Bohl v. Buffalo County
| Decision Date | 17 January 1997 |
| Docket Number | No. S-94-1199,S-94-1199 |
| Citation | 557 N.W.2d 668,251 Neb. 492 |
| Parties | Lynda E. BOHL, Appellant, v. BUFFALO COUNTY, Nebraska, a political subdivision, and David R. Butler, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only questions of law are presented. In making such motion, the moving party admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn from such facts. The moving party also admits the untruth of his own allegations insofar as they have been controverted.
2. Summary Judgment: Appeal and Error. 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. A reviewing court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from submitted evidence.
3. Political Subdivisions Tort Claims Act. A plaintiff pursuing an action against a political subdivision must satisfy all the requirements which are set out in Neb.Rev.Stat. § 13-919(1) (Reissue 1991).
4. Equity: Estoppel. Six elements must be satisfied for the doctrine of equitable estoppel to apply: (1) conduct which amounts to a false representation or concealment of material facts or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; (3) knowledge, actual or constructive, of the real facts; (4) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel.
John H. Marsh, of Knapp, Fangmeyer, Aschwege & Besse, Kearney, and James L. Bush, of Windscheffel & Bush, Smith Center, KS, for appellant.
Richard L. Boucher and, on brief, Tamra L. Walz, of Boucher Law Firm, Lincoln, for appellees.
On August 17, 1991, David R. Butler, a deputy sheriff for Buffalo County, accompanied by his 4-year-old son, was driving to Grand Island in Hall County to testify on August 19 concerning a matter which had arisen during Butler's prior employment with Hall County. While driving through Kearney, Nebraska, the vehicle Butler was operating collided with a vehicle in which the plaintiff, Lynda E. Bohl, was a passenger. As a result of the collision, Bohl alleges she suffered physical, mental, and economic harm and damages.
In April 1991, Butler was employed as a deputy sheriff by the Buffalo County Sheriff's Department. At the time of the accident, Butler was driving an unmarked official vehicle owned by the Buffalo County Sheriff's Department. Normally, Butler was not permitted to drive a vehicle to his home in Grand Island because it was located outside Buffalo County. However, Captain Anderson of the Buffalo County Sheriff's Department gave permission to Butler to drive the vehicle home on the date of the accident, since Butler was scheduled to appear in traffic court in Grand Island on the following Monday and would be available to be on duty on Monday sooner than if he had driven his own vehicle.
In violation of county policy, Butler's son was present in the county vehicle at the time of the collision. Butler was carrying his sheriff's department pager and his weapon. He was wearing a T-shirt, shorts, and tennis shoes. As usual, he had been on call, but he was not being compensated for time spent driving to Grand Island. Butler was to have been compensated by Buffalo County, however, for time spent testifying in Hall County.
After the accident, Butler received a 3-day suspension for his violation of county policy prohibiting his son from riding with him in a county-owned vehicle. Bohl and her husband, James Bohl, signed a partial payment agreement acknowledging receipt of $10,485 paid on behalf of "NIRMA," Buffalo County the Buffalo County Sheriff's Department, and Butler for property damage resulting from the accident. The agreement included the following language: "It is understood the Statute of Limitations requires that any legal action for damages from this accident must be commenced before August 17th 1995." The agreement was provided by T.A. Kahrhoff, an adjuster for Buffalo County's insurance carrier.
On August 18, 1993, in the district court for Buffalo County, Bohl filed an action for negligence against Butler in his capacity as an "undersheriff" and against Buffalo County. On that same day, a tort claim was filed with the board of county commissioners pursuant to Neb.Rev.Stat. § 13-920 (Reissue 1991). The tort claim was later withdrawn on August 15, 1994.
The defendants both demurred, challenging Bohl's petition on the grounds that the district court had no subject matter jurisdiction, that Bohl did not have capacity to sue, and that the petition failed to state facts sufficient to constitute a cause of action. The district court agreed. On August 31, 1993, the court sustained the defendants' demurrer and dismissed the case without prejudice, holding that the suit was brought prematurely. Neb.Rev.Stat. § 13-906 (Reissue 1991) provides that
[n]o suit shall be permitted ... unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit....
The court stated that because Bohl did not abstain from filing a petition in the district court until the board had made a final disposition of the tort claim or until 6 months had passed, the suit was not properly before the court.
Bohl, in a motion for a new trial, requested that the court overrule the defendants' demurrer or, in the alternative, allow her to amend her petition. The court allowed Bohl to amend her petition. Bohl filed an amended petition on November 12, 1993. In his answer to the amended petition, Butler denied Bohl's allegations of negligence. In addition, Butler affirmatively alleged that the accident occurred while he was acting within the course of his employment as a deputy sheriff for Buffalo County, that § 13-920 of the Nebraska Political Subdivisions Tort Claims Act applied, and that Bohl failed to abide by the necessary requirements set out in the act. In May 1994, Butler moved for summary judgment.
Bohl filed a second amended petition on August 19, 1994, in which she alleged that Butler was acting within the scope of his employment and that the negligence of Butler was imputed to Buffalo County. Bohl requested the court to grant judgment against Butler and Buffalo County and further requested that Buffalo County be estopped from raising a statute of limitations defense provided in § 13-920 because she had relied on the 4-year statute of limitations set out in the partial payment agreement.
In Bohl's third amended petition, which was filed on September 1, 1994, Bohl asserted facts which, when read generously, alleged that Butler individually, and not within the scope of his employment, had acted negligently. Alternatively, Bohl alleged that Buffalo County was liable for Butler's negligent acts when he was acting within his official capacity. Bohl also prayed that the court grant judgment against Butler or Buffalo County and requested that Buffalo County be estopped from raising a statute of limitations defense provided in § 13-920.
In response to Bohl's second amended petition, Butler and Buffalo County filed a demurrer. With regard to Bohl's third amended petition, both defendants filed a motion to strike and objections to the third amended petition.
On September 13, 1994, the district court sustained Butler's motion for summary judgment. The court stated that the material facts involved in the case were not in dispute: Butler was employed by the Buffalo County sheriff's office; the vehicle Butler was operating was an unmarked county vehicle; Butler was casually dressed; Butler's son was a passenger in the vehicle; Butler was not being compensated for his time spent driving to Grand Island (i.e., not "on duty"), but was subject to calls on a 24-hour basis (i.e., "on call"); Butler had his revolver with him; Butler had received permission to take the unmarked cruiser to his residence; Butler was scheduled to testify in Hall County the following Monday regarding a case related to his prior employment with Hall County; and the purpose of allowing Butler to drive the cruiser to Grand Island was to go "on duty" sooner on Monday following his testimony.
While the district court concluded that the fact finder determines the issue of whether an employee is acting within the scope of his employment, it determined as a matter of law that the ultimate inference must be drawn that Butler's acts occurred within the course of employment. Therefore, the court held that § 13-920 was applicable and was not properly adhered to by Bohl. Shortly thereafter, Bohl moved for a new trial.
On September 26, 1994, the court addressed the defendants' demurrer to the second amended petition and their motion to strike and objections to the third amended petition. The court...
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