Sturzenegger v. Father Flanagan's Boys Home

Decision Date08 August 2008
Docket NumberNo. S-06-1364.,S-06-1364.
Citation276 Neb. 327,754 N.W.2d 406
PartiesJohn J. STURZENEGGER, an individual, Appellant, v. FATHER FLANAGAN'S BOYS' HOME, a Nebraska corporation, et al., Appellees.
CourtNebraska Supreme Court

Theodore R. Boecker and Jason M. Bruno, of Sherrets & Boecker, L.L.C., Omaha, for appellant.

James Martin Davis, of Davis Law Offices, for appellees Father Flanagan's Boys' Home and Glenn A. Moore.




John J. Sturzenegger sued Father Flanagan's Boys' Home (Boys Town) and a former Boys Town teacher based on an alleged instance of sexual abuse that occurred while Sturzenegger was a resident of Boys Town. After a rather contentious trial, a jury rejected Sturzenegger's claims and the district court entered judgment against him. Sturzenegger appeals, claiming that the court erred in several rulings during the course of the trial. The primary issue presented in this appeal is whether the court erred in permitting evidence of Sturzenegger's character and behavior before the alleged incident. But Sturzenegger argued that many of his personal problems were caused by the alleged abuse. So, evidence that he had those problems before the alleged abuse was relevant to prove that he did not have injuries resulting from sexual abuse, and that no abuse occurred. We affirm the judgment of the district court.


This litigation began when Sturzenegger filed a complaint against several defendants, including Boys Town and Glenn A. Moore, a former teacher at Boys Town. Boys Town and Moore are the only defendants who remain relevant to this appeal. Sturzenegger's operative third amended complaint alleged that Sturzenegger began living at Boys Town in 1997, when he was 13 years old. Sturzenegger alleged that Moore, an assistant family teacher at Boys Town, made sexual advances toward Sturzenegger and fondled his genitals, "thereby traumatizing" him.

At trial, Sturzenegger testified that he had been placed in Boys Town when he was 13 because he was having some "family problems." Sturzenegger said he was not using drugs or alcohol at that time. While he was at Boys Town, he and eight other boys lived in a house with their family teachers and Moore, the assistant family teacher. Moore did not live with them, but had a room in the residence for when he stayed overnight, usually on weekends. For reasons that will be apparent later, it is relevant to note that Moore is African-American. Sturzenegger said that he trusted Moore and went to Moore when he had problems.

Sturzenegger was diabetic and had to regulate his diet. His teachers, including Moore, helped him monitor his blood sugar. Sturzenegger testified that on the evening of August 23, 1997, his blood sugar was low, so he had been in and out of Moore's office checking his blood sugar. Sturzenegger said Moore asked him what he would do for $5. According to Sturzenegger, Moore asked him if he would run around the house naked for $5, and when Sturzenegger said no, Moore asked again. Sturzenegger said he thought Moore was kidding. Sturzenegger testified that then,

I went to the bathroom. Came back to the office. Checked my blood sugars. They were low again. Went to get some orange juice, came back to the office, sat down. Remember climbing into the chair that was next to the fridge. [Moore] asked me — started making more advances toward me. He said, would you masturbate in front of me for $5. Can I get you up for $5. Stuff like that. I kind of felt pressured into it. So I pulled down my pants a little bit and kind of started to touch myself and he just rolled his chair ... over to me and pulled my pants down the rest of the way and started fondling me.

Sturzenegger testified that this went on for 60 to 90 seconds, before Moore asked Sturzenegger if he was nervous. Sturzenegger said he told Moore to stop touching him, and Moore did. Sturzenegger said he pulled up his pants and left the room, but returned and confronted Moore. Moore asked what he could do "to make it right" and offered to give Sturzenegger candy or money, or to be more lenient with discipline. Sturzenegger said that after the incident, Moore was more lenient with his discipline.

Sturzenegger testified about a number of personal problems that he attributed to the alleged sexual abuse. For instance, Sturzenegger testified,

I still wake up three to four times a week in a hot sweat after — especially since this trial has been coming up. It's been happening more and more. Thinking, dreaming about [Moore] at night and him redoing this over and over to me. It just scares me. I have a racial problem. Racial hatred towards black people because of what happened to me. Just lots of other things. My attitude isn't always what it should be.


.... My attitude is bad most of the time. I have poor attitude because I look down upon myself because I didn't stop this from happening to myself.

Sturzenegger testified that he had been using illegal drugs and had some issues with sexual function because of what he alleged Moore had done to him. And Sturzenegger adduced expert psychological testimony linking his claimed symptoms to the alleged sexual abuse and to support the diagnoses of posttraumatic stress disorder, polysubstance abuse disorder, and sexual dysfunction.

On cross-examination, Sturzenegger was questioned extensively and aggressively regarding instances of misconduct that occurred while he was at Boys Town, and other instances of wrongdoing. He was questioned regarding drug use, before and after the alleged incident. And other witnesses testified regarding Sturzenegger's misconduct, particularly at Boys Town. But not all of the incidents about which Sturzenegger was cross-examined were substantiated by other evidence. Sturzenegger was also cross-examined, over objection, about factual allegations in his superseded pleadings that were inconsistent with his operative complaint and trial testimony. The superseded pleadings were later admitted into evidence.

Sturzenegger also testified on cross-examination regarding a polygraph examination that he said he had taken and passed. References to polygraph examinations had been precluded by a motion in limine. But on cross-examination, Sturzenegger responded to a question from Boys Town's counsel by telling counsel, "[w]ell, you know my word is good. And that's pursuant to the testimony I cannot give here today." Counsel asked the court to admonish Sturzenegger, but the court refused. Later, Sturzenegger again responded to a question about his credibility by saying, "[p]ursuant to the testimony that's not allowed here, you know I'm telling the truth."

Counsel began to ask for an admonishment, but withdrew it, and asked Sturzenegger, "[w]hat is this evidence that you say you have that the jury can't hear?" Sturzenegger testified that he had taken and passed a polygraph test. Another colloquy, and a discussion had outside the presence of the jury on a separate objection, suggests that when Boys Town's counsel asked the question, he had been unaware of the polygraph examination about which Sturzenegger testified.

During the same sidebar discussion, Sturzenegger's counsel said that he was "going to ask [Sturzenegger] on redirect about that polygraph examination and I have every right to because he opened the door and he talked about it." The court ruled on the unrelated objection, but said, "I'm not saying you can't talk about the polygraph test." However, Sturzenegger's counsel did not ask him about the polygraph during his redirect examination, and it does not appear from the record that any other evidence of the polygraph was offered at trial, aside from two more instances in which Sturzenegger volunteered it after Boys Town's counsel questioned his credibility. The court later reinstated its prohibition of and reference to polygraphs.

When Moore testified, he denied Sturzenegger's allegations. According to Moore, he and Sturzenegger did not get along well and Sturzenegger had used profanity and racial slurs against Moore. Moore recalled that Sturzenegger's blood sugar had been off on the night of the alleged incident, but denied making sexual overtures to Sturzenegger, having any sexual contact with Sturzenegger, or offering Sturzenegger money to do anything.

On cross-examination, Moore was not asked whether or not he had refused a polygraph examination. But during the testimony of the Boys Town police officer who investigated the incident, an offer of proof had been made that Moore had refused a polygraph. Moore's counsel did ask the officer whether he had arrested Moore, and the officer testified, without objection, that he had not. Sturzenegger proffered the officer's report of his investigation, but Boys Town's hearsay objection was sustained.

Boys Town also adduced testimony from Dr. Terry Davis, a psychiatrist, about whether Sturzenegger suffered from any mental disorder and whether "he had suffered any psychologic[al] injury or damage as a result of" the alleged sexual assault. Davis diagnosed Sturzenegger with "malingering," "polysubstance dependence," and "antisocial personality disorder." Davis explained that "malingering" is "a diagnosis that is given to reflect an intentional false or grossly exaggerated report of physical or psychiatric symptoms for purposes of what's called an external incentive for purposes of obtaining financial compensation, avoiding work, avoiding military duty, obtaining drugs." Davis said the diagnosis was based, in part, on a discrepancy between claimed disability and objective evidence, and a lack of cooperation with evaluation and treatment. Sturzenegger made a continuing objection to this testimony. Davis concluded, contrary to Sturzenegger's evidence, that Sturzenegger did not suffer from posttraumatic stress disorder.

Davis' opinions were based, in part, on psychological tests administered...

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