Brandon v. County of Richardson
| Decision Date | 20 April 2001 |
| Docket Number | No. S-00-022.,S-00-022. |
| Citation | 624 N.W.2d 604,261 Neb. 636 |
| Parties | JoAnn BRANDON, Personal Representative of the ESTATE OF Teena BRANDON, deceased, Appellant and Cross-Appellee, v. The COUNTY OF RICHARDSON, Nebraska, and Charles B. Laux, Richardson County Sheriff, appellees and cross-appellants. |
| Court | Nebraska Supreme Court |
David S. Buckel, and, of Counsel, Doni Gewirtzman and Marvin Peguese, of Lambda Legal Defense and Education Fund, Inc., Michael J. Hansen, P.C., Herbert J. Friedman, of Friedman Law Offices, and John Stevens Berry, Lincoln, of Berry, Kelley & Reiman, for appellant.
Richard L. Boucher and Kim K. Sturzenegger, Lincoln, of Boucher Law Firm, for appellees.
Kristin E. Yates, and, of Counsel, Shannon Minter and Jennifer Levi for amicus curiae Harry Benjamin International Gender Dysphoria Association.
Jeffry D. Patterson, Lincoln, of Healey & Wieland Law Firm, for amicus curiae Nebraska Association of Trial Attorneys.
Amy A. Miller, Omaha, of American Civil Liberties Union of Nebraska, and, of Counsel, Michael Adams and Jennifer Middleton, of American Civil Liberties Union, New York, and of Counsel, Melvyn L. Cantor, Reuven L. Cohen, and Matthew D. Strada, New York City, of Simpson, Thacher & Bartlett, for amici curiae American Civil Liberties Union Foundation et al.
John G. Taylor, Lincoln, of Taylor Law Office, and M. Elaine Johnston, Patrick Barnett, and Marc L. Moore, New York City, of White & Case, L.L.P., for amici curiae Parents of Murdered Children, Inc., and National Center for Victims of Crime.
Pamela Coukos, of Mehri, Malkin & Ross, P.L.L.C., and Susan Ann Koenig and Angela J. Dunne, of Law Office of Susan Ann Koenig, P.C., for amici curiae Nebraska Domestic Violence Sexual Assault Coalition et al.
Charles B. Crisman, Jr., and, of Counsel, W. Mason Emnett and Richard L. Parker for amici curiae Gender Public Advocacy Coalition et al.
On December 31, 1993, Teena Brandon (Brandon), Lisa Lambert, and Phillip Devine were found murdered in Lambert's rural Humboldt farmhouse in Richardson County, Nebraska. John L. Lotter and Thomas M. Nissen, also known as Marvin T. Nissen, were convicted of the murders. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). Brandon's mother, JoAnn Brandon (JoAnn), brought an action against Richardson County and Sheriff Charles B. Laux for negligence, wrongful death, and intentional infliction of emotional distress in connection with Brandon's murder and the events leading up to her death. The district court found the county negligent and awarded economic damages of $6,223.20 and noneconomic damages of $80,000. However, the court reduced the damage award on the negligence claim by 85 percent for the intentional torts of Lotter and Nissen, and by 1 percent for the negligence of Brandon. The court denied recovery on the intentional infliction of emotional distress claim and awarded "nominal damages" for loss of society, comfort, and companionship. JoAnn appeals, and the county cross-appeals.
Brandon had been sexually abused as a child, and in her late teens, developed gender identity disorder, a condition in which one develops a strong dislike for one's own gender and assumes the characteristics, both behaviorally and emotionally, of the other gender. In November 1993, Brandon came to Richardson County after leaving Lincoln due to legal troubles. Brandon had been convicted of forgery in Lancaster County and had violated the terms of her probation. While in Richardson County, Brandon presented herself as a man. Brandon had obtained a driver's license identifying Brandon as a male by the name of Charles Brayman.
In December 1993, Brandon met Lana Tisdel, a young woman who resided in Falls City. Tisdel, believing Brandon to be a male, dated Brandon for approximately 1 month. After moving to Richardson County, Brandon also became acquainted with Lotter and Nissen. On December 15, Brandon was booked into the Richardson County jail on forgery charges for forging checks in Richardson County. Brandon was placed in an area of the jail where females are usually held. While Brandon was being held at the jail, Laux referred to Brandon as an "it" during a conversation with Tisdel which took place in Brandon's presence. A few days later, Nissen secured Brandon's release from jail by posting bail with money Tisdel gave to Nissen. Thereafter, Lotter and Nissen became suspicious of Brandon's sexual identity.
On December 24, 1993, several people, including Brandon and Tisdel, attended a party at Nissen's home. In the early morning hours of December 25, in an attempt to prove to Tisdel that Brandon was a female, Lotter and Nissen pulled Brandon's pants down in Tisdel's presence.
Later that same morning, Lotter and Nissen beat Brandon, hitting her in the head, kicking her in the ribs, and stepping on her back. Lotter and Nissen then drove Brandon to a remote location where both Lotter and Nissen sexually assaulted Brandon. After the sexual assaults, Nissen beat Brandon again. When they returned to Nissen's house, Brandon escaped by kicking out a bathroom window and ran to the home of Linda Gutierres, Tisdel's mother.
When Brandon arrived at Gutierres' home at approximately 6 a.m., Brandon had a swollen, bloody lip, scratches, and a "shoe print" on her back, and she was crying. An ambulance was called, and Brandon was transported to the local hospital, where Brandon reported that she had been beaten and sexually assaulted. A rape examination was performed at the hospital, and the results, which showed that Brandon had been sexually penetrated, were turned over to law enforcement.
Around noon that same day, Brandon provided a written statement to the Falls City Police Department regarding the rapes. Later that day, Laux and Deputy Tom Olberding of the Richardson County sheriff's office conducted a tape-recorded interview with Brandon. Prior to the interview, Laux had been informed by the hospital staff that Brandon had been beaten and sexually penetrated. Olberding conducted the initial interview, during which Brandon described the rapes, including the location where the rapes occurred, and that Lotter and Nissen had used condoms during the rapes. Brandon also indicated that she had a pair of rolled-up socks in her pants at the time of the rapes. Laux was present in the interview room the entire time Olberding was questioning Brandon.
After Brandon had initially related the details of the rapes to Olberding and Laux, Laux began questioning Brandon regarding the details of the rapes a second time, beginning at approximately 3:40 p.m. on December 25, 1993. Shortly after Laux began questioning Brandon, Olberding left the room. At that time, Olberding had a brief conversation with Keith Hayes, an investigator with the Falls City Police Department, who was present outside the interview room. Olberding indicated that he left the room because he "didn't like the way [the interview] was going." Olberding returned to the interview room a short time later. (All quotations from the December 25 interview appearing in this opinion are taken from the tape-recorded version of the interview.)
While questioning Brandon about the incident that occurred at Nissen's house during which Lotter and Nissen pulled down Brandon's pants, the following exchange took place:
While interviewing Brandon regarding the rapes, Laux's statements and questions included the following: "So they got ready to poke you"; "[t]hey tried sinking it in your vagina"; "So then after he couldn't stick it in your vagina he stuck it in your box or in your buttocks, is that right?"; "[D]id it feel like he stuck it in very far or not?"; "Did he tell you anything about this is how they do it in the penitentiary?"; "Was he enjoying it?"; "Did he think it was funny?"; "Did he play with your breasts or anything?"; and "Well, was he fingering you?"
Laux confronted Brandon regarding the position of her legs during the sexual assault by Nissen in the following manner:
After the above exchange took place, Laux asked Brandon no further questions about the position of her legs. The tape-recorded interview shows that Brandon's description of the position of her legs during the rapes was in fact consistent. The following exchange occurred when Laux questioned Brandon about Lotter's sexually assaulting her:
To continue reading
Request your trial
-
Snyder v. Smith, 1:13–cv–00576–SEB–DKL.
...1313–1314 (citing Restatement (Second) of Torts § 46, comments e & f). See also Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604, 621–625 (2001) (finding that elements of IIED tort were satisfied as a matter of law—relying on the same Restatement provi......
-
Graves v. N. E. Servs., Inc.
...on an intentional act and fault based on negligence is, in many circumstances, not possible.”); Brandon ex rel. Estate of Brandon v. Cnty. of Richardson, 261 Neb. 636, 624 N.W.2d 604, 620 (2001) (“Negligent and intentional torts are different in degree, in kind, and in society's view of the......
-
Snyder v. Smith, 1:13–cv–00576–SEB–DKL.
...Id. at 1313–1314 (citing Restatement (Second) of Torts § 46, comments e & f). See also Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604, 621–625 (2001) (finding that elements of IIED tort were satisfied as a matter of law—relying on the same Restatemen......
-
Graves v. N. E. Servs., Inc.
...on an intentional act and fault based on negligence is, in many circumstances, not possible.”); Brandon ex rel. Estate of Brandon v. Cnty. of Richardson, 261 Neb. 636, 624 N.W.2d 604, 620 (2001) (“Negligent and intentional torts are different in degree, in kind, and in society's view of the......
-
Nebraska's (more or Less) Stable Approach to "extreme and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon Ex Rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.w.2d 604 (2001)
...and Outrageous Conduct" and Intentional Infliction of Emotional Distress: Brandon ex rel. Estate of Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001) Note* Matthew M. Munderloh Nebraska's (More or Less) Stable Approach to "Extreme and Outrageous Conduct" and Intentional I......
-
The Supreme Court of Nebraska Determines a Court's Power to Authorize a Conservator to Exercise an Incompetent Settlor's Reserved Rights to Amend or Revoke Her Trust in in Re Guardianship and Conservatorship of Garcia
...STAT. § 30-2637 (Supp. 2000). 229. Garcia, 262 Neb. at 210, 631 N.W.2d at 468 (referencing Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001), and stating that an appellate court should not resort to statutory interpretation to determine the meaning of a statute's words if......
-
The Supreme Court of Nebraska Determines a Court's Power to Authorize a Conservator to Exercise an Incompetent Settlor's Reserved Rights to Amend or Revoke Her Trust in in Re Guardianship and Conservatorship of Garcia
...STAT. § 30-2637 (Supp. 2000). 229. Garcia, 262 Neb. at 210, 631 N.W.2d at 468 (referencing Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001), and stating that an appellate court should not resort to statutory interpretation to determine the meaning of a statute's words if......
-
In Praise of the Treatise Writer: Law's Special Knowledge
...interests from Torts courses), in J.M. BALKIN and SANFORD LEVINSON, LEGAL CANONS (2000). 17. See, e.g., Brandon v. County of Richardson, 624 N.W.2d 604 (Neb. 2001) (murder victim's recovery from negligent county, which failed to protect victim from rapists who had threatened to kill her, wo......