Christensen v. Broken Bow Pub. Schs.
| Decision Date | 04 November 2022 |
| Docket Number | S-21-885 |
| Citation | 312 Neb. 814 |
| Parties | Michael T. and Cathy D. Christensen, individually and as parents and next friends of Chad M. Christensen, and as Coguardians and Coconservators of Chad M. Christensen, a protected person, appellants and cross-appellees, 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, third-party defendant, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
1. Directed Verdict: Appeal and Error. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.
2. Statutes: Ordinances: Legislature: Intent: Torts Liability. In determining whether a statute or ordinance creates a duty, a court may determine that a statute gives rise to a tort duty to act in the manner required by the statute where the statute is enacted to protect a class of persons which includes the plaintiff, the statute is intended to prevent the particular injury that has been suffered, and the statute is intended by the Legislature to create a private liability as distinguished from one of a public character. Consideration of the Legislature's purpose in enacting a statute is central to the analysis of whether the statute defines a duty in tort and creates private civil liability.
3. Negligence: Proof: Statutes. The violation of a statute alone does not prove negligence.
4. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary negligence must prove all four essential elements of the claim: the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.
5. Negligence: Proof. A cause of action for negligence depends not only upon the defendant's breach of duty to exercise care to avoid injury to the plaintiff but also depends upon a showing that the injury suffered by the plaintiff was caused by the alleged wrongful act or omission of the defendant.
6. Proximate Cause: Evidence. Neb. Rev. Stat § 60-6,273 (Reissue 2021) explicitly makes all "[e]vidence that a person was not wearing an occupant protection system or a three-point safety belt system" inadmissible for the issue of proximate cause.
7. Statutes. Statutory text is to be given its plain and ordinary meaning.
8. Statutes: Appeal and Error. An appellate court is not at liberty to add language to the plain terms of a statute to restrict its meaning.
Appeal from the District Court for Custer County: Karin L. Noakes, Judge.
David S. Houghton and Keith A. Harvat, of Houghton. Bradford & Whitted, PC, L.L.O., and James V. Duncan and John O. Sennett, of Sennett, Duncan, Jenkins & Wickham, PC, L.L.O., for appellants.
Matthew B. Reilly and Thomas J. Culhane, of Erickson | Sederstrom, PC, L.L.O., for appellee Broken Bow Public Schools.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, for appellee Beverly L. Sherbeck.
Appellants, Michael T. and Cathy D. Christensen, brought this case in the district court for Custer County individually and as parents of their son, Chad M. Christensen, who was seriously injured when a Broken Bow Public Schools (BBPS) activities van in which he was a passenger was hit head on by a truck driven by Albert F. Sherbeck. Chad was not wearing a seatbelt. The Christensens separately sued Sherbeck's widow, Beverly L. Sherbeck, as personal representative of Sherbeck's estate (the Sherbeck estate) and the cases were consolidated.
On remand from a memorandum opinion of the Nebraska Court of Appeals that reversed a directed verdict in favor of BBPS, the district court considered several additional arguments by BBPS. Following due consideration, the district court granted a directed verdict in favor of BBPS and against the Christensens, dismissed the Christensens' complaint, and dismissed BBPS' third-party complaint against the Sherbeck estate as moot. These rulings give rise to the instant appeal by the Christensens and the cross-appeals by BBPS and the Sherbeck estate.
In its order directing a verdict in favor of BBPS, the district court stated, inter alia, that despite the provision in Neb. Rev. Stat. § 60-6,267(2) (Reissue 2021) that drivers ensure seatbelt use for children, Neb. Rev. Stat. § 60-6,269 (Reissue 2021) "explicitly states, 'violations of the provisions of sections 60-6,267 . . . shall not constitute prima facie evidence of negligence.'" The district court noted that Neb. Rev. Stat. § 60-6,273 (Reissue 2021) prohibits "using evidence that a person was not wearing a seatbelt to establish proximate cause" and in the absence of other admissible evidence of proximate cause, the Christensens' claims failed and were dismissed. Because we agree with the district court's reading of the relevant statutes, we affirm its order of a directed verdict in favor of BBPS and in addition dismiss the cross-appeals as moot.
On June 1, 2012, a BBPS activities van collided with a truck driven by Sherbeck. The van was driven by Zane Harvey, a high school basketball coach for BBPS. Another coach, Anthony Blum, and eight students, including Chad, were passengers in the van which was returning from a summer basketball clinic in Kearney, Nebraska. Sherbeck's vehicle crossed the centerline and collided head on with the van. Sherbeck, Harvey, and Blum died at the scene. The Christensens' son, Chad, was riding in the van unrestrained by a seatbelt and was seriously injured. Chad was age 17 at the time of the accident.
The Christensens filed separate actions against BBPS and against Sherbeck's widow, as personal representative of the Sherbeck estate. In the action against BBPS, the Christensens asserted five separate theories of recovery, including claims that (1) BBPS was negligent in its operation of the van and was negligent in its supervision of the students because it failed to ensure that students were wearing seatbelts and (2) BBPS violated § 60-6,267(2), which provides:
Any person in Nebraska who drives any motor vehicle which has or is required to have an occupant protection system or a three-point safety belt system shall ensure that all children eight years of age and less than eighteen years of age being transported by such vehicle use an occupant protection system.
The district court consolidated the cases; the case against the Sherbeck estate was tried to a jury and the case against BBPS was tried to the court. The jury returned a verdict in favor of the Sherbeck estate on the Christensens' claims against it. The Court of Appeals affirmed the judgment in the case against the Sherbeck estate in Christensen v. Sherbeck, 28 Neb.App. 332, 943 N.W.2d 460 (2020), and we denied the Christensens' petition for further review.
At the close of evidence in the Christensens' case in chief against BBPS, BBPS moved for a directed verdict. The district court granted a directed verdict in favor of BBPS on the grounds that Sherbeck's vehicle's crossing the centerline constituted an efficient intervening cause that broke the causal connection between Chad's injuries and any failure on the part of BBPS to ensure that Chad was wearing a seatbelt.
The Christensens appealed, and the Court of Appeals reversed the district court's decision to grant a directed verdict. See Christensen v. Broken Bow Public Schools, No. A-19-125, 2020 WL 5785351 (Neb.App. Sept. 29, 2020) ().
The Court of Appeals concluded that the district court erred when it found, as a matter of law, that Sherbeck's actions constituted an efficient intervening cause. For purposes of its analysis, the Court of Appeals assumed without deciding that BBPS had a duty to ensure that Chad was wearing a seat-belt while riding in the school activities van. Based on that assumption, the Court of Appeals reasoned that the purpose of such a duty would be to protect children in the event of any sort of traffic accident and that therefore, the potential for liability based on a violation of that duty did not rest on the foreseeability of the exact circumstances of the collision. The Court of Appeals concluded that because a head-on collision between the van and another vehicle was the sort of harm against which a seatbelt was meant to protect, the collision could not, as a matter of law, constitute an efficient intervening cause to insulate BBPS from liability for failing to ensure that Chad was wearing a seatbelt. The Court of Appeals remanded the cause to the district court with directions to consider the other arguments BBPS made in its motion for directed verdict, and, if it rejected those other arguments, to proceed with BBPS' presentation of evidence in its defense.
BBPS moved for rehearing and argued that the Court of Appeals should have addressed its alternative argument that § 60-6,269 precluded the Christensens from establishing a negligence claim against BBPS based on the failure to ensure that Chad was wearing a seatbelt. The Court of Appeals denied the motion for rehearing, and we denied further review.
Upon remand, ...
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