Christensen v. Broken Bow Pub. Sch.
| Decision Date | 29 September 2020 |
| Docket Number | No. A-19-125.,A-19-125. |
| Parties | MICHAEL T. AND CATHY D. CHRISTENSEN, INDIVIDUALLY AND AS THE PARENTS AND NEXT FRIENDS OF CHAD M. CHRISTENSEN, AND AS THE COGUARDIANS AND COCONSERVATORS OF CHAD M. CHRISTENSEN, A PROTECTED PERSON, APPELLANTS, v. BROKEN BOW PUBLIC SCHOOLS, ALSO KNOWN AS BROKEN BOW SCHOOL DISTRICT 25, A POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE AND CROSS-APPELLANT, AND BEVERLY L. SHERBECK, PERSONAL REPRESENTATIVE OF THE ESTATE OF ALBERT F. SHERBECK, DECEASED, AND BEVERLY L. SHERBECK, INDIVIDUALLY, THIRD-PARTY DEFENDANTS, APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Custer County: KARIN L. NOAKES, Judge. Reversed and remanded with directions.
David S. Houghton and Keith A. Harvat, of Houghton, Bradford, Whitted, P.C., L.L.O., and James V. Dincan and John O. Sennett, of Sennett, Duncan, Jenkins & Wickham, P.C., L.L.O., for appellants.
Matthew B. Reilly and Thomas J. Culhane, of Erickson & Sederstrom, P.C., L.L.O., for appellee Broken Bow Public Schools.
Michael T. Christensen and Cathy D. Christensen's son, Chad M. Christensen, was seriously injured in an automobile accident. Chad was a passenger in a Broken Bow Public Schools (BBPS) van, which was being driven by one of his high school basketball coaches, when the van collided with a pickup truck after the truck entered the van's lane. The Christensens filed a negligence claim against BBPS. After the Christensens presented their evidence at trial, the district court granted a directed verdict in favor of BBPS, finding that the pickup truck entering the van's lane suddenly and without warning was not foreseeable and constituted an efficient intervening cause which broke the causal connection between any negligence by BBPS and the collision. The Christensens appeal, claiming, among other things, that the district court erred in directing a verdict in favor of BBPS. BBPS cross-appeals, claiming that the district court erred in granting the Christensens' motion for partial summary judgment on the issues of assumption of the risk and contributory negligence. For the reasons set forth herein, we reverse the decision of the district court to grant BBPS a directed verdict on the issue of whether there was an efficient intervening cause. We remand the cause to the district court.
This action arises out of a traffic accident that occurred in Custer County, Nebraska, on June 1, 2012. The following facts are not disputed. On the day of the accident, Albert F. Sherbeck (Albert) was driving his pickup truck home and was headed eastbound on Highway 2 when he drove left of center and collided head-on with a 10-passenger van owned by BBPS, which was traveling westbound. The school van was transporting eight students from Broken Bow High School, including Chad, who were returning from a summer basketball clinic held in Kearney, Nebraska. The van was being driven by Zane Harvey, a basketball coach for Broken Bow High School. As a result of the collision, Albert, Harvey, and the front seat passenger of the school van, another basketball coach, Anthony Blum, died at the scene. Chad was seriously injured. He was not wearing his seatbelt at the time of the collision.
In March 2014, the Christensens filed an amended complaint against BBPS. In the amended complaint, the Christensens alleged five separate causes of action against BBPS. However, at trial, the Christensens focused their evidence on only two causes of action. It is these two causes of action which are at issue in this appeal. First, the Christensens alleged that BBPS was negligent in both failing to ensure that the students riding in the school van were wearing their seatbelts at the time of the collision and in the operation of the van at the time of the collision. Second, the Christensens alleged that BBPS violated the requirements set forth in Neb. Rev. Stat. § 60-6,267 (Reissue 2010), which provides that the driver of a motor vehicle must ensure that all passengers between the ages of 6 and 18 years be restrained by an occupant restraint system. The Christensens further alleged that the actions of BBPS were a proximate cause of the personal injuries sustained by Chad. They sought general damages for Chad's "[p]ermanent disability;" payment for the medical expenses which he has already incurred and which he will incur in the future; and compensation for his pain and suffering and loss of enjoyment of life.
BBPS filed a motion to dismiss the Christensens' amended complaint. In the motion, the school alleged that the Christensens' assertion that BBPS was negligent in failing to ensure that the students riding in the school van were wearing seatbelts did not present a claim upon which relief could be granted. BBPS based its argument on its interpretation of the language of Neb. Rev. Stat. § 60-6,273 (Reissue 2010), which provides:
Evidence that a person was not wearing an occupant protection system at the time he or she was injured shall not be admissible in regard to the issue of liability or proximate cause but may be admissible as evidence concerning mitigation of damages, except that it shall not reduce recovery for damages by more than five percent.
BBPS interpreted this statutory section to indicate that the Christensens could not use Chad's nonuse of a seatbelt to establish liability or proximate cause against BBPS.
Moreover, as to the Christensens other cause of action, BBPS alleged that dismissal was warranted even if the court found that the school had violated the provisions of § 60-6,267, which required drivers to ensure their minor passengers were wearing a seatbelt. BBPS argued that the language of § 60-6,267 does not authorize a private cause of action based on such a violation.
The district court denied BBPS' motion to dismiss. The court found that the language of § 60-6,273 did not prohibit the Christensens from using evidence that Chad was not wearing a seatbelt at the time of the collision and, by extension, did not prohibit evidence that the drivers of the school van did not require him to wear a seatbelt. The court reasoned:
Section 60-6,273 protects plaintiffs from evidence that they, the injured plaintiff, did not use a seatbelt at the time of the injury. In practice, it prohibits a party defendant from alleging contributory negligence against the injured plaintiff for non-use of an occupant protection system at the time of the injury. Further, it prohibits a party defendant from claiming the non-use was the proximate cause of the injuries. The statute goes further to state that such evidence may be admissible to mitigate damages. Mitigation is a trial strategy used by defendants to reduce the amount of damages after liability is found. Therefore, it is apparent the statute is referring to party defendants when it prohibits admissibility for liability and proximate cause but allows admissibility for mitigation.
As to BBPS' assertion that a violation of § 60-6,267 does not authorize a private cause of action, the district court found that while a violation of § 60-6,267 "shall not constitute prima facie evidence of negligence," the statutory language does not prohibit using evidence of a driver's failure to ensure a child is wearing a seatbelt to support a negligence claim. "In other words, [the Christensens] can present negligence claims under a common law theory supported by evidence that the students were not using seatbelts but they cannot pursue claims based on evidence that the non-use of the seatbelts was a criminal act [pursuant to § 60-6,267]."
After the district court denied its motion to dismiss, BBPS filed an answer to the Christensens' amended complaint. In the answer, the school denied that it had acted negligently and asserted numerous affirmative defenses, including that Chad assumed the risk of not wearing his seatbelt while riding in the school van. BBPS also asserted that because both Albert and Chad acted negligently at the time of the collision, that any negligence attributed to the school must becompared with the negligence of Albert and Chad. BBPS asserted that in comparing the relative negligence of all the parties, its liability would be reduced or barred altogether.
We note that the Christensens filed a separate lawsuit against Beverly Sherbeck (Beverly), Albert's wife and the personal representative of his estate. The Christensens' claims against Beverly are the subject of a separate appeal. See Christensen v. Sherbeck, 28 Neb. App. 332, 943 N.W.2d 460 (2020). In addition, BBPS filed a third-party complaint against Beverly alleging that it was entitled to indemnification or contribution "for any amount it is required to pay in excess of its pro rata share" because the sole proximate cause of the collision was Albert's vehicle crossing into the school van's lane of traffic. The allegations contained in the third party complaint are not at issue in this appeal.
Prior to trial, BBPS filed a motion for summary judgment, which alleged that Zane Harvey and Anthony Blum were not employees of the school, acting within the scope of their employment, at the time of the collision and that, as a result, "there exists no genuine issue of material fact and BBPS is entitled to judgment as a matter of law." The district court denied the motion after a hearing, finding that BBPS had
The Christensens filed a motion to strike and a motion for partial summary judgment. In the motion to strike, the...
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