Catron v. Lewis

• Decision Date: 14 April 2006
• Docket Number: No. S-04-1212.,S-04-1212.
• Parties: Gaylen L. CATRON, appellant, v. Marvin R. LEWIS et al., appellees.
• Court: Nebraska Supreme Court

Page 245

712 N.W.2d 245

271 Neb. 416

Gaylen L. CATRON, appellant, v. Marvin R. LEWIS et al., appellees.

No. S-04-1212.

Supreme Court of Nebraska.

April 14, 2006.

Maren Lynn Chaloupka and Robert Paul Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for appellant.

James L. Zimmerman, of Zimmerman Law Firm, P.C., L.L.O., for appellees Marvin R. Lewis and Skylar L. Panek.

Jon Bruning, Attorney General, Vicki L. Adams, and Frederick J. Coffman for appellee State of Nebraska.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and HANNON, Judge, Retired.

McCORMACK, J.

NATURE OF CASE

This action was brought by Gaylen L. Catron against Marvin R. Lewis, Skylar L. Panek, and the State of Nebraska (collectively the defendants). Catron was operating a motorboat on Center Lake at the Bridgeport State Recreation Area in Morrill County, Nebraska, pulling two tubes ridden by two of his daughter's friends, Samantha Rader and Aimee Stuart. Panek accidentally struck and killed Rader with a jet ski he was operating. The jet ski was owned by Lewis, and the recreation area is operated by the State.

Catron's action sought damages for emotional distress stemming from his witnessing the accident and his unsuccessful attempt to rescue Rader. Catron alleged that such distress was a proximate result of the negligent acts or omission of the defendants, specifically, the negligent operation of the jet ski by the then 14-year-old Panek, the negligent entrustment of the jet ski to Panek by Lewis, and the failure of the State to operate the Bridgeport State Recreation Area in a manner reasonably safe for foreseeable users under foreseeable conditions.

The district court granted summary judgment in favor of the defendants, and Catron appeals.

BACKGROUND

The accident in question occurred on July 5, 2002. On that day, Catron took his boat out on Center Lake to take Rader and Stuart riding on towable tubes. Rader and Stuart were friends of Catron's daughter and were not related to him. The towropes which attached the tubes that Rader and Stuart were riding to Catron's boat were approximately 61 feet long. The tubes generally stayed within 1½ feet of each other on the water. Rader and Stuart rode the tubes sitting facing away from the boat.

The lake is circular with a center island and two narrower and shallower channels connecting the two sides of the "circle." Boat traffic travels in a counterclockwise direction. After going around the lake twice, pulling the tubes in which Rader and Stuart rode, Catron decided to go onto shore, where Rader and Stuart had camped the night before with Catron's daughter and some other girls. After having gone through one of the narrow channels, and heading counterclockwise, Catron testified that he made his customary loop maneuver to go in straight toward the shore. This involved slowing down so that the tubes did not swing to the side of the boat and making a small circle in which he briefly traveled clockwise before traveling perpendicular to the traffic flow in order to nose straight onto the beach. As he was traveling straight east toward the shore, Catron stated that he noticed two jet skis heading north (counterclockwise) toward the right side of Catron's boat. One of the jet skis was being ridden by Panek.

Catron estimated that when he first saw them, the jet skis were 75 yards away going approximately 35 to 40 miles per hour. Catron then looked back behind his boat to confirm that the tubes were traveling straight behind his boat. Stuart confirmed in her deposition testimony that right before the accident, the ropes pulling the tubes were taut and that the tubes were traveling directly behind the boat, inside the wake.

In his deposition, Catron indicated that he feared for his safety "[j]ust when [the jet skis were] aiming at my boat." He subsequently explained during a psychiatric examination that he was not really afraid that the jet skis were going to hit his boat; he just did not know for sure what they were going to do. He was able to make eye contact with Panek and the other boy riding the jet skis before they turned, and he assumed they would either shut down or turn to avoid hitting his boat. Catron did not make any evasive maneuvers. When the jet skis turned, Catron became afraid they were going to hit the tubes Rader and Stuart were on.

Panek did in fact run into Rader, killing her. Catron testified that he saw Panek's jet ski hit the tube Rader was on and then saw Rader lying face down in the water "in a pool of blood." Catron jumped in, swam over to her, and floated her back to the boat. Rader was nonresponsive. With assistance, Catron was able to get Rader to shore.

Panek also testified by deposition as to the events immediately preceding the accident. He stated that after coming out (counterclockwise) from the narrow channel, he saw Catron's boat coming in his general direction and then turning in front of him. In order to avoid the boat, Panek stated that he turned to his left toward the rear of Catron's boat. Panek testified that he did not see the tubes trailing behind the boat until he was upon them.

Panek's description of the accident differs from Catron's in that Panek testified that he first saw Catron's boat as it was heading east and Panek was heading north to northwest. He then stated that the boat turned north to northeast toward shore, as Panek was turning west, effectively swinging the tubes in front of him.

Both Panek's and Catron's versions of the event, however, place the accident at least 61 feet from the rear of Catron's boat.

After the accident, Catron sought help coping with the mental injuries he suffered from witnessing Rader's death. Prior to the accident, Catron had no history of depression, anxiety, emotional problems, or psychiatric treatment. A psychiatrist treating Catron shortly after the accident diagnosed him with major depression, anxiety disorder, and adjustment disorder. The severity of Catron's symptoms was such that it warranted the psychiatrist's certification to Catron's employer that Catron was temporarily disabled from performing his regular occupation as a result of his "major depressive disorder and anxiety/adjustment disorder." Catron accordingly was unable to work for approximately 3 months following the accident. Catron was eventually diagnosed with posttraumatic stress disorder and continues to take antidepressants.

Following the filing of Catron's action against the State, the State raised the affirmative defense that it was immune from suit pursuant to Neb.Rev.Stat. § 818,219(1), (7), and (8) (Reissue 2003), and made a motion for summary judgment. Panek and Lewis also moved for summary judgment, arguing that no claim could be had against them for emotional distress because Catron did not fear for himself but was in fear for the people on the tubes. They also argued that Catron did not qualify as a "bystander" because he was not related to the victim. Panek and Lewis also argued that the evidence failed to show distress sufficiently severe to be recoverable. The State argued at the summary judgment hearing that in addition to its claims of lack of negligence and sovereign immunity, Catron was precluded from recovery because, given the distance of over 60 feet, he was not within the zone of danger. As Catron's counsel acknowledged at the hearing, "elements of proof are that we have to prove negligence by the defendant, we have to prove that the plaintiff was in the zone of danger."

The summary judgment order filed October 1, 2004, granted summary judgment as to Catron's action against the defendants. The district court reasoned that Catron's allegations against the State fell under the discretionary function exception to the State Tort Claims Act and were therefore barred by sovereign immunity. In addition, without specifically rejecting the parties' argument that Catron was neither a bystander nor within the zone of danger, the court reasoned that summary judgment was proper as to all the defendants because Catron's emotional distress did not rise to the standard of being "'so severe that no reasonable person could have been expected to endure it.'"

ASSIGNMENT OF ERROR

Catron assigns that the district court erred in sustaining the defendants' motions for summary judgment.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006).

ANALYSIS

In Nebraska, where there is no impact or physical injury to the plaintiff, the plaintiff seeking to bring an action for negligent infliction of emotional distress must show either (1) that he or she is a reasonably foreseeable "bystander" victim based upon an intimate familial relationship with a seriously injured victim of the defendant's negligence or (2) that the plaintiff was a "direct victim" of the defendant's negligence because the plaintiff was within the zone of danger of the negligence in question. See, Hamilton v. Nestor, 265 Neb. 757, 659 N.W.2d 321 (2003); James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). In addition, such plaintiffs whose only injury is an emotional one must show that their emotional distress is medically diagnosable and significant and is so severe that no...