Johnston v. State

Decision Date08 March 1985
Docket Number83-966 and 84-027,Nos. 83-965,s. 83-965
PartiesLeslie JOHNSTON, Appellant, v. STATE of Nebraska, Appellee. Phyllis JOHNSTON, Appellant, v. STATE of Nebraska, Appellee. STATE of Nebraska, Appellant, v. Phyllis JOHNSTON, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Workmen's Compensation. The Nebraska Workmen's Compensation Act, Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1984), provides the exclusive remedy by the employee against the employer for any injury arising out of and in the course of the employment.

2. Workmen's Compensation: Tort Claims Act. The Nebraska State Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 to 81-8,235 (Reissue 1981), does not apply to any claim which is covered by the Nebraska Workmen's Compensation Act, Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1984).

3. Workmen's Compensation. If the injured employee does not have an independent cause of action, the injured employee's spouse cannot maintain an independent cause of action.

4. Workmen's Compensation: Appeal and Error. In reviewing findings of fact in workmen's compensation cases, this court is not free to weigh the facts anew. The findings of the compensation court have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong.

5. Workmen's Compensation. A workman is entitled to recover compensation for neurosis if it is a proximate result of his injury and results in disability.

M.J. Bruckner of Marti, Dalton, Bruckner, O'Gara & Keating, P.C., Lincoln, for appellants and appellees Johnstons.

Paul L. Douglas, Atty. Gen., and Martel J. Bundy, Asst. Atty. Gen., for appellant and appellee State.

KRIVOSHA, C.J., HASTINGS, and GRANT, JJ., and McCOWN, J., Retired, and WARREN and BLUE, D.JJ., and COLWELL, D.J., Retired.

KRIVOSHA, Chief Justice.

Pursuant to stipulation of the parties and with the consent of the court, the parties consolidated for purposes of appeal two tort cases (cases Nos. 83-965 and 83-966) and one workmen's compensation case (case No. 84-027), all arising out of the same occurrence.

On June 12, 1981, Phyllis Johnston was employed as a secretary to the Honorable Donald Brodkey, then one of the members of the Supreme Court of Nebraska. With the permission of Justice Brodkey, Mrs. Johnston took a late lunch hour and returned to her office at approximately 1:50 p.m. Upon reentering the building and before returning to her office, she proceeded to the statehouse cafeteria. The statehouse cafeteria is a facility operated by the division of rehabilitation services of the State Department of Education and is open to the general public. Mrs. Johnston proceeded to a coffee urn, where she drew in a Styrofoam cup what she thought was a cup of coffee and, after paying for the coffee, then proceeded to her office. She sat down at her desk and, while visiting with the judge's law clerk, began to drink the coffee. She suddenly realized that what she was drinking was not coffee and immediately returned to the cafeteria. It was then determined that the urn from which Mrs. Johnston had drawn the coffee had just been cleaned with urn cleaner and that what she had ingested was not coffee but, rather, urn cleaner. After Mrs. Johnston was given some grapefruit juice, which was a prescribed antidote for the urn cleaner, she called her doctor and went to see him. Mrs. Johnston's testimony as to how the accident happened was essentially confirmed by the law clerk.

Mrs. Johnston was diagnosed by her physician as having caustic mouth and pharynx irritation. Endoscopic examinations performed by a gastroenterologist on June 19, 1981, resulted in a finding of injury caused by alkali ingestion, with minimal superficial erosions of the lower esophagus and minimal superficial erosion of the duodenal bulb.

Mrs. Johnston continued to experience difficulty and was hospitalized at St. Elizabeth Community Health Center from November 14 to 16, 1981. Because Mrs. Johnston was experiencing emotional difficulty be reason of the accident, the gastroenterologist recommended that Mrs. Johnston be seen by a psychiatrist. The psychiatrist examined Mrs. Johnston on December 14, 1981, and observed that since the ingestion of the urn cleaner, in addition to the esophageal and gastric problems, Mrs. Johnston had difficulty with panic attacks, anxiety, and subtle symptoms of depression. The psychiatrist placed Mrs. Johnston on an antidepressant called Asendin. She remained on the medication until December 29, 1981, when, unable to contact the original psychiatrist, she saw a second psychiatrist. At the trial the second psychiatrist testified that in his opinion Mrs. Johnston was suffering from a posttraumatic stress disorder caused by the accidental swallowing of the urn cleaner. As a result of his diagnosis, Mrs. Johnston was placed in a program of psychotherapy. Mrs. Johnston was seen by the psychiatrist every 2 weeks until the summer of 1982.

Shortly after Memorial Day 1983, Mrs. Johnston, on the advice of her physician, terminated her employment with the court. Testimony was produced through Justice D. Nick Caporale, Justice Brodkey's successor, that if Mrs. Johnston had not resigned, he would have been required to discharge her because the quality of her work had seriously deteriorated. She has been unemployed since that time. Subsequently, Mrs. Johnston filed a petition in the district court for Lancaster County, Nebraska, seeking to recover for her alleged injuries pursuant to the provisions of the Nebraska State Tort Claims Act. Neb.Rev.Stat. §§ 81-8,209 to 81-8,235 (Reissue 1981). Mrs. Johnston's husband, Leslie, also filed a suit in the district court for Lancaster County, Nebraska, pursuant to the State Tort Claims Act, seeking damages for medical bills and loss of companionship, comfort, and society.

While the tort cases were pending but inactive, the State of Nebraska filed a petition in the Nebraska Workmen's Compensation Court pursuant to the Nebraska Workmen's Compensation Act, Neb.Rev.Stat. §§ 48-101 et seq. (Reissue 1984), alleging that Mrs. Johnston's injuries were covered by the workmen's compensation laws of the State of Nebraska. In a bifurcated proceeding the Workmen's Compensation Court found that Mrs. Johnston's injury arose out of and in the course of her employment and was therefore covered by the Workmen's Compensation Act. On rehearing before a three-judge panel, the judgment was affirmed, with one judge dissenting.

The compensation court then proceeded to hold a hearing on the issue of damages. A single judge of the Workmen's Compensation Court held that because Mrs. Johnston had continued to work at her usual job from the time of the alleged injury through the date of the first hearing on damages, she was not entitled to any disability payments. On appeal to the three-judge panel, by which time Mrs. Johnston had terminated her employment, an award was entered in favor of Mrs. Johnston for certain medical bills and for temporary total disability. The compensation court determined that Mrs. Johnston did not suffer any disability for the first 27 months after her accident, but because she became totally disabled on September 1, 1983 (the day she resigned from her job), and would remain temporarily totally disabled for an indefinite amount of time into the future, she was entitled to receive total temporary disability until the situation changed.

In the time between the first hearing on damages in the Workmen's Compensation Court and the rehearing, the state tort claims actions in the district court for Lancaster County, Nebraska, were completed. Following trial, the district court held that the State was liable to Mrs. Johnston in the amount of $40,000. On the same date, the district court also entered judgment for medical bills and loss of companionship in favor of Mr. Johnston in the amount of $15,227.15. Both Mrs. Johnston and Mr. Johnston have appealed those decisions, maintaining that the awards of damages in the district court were clearly inadequate and are contrary to the evidence and to the law. For reasons which we will more particularly set out hereinafter, we conclude that the district court for Lancaster County, Nebraska, was without jurisdiction in these cases and that the Johnstons could not recover under the provisions of the Nebraska State Tort Claims Act because Mrs. Johnston's exclusive right of recovery was pursuant to the Nebraska Workmen's Compensation Act.

The State, on the other hand, appeals the decision of the Workmen's Compensation Court, arguing that while the accident arose out of and in the course of Mrs. Johnston's employment, the evidence fails to disclose that she suffered any damages and, therefore, the award entered by the compensation court should be set aside. With that contention we do not agree.

The first question which we must address is whether the Nebraska Workmen's Compensation Act is the exclusive remedy available to Mrs. Johnston or whether she may accept the benefits of the Workmen's Compensation Act and, nevertheless, file suit under the State Tort Claims Act for any damages she claims to have sustained in excess of those for which she was compensated under the provisions of the Nebraska Workmen's Compensation Act. In support of that position the Johnstons argue that where an injured employee does not recover full compensation under the state workmen's compensation laws for all damages proximately caused by the employer's negligent act, the court should apply what has come to be known in a few jurisdictions as the "dual capacity" doctrine. According to the "dual capacity" doctrine, an employer may become liable to an employee in tort if, with respect to that tort, the employer occupies a position which places upon it obligations independent of and distinct from its role as an employer. See Duprey v. Shane, 39 Cal.2d 781, 249 [219 Neb. 462] P.2d 8 (1952). Because of the...

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