Koepf v. York County

• Decision Date: 23 March 1977
• Docket Number: No. 40576,40576
• Citation: 198 Neb. 67,251 N.W.2d 866
• Parties: , 90 A.L.R.3d 1205 Lana KOEPF, Administratrix of the Estate of Scott Edward Koepf, Deceased, Appellant, v. The COUNTY OF YORK, State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 866

251 N.W.2d 866

198 Neb. 67, 90 A.L.R.3d 1205

Lana KOEPF, Administratrix of the Estate of Scott Edward Koepf, Deceased, Appellant, v. The COUNTY OF YORK, State of Nebraska, Appellee.

No. 40576.

Supreme Court of Nebraska.

March 23, 1977.

Syllabus by the Court

1. The liability of a political subdivision under the Political Subdivisions Tort Claims Act consists of such liability as would exist in a private person or corporation without that immunity.

2. A public prosecutor when acting in the general scope of his official authority in making a determination whether to file a juvenile court petition is exercising a quasi-judicial function and is immune from suit for an erroneous or negligent determination when he acts in good faith.

3. A ministerial officer, acting under a process regular and valid on its face issuing from a court or tribunal with apparent jurisdiction to issue the same, is protected in obeying it.

4. The decisions of a county welfare department for the maintenance, care, or supervision of a dependent child, or in connection with the child's placement in a particular home, may entail the exercise of discretion in a literal sense, but such decisions do not achieve the level of basic policy decisions and do not fall within the discretionary-function exception as stated in section 23-2409, R.R.S.1943, of the Political Subdivisions Tort Claims Act.

5. Under the Political Subdivisions Tort Claims Act, the findings of the District Court will not be disturbed on appeal unless they are clearly wrong.

6. In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor and he is entitled to the benefit of every inference that can be reasonably deduced from it.

Vestecka & Gorham, Dennis C. Tegtmeier, Lincoln, for appellant.

James M. Bausch, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

C. THOMAS WHITE, Justice.

Lana Koepf, administratrix of the estate of Scott Edward Koepf, deceased, brought this action in the District Court for the wrongful death of a minor child, Scott Edward Koepf, against the defendant County of York under the provisions of the Political Subdivision Tort Claims Act. SS. 23-2401 to 23-2420, R.R.S.1943. Actions under the Political Subdivisions Tort Claims Act are triable to the court without a jury. At the conclusion of all the evidence in the case, the trial court entered judgment for the defendant. Plaintiff appeals.

On December 7, 1971, the county attorney of York County, Nebraska, filed a petition in the juvenile department in the county court of York County alleging that Scott was a neglected child within the meaning of the juvenile laws of the State of Nebraska. The petition alleges that Scott was born on November 28, 1970, the illegitimate son of the administratrix. The petition prayed that the county court inquire into the alleged neglect of Scott and made such order as might be required. On the filing of the petition, the county judge, Judge Hermann Glock, entered an order directing that the child be taken from the custody of the administratrix by the sheriff and placed in the custody of the York County welfare department, "until such time as the matter is heard." A summons was issued at the same time setting the matter for hearing on the 23rd day of December 1971, at 2 p.m. Pursuant to the order, the sheriff went to the York apartment of Lana Koepf and there took custody of Scott and delivered him to the welfare department of York County. On December 23, 1971, Lana appeared but the matter was continued by Judge Glock until January 4, 1972. On January 4 the hearing was held. The court ordered that the matter be continued until February 8, at 2 p. m. for final determination and further ordered that the care and custody of Scott be continued in the York County welfare department.

At the time of the placement of Scott with the welfare department, Mrs. Cecelia Grosse, a caseworker, was in charge of the office. The director of welfare was ill at the time. Scott was placed by the welfare department in the home of a Mrs. Thelma Sitzman at York, Nebraska, and remained in her custody until January 21, 1972, when Scott was brought to the York County Hospital. Shortly after his arrival at the hospital he was pronounced dead. The autopsy report found that "death is attributed to subdural and subarachnoid hemorrhage with associated cerebral edema. Multiple zones of ecchymosis are noted in the skin of the body, particularly on the face. Thirty-six areas of ecchymosis were noted in the skin of the face alone. There was severe laceration of the mucous membrane of the mouth involving the upper lip and maxillary mucosa in the region of the right central incisor tooth. The pulmonary edema and congestion is considerable (sic) terminal." The evidence establishes that Scott died of the results of severe physical injuries.

The plaintiff alleges that the judge, county attorney, and the sheriff were negligent in removing Scott from Lana's custody on December 7, 1971. It is further alleged that the welfare department was negligent in the selection of Mrs. Thelma Sitzman as a foster parent in (1) not requiring that Mrs. Sitzman be examined by a physician prior to placing Scott in the Sitzman home, (2) not inquiring as to Mrs. Sitzman's attitude toward corporal punishment prior to placing Scott in the Sitzman home, and (3) leaving Scott in the Sitzmans' home after having received complaints about Mrs. Sitzman.

The Political Subdivisions Tort Claims Act, section 23-2401, R.R.S.1943, removes, to at least a partial extent, the traditional immunity of subdivisions for the negligent acts of their employees and officers.

The question reqarding judge's liability has been long settled and clearly established. As a general rule, judges are immune from civil actions for damages for acts performed in the course of their official functions and judicial capacity. Rhodes v. Houston, 202 F.Supp. 624 (D.C. Neb., 1962); Santa Clara v. County of Santa Clara, 1 Cal.App.3d 493, 81 Cal.Rptr. 643. An exception to the rule of judicial immunity exists. It is founded upon proof that a judge acted in the clear absence of all jurisdiction and where such jurisdictional deficiency was known by the judge when he acted.

The plaintiff does not challenge the good faith of the judge, nor does she offer any evidence in support of such a claim. Rather, she acknowledges jurisdiction by her pleadings. The judge's immunity is patent.

A county attorney "having knowledge of a child in his county who appears to be a child as described in subdivision (1), (2), (3), or (4) of section 43-202 may file with the clerk of the court having jurisdiction in the matter, a petition in writing, setting forth the facts verified by affidavit." S. 43-205, R.S.Supp., 1976.

Section 43-202(2), R.S.Supp., 1976, grants exclusive original jurisdiction to county courts or separate juvenile courts of any child under the age of 18 years "whose parent * * * neglects * * * to provide proper or necessary * * * care necessary for the health, morals, or well-being of such child" or "who is in a situation * * * dangerous to life or limb or injurious to the health or morals of such child."

Section 43-206(5), R.S.Supp., 1976, states: "If it appears that the child is in such condition or surroundings * * * the judge may * * * order the officer serving it (summons) to take the child into custody at once."

The information that led to the filing of the petition in the juvenile department in the county court of York County was provided to the county attorney by the grandmother and aunt of Scott, the plaintiff's mother and sister.

The liability of a political subdivision under the Political Subdivisions Tort Claims Act is not an absolute liability, but consists of such liability as would exist in a private person or corporation without that immunity. § 23-2402, R.R.S.1943.

Quite apart from the record which fails to disclose any failure by the county attorney to comply with the provisions of sections 43-201 et seq., R.S.Supp., 1976, we are here faced with an assertion of liability of a county where the officer himself is immune.

In Koch v. Grimminger, 192 Neb. 706, 223 N.W.2d 833, we stated: " * * * that a public prosecutor, acting within the general scope of his official authority in making a determination whether to file a criminal prosecution, is exercising a quasi-judicial * * * function and that where he acts in good faith he is immune from suit for an erroneous or negligent determination."

The plaintiff does not allege that the prosecutor did not act in good faith nor does plaintiff attempt to so prove. The county attorney is personally immune. Strong reasons of policy exist to cloak a prosecutor with such immunity.

"A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant will often transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. * * * Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation." Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

The policy which necessitates the immunity from suit for a prosecutor necessarily requires a similar and possibly extended immunity for the political subdivision of whom the prosecutor may be an employee or...