Shelton v. Board of Regents of University of Nebraska

• Decision Date: 11 June 1982
• Docket Number: 44132,44133 and 44134,Nos. 44130,44131,s. 44130
• Citation: 320 N.W.2d 748,211 Neb. 820
• Court: Nebraska Supreme Court
• Parties: Bruce E. SHELTON; Bruce E. Shelton, in his capacity as Personal Representative of the Estate of Chad E. Shelton; Sallie A. Shelton; Sandra Johnson Marchant, as best friend of Sherrie Johnson; and Sandra Johnson Marchant, in her capacity as Personal Representative of the Estate of Duane N. Johnson, Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA et al., Appellees.

Page 748

320 N.W.2d 748

211 Neb. 820

Bruce E. SHELTON; Bruce E. Shelton, in his capacity as Personal Representative of the Estate of Chad E. Shelton; Sallie A. Shelton; Sandra Johnson Marchant, as best friend of Sherrie Johnson; and Sandra Johnson Marchant, in her capacity as Personal Representative of the Estate of Duane N. Johnson, Appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA et al., Appellees.

Nos. 44130, 44131, 44132, 44133 and 44134.

Supreme Court of Nebraska.

June 11, 1982.

Syllabus by the Court

1. Negligence: Proximate Cause. Once the defendant's negligence has been established, it is necessary to find that the plaintiff's injuries were proximately caused by the defendant's negligence.

2. Negligence: Proximate Cause. Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred.

3. Negligence: Proximate Cause. The causal connection is broken if, between the defendant's negligent act and the plaintiff's injury, there has intervened the negligence of a third person who had full control of the situation and whose negligence was such as the defendant was not bound to anticipate and could not be said to have contemplated, which later negligence resulted directly in the injury to the plaintiff.

4. Negligence: Proximate Cause. The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

5. Negligence: Proximate Cause. It may be stated as a general rule that when, between original negligence and an accident, there intervenes a willful, malicious, and criminal act of a third person which causes the injury but was not intended by the person originally negligent and could not have been foreseen by him, the causal chain between the original negligence and the accident is broken.

6. Negligence: Proximate Cause. Although the question of proximate cause is originally for the determination of the jury, where only one inference can be drawn it is for the court to declare whether a given act or series of acts is the proximate cause of the injury.

Steven E. Achelpohl and Edward F. Pohren, of Dwyer, O'Leary & Martin, P. C., Omaha, for appellants.

John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

This appeal involves five separate cases brought on behalf of the victims of a poisoning. The cases were consolidated for argument and decision before this court. The trial court sustained demurrers filed by the appellees, Board of Regents of the University of Nebraska (Board of Regents) and Eugene C. Eppley Institute for Research in Cancer and Allied Diseases (Eppley Institute). Each of the appellants in the above-entitled cases elected to stand on his or her amended petition to which the demurrers had been filed. Accordingly, the trial court dismissed each of the actions and appeal was perfected to this court. We affirm.

Each of the actions, which are in all respects identical except for the name of the plaintiff, was filed pursuant to the provisions of the State Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 et seq. (Reissue 1976). Appellants are members or the personal representatives of members belonging to two families from Omaha, Nebraska, who were involved in a poisoning incident in 1978. The poisoning involved a former employee of the Eppley Institute, Steven Roy Harper. The carcinogenic agent, dimethylnitrosamine (the poisonous drug), was taken by Harper from the Eppley Institute while Harper was employed there in 1978, though it was used by Harper against the various appellants following his discharge from employment. Harper was convicted of murder as a result of the deaths caused by the poisonings. See State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).

Because these cases come to us following the sustaining of demurrers we have nothing more before us than the allegations of the amended petitions. Clark & Enersen, Hamersky, S., B. & T., Inc. v. Schimmel Hotels Corp., 194 Neb. 810, 235 N.W.2d 870 (1975). For purposes of our examination we must accept as true all facts well pleaded. Gilbert v. Vogler, 197 Neb. 454, 249 N.W.2d 729 (1977). We do not, however, accept as true facts not well pleaded or conclusions of law or of the pleader. Root v. School Dist. No. 25, 184 Neb. 570, 169 N.W.2d 464 (1969); Berigan Bros. v. Growers Cattle Credit Corp., 182 Neb. 656, 156 N.W.2d 794 (1968).

The amended petitions allege that in 1973 and 1974 Harper had an emotional relationship with Sandra Johnson Marchant (Mrs. Marchant). Mrs. Marchant broke off the relationship and married Duane Johnson. On June 21, 1975, after attempting to persuade Mrs. Marchant to leave her husband, Duane Johnson, Harper attempted to kill her and her husband and the other members of her family with a shotgun blast. Several members of Mrs. Marchant's family were injured by the shotgun blast, and as a result Harper pled guilty to the crime of intent to kill, wound, or maim. On December 6, 1976, he was sentenced to an indefinite term of from 1 to 5 years in the Nebraska State Penitentiary.

The amended petitions further allege that Harper was thereafter paroled on November 16, 1977, and was on parole when he was employed by the Eppley Institute. Appellants allege that despite Harper's previous criminal involvement, he was hired by the Eppley Institute in Omaha, Nebraska, and commenced work as a research technologist on March 1, 1978. The amended petitions allege that Harper's duties at the Eppley Institute were described in his job classification as follows: "1. Handling and some maintenance of rats. 2. Preparation of various diets. 3. Responsibility of feeding rats. 4. Animal autopsies, in particular, preparation of urinary bladder and kidneys for further processing. 5. Assist in biochemical experiments concerned with the peneablility (sic) of the urinary bladder. 6. Observe all safety rules." The amended petitions each specifically allege that Harper's duties did not include working with the poisonous drug.

The amended petitions then allege that, throughout his employment at the Eppley Institute, Harper had access to the poisonous drug, a highly lethal and carcinogenic substance used by the Eppley Institute to induce cancer in rats. The amended petitions allege that the Office of Research Safety of the National Cancer Institute has adopted standards for research involving chemical carcinogens, including the poisonous drug. The standards were then set out in the petition.

The amended petitions further allege that, at all times material during his employment, the Eppley Institute failed to control Harper's access to the poisonous drug. Eppley Institute is charged with having no inventory procedures to monitor the quantities of the drug on hand at any time, nor any way of determining whether carcinogens were being taken from the premises.

Moreover, the amended petitions allege that, during Harper's employment with Eppley Institute, an employee of the institute placed an article on the Eppley Institute's bulletin board, describing a poisoning incident in Germany in which the poisonous drug was used to induce cancer and ultimate death in its victims. Appellants allege that exposing Harper to this article was negligent and was a proximate cause of the injuries and damages to each of the appellants. They further allege that the Eppley Institute failed to exercise due care in investigating the background and history of Harper before hiring him. The amended petitions allege that the Eppley Institute was negligent in four specific ways, to wit, (1) in hiring Harper; (2) in failing to control access to the poisonous drug by Harper; (3) in failing to maintain an inventory of the drug; and (4) in permitting the posting of the article describing the poisonous drug incident which occurred in Germany. The amended petitions allege that each of the acts and omissions described above occurred between March 1, 1978, and August 18 1978, and that as a result of the acts and omissions, the appellants suffered injury and damage.

The amended petitions further contain allegations concerning an alleged duty owed by the appellees to the various appellants. Because, however, we have determined that the amended petitions failed to allege facts from which it could be concluded that the alleged negligence of the appellees was the proximate cause of appellants' injury and damage, we do not address the issue of duty.

The law is clear that one is not always liable to another simply because one hs acted in a negligent manner. In order for there to be liability, certain basic elements must be established. In Daniels v. Andersen, 195 Neb. 95, 101, 237 N.W.2d 397, 402 (1975), we observed: "Once the defendant's negligence has been established, it is necessary to find that the plaintiff's injuries were proximately caused by the defendant's negligence."

In discussing what constitutes "proximate cause" in the law of torts, we have said: "Proximate cause, as used in the law of negligence, is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred." Weichel v. Lojka, 185 Neb. 819, 824, 179 N.W.2d 112, 115 (1970). See, also, Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758 (1957); Kroeger v. Safranek,...