Christianson By and Through Christianson v. Educational Service Unit No. 16

• Decision Date: 04 June 1993
• Docket Number: Nos. S-91-045,S-91-055,S-91-050,s. S-91-045
• Citation: 243 Neb. 553,501 N.W.2d 281
• Parties: Kelly V. CHRISTIANSON, by and through her parent and next friend, Virginia L. CHRISTIANSON, et al., Appellants, v. EDUCATIONAL SERVICE UNIT NO. 16 et al., Appellees. thru
• Court: Nebraska Supreme Court

Page 281

501 N.W.2d 281

243 Neb. 553

Kelly V. CHRISTIANSON, by and through her parent and next friend, Virginia L. CHRISTIANSON, et al., Appellants, v. EDUCATIONAL SERVICE UNIT NO. 16 et al., Appellees.

Nos. S-91-045, S-91-050 thru S-91-055.

Supreme Court of Nebraska.

June 4, 1993.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Schools and School Districts. Because of its composition, powers, and duties, an educational service unit falls under the Political Subdivisions Tort Claims Act.

2. Actions: Courts: Dismissal and Nonsuit. It is within the discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action.

3. Pleadings: Appeal and Error. An order of the district court requiring a petition to be made more definite and certain will be sustained on appeal unless it clearly appears that the court abused its discretion.

4. Pleadings. The purpose of pleadings is to frame the issues upon which a cause is to be tried and advise the adversary as to what he must meet.

5. Pleadings. Nebraska has maintained a code-based system of civil procedure.

6. Pleadings: Words and Phrases. Nebraska law defines pleadings as the written statements by the parties of the facts constituting their respective claims and defenses.

7. Pleadings. A petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.

8. Pleadings. The ultimate facts to be established should be alleged in a pleading.

9. Pleadings. Facts are sufficient to constitute a cause of action when they are a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.

10. Pleadings. A pleading is not to state conclusions of law.

11. Pleadings. The pleading of legal conclusions is insufficient to raise an issue of fact.

12. Employer and Employee: Negligence: Liability. An employer is subject to liability for physical harm to third persons resulting from the employer's negligent selection of an improper employee.

13. Pleadings: Negligence: Proximate Cause. To state a cause of action for negligence, one must plead facts from which it can be inferred that the defendant owed a legal duty to protect the plaintiff from injury, that the defendant failed to discharge that duty, and that damage proximately resulted from such failure.

14. Employer and Employee: Liability: Negligence: Proximate Cause: Proof. To impose liability upon an employer for negligently selecting or entrusting work to an employee, a plaintiff must not only show that the employer negligently selected a person incapable of performing the work but also show that the conduct of the incompetent employee was a proximate cause of injury to another. The employee's characteristic, quality, or deficiency must proximately cause the harm producing injury to another.

15. Pleadings. If the allegations are so indefinite or uncertain that the precise meaning is not apparent, the remedy of the other party is an application to the court to have the pleading in that particular made more definite and certain.

16. Negligence: Pleadings. A plaintiff's bald assertion that a defendant has failed to exercise ordinary care is insufficient to inform a defendant how such defendant has breached the defendant's duty to the plaintiff.

17. Pleadings. Facts which are, or which the law presumes to be, peculiarly within the knowledge of the opposing party may be alleged with less certainty and particularity than would otherwise be necessary, or may be alleged on information and belief, or may even be omitted entirely.

18. Pretrial Procedure. A purpose of the discovery process is exploration of all available and properly discoverable information to narrow the fact issues in controversy so that a trial may be an efficient and economical resolution of a dispute.

19. Actions: Courts: Dismissal and Nonsuit. Courts have the inherent power to dismiss an action for disobedience of a court order.

James R. Welsh, of Welsh & Sibbernsen, Omaha, for appellants.

Brian D. Nolan, of Hansen, Engles & Locher, Omaha, for appellees in Nos. S-91-045, S-91-052, S-91-054.

William T. Wright, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellees in Nos. S-91-050, S-91-051, S-91-053, S-91-055.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

FAHRNBRUCH, Justice.

These appeals involve the dismissal of separate actions for damages filed on behalf of seven mentally handicapped individuals who allegedly suffered physical and sexual abuse while enrolled in Educational Service Unit No. 16 (E.S.U.) in North Platte, Nebraska. Three of the individuals also claimed that they were emotionally abused.

All of the claims were denied when they were filed against the State of Nebraska pursuant to the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987), and when they were filed against E.S.U. pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991). Thereafter, a lawsuit was filed in the district court for Lincoln County on behalf of each of the mentally handicapped individuals. E.S.U., two E.S.U. administrators, and the State of Nebraska were named as defendants. The suits were consolidated for hearings on pretrial motions in the district court. The appeals to this court were consolidated for argument and disposition.

In October 1989, following a hearing, the district court sustained a demurrer filed in each case by the State of Nebraska which alleged, inter alia, that the court had no jurisdiction over the subject matter of the action as to the State of Nebraska, since E.S.U. "is not a state agency."

Subsequently, upon the defendants' motions, the trial court ordered the plaintiffs to make their petitions more definite and certain. When the plaintiffs refused to do so, again upon the defendants' motions, the district court struck each plaintiff's petition in its entirety. Thereafter, the court dismissed each of the plaintiffs' petitions without prejudice.

We affirm the district court's dismissal order in each of the cases.

FACTS

Each of the mentally handicapped individuals, hereinafter referred to singularly as plaintiff or collectively as plaintiffs, at various times between 1973 and 1988 attended a School for the Trainable Mentally Handicapped operated by E.S.U. in North Platte, Nebraska. This school was operated and maintained by E.S.U. to provide custodial and educational facilities for handicapped individuals who fell within the eligibility guidelines of the school.

There are 17 educational service units created by statute. See Neb.Rev.Stat. § 79-2201 et seq. (Reissue 1987). A number of counties are assigned to each educational service unit. Each educational service unit has an elected board with authority to levy taxes, appropriate money, and make expenditures. Id. Because of its composition, powers, and duties, an educational service unit falls under the Political Subdivisions Tort Claims Act. § 13-901 et seq.

On April 13, 1989, separate lawsuits were filed on behalf of the seven plaintiffs, six of whom were minors and one of whom was of legal age. Each plaintiff claimed he or she suffered physical and sexual abuse because of the negligence of each of the named defendants. As stated previously, three of the plaintiffs also claimed they were emotionally abused. Additionally, all the plaintiffs alleged the defendants violated their civil rights under 42 U.S.C. § 1983 (1988). The claimed incidents of abuse allegedly occurred as early as 1973 for some plaintiffs and as late as 1988 for other plaintiffs.

Each of the plaintiffs' petitions is separated into "Division One," "Negligence," and "Division Two," "42 U.S.C. Section 1983." In "Division Two," in addition to praying for damages, each plaintiff seeks attorney fees. The "divisions" are not two causes of actions because both divisions are based upon but one set of facts. At most, recovery was sought on two legal theories. In such a situation, under Nebraska law, a plaintiff, if successful, is entitled to but one recovery. We specifically disapprove of the form of the petitions in these cases. The pleading approach used here could result in some degree of chaos both at the trial level and in the analysis on review. See DeSciose v. Chiles, Heider & Co., 239 Neb. 195, 476 N.W.2d 200 (1991).

In each of the plaintiffs' cases, the defendants moved for an order requiring each plaintiff to make his or her petition more definite and certain. Specifically, the defendants asked that each plaintiff specify the name of each person alleged to have abused the plaintiff, the dates of the alleged abuse, and how the defendants failed to exercise ordinary care to prevent such abuse.

All plaintiffs but one resisted the defendants' motions to make more definite and certain on the basis that the matters the defendants sought to have included in the petitions were matters of evidence and not ultimate fact, and that those matters should be addressed by the Nebraska Discovery Rules. Plaintiff Harold Lutkehus II apparently did not file a resistance. The district court sustained in its entirety the defendants' motion to make Lutkehus' petition more definite and certain, and sustained in part the motions as to the remaining plaintiffs.

A series of amended pleadings was filed in each case, and the defendants continued to meet the plaintiffs' pleadings by filing motions to make more definite and certain. All plaintiffs amended their petitions at least three times, and one plaintiff amended his petition five times. At a hearing on October 15, 1990, all plaintiffs ultimately elected to stand on their pleadings. The defendants then moved to strike each plaintiff's petition. The motions were granted. Between December 5 and 11, 1990...