Dion v. City of Omaha
| Decision Date | 06 May 2022 |
| Docket Number | S-21-545. |
| Parties | Trevor DION, Personal Representative of the Estate of Bryce David Dion, deceased, appellant and cross-appellee, v. CITY OF OMAHA, defendant and third-party plaintiff, appellee and cross-appellant, and Langley Productions, Inc., a foreign corporation organized under the laws of California, third-party defendant, appellee and cross-appellee. |
| Court | Nebraska Supreme Court |
Christian T. Williams, Omaha, Brian E. Jorde, and David A. Domina, Omaha, of Domina Law Group, P.C., L.L.O., for appellant.
Ryan J. Wiesen, Assistant Omaha City Attorney, for appellee City of Omaha.
Bruce A. Smith and Audrey R. Svane, of Woods Aitken, L.L.P., Lincoln, for appellee Langley Productions, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
A member of a television crew that was filming law enforcement activities was shot and killed at the scene of a robbery when officers fired their weapons at the suspect. The filming was conducted pursuant to a contract between the city and the television production company. The estate of the crew member who died sued the city for wrongful death. The city brought a third-party claim against the production company for breach of alleged contractual agreements to defend, indemnify, and insure the city. Following summary judgment against the city on its claim against the production company for breach of contract, a bench trial was held on the estate's wrongful death claim. A verdict was rendered in favor of the city. The court reasoned that the wrongful death action arose out of a battery and therefore was barred by sovereign immunity. Alternatively, the court found the estate had failed to prove the elements of breach and proximate causation. The estate appeals, and the city cross-appeals.
Bryce David Dion worked for Langley Productions, Inc. (Langley), as a sound technician on the filming crew for the "COPS" television program. In the summer of 2014, Dion was part of a two-person crew that, pursuant to an agreement between Langley and the City of Omaha (City), rode with and filmed the activities of two Omaha Police Department (OPD) officers. On August 26, 2014, while at the scene of a robbery in progress at a fast-food restaurant, Dion was hit by a bullet fired by OPD officers as they aimed and shot at the suspect after the suspect had threatened the officers by pointing what appeared to be a firearm at them. It was later determined that the handgun the suspect brandished was not, in fact, an actual firearm.
Under the agreement signed by the City's mayor and the producer of COPS (Agreement), the City granted Langley access to OPD and its personnel. It allowed video and audio to be recorded during production "in all circumstances and locations" and gave the COPS crew "reasonable access to officers and situations such officers encounter." All film activity was "subject to and under [the] control of the [OPD] officer in charge," and Langley agreed to "comply with all instructions and restrictions as directed by [OPD]."
Paragraph 5 of the Agreement provided for a duty to defend and indemnify as follows:
[Langley] agrees that it shall indemnify, defend and hold harmless, the City, its officers, agents, employees and administrators from and against any and all claims for damage and liability for injury to or death of persons; and for damage to or destruction of property occurring during and arising out of the acts or omission of [Langley], its employees and/or agents with regard to [Langley's] filming; and shall pay the reasonable cost of defending lawsuits resulting therefrom, including, but not limited to, reasonable attorneys fees, court costs and any judgment awarded to a third party as the result of such suit. In accordance with the foregoing, [Langley] also agrees to indemnify, defend and hold harmless the City from and against all claims related to intellectual property claims arising out of [Langley's] filming activities.
Another portion of paragraph 5 stated that the City shall be named an additional insured on Langley's comprehensive general liability insurance policy.
Dion's estate (Estate) filed a wrongful death action against the City, alleging that OPD owed Dion a special duty of care and protection and that its police officers negligently shot Dion while acting within the scope of their employment.
The Estate alleged, summarized, that OPD did not provide adequate protection of the filming crew through various alleged deficiencies of general training and instruction of OPD personnel and the crew. It also alleged that on August 26, 2014, OPD failed to adequately monitor and communicate to other officers the filming crew's whereabouts, give the filming crew adequate instructions for its safety, or carry out OPD duties in a manner that accounted for the presence of the filming crew at the scene. Finally, the Estate alleged that the OPD officers at the scene failed to identify the proper target before discharging their firearms, used excessive force, and acted unreasonably in light of the presence of innocent bystanders.
Prior to filing its action, the Estate had timely filed a notice of its claim in accordance with the Political Subdivisions Tort Claims Act (PSTCA). The claim was not acted upon by the City and was withdrawn more than 6 months after it was filed.
The City filed an answer affirmatively alleging sovereign immunity as a defense, on the grounds that the Estate's claim arose out of an intentional tort of battery. Alternatively, the City alleged that the use of force was objectively reasonable and privileged. Further, the City alleged that Dion assumed the risk associated with filming law enforcement personnel while on duty and that Dion voluntarily and without notifying the officers had placed himself within an active armed-robbery situation.
The City filed a third-party complaint against Langley for breach of contract. It also brought a claim against Langley for promissory estoppel, which is not at issue in this appeal.
The City had sent a letter to Langley requesting that it forward the wrongful death complaint to its insurance carrier for defense against the Estate's claims. Langley's insurance carrier thereafter notified the City it was denying the City's request for defense and indemnification under the commercial general liability policy issued to Langley.
The City alleged in its third-party complaint that Langley was contractually required to indemnify the City against any claim for damages and liability for injury to or death of persons, defend the City against any claim for injury to or death of persons, name the City as an additional insured in Langley's general liability insurance policy, and abide by a duty of fair dealing.
The City moved for summary judgment against the Estate on the grounds that it was immune from the wrongful death suit, which arose out of a battery, as set forth in Neb. Rev. Stat. § 13-910(7) (Reissue 2012), which provides in relevant part that the PSTCA shall not apply to "[a]ny claim arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."
Langley moved for summary judgment against the City on the third-party claims against it. The City filed a cross-motion for summary judgment against Langley.
The district court denied summary judgment in favor of the City on the Estate's wrongful death action.
At the hearing on the motion, the City had argued that the historical facts were undisputed and that a battery occurred by virtue of the officers’ intentional act of firing at the suspect. The City relied on a standard from the Restatement (Second) of Torts,1 quoted in Britton v. City of Crawford ,2 that an actor is subject to liability to another for battery if (1) he or she acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (2) a harmful contact with the person of the other directly or indirectly results. The City argued that it was undisputed that the City intended to cause harmful contact to the suspect, a third person, which indirectly caused harmful contact to Dion.
The Estate argued, among other things, that the actions of the officers lawfully using their firearms in the course of duty would not constitute an intentional tort. It was also discussed that the officers were exonerated by a grand jury of any criminal activity in connection with placing the filming crew in harm's way.
In denying summary judgment against the Estate, the court reasoned that our opinion in Phillips v. Liberty Mut. Ins. Co.3 stands for the proposition that actions for injuries to bystanders by law enforcement in the course of pursuing a suspect are not immune under § 13-910(7). And the court found there was a genuine issue as to whether OPD acted reasonably in relation to the events leading to Dion's death.
The court granted Langley's motion for summary judgment as to the City's claim against Langley for breach of contract, which was based on paragraph 5 of the Agreement. The court reasoned that the contract did not affirmatively and unambiguously protect the City from its own negligence and that the duty to be named an additional insured was immaterial because Langley's policy included only operations performed by Langley or on Langley's behalf and excluded bodily injury arising out of operations performed for the state or municipality.
The court denied Langley's motion for summary judgment on the City's claim for promissory estoppel. It generally denied the City's cross-motion for summary judgment against Langley.
The court...
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