Haselhorst v. State

• Decision Date: 12 June 1992
• Docket Number: No. S-91-058,S-91-058
• Citation: 240 Neb. 891,485 N.W.2d 180
• Parties: Ronald M. HASELHORST and Janet M. Haselhorst, Husband and Wife, et al., Appellees, v. STATE of Nebraska et al., Appellants.
• Court: Nebraska Supreme Court

Page 180

485 N.W.2d 180

240 Neb. 891

Ronald M. HASELHORST and Janet M. Haselhorst, Husband and Wife, et al., Appellees, v. STATE of Nebraska et al., Appellants.

No. S-91-058.

Supreme Court of Nebraska.

June 12, 1992.

Syllabus by the Court

1. Tort Claims Act: Appeal and Error. The trial court's findings of fact in a proceeding under the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987), will not be set aside unless such findings are clearly incorrect.

2. Trial: Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence: Administrative Law: Expert Witnesses. Violation of an administrative rule is evidence of negligence, provided an expert witness incorporates the rule in his or her opinion as to an issuable act of negligence and the evidence would probably aid the trier of fact.

6. Negligence: Proximate Cause. The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event if the event would have occurred without it.

7. Negligence: Proximate Cause: Tort-feasors: Liability: Words and Phrases. An intervening cause is a new and independent act, itself a proximate cause of an injury, which breaks the causal connection between the original wrong and the injury. The doctrine that an intervening act cuts off a tort-feasor's liability comes into play only when the intervening cause is not foreseeable.

8. Negligence: Proximate Cause: Proof. In order to prevail on the theory of assumption of risk, the defendant has the burden to establish that the plaintiff (1) knew of the danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage.

9. Negligence: Words and Phrases. Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury and which, concurring and cooperating with actionable negligence on the part of the defendant, contributes to the injury.

10. Negligence: Mental Distress: Proof. A bystander may recover for negligent infliction of emotional distress upon proof of marital or intimate familial relationship with a victim who was seriously injured or killed as a result of the proven negligence of a defendant.

Don Stenberg, Atty. Gen., Royce N. Harper, and Craig L. Nelson, Lincoln, for appellants.

Herbert J. Friedman, of Friedman Law Offices, and W. Travis Burney, Lincoln, for appellees.

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

GRANT, Justice.

This is an action for damages against the State of Nebraska, the Nebraska Department of Social Services (DSS), and DSS Director Daryl Wusk, under the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987). The petition sought recovery for injuries sustained by the plaintiffs, four children and their parents, arising out of the negligent placement of a foster child in their home and the resulting damage to all the plaintiffs.

Following a trial before the court, judgment was entered on December 13, 1990, in favor of the plaintiffs. The trial court found that the agents of the State were negligent, that the defense of assumption of risk was not applicable, that the plaintiffs were not guilty of contributory negligence sufficient to bar recovery, that the actions of the foster child were not an independent intervening cause, and that the proximate cause of the plaintiffs' damage was the negligence of the State and its agents.

The trial court awarded Ronald M. Haselhorst, the father of the children, special damages in the sum of $97,916.60 and general damages in the sum of $50,000. The court awarded Janet M. Haselhorst, Ronald's wife and the mother of the children, general damages in the sum of $50,000. The court awarded the parents, "as parents and next friends," $100,000 for each of the four minor children, for a total of $400,000. The total judgment for the family was $597,916.60.

The State and its agents have appealed the judgment and assign eight errors, which may be consolidated into six. The State and its agents contend that the trial court erred (1) in finding the State negligent in three different respects; (2) in holding that the defense of assumption of risk was not applicable; (3) in finding that the plaintiff parents were not guilty of contributory negligence; (4) in finding that the placement of the foster child and the handling of an incident on May 2, 1984, were the proximate causes of plaintiffs' injuries; (5) in failing to find that the criminal acts of the foster child, together with the lack of supervision of the parents, were not an intervening cause; and (6) in awarding excessive damages. We affirm.

The trial court's findings of fact in a proceeding under the State Tort Claims Act, § 81-8,209 et seq., will not be set aside unless such findings are clearly incorrect. Koncaba v. Scotts Bluff County, 237 Neb. 37, 464 N.W.2d 764 (1991).

In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988). In reviewing a judgment awarded in a bench trial, an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Id.

When viewed in that light, the record shows the following facts: In the fall of 1983, Ronald and Janet Haselhorst were licensed by the State of Nebraska as foster parents. They had no prior experience in foster care. On February 26, 1984, the foster child, a 15-year-old boy, was placed in the Haselhorst home. The boy was the Haselhorsts' first foster child.

The DSS administrative rules required DSS to obtain all medical and psychological reports on all of its wards. The placement agreement entered into between the Haselhorsts and DSS required that the information contained in the foster child's records be shared with the Haselhorsts.

Medical records obtained for the purpose of trial showed that the foster child had been admitted to the St. Joseph Center for Mental Health in Omaha, Nebraska, on December 9, 1981, because he had attacked his mother on several occasions. On one occasion when his mother was pregnant, the foster child threatened to kill his mother's unborn child with a knife. The foster child remained in inpatient treatment until February 22, 1982.

Although DSS was aware of the foster child's treatment at St. Joseph's, DSS never obtained the records from St. Joseph's. DSS informed the Haselhorsts that the foster child had been hospitalized at St. Joseph's. DSS, however, did not tell the Haselhorsts the reason for his hospitalization.

Both parents testified that if they had known of the foster child's violent tendencies prior to his placement in their home, they would not have taken him in as a foster child.

On May 2, 1984, when Ronald and Janet returned from a church seminar, they were informed by the babysitter that she had seen the foster child standing with his back to the door of his room and with his pants loose around his hips. One of the Haselhorsts' sons was sitting on the bed facing the foster child. The Haselhorsts immediately called the foster child's caseworker, Michael G. Puls, and demanded that the foster child be removed from their home.

The initial phone conversation between Ronald and Puls took about an hour. Puls told Ronald he would make a few phone calls and call the Haselhorsts back.

Puls called back in approximately one-half hour and related to Ronald a conversation he purportedly had had with Dr. Barbara Sturgis, a psychiatrist from Monroe Mental Health Center. Puls related that Sturgis had had a case concerning a similar incident between two brothers and that Sturgis thought the incident might have been normal boyish curiosity. Puls felt the case Sturgis had handled was similar to the Haselhorst situation. Ronald testified that this conversation led him to believe that Puls had actually discussed the incident in the Haselhorst home with a health care professional. Puls testified that he did not call or discuss the Haselhorsts' situation with Sturgis or any other doctor.

In the afternoon of May 3, 1984, Puls visited the Haselhorst home. Although the Haselhorsts had packed the foster child's bags in preparation for his removal from their home, Puls convinced the Haselhorsts that they should keep the foster child in their home. Puls did not talk to the foster child, the Haselhorsts' son, or the babysitter regarding the suspicious incident, nor did he inform the Haselhorsts of the foster child's violent history. Furthermore, Puls never attempted to obtain the foster child's records from St. Joseph's.

Puls' supervisor at the time of the foster child's placement with the Haselhorsts admitted that the failure of DSS to obtain the records from St. Joseph's fell below the department's standards. She also admitted that Puls failed to follow DSS standards regarding the May 2, 1984...