Maple v. City of Omaha, 84-747

• Decision Date: 28 March 1986
• Docket Number: No. 84-747,84-747
• Citation: 384 N.W.2d 254,222 Neb. 293
• Parties: Francis S. MAPLE, Appellant and Cross-Appellee, v. CITY OF OMAHA, Nebraska, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 254

384 N.W.2d 254

222 Neb. 293

Francis S. MAPLE, Appellant and Cross-Appellee, v. CITY OF OMAHA, Nebraska, Appellee and Cross-Appellant.

No. 84-747.

Supreme Court of Nebraska.

March 28, 1986.

Syllabus by the Court

1. Evidence: Negligence. Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the questions of negligence and comparative and contributory negligence are factual determinations.

2. Judgments: Appeal and Error. In our review of a bench trial of an action at law, this court must consider the evidence in the light most favorable to the successful party, resolving all conflicts in his favor. That party is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

3. Judgments: Appeal and Error. The findings of a trial court in a law action tried without a jury have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong.

4. Police Officers and Sheriffs: Emergency Vehicles. A police officer must be allowed to rely on the emergency status of the dispatch for his or her own protection and that of the public. As long as such officer acts in good faith in operating emergency equipment, he or she enjoys the privileges provided in Neb.Rev.Stat. §§ 39-608 and 39-640 (Reissue 1984).

5. Emergency Vehicles. Whether an authorized emergency vehicle is operating "proper audible or visual signals" under Neb.Rev.Stat. § 39-640 (Reissue 1984) is a factual question.

6. Proximate Cause: Negligence. 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 for which defendant is responsible, contributes to the injury complained of, as a proximate cause.

7. Negligence. The question of comparative negligence is for the determination of the fact finder.

8. Political Subdivisions Tort Claims Act: Negligence: Liability. Under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), it was the intent of the Legislature, with certain exceptions noted, to hold a municipality liable to an injured party for negligence of its employees, in the same manner that a private person would be liable to such claimant. There is no requirement that the negligent act complained of be performed by such municipal employee in furtherance of a private duty owed to the claimant as opposed to a duty owed the claimant and public generally.

9. Political Subdivisions Tort Claims Act: Immunity: Negligence: Proof. Although we do not engage in a special duty-general duty analysis of sovereign immunity, it is still necessary for the claimant, in order to recover from the municipality, to prove that a duty was owed to him or her, that this duty was breached, and that an injury was proximately caused by that breach.

10. Statutes. Where words of a statute are plain and unambiguous, no interpretation is needed to ascertain their meaning, and in the absence of anything to indicate the contrary, words will be given their ordinary meaning.

11. Emergency Vehicles: Negligence. The statute granting emergency privileges to police vehicles clearly imposes a duty of due regard or due care upon the drivers of emergency vehicles, and in a negligence action their conduct will be measured against that of a reasonable person exercising due care under the same emergency circumstances.

12. Emergency Vehicles: Right-of-Way. The statutory law granting the right-of-way to emergency vehicles generally does not condition that right-of-way on other drivers' perception of emergency equipment.

13. Motor Vehicles: Negligence. A driver's failure to see one favored over him under the rules of the road is negligence as a matter of law.

Thomas J. Culhane, of Erickson & Sederstrom, P.C., Omaha, for appellant and cross-appellee.

Herbert M. Fitle, Omaha City Atty., James E. Fellows, and Thomas O. Mumgaard, Omaha, for appellee and cross-appellant.

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

HASTINGS, Justice.

This is an action for personal injuries and property damages sustained in a collision between motorcyclist Francis S. Maple and a City of Omaha police cruiser driven by Officer Jesse Cortez. The bench trial took place on May 15 and 16, 1984, after which the district court for Douglas County dismissed plaintiff-appellant Maple's petition.

The accident occurred at 114th and Pacific Streets in Omaha on September 12, 1980, at approximately 7:30 a.m. Officer Cortez had been dispatched to the scene of a personal-injury automobile accident at 114th and Davenport and was proceeding eastward on Pacific, operating his red lights and siren, when he entered the intersection of 114th and Pacific. The officer slowed the cruiser to approximately 2 to 3 miles per hour to negotiate a left turn northward onto 114th Street. A fire engine, which was also operating its lights and siren, had just turned north onto 114th and Pacific, from the east side of the intersection, 8 to 10 seconds earlier.

Maple was traveling west on Pacific, about one block behind the firetruck. The east side of Pacific at its intersection with 114th Street is six lanes wide. Two lanes are south of a median for eastbound traffic. North of the median are a left turn lane, two lanes for through traffic, and one lane for right turn only. Maple was in the northernmost westbound through-traffic lane. Since the southernmost through-traffic lane was obstructed by two schoolbuses and another vehicle stopped at the green light, Maple did not see the police cruiser attempting to turn north.

Although he heard a siren, Maple proceeded into the intersection at 30 to 40 miles per hour, under the impression that the siren emanated solely from the firetruck. Officer Cortez saw the motorcycle when it was 5 to 6 feet from the cruiser, a split second before the collision. Since he had his foot on the brake already, he was able to stop the cruiser before impact. Maple was 6 to 10 feet from the cruiser when he saw it, but was unable to swerve and avoid it.

Maple's motorcycle struck the police cruiser in front of the right front tire. Maple suffered a compound fracture of his left leg and a closed fracture of his left wrist.

In his second amended petition, Maple claimed that the City of Omaha was liable under the theory of respondeat superior, not only for alleged negligent acts of Officer Cortez but also for alleged negligent acts of the 911 emergency operators who, Maple contends, wrongfully dispatched Officer Cortez to the scene of the 114th and Davenport accident on a high priority basis. The City of Omaha denied Maple's allegations of negligence and claimed damages to its police cruiser, pleading that Maple was contributorily negligent for failing (1) to keep a proper lookout, (2) to have his motorcycle under control, and (3) to yield the right-of-way; and for entering the intersection at an excessive rate of speed.

The trial court made extensive findings of fact in rendering its decision for the defendant, City of Omaha. Most of Maple's assignments of error dispute these factual findings: (1) That one of the busdrivers heard the police siren and that Maple entered the intersection despite the presence of other vehicles stopped at a green light; (2) That Maple was negligent in traveling at the speed he did and that his speed was a proximate cause of the accident; (3) That Maple failed to keep a proper lookout and maintain control over his vehicle; (4) That the police cruiser was properly operating as an emergency vehicle at the time of the accident and that it had a right-of-way under Neb.Rev.Stat. § 39-608 (Reissue 1984); (5) That Maple was contributorily negligent for failing to hear the police siren or to distinguish it from the firetruck's siren; and (6) That Maple's contributory negligence was more than slight, and sufficient to bar recovery. Also assigned as error was the court's determination that the city's 911 emergency operators owed no duty of care to Maple as a member of the public at large.

On cross-appeal the city assigned as error the factual finding that Officer Cortez was negligent in proceeding into the intersection without complete certainty that other drivers would yield the right-of-way, and the application of a common negligence standard to the officer's acts rather than the reckless disregard standard imposed by § 39-608(5).

Where evidence is in conflict and such that reasonable minds may draw different conclusions therefrom, the questions of negligence and comparative and contributory negligence are factual determinations. Stephen v. City of Lincoln, 209 Neb. 792, 311 N.W.2d 889 (1981).

In our review of a bench trial of an action at law, this court must consider the evidence in the light most favorable to the successful party, resolving all conflicts in his favor. That party is entitled to the benefit of every inference that can reasonably be deduced from the evidence. The findings of a trial court in a law action tried without a jury have the effect of a jury verdict and will not be set aside on appeal unless they are clearly wrong. Crawford v. Ham, 209 Neb. 802, 311 N.W.2d 896 (1981).

A review of the record reveals that Maple is correct in disputing the trial court's finding that one of the busdrivers heard the police cruiser's siren. Timothy Richardson testified that he did not hear the police siren, but stopped when he saw the cruiser's red lights. Richardson did hear the firetruck's siren, and Samuel Cato, the other busdriver, testified that he heard a siren but was unable to identify its source.

In any event, both busdrivers reacted properly to the emergency vehicles by stopping their vehicles. Despite the trial court's misstatement of this fact, there was other evidence to support the court's finding...