Hamilton v. City of Omaha

• Decision Date: 16 April 1993
• Docket Number: No. S-90-679,S-90-679
• Citation: 498 N.W.2d 555,243 Neb. 253
• Parties: Saundra HAMILTON, Appellant, v. CITY OF OMAHA, Douglas County, Nebraska, a Municipal Corporation, and R. Green, Appellees.
• Court: Nebraska Supreme Court

Page 555

498 N.W.2d 555

243 Neb. 253

Saundra HAMILTON, Appellant, v. CITY OF OMAHA, Douglas County, Nebraska, a Municipal Corporation, and R. Green, Appellees.

No. S-90-679.

Supreme Court of Nebraska.

April 16, 1993.

Syllabus by the Court

1. Appeal and Error. An appellate court will only address issues that are both assigned as error and discussed in the brief of the party alleging prejudicial error.

2. Political Subdivisions Tort Claims Act: Negligence: Liability. The discretionary function or duty exemption in the Political Subdivisions Tort Claims Act extends only to the basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. In other words, the State is liable for negligence of its employees at the operational level, where there is no room for policy judgment.

3. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against a private individual, i.e., duty, breach of duty, proximate causation, and damages.

4. Negligence: Pleadings. The enumeration of specific acts of negligence should state the ultimate acts of negligence and not the conclusion of the pleader.

5. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

6. Pleadings: Words and Phrases. A statement of "facts sufficient to constitute a cause of action" means a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.

7. Pleadings: Proximate Cause: Damages. In determining whether the plaintiff's petition states facts sufficient to constitute a cause of action, it is necessary to examine whether specific facts are enumerated which would serve to establish that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of plaintiff's damages.

8. Police Officers and Sheriffs: Liability. Law enforcement officials and, consequently, state and local governments generally may not be held liable for failure to protect individual citizens from harm caused by criminal conduct.

9. Police Officers and Sheriffs: Liability. The existence of a duty, if any, to a particular individual is determined by police actions rather than representations. Hence, more than general reliance is needed to require the police to act on behalf of a particular individual. The plaintiff must specifically act or refrain from acting in such a way as to exhibit particular reliance upon the actions of the police in providing personal protection. Liability may be established, therefore, if the police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.

10. Police Officers and Sheriffs. An actionable duty to provide police service may arise when (1) there is some form of privity between the police department and the victim that sets the victim apart from the general public and (2) there are explicit assurances of protection that give rise to reliance on the part of the victim.

11. Demurrer: Pleadings: Appeal and Error. When testing whether a petition which has been challenged by a demurrer states a cause of action, an appellate court is required to accept as true all the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom; it does not, however, accept as true the conclusions of the pleader.

12. Negligence: Pleadings. 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 that failure.

Robert V. Broom, of Broom, Johnson, Fahey & Clarkson, Omaha, for appellant.

Herbert M. Fitle, Omaha City Atty., James E. Fellows, and Thomas O. Mumgaard, Omaha, for appellees.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., MERRITT, District Judge, and COLWELL, District Judge, Retired.

HASTINGS, Chief Justice.

Plaintiff, Saundra Hamilton, appeals the judgment of the district court, which dismissed her cause of action after having sustained the demurrer of the defendants, City of Omaha and police officer R. Green. The plaintiff elected not to plead further. We affirm.

Plaintiff's action was brought pursuant to the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991). In her petition, the plaintiff alleged that on the evening of January 14, 1988, she was physically assaulted by her former husband, Jeffrey Hamilton. She then left the scene of that assault and returned to her home. Two police officers arrived at the scene of the assault and were advised by witnesses as to the identity of the plaintiff and her attacker.

Continuing, her petition alleged that within 20 minutes of the plaintiff's arrival at home, Jeffrey Hamilton arrived and harassed and threatened her. The plaintiff immediately called the police, and Officer Green arrived just after Jeffrey Hamilton departed. The plaintiff explained what had happened and requested a "special watch number" because she feared for her safety. According to the petition, Officer Green stated that she would not need a special watch number and that he would be on duty and in the immediate area to protect her.

The plaintiff further alleged that she stayed at her residence in reliance on Officer Green's assurance, but that within 15 to 20 minutes of Officer Green's departure, Jeffrey Hamilton returned, kicked in the door, and entered her home. The plaintiff immediately called 911, reported the attack in progress, and attempted to escape through another door when she was assaulted by Jeffrey Hamilton. The plaintiff ran outside and across the street, trying to get help at a neighbor's home. Jeffrey Hamilton caught her and struck her on the left ankle, above the left knee, and on the left thigh and left arm with a tire iron. She was finally dragged down the stairs by Jeffrey Hamilton and fell onto the concrete. Plaintiff alleged that as a result of that assault she suffered bodily injuries and sought money damages.

The allegations concerning the negligence claimed on the part of the defendants were as follows:

8. Defendant R. Green was negligent in failing, refusing and neglecting to protect Plaintiff from her assailant after having affirmatively assured her that he would protect her and in failing, refusing and neglecting to be available to provide protection to Plaintiff after having assured her he would provide protection. Said negligence is imputable to the City of Omaha as Defendant R. Green's employer. Defendant City of Omaha was further negligent in failure to devise and implement adequate and effective training of a police officer regarding appropriate and adequate treatment of domestic assaults as well as failing to implement and enforce adequate response procedures to such domestic assaults and threats.

Defendants demurred on the ground that the petition failed to state a cause of action and that the court has no jurisdiction over the subject matter of the action alleged because it falls within the scope of § 13-910(2) (discretionary function or duty on the part of a political subdivision or its employees).

On appeal, plaintiff assigns as error that the court sustained the demurrer, finding that her petition failed to allege facts sufficient to constitute a cause of action and finding that the acts of the police officer were excluded under the Nebraska Political Subdivisions Tort Claims Act as discretionary acts. The district court did not designate upon which basis the demurrer was sustained.

Although the plaintiff alleged that the city was negligent in failing to devise and implement adequate and effective training in regard to domestic assaults, she does not assign as error or argue in her briefs that the district court erred in not considering that allegation. This court will only address issues that are both assigned as error and discussed in the brief of the party alleging prejudicial error. State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992); Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).

The plaintiff contends, however, that the conduct of the individual police officer alleged did not involve a discretionary decision within the meaning of § 13-910(2). In discussing the distinction between discretionary and operational functions in the context of a similar provision in the State Tort Claims Act, this court noted that:

Performance of or failure to perform a discretionary function or duty cannot be the basis for liability under the State Tort Claims Act ....

However, the discretionary function or duty exemption in the State Tort Claims Act extends only to the basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions.... In other words, the State is liable for negligence of its employees at the operational level, where there is no room for policy judgment.

(Citations omitted.) Wickersham v. State, 218 Neb. 175, 180, 354 N.W.2d 134, 138-39 (1984). The same rule would apply to the Political Subdivisions Tort Claims Act.

The purpose for this distinction was discussed in Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983), in which the plaintiffs alleged that a county sheriff was liable for failure to respond in a timely manner to their call for...