Gragg v. City of Omaha, CV 89-0-674.

• Citation: 812 F. Supp. 991
• Decision Date: 29 January 1993
• Docket Number: No. CV 89-0-674.,CV 89-0-674.
• Parties: Joyce GRAGG, Personal Representative of the Estate of LeRoy Gragg, Plaintiff, v. CITY OF OMAHA, a Municipal Corporation, and Brenda J. Smith (now known as Sullivan), Defendants.
• Court: U.S. District Court — District of Nebraska

812 F. Supp. 991

Joyce GRAGG, Personal Representative of the Estate of LeRoy Gragg, Plaintiff, v. CITY OF OMAHA, a Municipal Corporation, and Brenda J. Smith (now known as Sullivan), Defendants.

No. CV 89-0-674.

United States District Court, D. Nebraska.

January 29, 1993.

Daniel W. Ryberg, Omaha, NE, for plaintiff.

Thomas O. Mumgaard & Mary M. Elliston, City Attorney's Office, Omaha, NE, for defendants.

MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

KOPF, District Judge.

Plaintiff, as personal representative of the estate of LeRoy Gragg, sued the City of Omaha, Nebraska, and police officer Brenda J. Smith (now known as Sullivan), contending that Smith was responsible for the death of LeRoy Gragg when, as an offduty police officer, she stopped the transit bus Gragg was driving and left him unprotected with the result that he was shot and killed. Plaintiff asserted two theories of recovery. The first theory of recovery was that, in essence, Smith had seized Gragg and because Smith acted with deliberate indifference, the killing of Gragg by a third party violated Gragg's constitutional rights, entitling his estate to recover against the City of Omaha and the police officer. The second theory of recovery, essentially a state law negligence claim, asserted that Smith was negligent in leaving Gragg unprotected on the street after stopping him.

As to the first theory of recovery, the jury returned a verdict in favor of the city and defendant Smith (Filing No. 66, ¶ I.B). As to the second theory of recovery, I submitted the state law negligence claim to the jury as an advisory jury, although I did not inform the jury that it was acting in an advisory capacity. The jury found in favor of the plaintiff and against the City of Omaha and Smith, returning damages of $506,719.55 for medical, hospital, and funeral expenses and the amount of contribution LeRoy Gragg would have made to his spouse and next of kin had he survived (Filing No. 66, ¶¶ IV.A and V.B & C).

I. No Right to Jury Trial

I concluded the plaintiff did not have a right to a trial by jury on the pendent state negligence claim because that claim was brought under the Nebraska Political Subdivision Tort Claims Act, Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1987; 1991 Supp.; 1992 Cum.Supp.). In Nebraska it is clear that the waiver of sovereign immunity is limited by, among other things, the procedures which are available for trial of claims against political subdivisions:

... no political subdivision of the State of Nebraska shall be liable for the torts of its officers, agents, or employees, and that no suit shall be maintained against such political subdivision or its officers, agents, or employees on any tort claim except to the extent, and only to the extent, provided by the Political Subdivisions Tort Claims Act. The legislature further declares that it is its intent and purpose through this enactment to provide uniform procedures ... and that the procedures provided by the act shall be used to the exclusion of all others.

Neb.Rev.Stat. § 13-902, 1992 Cum.Supp. (emphasis added).

The Act specifically provides that such tort claims "shall be heard and determined by the appropriate court without a jury." Neb.Rev.Stat. § 13-907 (Reissue 1987). (emphasis added). Moreover, resolution of a suit against the political subdivision constitutes a complete bar to any further action against the employees of the political subdivision whose act or omission gave rise to the claim. Neb.Rev.Stat. § 13-909 (Reissue 1987).

Although the issue was not raised before the magistrate judge who pretried this case, during trial defendants argued that the matter could not be submitted to the jury insofar as the pendent state claim was concerned because the Nebraska Political Subdivision Tort Claims Act barred such a submission. Finding that the Act was integrated, that the trial procedures could not be separated from the substantive law, and that the Seventh Amendment to the United States Constitution did not provide for a jury trial in cases such as this, I granted the defendants' motion to amend the pretrial order, and ordered that the pendent state claim would be tried to the court. But, I also ordered that, pursuant to Fed. R.Civ.P. 39(c), the jury would act as an advisory jury. The use of an advisory jury on the second theory seemed to make sense because the plaintiff had a right to a jury trial as to the first theory of recovery (Filing No. 61).

My decision that the pendent state claim was not triable to a jury was based primarily on my opinion in Westcott v. City of Omaha, No. CV88-0-28, 1988 WL 383125 (April 11, 1988) (copy attached to Filing No. 61). In Westcott I concluded that the Act was integrated, that the trial procedures could not be separated from the substantive law, and that, since there was no common law right to sue the political subdivisions of the State of Nebraska, there was no Seventh Amendment right to a jury trial. See Galloway v. United States, 319 U.S. 372, 388-89, 63 S.Ct. 1077, 1086-87, 87 L.Ed. 1458 (1943), "it can hardly be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign. Whatever force the Amendment has therefore is derived because Congress, in the legislation cited, has made it applicable." (Footnotes omitted.)

I am thus confronted with the question of what I should do with the advisory jury verdict on the pendent state law claim. Leading text writers have suggested that I must make my own decision and that I may totally disregard the findings of the advisory jury:

The responsibility for decision remains with the judge when an advisory jury is used. He must prepare the findings of fact and conclusions of law, and it is wholly in his discretion whether to accept or reject, in whole or in part, the verdict of the jury. There have been occasional suggestions that the findings of an advisory jury should be accepted if they are sustained by the evidence or if they are not clearly erroneous, but these misconceive the function of an advisory jury and the complete freedom the judge has in using its findings. Review on appeal is of the findings of the court as if there had been no verdict from an advisory jury, and there can be no review of supposed errors related to rulings before and instructions to the advisory jury.

9 C. Wright & A. Miller, Federal Practice and Procedure § 2335, at 125-27 (1971) (footnotes omitted).

I must, therefore, issue findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52(a). While I believe a reasonable jury could reach the same conclusion this jury came to in finding Smith negligent, as the fact finder I disagree with the jury's verdict, and, accordingly, I find in favor of the defendants. My findings of fact and conclusions of law are as follows:¹

II. Findings of Fact

1. The following undisputed facts are taken from the pretrial conference order (Filing No. 45, ¶ C):

a. The plaintiff, Joyce Gragg, is the personal representative of the estate of LeRoy Gragg, filed in the district court of Pottawattamie County, Iowa, at probate No. 3704.

b. Defendant City of Omaha is a municipal corporation organized pursuant to the laws of the State of Nebraska.

c. Defendant Brenda Smith (now known as Sullivan) is a resident of the State of Nebraska and at all relevant times was employed as a sergeant with the Omaha Police Department and was acting in her official capacity.

d. On or about July 5, 1988, LeRoy Gragg was employed by the Metropolitan Area Transit Company (MAT), in Omaha, Nebraska, as a bus driver. At about 2:45 p.m. on July 5, 1988, he was driving a bus southbound on 30th Street near Taylor Street in Omaha, Nebraska, when he became engaged in a verbal dispute with Louis Pratt, a passenger on the bus. During the dispute, Louis Pratt revealed he had a gun.

e. Louis Pratt left the bus driven by LeRoy Gragg and followed it for several blocks. Near the intersection of 30th and Bedford Streets the bus stopped. Louis Pratt went to the front of the bus and fired a gun at LeRoy Gragg through the windshield, fatally wounding him.

f. Shortly before Louis Pratt came to the front of the bus, Sergeant Smith spoke to LeRoy Gragg near the door of the bus. Sergeant Smith was off duty and not in uniform at the time. Sergeant Smith went to a telephone and called for police to come to the scene. Sergeant Smith was telephoning for police assistance when Louis Pratt shot LeRoy Gragg g. Plaintiff has complied with the Nebraska Political Subdivision Tort Claims Act.

2. It is helpful to set the scene. Exhibit 9 is a large aerial photograph which depicts the scene of this tragedy. Ames Avenue is on the north and Bedford Avenue is on the south.

a. The evidence reveals that Gragg was driving a transit bus commonly used in metropolitan areas. The bus had a radio that enabled Gragg to talk to a bus dispatcher. On July 5, 1988, it was hot. The bus was air conditioned. Gragg picked up a passenger somewhere around Ames Avenue. When Gragg noticed that a window in the back of the bus was raised, he went to the back of the bus. Gragg engaged Pratt in a conversation which became heated. Pratt withdrew a weapon from a box of some sort and Gragg backed off. At a location slightly south of Taylor Street on the west side of the street Pratt got off the bus. For reasons that are not clear to anyone, Gragg drove the bus over the sidewalk and struck Pratt. Gragg drove the bus back onto the street and proceeded south on 30th Street at a high rate of speed.

b. One of the passengers, Shirley Haynes, observed the incident and the fact that the bus driver hit Pratt. She demanded to be let off the bus. Slightly north of Sprague Street, perhaps two-and-a-half blocks from where the incident occurred, Haynes exited the bus. When she got off the bus, she observed Pratt running up the street toward the bus with his gun drawn. Haynes remembered that

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