Brandon v. County of Richardson

• Decision Date: 25 July 1997
• Docket Number: No. S-95-1019,S-95-1019
• Citation: 566 N.W.2d 776,252 Neb. 839
• Parties: JoAnn BRANDON, Personal Representative of the Estate of Teena Brandon, deceased, Appellant, v. The COUNTY OF RICHARDSON, Nebraska, and Charles B. Laux, Richardson County Sheriff, Appellees.
• Court: Nebraska Supreme Court

Page 776

566 N.W.2d 776

252 Neb. 839

JoAnn BRANDON, Personal Representative of the Estate of Teena Brandon, deceased, Appellant, v. The COUNTY OF RICHARDSON, Nebraska, and Charles B. Laux, Richardson County Sheriff, Appellees.

No. S-95-1019.

Supreme Court of Nebraska.

July 25, 1997.

Syllabus by the Court

1. Pleadings: Demurrer: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.

2. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against an individual, i.e., duty, breach of duty, causation, and damages.

3. Actions: Wrongful Death: Negligence: Pleadings. When an action for wrongful death sounds in negligence, to determine whether the petition states facts sufficient to constitute a cause of action, it is necessary to examine whether specific facts are enumerated which would serve to establish that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of plaintiff's damages.

4. Police Officers and Sheriffs: Liability. Law enforcement officials may not be held liable for failure to protect individual citizens from harm caused by criminal conduct.

5. Police Officers and Sheriffs: Liability: Proof. Liability is established if police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.

6. Police Officers and Sheriffs: Liability. There are situations that provide exceptions to the no-duty rule: (1) where individuals who have aided law enforcement as informers or witnesses are to be protected or (2) where the police have expressly promised to protect specific individuals from precise harm.

7. Police Officers and Sheriffs: Words and Phrases. A special relationship exists where an individual assists law enforcement officials in the performance of their duties.

8. Actions: Decedents' Estates: Damages. A decedent's estate may recover as an element of damages for decedent's conscious pain, suffering, and mental anguish resulting from the apprehension and fear of impending death.

9. Actions: Mental Distress: Death. A claim for intentional infliction of emotional distress survives the death of the victim.

10. Actions: Mental Distress. To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege facts showing (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.

11. Pleadings: Demurrer. It is generally an abuse of discretion to grant a demurrer without leave to amend where there is a reasonable possibility that the defect can be cured by amendment.

James M. Kelley and Michael J. Hansen, of Berry, Kelley, Hansen & Burt, Lincoln, for Appellant.

Richard L. Boucher and, on brief, Tamra L. Walz, of Boucher Law Firm, Lincoln, for Appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

PER CURIAM.

Appellant, JoAnn Brandon (Brandon), as personal representative of the estate of Teena Brandon, deceased, filed suit in the district court for Richardson County against Richardson County and Sheriff Charles B. Laux for breaching their duty to protect Teena Brandon (victim) and thus causing her wrongful death. The district court dismissed Brandon's second amended petition based on Richardson County and Laux's demurrer alleging that the petition did not set forth facts sufficient to allege a cause of action. We reverse, and remand with direction.

BACKGROUND

The factual context of the damage claim involved the death of the victim. Brandon's allegations, which must be accepted as true facts for the purposes of a demurrer, are set out in her second amended petition. On December 25, 1993, John Lotter and Marvin Nissen forcibly abducted, imprisoned, assaulted, and raped the victim. Lotter and Nissen then threatened the victim that if she informed anyone as to what they did to her, they would " 'silence her permanently.' " The victim escaped from the imprisonment imposed upon her by Lotter and Nissen and sought aid from Laux and his agents. On that same day, the victim told Laux she had been raped, imprisoned, and threatened with death if she revealed what had happened; identified Lotter and Nissen as the perpetrators of the crimes committed against her; and stated that she would sign all appropriate complaints and would testify against them. Laux represented to the victim that the reason for the interview with her was to get facts for the arrest and prosecution of Lotter and Nissen.

Following the interview, Laux directed his deputy, Tom Olberding, to pursue the investigation. Olberding completed his investigation, retrieved several items of physical evidence at the rape scene, and told Laux that the physical evidence corroborated the victim's statement and that he wanted to arrest Lotter and Nissen. Laux did not arrest Lotter or Nissen, and he did not advise the victim of his decision not to do so. Instead, Laux delegated other parts of the investigation to the Falls City Police Department, which detained Lotter and Nissen for questioning. The victim was not informed of Laux's decision not to arrest Lotter and Nissen, and she believed that Lotter and Nissen would be arrested; in reliance on the expectation that Lotter and Nissen would be arrested, she remained in Richardson County instead of returning to Lincoln despite the threat on her life. The victim was shot and killed by Lotter and Nissen on December 31, 1993.

The second amended petition alleges that Laux breached his common-law and statutory duties to the victim by his failure and refusal to arrest Lotter and Nissen. Brandon also alleges that Laux further breached his common-law duty to the victim by his failure and refusal to inform the victim of his decision not to arrest Lotter and Nissen. Brandon's second amended petition alleges in paragraph 24 that the victim, relying on the expectation that "Laux would execute his common law and statutory duties," remained in Richardson County despite the threat on her life by Lotter and Nissen, which threat was known to Laux. In paragraph 26, Brandon then alleges that the victim told her that believing Lotter and Nissen were to be arrested by Laux, and in reliance thereon, she planned to stay in the area and return to Lincoln January 3, 1994.

Brandon originally made a claim under the Political Sub-divisions Tort Claims Act. The 6-month period for Richardson County and Laux to respond to said claim expired without a response. Brandon, pursuant to Neb.Rev.Stat. § 13-906 (Reissue 1991), withdrew the above claim. Brandon filed a petition, seeking damages for the wrongful death of her daughter, the victim, pursuant to Neb.Rev.Stat. §§ 30-809 and 30-810 (Reissue 1995), and for the injuries and damages sustained by the victim prior to her death. Richardson County and Laux filed a demurrer, which was sustained. Brandon filed an amended petition in which she added a fourth cause of action, that of intentional infliction of emotional distress. Richardson County and Laux filed another demurrer, which was sustained. Brandon was given leave to file a second amended petition with regard to her first, second, and third causes of action, but her fourth cause of action, for intentional infliction of emotional distress, was dismissed.

Brandon filed a second amended petition, alleging causes of action based on wrongful death, predeath injuries and damages, and funeral and burial expenses. She again alleged a cause of action based on intentional infliction of emotional distress.

Richardson County and Laux demurred to the second amended petition, arguing that the second amended petition did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, denied further leave to amend, and dismissed Brandon's case. From this order, Brandon appeals.

ASSIGNMENT OF ERROR

Brandon assigns as error the district court's determination that her second amended petition did not state a cause of action.

STANDARD OF REVIEW

When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997); Baltensperger v. Wellensiek, 250 Neb. 938, 554 N.W.2d 137 (1996); Crider v. Bayard City Schools, 250 Neb. 775, 553 N.W.2d 147 (1996).

ANALYSIS

A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against an individual, i.e., duty, breach of duty, causation, and damages. Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993). Because Brandon's action for wrongful death sounds in negligence, to determine whether her petition states facts sufficient to constitute a cause of action, it is necessary to examine whether specific facts are enumerated which would serve to establish that Richardson County and Laux owed a duty to the victim, that Richardson County and Laux breached that duty, and that the breach was the proximate cause of the victim's damages. See id.

In Hamilton, the plaintiff alleged that she had relied upon a police officer's assurances and remained in her...