Zach v. Nebraska State Patrol

Decision Date21 March 2006
Docket NumberNo. A-05-449.,A-05-449.
PartiesLoree ZACH et al., appellees, v. NEBRASKA STATE PATROL, appellant.
CourtNebraska Court of Appeals

Jon Bruning, Attorney General, and Lisa D. Martin-Price, Lincoln, for appellant.

Terry M. Anderson and Steven M. Lathrop, of Hauptman, O'Brien, Wolf & Lathrop, P.C., Omaha, for appellees.

CARLSON, Judge.

INTRODUCTION

The Nebraska State Patrol appeals from an order of the Nebraska Workers' Compensation Court review panel reversing the trial court's determination that the third amended petition filed by Loree Zach, Andrew Zach, Preston Zach, Jordan Zach, Cody Zach, Siera Zach, Ariel Zach, and Parker Zach (appellees) failed to state a claim upon which relief could be granted pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev.2003).

BACKGROUND

On May 28, 2004, appellees filed a third amended petition in the Workers' Compensation Court requesting that they be awarded benefits under the Nebraska Workers' Compensation Act. The third amended petition alleges that on September 27, 2002, decedent Mark Zach, who had been a trooper with the Nebraska State Patrol, was killed as a result of "a self-inflicted gun shot wound in an accident, or as a result of an occupational disease, arising out of and in the scope and course of [his] employment with [the Nebraska State Patrol,] which accident and/or occupational disease occurred/developed in Madison County, Nebraska."

Pertinent portions of the factual background section of the third amended petition are as follows:

5. That the events and facts relating to the accident/occupational disease are as follows: Mark Zach was employed as a State Trooper and generally patrolled in an area including Madison County, Nebraska. On a date approximately two weeks prior to Zach's death, he stopped multiple suspects in Norfolk, Nebraska. In the course of investigating the activities of the suspects Zach found one of them to be armed with a pistol. Zach communicated the serial numbers from the handgun to a dispatcher. There was a miscommunication in the exchange between Zach and the dispatcher or an error on the part of one or the other of them the result of which was the failure to identify the handgun as stolen generally and specifically stolen from a sports store known as "Outdoors Unlimited". The consequence of failing to identify the handgun as stolen was that the suspects were not properly charged with possession of a stolen firearm and law enforcement was unable to take what would have been a lead in the "Outdoors Unlimited burglary" case and investigate whether the suspects were involved in that burglary or in possession of additional firearms which were stolen in the "Outdoors Unlimited burglary." These suspects were among those participants in a bank robbery in Norfolk, Nebraska (hereinafter "Norfolk bank robbery") during which several persons were murdered. The perpetrators of the "Norfolk bank robbery" included two of the individuals stopped by Zach and involved weapons which had been stolen in the "Outdoors Unlimited burglary". The deaths which took place in the "Norfolk bank robbery" devastated the community of Norfolk where Zach resided. On the day following the "Norfolk bank robbery", Zach was summoned to the State Patrol offices where he was advised that the suspects in the "Norfolk bank robbery" included two of the individuals he had stopped two weeks earlier. He was further advised that the murders in the bank robberies were accomplished with guns stolen in the "Outdoors Unlimited burglary" and that there had been a miscommunication between himself and the dispatcher, the result of which was the failure to identify the handgun found on the suspects during the stop as a gun stolen from the "Outdoors Unlimited burglary". Upon being advised of the circumstances, Zach felt responsible for the murders in the "Norfolk bank robbery" and became very distraught.

6. [Appellees'] decedent suffered an "accident" resulting in a "personal injury" inasmuch as the sudden stimulus (i.e., being advised of the consequences of an error) caused Zach's brain to undergo physical changes which, in turn, led Zach to a state of mind which overroad [sic] his will to the extent that even knowledge of the consequences of the act of suicide did not prevent Zach from taking his own life.

7. That [appellees'] decedent suffered an "occupational disease" inasmuch as the exposure to the stress of his employment resulted in an identifiable mental disease which disease, in turn, led Zach to a state of mind which overrode his will to the extent that even knowledge of the consequences of the act of suicide did not prevent Zach from taking his own life; that the stress put upon Zach which led to his mental disease is due to causes and conditions which are characteristic of and peculiar to law enforcement inasmuch as law enforcement officers are repeatedly charged with the community's safety, repeatedly exposed to stressful situations and suffer a peculiar and extreme degree of stress when faced with the fatal consequences of their law enforcement activities.

On June 4, 2004, The Nebraska State Patrol (hereinafter appellant) filed a motion to dismiss appellees' third amended petition for failure to state a claim upon which relief can be granted under rule 12(b)(6). The pertinent portion of appellant's motion to dismiss is as follows:

Specifically, [appellant] avers that [appellees'] claims against it are barred because [appellees] have not stated that decedent, Mark Zach, suffered a physical injury in an accident arising out of and in the course of his employment with [appellant]. The act of suicide, without an underlying injury to the employee's person, which injury, and the pain and/or depression resulting therefrom, later caused the injured worker to take his or her own life, is not an "accident" arising out of and in the course of employment as defined by the Nebraska Workers' Compensation Act. See [appellees'] Third Amended Petition, paragraphs 5-7.

On August 27, 2004, the trial court entered an order finding that appellees' third amended petition failed to state a claim upon which relief could be granted against appellant, and the trial court dismissed appellees' petition with prejudice. On September 8, appellees filed an application for review, asking the compensation court review panel to reverse the trial court's decision and reinstate the third amended petition. On February 28, 2005, the review panel entered an order reversing the trial court's decision and remanding the cause for trial on appellees' claim that decedent Zach suffered an injury from an accident and/or an occupational disease on September 27, 2002. Appellant now appeals the review panel's decision.

ASSIGNMENTS OF ERROR

Appellant assigns, restated, that the review panel erred in (1) reversing the trial court's decision that appellees failed to state a claim upon which relief could be granted and (2) relying on Tarvin v. Mutual of Omaha Ins. Co., 238 Neb. 851, 472 N.W.2d 727 (1991), as the basis for its decision.

STANDARD OF REVIEW

This action involves a rule 12 motion to dismiss for failure to state a claim. A trial court's grant of a motion to dismiss for failure to state a claim under rule 12(b)(6) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 694 N.W.2d 625 (2005); Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005).

ANALYSIS

An employee is entitled to benefits under the Nebraska Workers' Compensation Act if personal injury is caused to an employee by accident or occupational disease arising out of and in the course of his or her employment. See Neb.Rev.Stat. § 48-101 (Reissue 2004). The term "accident" is defined in Neb.Rev.Stat. § 48-151(2) (Reissue 2004) as follows:

Accident means an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment.

The term "occupational disease" is defined in § 48-151(3) as follows: "Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed." "Injury" is defined in § 48-151(4) as follows:

Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The terms include disablement resulting from occupational disease arising out of and in the course of the employment in which the employee was engaged and which was contracted in such employment. The terms include an aggravation of a preexisting occupational disease, the employer being liable only for the degree of aggravation of the preexisting occupational disease. The terms do not include disability or death due to natural causes but occurring while the employee is at work and do not include an injury, disability, or death that is the result of a natural progression of any preexisting condition.

Appellant argues that the trial court appropriately found that "violence to the physical structure of the body" is a necessary element for either an "accident" or an "occupational disease" and that physical changes in decedent's brain do not constitute "violence to the physical structure of the body." The trial court noted that appellees pled alternative theories of recovery, to wit: an accident and an occupational disease. In its order of dismissal, the trial court found:

[W]hether the [decedent's] suicide is deemed an "accident" or an "occupational disease" the...

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1 cases
  • Zach v. Nebraska State Patrol, S-05-449.
    • United States
    • Nebraska Supreme Court
    • February 2, 2007
    ...brain. The Nebraska State Patrol appealed. In a two-to-one opinion, the Nebraska Court of Appeals affirmed. Zach v. Nebraska State Patrol, 14 Neb.App. 579, 710 N.W.2d 877 (2006). The majority agreed with the review panel's interpretation of Tarvin. The dissent did not read Tarvin to hold th......

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