Sharkey v. Board of Regents, S-98-1061.

Decision Date11 August 2000
Docket NumberNo. S-98-1061.,S-98-1061.
PartiesJohn SHARKEY and Regina Sharkey, Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, Appellee.
CourtNebraska Supreme Court

Thomas D. Waldman and Marlon A. Polk, of Polk, Waldman & Wickman, L.L.C., Omaha, for appellants.

John C. Wiltse for appellee.




The instant appeal arises out of a stabbing incident on the campus of the University of Nebraska at Omaha (UNO). Danny Clark, a UNO student, stabbed John Sharkey (Sharkey) during an altercation over Clark's harassment of Sharkey's wife, Regina Sharkey (Regina). Sharkey sustained serious injuries to his hands and arms. He sought recovery in a suit filed against the Board of Regents of the University of Nebraska (University) under the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Cum.Supp.1992). Regina joined her claim for loss of consortium with Sharkey's claim against the University.

Generally, the Sharkeys alleged that the University was negligent in failing to protect them from this physical attack, in failing to take reasonable security measures, and in failing to timely and adequately respond to, or intercede in, the physical attack on Sharkey. After a bench trial, the district court concluded that the relevant statute of limitations, § 81-8,227, barred the Sharkeys' claim and further stated in its order that the attack on Sharkey was not reasonably foreseeable. The Sharkeys' motion for a new trial was overruled, and this appeal followed.


Sharkey and Regina were enrolled as UNO students in October 1993. Clark was also a student at UNO at that time, and both Clark and Regina were enrolled in an exercise class taught by Lora Tharp. On October 4, before the class began, Clark was bothering Regina, grabbing her arms and generally harassing her. At that time, Regina did not tell Tharp about the incident, but she told Sharkey about the encounter. That evening, Sharkey left a message on Tharp's answering machine expressing a desire to talk about the incident. Sharkey left his telephone number and told Tharp to call him back, day or night, to discuss the problem.

Tharp did not return Sharkey's call that night; instead, she decided to contact UNO authorities about what to do regarding the harassment. The next day, Tharp contacted her supervisor and was told to arrange a meeting with the Sharkeys; Tharp and her supervisor did not discuss contacting campus security. Tharp returned Sharkey's call on October 5, 1993, and left a message informing Regina that she would like to meet with her before or after class the next day. Regina asked Sharkey to accompany her to the meeting.

On October 6, 1993, the Sharkeys went to the health, physical education, and recreation (HPER) building to meet with Tharp. While waiting in the hall, the Sharkeys encountered Clark. Clark came from behind and grabbed Regina. Regina told Sharkey that Clark was the man who had been harassing her. Sharkey went over to Clark and told him to stop touching Regina and that he did not want Clark in the same vicinity as her again. Sharkey said that Clark told him to wait right there. The Sharkeys decided not to wait for Clark, and they began looking for a telephone, but were unable to locate one.

Clark returned with a knife. Sharkey told Regina to get some help and then tried to convince Clark to put the knife down. Regina ran downstairs and told those she encountered to get some help because there was a man upstairs with a knife. When she returned to the scene, Sharkey and Clark were still circling each other, with Clark jabbing at Sharkey. Regina ran back downstairs to make sure that someone had called for help; she was assured that help was on the way. When Regina once again returned upstairs, Clark had stabbed Sharkey. Both Regina and Sharkey noticed the presence of a security officer in the gathering crowd. After a few minutes, Clark ran away from Sharkey. HPER officials and onlookers administered first aid to Sharkey. Sharkey was taken to the hospital; he had sustained injuries to both of his arms, wrists, and hands, resulting in medical expenses of $39,035.08. Campus security personnel apprehended Clark while he was fleeing.

The Sharkeys filed a claim with the State Claims Board pursuant to the State Tort Claims Act on February 15, 1994 (tort claim No. 94-355). The Sharkeys alleged that the University knew or should have known that Clark would cause injury to Sharkey and/or others similarly situated. Sharkey claimed personal injuries, and Regina claimed a loss of consortium. Their claim was denied on June 13.

The Sharkeys filed another claim with the State Claims Board on January 18, 1995 (tort claim No. 95-381). In this claim, the Sharkeys alleged that UNO security officers were present during the fight, but did nothing to protect Sharkey's life. This claim was also denied on June 2. The Sharkeys filed a petition in the district court on September 20, 1995.

In their third and operative petition, the Sharkeys alleged that the University was negligent in (1) failing to protect them from persons on its campus when the University knew or should have known that the Sharkeys could be physically attacked by such persons, (2) failing to protect the Sharkeys from Clark when the University knew or should have known that the Sharkeys could be physically attacked by Clark, (3) failing to take reasonable security measures for the protection of the Sharkeys and other students, (4) failing to make telephones adequately available for the Sharkeys' use in the case of a life-threatening emergency, (5) failing to establish or implement adequate security measures for the protection of the Sharkeys and others from careless or criminal conduct on the UNO campus, and (6) failing to timely and adequately respond to or intercede in the physical attack on Sharkey.

A bench trial was held. Much of the evidence focused on UNO's knowledge of Clark, the level of campus crime in general, and the adequacy of UNO's security measures. Regarding UNO's knowledge of Clark's behavior, Alesia Morris and Keisha Turner testified that Clark had stalked them beginning in 1990 and 1991, respectively. Morris told campus security about her problems with Clark; however, because Clark had not touched or threatened her, Morris was told that nothing could be done.

Turner testified that Clark had stalked her where she worked. Additionally, Clark had attempted to caress her face once while she was at UNO. Turner reported this encounter to UNO campus security, but she did not know Clark's name at that time. Turner did, however, tell security personnel that she thought an acquaintance of hers knew Clark's name. She also told campus security about her prior encounters with Clark. Campus security did not contact either her or her acquaintance. When asked why security did not contact Turner's acquaintance to investigate Turner's claim, a campus security corporal stated, "Probably because I got busy with something else. I don't recall." Later, Turner went back to campus security with the name of her alleged perpetrator (Clark). Campus security never contacted Turner about her complaint.

Turner stated that Clark had never threatened her with a weapon. Regina similarly testified that Clark had not threatened her with a weapon. Tharp, the aerobics instructor, testified that she had never seen Clark threaten anyone.

Several witnesses testified about the stabbing incident itself and the perceived adequacy of the UNO campus security's response. Regina testified that during the altercation, a campus security officer stood in front of the gathering crowd of students and told them to stand back. Sharkey was also aware of the security officer's presence and testified that no one came to his aid during the attack. This security officer was deposed prior to trial, and her deposition was received into evidence at trial. The security officer testified that she had training in the area of university security prior to her employment at UNO. The security officer stated that she had received no training at UNO regarding the protection of students, but had been trained elsewhere.

The security officer testified that her patrol areas fluctuated during 1993. Her duties included patrolling the HPER building, looking for disturbances, and checking the various activity courts. The security officer also stated that security personnel are not permanently stationed at the HPER building.

On the day of the stabbing, the security officer was in the office in the Eppley Administration Building when campus security received a call regarding the stabbing. She testified that approximately 2 or 3 minutes elapsed between the receipt of the emergency call and the time she arrived with three other officers at the HPER building. The officers encountered Clark coming down the stairs and apprehended him. While two of the officers removed Clark from the building, she and another officer went upstairs, where they saw Sharkey. She noticed that the HPER staff was giving Sharkey medical assistance and attempted to keep onlookers from interfering with that assistance.

One witness, a then employee at HPER, testified about his memory of the stabbing incident. The witness saw Clark running with a knife and then heard Clark and Sharkey yelling. The witness called UNO campus security when he heard the commotion. He estimated that the incident lasted "just a few minutes" and recalled seeing at least two security officers arrive at the scene. Another UNO employee was in the HPER building at the time of the stabbing and saw some of the incident occur. This witness stated that Clark's flight from the scene and the arrival of two UNO security officers were "almost simultaneous." The witness testified that he was not aware of anyone coming to Sharkey's aid...

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