Moore By and Through Moore v. State

• Decision Date: 28 April 1994
• Docket Number: No. S-91-593,S-91-593
• Citation: 515 N.W.2d 423,245 Neb. 735
• Parties: Nicole MOORE, By and Through her next friend, Eulish MOORE, and Eulish Moore, individually, Appellants and Cross-Appellees, v. STATE of Nebraska et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 423

515 N.W.2d 423

245 Neb. 735

Nicole MOORE, By and Through her next friend, Eulish MOORE, and Eulish Moore, individually, Appellants and Cross-Appellees, v. STATE of Nebraska et al., Appellees and Cross-Appellants.

No. S-91-593.

Supreme Court of Nebraska.

April 28, 1994.

1. Tort Claims Act: Appeal and Error. The trial court's findings of fact in a proceeding under the State Tort Claims Act, § 81-8,209 et seq. (Reissue 1987 & Cum.Supp.1990), will not be set aside unless such findings are clearly incorrect.

2. Trial: Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages. These four essential elements are matters to be determined by the trier of fact.

5. Negligence: Proximate Cause: Words and Phrases. The proximate cause of an injury is that cause which, in a natural and continuous sequence, without any efficient, intervening cause, produces the injury, and without which the injury would not have occurred.

6. Negligence: Proximate Cause. The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event if the event would have occurred without it.

7. Rules of Evidence: Words and Phrases. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred.

8. Negligence: Proximate Cause: Proof. In order to prevail on the theory of assumption of risk, the defendant has the burden to establish that the plaintiff (1) knew of the danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage.

9. Negligence. A plaintiff is contributorily negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a proximate cause. Whether contributory negligence is present in a particular case is a question for the trier of fact.

Van A. Schroeder, of Bertolini, Schroeder & Blount, Bellevue, for appellants.

Don Stenberg, Atty. Gen., and Royce N. Harper, Lincoln, for appellees.

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

BOSLAUGH, Justice.

This is an action by Nicole Moore and Eulish Moore for damages against the State of Nebraska, the Nebraska Department of Social Services (DSS), and DSS Director Kermit R. McMurry, under the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987 & Cum.Supp.1990). The plaintiffs' second amended petition sought recovery for their injuries arising out of the negligent placement of a foster child in their home.

Following a trial before the court, judgment was entered in favor of the plaintiffs on May 2, 1991. The trial court found that there had been a failure on the part of the defendants to follow their regulations regarding advising foster parents and that the defendants failed to advise Eulish Moore and his wife of the foster child's criminal record in the juvenile court and his chemical abuse problems when they knew or should have known that those things existed.

The trial court awarded Nicole $10,500 for her mental pain and suffering. Eulish was awarded $600 for expenses of Nicole's therapy, $1,960 for future expenses for therapy for Nicole and himself, and $500 for his own mental pain and suffering.

The plaintiffs have appealed the judgment of the trial court, and the defendants have cross-appealed.

The trial court's findings of fact in a proceeding under the State Tort Claims Act, § 81-8,209 et seq., will not be set aside unless such findings are clearly incorrect. Koncaba v. Scotts Bluff County, 237 Neb. 37, 464 N.W.2d 764 (1991).

In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988). In reviewing a judgment awarded in a bench trial, an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Id.

Haselhorst v. State, 240 Neb. 891, 893, 485 N.W.2d 180, 184 (1992).

When viewed in the light most favorable to the plaintiffs, the record shows the following facts:

Nicole is the daughter of Eulish and Kathleen Moore. On July 30, 1985, Nicole was 7 years old.

On July 30, 1985, Clarence Moore, Jr., (no relation to Eulish and Kathleen) faced charges in the Sarpy County Separate Juvenile Court for a felony burglary. Clarence, who was 15 years old, had previously been incarcerated at the Youth Development Center-Kearney and had just been paroled in the spring of 1985.

Clarence's younger brother and sister were in foster care in Sarpy County, and their caseworker was Palistene Gray. Gray was contacted by Clarence's father, Clarence Moore, Sr., because he was concerned about what was happening to Clarence. Gray agreed to attend the proceeding in the juvenile court the morning of July 30, 1985, and Clarence was placed in the custody of DSS while Gray was at the hearing.

Kathleen Moore and Gray had become acquaintances because they worked in the same building. They had lunch together after Clarence had been placed in the custody of DSS. Gray explained to Kathleen that she was having trouble finding a foster home for Clarence and asked if Kathleen and her husband would be interested in taking him as a temporary placement.

Kathleen and Eulish had never been foster parents and were not licensed as such. Kathleen told Gray that she would ask her husband and let her know later. Eulish told Kathleen he wanted to talk with Gray before he would agree to take Clarence into their home.

When Kathleen and Eulish arrived home from their jobs on the evening of July 30, 1985, Gray was waiting in their home for them and had Clarence with her. After visiting with Gray and Clarence for about an hour, Kathleen and Eulish agreed to take Clarence.

Although Gray had access to information which indicated that Clarence had previous law violations and convictions in Douglas County Separate Juvenile Court for which he had been committed to the Youth Development Center-Kearney, she did not inform the Moores. Gray also did not tell them that at the time of his placement in their home, Clarence was on parole from the Youth Development Center and that he was facing charges in the Sarpy County Separate Juvenile Court for felony burglary.

The Moores were told Clarence was a "good kid" who was involved with the wrong crowd and needed parental guidance. Kathleen testified that if they had been informed of Clarence's criminal record, they would not have accepted him into their home.

While DSS did a criminal record check on Eulish and Kathleen, it did not investigate Clarence's background. If DSS had checked Clarence's records, it would have discovered that along with his record for criminal activity, Clarence had a history of alcohol and drug usage, and that he had exhibited inappropriate sexual behavior while undergoing evaluation at the Youth Development Center-Geneva, as well as during the period of time he was paroled from Kearney and living in the home of his father and siblings.

Clarence spent only three nights in the Moores' home. During this time, he sexually assaulted Nicole. The assaults occurred on three occasions and involved contact with no penetration of the victim. There was no physical injury to the victim, although the plaintiff claims that an examination by a physician disclosed some perineal irritation.

On August 2, 1985, Clarence left the Moores' home to spend the weekend with his father. The next contact the Moores had with him was a call from the Bellevue Police Department on August 4, 1985. The police asked if the Moores would be willing to accept the release of Clarence into their care following his arrest on new criminal charges. The Moores refused.

In January 1986, Nicole revealed to her parents that she had been sexually assaulted by Clarence. Nicole gave a statement to the Bellevue police and was examined by a physician. Clarence later pled guilty to three counts of third degree sexual assault.

The Moores sought the services of a therapist, Nancy Thompson, for emotional problems they observed in Nicole, including bed-wetting, clinging behavior, nightmares, emotional outbursts at school, being afraid of the dark, and sleeping with her parents. After Nicole completed her counseling, she joined a youth group at her church to address issues of self-image.

On December 16, 1989, Nicole was evaluated by Dr. Stephen Skulsky. At trial, he testified that Nicole had suffered a mild posttraumatic stress disorder and that she could be susceptible to "flash-backs" during times of stress, such as developmental and life change experiences. On a scale of 1 to 10, Dr. Skulsky rated the assaults at about...