McCurry v. School Dist. of Valley

• Decision Date: 26 February 1993
• Docket Number: No. S-89-1480,S-89-1480
• Citation: 496 N.W.2d 433,242 Neb. 504
• Parties: , 81 Ed. Law Rep. 288 Dolores McCURRY, Personal Representative of the Estate of Danette Robin McCurry, Deceased, Appellant, v. SCHOOL DISTRICT OF VALLEY, a Political Subdivision, Appellee.
• Court: Nebraska Supreme Court

Page 433

496 N.W.2d 433

242 Neb. 504, 81 Ed. Law Rep. 288

Dolores McCURRY, Personal Representative of the Estate of Danette Robin McCurry, Deceased, Appellant, v. SCHOOL DISTRICT OF VALLEY, a Political Subdivision, Appellee.

No. S-89-1480.

Supreme Court of Nebraska.

Feb. 26, 1993.

Syllabus by the Court

1. Pleadings. Amendment of a petition is not a matter of right.

2. Pleadings. The decision to grant or deny amendment to a pleading rests in the discretion of the trial court.

3. Pleadings: Summary Judgment. In the absence of some mitigating factor which would justify the raising of new issues by a party after a motion for summary judgment has been heard and submitted, it is not an abuse of discretion to deny a motion to amend pleadings.

4. Actions: Pleadings. While it is not necessary to state a cause of action in any particular form, and in actions not involving extraordinary remedies, general pleadings are to be liberally construed in favor of the pleader, proper pleading nonetheless requires a petition to state in logical and legal form the facts which constitute the cause of action, define the issues to which the defendant must respond at trial, and inform the court of the real matter in dispute.

5. Actions: Pleadings. It is the facts well pleaded, not the theory of recovery or legal conclusions, which state a cause of action.

6. Trial: Pleadings: Pretrial Procedure: Summary Judgment. When it is asserted in a motion for summary judgment that an opposing party has failed to state a cause of action, the motion may be treated, as far as that issue is concerned as one for judgment on the pleadings.

7. Summary Judgment. Summary judgment is properly granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record show there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and the movant is entitled to judgment as a matter of law.

8. Principal and Agent: Independent Contractor: Negligence. Whereas under the respondeat superior doctrine the negligence of an agent is imputable to the principal, unless the person engaging the services of an independent contractor failed to exercise due care in selecting the contractor, or the duty to be performed is nondelegable, the negligence of the contractor is not imputable to the person engaging the contractor.

9. Principal and Agent: Words and Phrases. An agent is a person authorized by the principal to act on the principal's behalf and under the principal's control.

10. Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the method or means used.

11. Independent Contractor: Agents. The determination of whether one is an independent contractor or an agent is one of fact.

12. Independent Contractor. The common-law test for determining whether an independent contractor status exists includes the consideration and weighing of many factors, no one of which is conclusive.

13. Independent Contractor. The criteria for making the determination as to whether one is an independent contractor include a consideration of who has the right of control, who provided the tools, the degree of supervision exerted over the one performing the work, the method of payment, and the contractual understanding between the parties.

14. Agency. Whether an agency relationship exists between two parties depends on the facts underlying the association, irrespective of how the parties describe or characterize their connection.

15. Agency: Intent. An agency may be implied from the words and conduct of the parties and the circumstances of the particular case evidencing an intention to create the relationship.

16. Actions: Tort-feasors: Releases. Whereas a release extinguishes the cause of action as to all joint tort-feasors, a covenant not to sue does not extinguish the cause of action and does not release other joint tortfeasors even if it does not specifically reserve rights against them.

17. Principal and Agent: Releases. While a release differs from a covenant not to sue, in the principal-agent setting it matters not how the settlement was reached; whether by release or covenant not to sue, settlement with the agent constitutes a settlement with the principal, no matter what the parties may have intended.

Daniel G. Dolan, Omaha, for appellant.

Thomas A. Otepka and Susan E. Norris, of Gross & Welch, P.C., Omaha, for appellee.

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

CAPORALE, Justice.

I. STATEMENT OF CASE

In this suit joining an action for the wrongful death of Danette Robin McCurry with an action on behalf of said decedent's estate, the personal representative of the estate and mother of the decedent, the plaintiff-appellant, Dolores McCurry, challenges the district court's grant of summary judgment to the defendant-appellee, School District of Valley. In so doing, the personal representative asserts, in summary that the district court erred in (1) refusing her leave to amend her petition, (2) determining there were no genuine issues of material fact, and (3) treating the settlement agreement she had reached with another as relevant to her suit against the school district. We affirm.

II. FACTS

The school district arranged a 1988 ski trip for its students, as had been done since 1970. School district officials planned to depart on the evening of February 12, ski on the slopes of Winter Park, Colorado, and return in the early morning hours of February 16.

Depending on the number of students wishing to participate and the resulting cost, the school district planned to either charter a bus or rent or use school vans for transportation. Because of the level of interest shown in the trip, it became necessary to charter a bus and to arrange for additional transportation.

In December 1987 or January 1988, while at a nonschool function, school district teacher Bob Harper remarked to Scott Nielsen, a local resident but not a school district employee, that there were more students than there was room on the chartered bus. Nielsen told Harper to contact him if he needed help with the ski trip. Approximately 1 week later, Harper called Nielsen and asked him to drive his (Nielsen's) van on the trip, which Nielsen agreed to do without wage or salary. However, the school district was to pay for Nielsen's gas and lodging, and he was to cover his own expenses for food and skiing.

Albeit unknown to the school district, for it did not inquire as to Nielsen's driving record, Nielsen was a licensed motor vehicle operator whose license had not been suspended at any time.

Two days before the trip, Nielsen decided to take his daughter along to visit her aunt in Denver, and he obtained authorization from Harper to do so.

While school district employees did not tell Nielsen what route to take nor what stops to make, he had no control over who was to be riding in his van. Instead, Harper assigned who would ride in Nielsen's van, and Nielsen was informed on the evening of February 12 who his passengers would be.

Nielsen and Harper agreed that it would be best if Nielsen's van departed at approximately 7 p.m., or 2 hours ahead of the bus, thus allowing the van to make stops, whereas the bus would drive straight through, except for stops to change drivers. Nielsen estimated that the 600-mile trip would take 12 to 13 hours. The van and the bus were to meet at the slopes in Winter Park at approximately 8:30 the next morning.

Nielsen worked during the day of February 12 at his job with the Omaha Public Power District. After leaving work early, at "[a] little after 4:00," he arrived home at 4:30 p.m. and immediately went to bed. He awakened at 6:45 p.m.

With Nielsen driving, the van departed from the school gymnasium in Valley, Nebraska, on February 12. Whether the van left around 7 p.m. or sometime after 8 p.m. is in dispute.

Nancy Berg, a home economics teacher, and her family were expected to ride in the van with Nielsen. However, they instead rode on the bus after a group of students approached Harper and asked permission to ride in the van. Riding in Berg's place was Bill Leggitt, who had expressed interest in riding in the van because his daughter was one of the passengers.

Including Nielsen, nine individuals occupied the van, notwithstanding that it was designed to seat only eight occupants; there were thus not enough seat belts for all the occupants. Neither Nielsen nor Leggitt instructed the students to use seat belts.

Nielsen had driven to the Colorado ski areas "many times," an estimated 10 to 12 times previously. However, he had not been to Winter Park before, and this was his first trip transporting students.

Nielsen set the cruise control at 55 miles per hour. After leaving a rest area near Lexington, Nebraska, Nielsen slowed down to 50 miles per hour because the wind was "blowing real hard" and he had observed slick spots on the road surface. The wind velocity was corroborated by Leggitt. Nielsen stated that he drove in the inside lane because it appeared to be drier and traffic was lighter. However, Leggitt stated that he did not recall Nielsen driving in the inside lane. Moreover, Leggitt stated that Nielsen was sitting on one of his legs while driving, thereby relying on the cruise control for acceleration.

Nielsen had the van's radio on and was conversing with Leggitt, who did not expect to share in the driving responsibilities because he was "anticipating sleeping as much as [he] could on the way to Winter Park." However, Leggitt denies telling Nielsen that he did not wish to drive. Nielsen, on the other hand, claims that Leggitt told him at one point that he (Leggitt) did not wish to drive. This surprised Nielsen somewhat,...