Christensen v. Broken Bow Pub. Sch.
| Decision Date | 04 November 2022 |
| Docket Number | S-21-885. |
| Citation | 312 Neb. 814,981 N.W.2d 234 |
| 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 |
David S. Houghton, Omaha, and Keith A. Harvat, North Platte, of Houghton, Bradford & Whitted, P.C., L.L.O., and James V. Duncan, Broken Bow, 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., Omaha, for appellee Broken Bow Public Schools.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, Grand Island, 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 seatbelt 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, the district court, as directed by the Court of Appeals, considered BBPS’ other arguments for directed verdict. The district court rejected BBPS’ argument that Harvey's and Blum's actions related to the trip in the van were outside the scope of their employment with BBPS because, as asserted by BBPS, the trip occurred during the summer, which was outside the period of their teaching/coaching contracts. The court reasoned that although their work was gratuitously provided outside the time of their contracts, it was within the scope of their employment, and that BBPS was not relieved of liability on that basis.
The district court then considered BBPS’ argument regarding the effect of § 60-6,269. The district court noted that § 60-6,269 "explicitly states, ‘violations of the provisions of sections 60-6,267 and 60-6,268 shall not constitute prima facie evidence of negligence.’ " The court determined that given the language of § 60-6,269, the Christensens’ claim based on violation of § 60-6,267 must fail, and that BBPS’ motion for directed verdict should be granted.
In its analysis, the district court noted that there was no evidence that the actions of Harvey and Blum were deficient in any way other than failing to ensure that the students were wearing seatbelts. In considering the evidence of the elements of the Chistensens’ negligence claim, the court noted the provisions of § 60-6,273, which state:
Evidence that a person was not wearing an occupant protection system or a three-point safety belt 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.
The court stated that the plain language of § 60-6,273 "prohibits using evidence that a person was not wearing a seatbelt to establish proximate cause" and that it also "clearly prohibits evidence of non-use in regard to liability." The court determined that because § 60-6,273 "does not allow evidence of non-use of a seatbelt to prove liability or proximate cause" and because the Christensens presented no other evidence of proximate cause, their various claims for negligence must fail.
Having determined that the Christensens had not presented evidence to support their claims, the court dismissed all of the Christensens’ claims against BBPS. The court later denied the Christensens’ motion for a new trial and dismissed BBPS’ third-party complaint against...
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