Britton v. City of Crawford
| Decision Date | 23 September 2011 |
| Docket Number | No. S–10–1013. |
| Citation | 282 Neb. 374,803 N.W.2d 508 |
| Parties | Pat BRITTON, Personal Representative of the Estate of Jesse Britton, deceased, appellant,v.CITY OF CRAWFORD, a Nebraska political subdivision, appellee. |
| Court | Nebraska Supreme Court |
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings. Because a motion pursuant to Neb. Ct. R. Pldg. § 6–1112(b)(6) tests the legal sufficiency of the complaint, not the claim's substantive merits, a court may typically look only at the face of the complaint to decide a motion to dismiss.
2. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R. Pldg. § 6–1112(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.
3. Pleadings: Appeal and Error. An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim.
4. Pleadings: Appeal and Error. When analyzing a lower court's dismissal of a complaint for failure to state a claim, an appellate court accepts the complaint's factual allegations as true and construes them in the light most favorable to the plaintiff.
5. Summary Judgment: Motions to Dismiss: Rules of the Supreme Court: Pleadings. When matters outside of the pleadings are presented by the parties and accepted by the trial court with respect to a motion to dismiss under Neb. Ct. R. Pldg. § 6–1112(b)(6), the motion shall be treated as a motion for summary judgment as provided in Neb.Rev.Stat. §§ 25–1330 to 25–1336 (Reissue 2008), and the parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.
6. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's granting of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.
7. Summary Judgment: Motions to Dismiss: Notice. When receiving evidence which converts a motion to dismiss into a motion for summary judgment, it is important that the trial court give the parties notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment.
8. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political Subdivisions Tort Claims Act allows a limited waiver of a political subdivision's sovereign immunity. This waiver is limited by specifically delineating claims that are exempt from being brought against a political subdivision.
9. Political Subdivisions Tort Claims Act: Public Officers and Employees. Where a claim against a political subdivision is based upon acts or omissions of an employee occurring within the scope of employment, it is governed by the provisions of the Political Subdivisions Tort Claims Act.
10. 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.
11. Immunity: Waiver. A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.
Maren Lynn Chaloupka, Scottsbluff, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for appellant.Steven W. Olsen and John F. Simmons, of Simmons Olsen Law Firm, P.C., Scottsbluff, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.McCORMACK, J.
Pat Britton filed this action as personal representative of the estate of Jesse Britton (Jesse), deceased, against the City of Crawford (the City) under the Political Subdivisions Tort Claims Act (PSTCA), Neb.Rev.Stat. §§ 13–901 to 13–927 (Reissue 2007 & Cum.Supp.2010). The district court for Dawes County granted the City's motion to dismiss, and Britton appealed. The issue on appeal is whether the City is immune from liability under § 13–910(7), which provides that the PSTCA shall not apply to any claim arising out of a battery. For the following reasons, we affirm the determination of the district court.
In 2007, Jesse was a suspect in several burglaries, including one involving a stolen firearm. He was 16 years of age. Richard Thompson, a police officer for the City, and Dan Kling, a conservation officer with the Nebraska Game and Parks Commission, investigated the burglaries. On October 3, 2007, Thompson and Kling received information that Jesse was hiding in downtown Crawford in a vacant building called the Frontier Bar. Thompson was also told that Jesse had threatened to shoot Thompson.
Thompson obtained permission to enter the bar. Thompson arrived at the bar and assigned two officers to secure the exterior of the bar at the northeast and southwest corners of the building. Thompson asked Kling to assist him in searching the interior of the bar and requested that Kling carry his state-issued shotgun. Thompson and Kling then used the Realtor's keys to enter the building. Neither party requested any additional assistance from the State Patrol or the county sheriff's office.
After entering the bar, Thompson and Kling heard footsteps on the second floor. They proceeded upstairs and saw Jesse crouched behind a piece of furniture. Thompson and Kling shouted commands at Jesse, yelling at Jesse to show them his hands and drop the gun, but Jesse refused to comply. Jesse then “sprang up pointing his gun” at Thompson. Thompson and Kling both shouted at Jesse to drop the gun and show them his hands. After Jesse failed to comply with the commands to drop the gun, Thompson and Kling shot him. Ten to twelve minutes passed between the time Thompson and Kling entered the bar and the time shots were fired.
On November 20, 2007, Thompson was indicted for second degree assault pursuant to Neb.Rev.Stat. § 28–309(1)(b) (Reissue 2008). The criminal case was tried to the district court. The court determined that Thompson had acted in self-defense and found that Thompson was not guilty. In so finding, the court stated:
[T]he Court must reach the conclusion that [Jesse] did, in fact, point the pistol at [Thompson], at which time the events ensued resulting in the death of Jesse .... The Court can only conclude that [Thompson] was acting in self-defense in the situation that presented itself. Thus, the Court cannot find that [Thompson] acted recklessly in his firing of his weapon which resulted in [Jesse's] being struck by his bullet.
On September 11, 2008, Britton, Jesse's mother and personal representative of his estate, filed suit against the City, Thompson, and Kling in the U.S. District Court for the District of Nebraska under 42 U.S.C. § 1983 (2006) and under the Due Process and Equal Protection Clauses of the U.S. Constitution. The suit also included the state common-law negligence claim at issue in the present appeal. Britton alleged in the federal case that the defendants' actions violated Jesse's constitutional rights and that the defendants' negligence was the proximate cause of Jesse's death.
The U.S. District Court granted the defendants' motion for summary judgment on the basis of qualified immunity. The federal claims were dismissed with prejudice. The court dismissed the common-law claims without prejudice, stating that it would not exercise ancillary jurisdiction over the claims because the federal character of the complaint had been eliminated.
On November 30, 2009, Britton filed suit against the City on the common-law negligence claims. The operative complaint alleged that negotiation, nonviolent de-escalation techniques, and conflict resolution techniques were the appropriate and reasonable means of dealing with any perceived “ ‘standoff’ ” at the Frontier Bar. The complaint alleged that the shooting of Jesse was proximately caused by the City's negligence in (1) failing to seek Jesse's removal from the bar through less aggressive, less provocative means; (2) failing to follow recognized procedures for dealing with barricaded subjects; (3) failing to seek the assistance of other law enforcement resources in order to produce Jesse's removal from the bar through nonviolent means; (4) failing to seek the assistance of Jesse's family, friends, or other persons Jesse trusted in order to produce Jesse's removal from the bar through nonviolent means; and (5) otherwise selecting tactics for confronting Jesse that a reasonable law enforcement officer would recognize to be “high-risk, provocative, and likely to frighten and intimidate a barricaded teenager” such as Jesse. Britton also sought damages for Jesse's pain and suffering in the time between the beginning of the standoff and the time of his death.
The City challenged the complaint on a motion under Neb. Ct. R. Pldg. § 6–1112(b)(6) of the Nebraska Court Rules of Pleading in Civil Cases, alleging that it failed to state a cause of action upon which relief could be granted and that the statute of limitations barred Britton's claims. At the hearing on the City's motion to dismiss, Britton was allowed to offer evidence. The City argued that the complaint alleged assault and battery and that, pursuant to the PSTCA, a political subdivision cannot be held liable for such acts as a matter of law. The City offered no evidence. Britton offered the complaint, answer, and memorandum and order of the U.S. District Court from the federal case, as well as the grand jury indictment and order from Thompson's criminal case. The court admitted the evidence offered by Britton and subsequently granted the City's motion...
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