plaintiff's injury.

12.Negligence: Liability.Once it is shown that a defendant had a duty to anticipate an intervening criminal act and guard against it, the criminal act cannot supersede the defendant's liability.

13.Damages: Words and Phrases.Hedonic damages are those damages awarded for loss of the enjoyment of life, as measured separately from the economic productive value that an injured person would have had.

14. Damages.Loss of the enjoyment of life is not a separate category of damages but is an element or component of pain and suffering and of disability.

15.Trial: Rules of Evidence: Expert Witnesses: Damages.Testimony concerning the value of loss of the enjoyment of life based on the "willingness to pay" approach is not admissible, as it neither is scientific nor provides assistance to the trier of fact, as contemplated by Neb.Evid.R. 702,Neb.Rev.Stat. § 27-702(Reissue 1989).

16.Trial: Rules of Evidence: Expert Witnesses.In determining whether an expert's testimony is admissible, a court considers four preliminary and interrelated questions: (1) whether the witness qualifies as an expert pursuant to Neb.Evid.R. 702,Neb.Rev.Stat. § 27-702(Reissue 1989);(2) whether the expert's testimony is relevant; (3) whether the expert's testimony assists the trier of fact to understand the evidence or determine a controverted factual issue; and (4) whether the expert's testimony, even though relevant and admissible, should be excluded under Neb.Evid.R. 403,Neb.Rev.Stat. § 27-403(Reissue 1989), because its probative value is substantially outweighed by the danger of unfair prejudice or other considerations.

17.Trial: Evidence: Appeal and Error.Ordinarily, the erroneous admission of evidence in a bench trial of a law action is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings; however, a reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence.

Don Stenberg, Attorney General, and Royce N. Harper, Lincoln, for appellant.

Steven D. Burns, of Burns & Associates, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

CAPORALE, Justice.

I.INTRODUCTION

This is a tort claims action brought under the provisions of Neb.Rev.Stat. § 81-8,209 et seq.(Reissue 1994) in which two minor girls, Bridgette A. Anderson and Candy S. Anderson, by and through their mother, the plaintiff-appellee, Cindy Anderson/Couvillon, allege that the defendant-appellant, Nebraska Department of Social Services, negligently placed the foster care of a minor boy in and with a friend of the mother and that as the proximate result, the boy sexually assaulted and damaged the girls.The district court entered partial summary judgment in favor of the girls on the issue of liability and upon trial awarded them damages as set forth in part IV(3) below.The department then appealed, and we, in order to regulate the caseloads of the two courts, on our own motion ordered the appeal transferred from the Nebraska Court of Appeals to this court.

As argued, the controlling errors assigned by the department may be summarized as claiming that the district court wrongly (1) found the department liable, as its conduct neither violated a duty it owed the girls nor proximately caused their injuries; (2) awarded hedonic damages as a separate and distinct category of damages; and (3) received and considered evidence concerning the computation of damages.The mother cross-appealed on behalf of the girls, assigning as error, in essence, the claimed inadequacy of the damages awarded.

For the reasons which follow, we affirm the partial summary judgment on the issue of liability, but reverse the award of damages and direct a new trial on that issue.Our rationale in so ruling makes consideration of the cross-appeal unnecessary.

II.SCOPES OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.Horace Mann Cos. v. Pinaire, 248 Neb. 640, 538 N.W.2d 168(1995);Poppleton v. Village Realty Co., 248 Neb. 353, 535 N.W.2d 400(1995).On questions of law, an appellate court has an obligation to reach its own independent conclusions.Kropf v. Kropf, 248 Neb. 614, 538 N.W.2d 496(1995);McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498(1995).

III.FACTS

The mother has three young daughters.Because her close friend, Terry Talle, and Talle's husband enjoyed children but had none of their own, the mother permitted her daughters to spend time at the Talle home, often without her supervision.

In the fall of 1988, Talle and her husband applied for a foster care license from the department.Talle attended all required training sessions, where she learned the department's rules and regulations.The training emphasized paperwork and financial matters but did not include discussion of proper discipline or control of older children, management of an older child's anger, or the relationship between one suffering physical and sexual abuse and becoming an abuser.The Talles' application ultimately was approved, and they accepted placement of two foster children for 2 months.

After those children left the Talle home, department caseworker Christy Johnson Strawder contacted Talle about the possibility of placing then 13-year-old Ronald Heinen with the Talles for foster care.The department knew, but did not disclose to Talle, that Heinen was an exceptionally troubled boy.There existed a well-documented history of self-mutilation; uncontrollable rage; emotional, physical, and sexual abuse; lying; stealing; and suicidal and homicidal ideations.Indeed, a memorandum prepared by the department's Child Protective Services supervisor, Karen Griffith, noted that Heinen had been admitted to the Sandhills Psychiatric Unit of Great Plains Medical Center because he had said that he was going to commit suicide after killing his biological mother's boyfriend.

Despite the foregoing, Strawder proceeded to seek a new foster home for Heinen.When Talle expressed interest, Strawder informed her only as to Heinen's age, that he used hearing aids, that he was then hospitalized for a tonsillectomy, and that he had participated in a sexual fetish therapy group because of his fetish with women's underwear.Talle was assured, however, that Heinen was not at risk of becoming a sexual offender.

A few days after talking with Strawder, Talle and the mother visited Heinen in the hospital.No one informed either Talle or the mother that in addition to the tonsillectomy, Heinen was also admitted because of his uncontrollable anger and...