Merrick v. Thomas, S-92-1002

• Decision Date: 07 October 1994
• Docket Number: No. S-92-1002,S-92-1002
• Citation: 522 N.W.2d 402,246 Neb. 658
• Parties: , 10 IER Cases 1104 Dina MERRICK, Appellant, v. Patrick J. THOMAS, Sheriff, et al., Appellees.
• Court: Nebraska Supreme Court

Page 402

522 N.W.2d 402

246 Neb. 658, 10 IER Cases 1104

Dina MERRICK, Appellant, v. Patrick J. THOMAS, Sheriff, et al., Appellees.

No. S-92-1002.

Supreme Court of Nebraska.

Oct. 7, 1994.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, an appellate court accepts as true all well-pled facts and the proper and reasonable inferences of law and fact, but not the conclusions of the pleader.

2. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, an appellate court cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

3. Demurrer: Pleadings: Appeal and Error. An appellate court will overrule the sustaining of a demurrer if the petition, when liberally construed, states a cause of action.

4. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action, as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1989), means a narrative of events, acts, and things done or omitted that shows a legal liability of the defendant to the plaintiff.

5. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against a private individual.

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

7. Negligence. Whether a legal duty in a negligence action exists is a question of law dependent on the facts in a particular situation.

8. Negligence: Words and Phrases. Duty is an obligation, which the law recognizes and gives effect, to conform to a particular standard of conduct toward another.

9. Negligence. A common-law duty exists to use due care so as not to negligently injure another person.

10. Negligence. The duty of reasonable care generally does not extend to third parties absent fraud or other facts establishing a duty.

11. Negligence: Employer and Employee. In employee negligence situations, whether the defendant owed a duty of reasonable care to the third person or only to the employer depends upon whether the employee was called upon to act and use proper care to prevent injury to the third person or whether some relationship between the parties existed thereby creating a duty.

12. Negligence. Foreseeability is a factor in establishing a duty.

13. Negligence: Proximate Cause: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

14. Negligence: Proximate Cause: Proof. The plaintiff must meet three basic requirements in establishing proximate cause: (1) Without the negligent action, the injury would not have occurred, commonly known as the "but for" rule; (2) the injury was a natural and probable result of the negligence; and (3) there was no efficient intervening cause.

15. Negligence: Words and Phrases. An efficient intervening cause is a new and independent force intervening between the defendant's negligent act and the plaintiff's injury by the negligence of a third person who had full control of the situation, whose negligence the defendant could not anticipate or contemplate, and whose negligence resulted directly in the plaintiff's injury.

16. Breach of Contract: Forbearance: Estoppel. A promise which the promisor should reasonably expect to induce action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Promissory estoppel requires a reasonable and foreseeable reliance.

Mark E. Novotny, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Donald J. Straka, of Brashear & Ginn, Omaha, for appellees.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH and LANPHIER, JJ., and BOSLAUGH, J., Retired.

HASTINGS, Chief Justice.

Dina Merrick appeals from the judgment of the district court sustaining the defendants' demurrer and dismissing Merrick's action for negligence and promissory estoppel. Merrick appealed to the Nebraska Court of Appeals, and we removed the case to this court under the authority of Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1992) in order to regulate the caseloads of the appellate courts.

In reviewing a ruling on a general demurrer, an appellate court accepts as true all well-pled facts and the proper and reasonable inferences of law and fact, but not the conclusions of the pleader. Durand v. Western Surety Co., 245 Neb. 649, 514 N.W.2d 840 (1994); Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993). The court cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994); Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994). An appellate court will overrule the sustaining of a demurrer if the petition, when liberally construed, states a cause of action. Id. A statement of facts sufficient to constitute a cause of action, as used in Neb.Rev.Stat. § 25-806(6) (Reissue 1989), means a narrative of events, acts, and things done or omitted that show a legal liability of the defendant to the plaintiff. Lawyers Title Ins. Corp. v. Hoffman, 245 Neb. 507, 513 N.W.2d 521 (1994); Wheeler v. Nebraska State Bar Assn., supra.

Merrick claims that the trial court erred in sustaining the demurrer and dismissing Merrick's second amended petition.

Merrick's second amended petition named as defendants Patrick J. Thomas, as sheriff of Sarpy County; Randy Furby, as chairman of the Sarpy County Sheriff's Merit Commission; and Sarpy County itself. She alleged that the two individual defendants were agents and employees of Sarpy County, acting in its behalf; that pursuant to public notice Merrick, on October 20, 1990, filed an application for a position of employment with the sheriff's department; that as part of her application she was required to be and was tested by the merit commission and was notified that she had passed; that on April 17, 1991, she was offered a permanent position by Thomas and that she accepted such employment and left her former job; and that on August 14, 1991, she was informed by the sheriff's department that her employment was being terminated because she failed to pass the merit commission test. Merrick further alleged negligence on the part of the defendants in that (1) they failed to ensure adequate and proper scoring of her test, (2) they failed to ascertain true and correct scores, (3) they offered her a position for which she had not qualified by failing to pass the test, and (4) they offered her a position with the sheriff's department inducing her to terminate her previous employment when they knew or should have known that her test scores were inadequate to qualify her as an employee of the defendants. Merrick further alleges that (1) she justifiably relied upon the scoring of her merit examination and the representation by Thomas in offering her employment, and (2) she was offered, promised, and accepted employment at the sheriff's department, and relying on the employment offer, she resigned her full-time employment at her former place of employment. Thus, Merrick seeks damages based on negligence as well as on promissory estoppel.

A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against a private individual. Hamilton v. City of Omaha, supra. In order to prevail on a negligence action, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994); Haselhorst v. State, 240 Neb. 891, 485 N.W.2d 180 (1992). Whether a legal duty exists is a question of law dependent on the facts in a particular situation. Anderson v. Nashua Corp., supra; Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993). Duty is an obligation, which the law recognizes and gives effect, to conform to a particular standard of conduct toward another. Tiede v. Loup Power Dist., 226 Neb. 295, 411 N.W.2d 312 (1987).

Merrick argues that the defendants owed her a duty to score her test and offer her employment accurately and fairly. Merrick reasons that because the defendants' actions "regulated or governed" the conduct of others, the defendants owed a duty to act in "such a manner that those rightfully led to act on the faith of the performance of the Defendants shall not suffer a loss or injury through their negligence." Brief for appellant at 27. The defendants argue that the merit commission owes a duty to the sheriff to accurately score the test, but not to the applicant.

A common-law duty exists to use due care so as not to negligently injure another person. See Dieter v. Hand, 214 Neb. 257, 333 N.W.2d 772 (1983). Nevertheless, the duty of reasonable care generally does not extend to third parties absent fraud or other facts establishing a duty. Lawyers Title Ins. Corp. v. Hoffman, 245 Neb. 507, 513 N.W.2d 521 (1994). In employee negligence situations, whether the defendant owed a duty of reasonable care to the third person or only to the employer depends upon whether the employee was called upon to act and use proper care to prevent injury to the third person or whether some relationship between the parties existed thereby creating a duty. Dieter v. Hand, supra. Therefore, Merrick must have alleged sufficient facts in the petition to show some relationship between herself and the defendants in regard to scoring the test.

We have often stated that foreseeability is a factor in establishing a duty. Ditloff v. Otto, 239 Neb. 377, 476 N.W.2d 675 (1991); Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, ...