Reiber v. County of Gage , 303 Neb. 325 ( 2019 )

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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
REIBER v. COUNTY OF GAGE
Cite as 303 Neb. 325
R honda R eiber, Special A dministrator of the
Estate of Chad Gesin, deceased, appellant,
v. County of Gage, Nebraska, and
Millard Gustafson, Gage County
Sheriff, appellees.
___ N.W.2d ___
Filed June 7, 2019. No. S-18-692.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions
brought pursuant to the Political Subdivisions Tort Claims Act, the fac-
tual findings of a trial court will not be disturbed on appeal unless they
are clearly wrong.
2. Judgments: Appeal and Error. In reviewing a judgment awarded in
a bench trial, the appellate court does not reweigh the evidence, but
considers the judgment in a 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.
3. Statutes. Statutory interpretation presents a question of law.
4. Trial: Expert Witnesses: Appeal and Error. An appellate court
reviews for abuse of discretion a trial court’s decision whether to admit
or exclude an expert’s testimony.
5. Rules of Evidence: Expert Witnesses. In a bench trial, an expert’s
testimony will be admitted under Neb. Evid. R. 702, Neb. Rev. Stat.
§ 27-702 (Reissue 2016), and given the weight to which it is entitled.
6. Negligence: Evidence. While the existence of a duty and the identifica-
tion of the applicable standard of care are questions of law, the ultimate
determination of whether a party deviated from the standard of care and
was therefore negligent is a question of fact.
7. Negligence: Expert Witnesses. When the conduct in question involves
specialized knowledge, skill, or training, expert testimony may be help-
ful or even necessary to a determination of what the standard of care
requires under particular circumstances.
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8. Trial: Expert Witnesses. The determination of the weight that should
be given expert testimony is uniquely the province of the fact finder.
9. Political Subdivisions Tort Claims Act: Immunity: Waiver. The
Political Subdivisions Tort Claims Act reflects a limited waiver of
governmental immunity and prescribes the exclusive procedure for
maintenance of a tort claim against a political subdivision or its officers,
agents, or employees.
10. Political Subdivisions Tort Claims Act: Immunity: Negligence. The
Political Subdivisions Tort Claims Act eliminates, in part, the tradi-
tional immunity of political subdivisions for the negligent acts of their
employees.
11. Actions: Dismissal and Nonsuit: Immunity. A suit that is barred by
sovereign immunity is dismissed for lack of subject matter jurisdiction.
12. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
tion of sovereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against the waiver.
13. Political Subdivisions Tort Claims Act: Immunity: Waiver: Appeal
and Error. In order to strictly construe the Political Subdivisions Tort
Claims Act against a waiver of sovereign immunity, an appellate broadly
reads exemptions from a waiver of sovereign immunity.
Appeal from the District Court for Gage County: Julie D.
Smith, Judge. Affirmed.
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Brandy R. Johnson, of Governmental Law, L.L.C., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Chad Gesin committed suicide while in the Gage County
jail. Gesin’s mother Rhonda Reiber, the special administra-
tor of Gesin’s estate, brought this negligence action against
the County of Gage, Nebraska, the Gage County sheriff, and
unknown Gage County sheriff’s employees under the Nebraska
Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev.
Stat. §§ 13-901 to 13-928 (Reissue 2012). Reiber alleged that
the defendants failed to follow the jail’s established protocol
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and knew, or in the exercise of reasonable care should have
known, that Gesin was suicidal. Following a bench trial solely
on the issue of liability, the district court found that the
defendants had exercised due care and that Reiber’s action
was barred by sovereign immunity under § 13-910(1). Reiber
appeals from that judgment. We agree with the findings of the
district court. Accordingly, we affirm.
BACKGROUND
A rrest
On July 4, 2013, at 4:30 p.m., Gesin was arrested by
Nebraska State Patrol Investigator Neal Trantham in down-
town Beatrice, Nebraska, after Trantham observed Gesin mak-
ing “punching-type motions” toward occupants of a mini-
van. Trantham testified that Gesin was initially noncompliant.
Trantham drew his baton, verbally commanded Gesin to get on
the ground, and placed Gesin in handcuffs. Trantham smelled
alcohol on Gesin and described him as upset, angry, and agi-
tated. Trantham called for backup, and Officer Shane Maloley
of the Beatrice Police Department arrived on the scene.
While at the scene, Maloley told Trantham about a previous
contact Maloley had had with Gesin. Maloley stated that in
September 2011, he arrested Gesin, and that during that arrest,
Gesin was heavily intoxicated with a blood alcohol content
of 0.214. Gesin stabbed himself with a knife numerous times
in the chest and while in police custody told Maloley that he
wanted to die. Maloley determined that Gesin was an immedi-
ate danger to himself or others and placed him in emergency
protective custody (EPC). Gesin was transported to the hospital
and released 3 days later.
Gesin’s girlfriend told Trantham that Gesin had assaulted her
earlier in the day and had sent her a text message which she
thought might be threatening suicide. Trantham asked her go to
the Beatrice Police Department where he could later conduct
a more indepth interview with her. Trantham then transported
Gesin to the Gage County jail.
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REIBER v. COUNTY OF GAGE
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Booking
At 5:13 p.m., Trantham and Maloley arrived at the jail facil-
ity with Gesin. The correctional officers on duty at that time
were Christina Lock and Trevor Rue. Trantham told Rue that
Gesin was “amped up,” which Trantham testified meant to be
careful because Gesin might be “likely to fight.” Trantham also
relayed Maloley’s comments that Gesin had stabbed himself
during a prior incident.
In accordance with jail policy and procedures, Trantham
completed a custody authorization form. One of the ques-
tions listed on the form was, “Has this arrestee demonstrated
any behaviors that might suggest suicidal tendencies? If yes,
what?” Trantham wrote, “Possibly — text message earlier
threatening.” At that time, Trantham had not actually read the
text message. He testified that this written comment referred to
“the vague statement that [Gesin’s girlfriend] had made to me
at the scene.” Trantham testified that at the time of booking,
based upon his observations and experience, he did not believe
that Gesin was at risk to commit suicide, but was merely angry
and frustrated about being arrested.
Trantham later read the text message while at the Beatrice
Police Department. The message read, “[R]emember what I said
kill you for myself.” After reading the message, Trantham did
not think that the message was a suicidal comment. Trantham
testified there was another message that stated, “It’s a good
thing you can’t see what I’m about to do.” Trantham described
the message as “very vague and open ended” and said that he
“absolutely did not think [Gesin] was suicidal.”
During the booking process, Trantham did not verbally
express a concern to the jail staff that Gesin might be suicidal.
The custody authorization form posed the question, “Has there
been any indication that the arrestee is acting so negatively
toward [his or her] charge(s) that [he or she] might engage
in self-harming behavior? If yes, what have you observed?”
Trantham wrote, “Not observed.” He also wrote that he had
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REIBER v. COUNTY OF GAGE
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not observed Gesin to have displayed any behaviors that would
indicate mental illness.
Gesin’s booking process lasted approximately 1 hour and
was recorded by the jail’s stationary surveillance camera
which captured video and audio. The following exchange was
recorded and played at trial:
[Trantham:] How do you spell your last name, Chad?
[Gesin:] Figure it out, you’re an investigator, investigate.
[Maloley:] G-E-S-I-N, I’ve arrested him before.
[Gesin:] On a domestic, right?
[Maloley:] Terroristic threats.
[Gesin:] Terroristic threats, stabbed myself nine fuck-
ing times in the fucking chest . . . yeah, shit happens . . .
and I didn’t go to jail then, did I?
[Maloley:] I EPCed you.
[Gesin:] I was out in three fucking days.
[Maloley:] Good, I’m glad you got better.
[Gesin:] And I beat the charges too, yeah.
[Maloley:] That’s good, I heard that, I believe your
mom went in and signed a release of prosecution, didn’t
she?
[Gesin:] I believe she didn’t, she says she didn’t, she
didn’t do shit.
Trantham characterized this exchange as Gesin’s “brag-
ging about the charges that were dismissed and that he didn’t
face any consequences for that arrest.” Trantham left the jail
shortly thereafter.
Maloley testified that Gesin was angry and agitated with
Trantham. Maloley did not think an EPC was necessary,
because Gesin did not seem suicidal and, unlike the 2011
incident, Gesin had not made a specific threat to end his life.
Maloley testified that he would not have anticipated what
Gesin later would do and that he would have said something
if he thought Gesin was a suicide risk. Prior to leaving the
jail facility, Maloley asked Gesin if he could leave without
Gesin’s giving the jail staff any trouble. Gesin replied, “I
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gotta live with these fuckers, you think I’m gonna give them
hell?” Maloley testified that based on Gesin’s comments, he
was reassured that Gesin had calmed down and did not have
any concerns about Gesin’s safety. Lock testified that once
Trantham left, Gesin became less agitated. Gesin complied
with all parts of the booking process, including the taking of
fingerprints and photographs, and reviewing and signing book-
ing papers.
Evidence at trial focused on several forward-looking state-
ments that Gesin made to jail staff during booking. Such state-
ments, among others, included:
• “Court’s open Friday? . . . Am I going to see the judge tomor-
row for bail? . . . Monday?”
• “I want to see my discovery packet before I fucking say
anything.”
• To Rue: “Look, I got to live with you, so I’m not even gonna
be rude to you.”
• Good thing I get paid tomorrow . . . I can bail myself out
tomorrow . . . with a debit card?”
Rue continued the booking process by asking Gesin ques-
tions from a standardized medical screening form. Rue asked
Gesin: “Do you have a serious mental health condition which
may need attention while you are here?” “Have you been hos-
pitalized for emotional problems within the last year?” Gesin
verbally answered “no” or shook his head in the negative. Rue
asked Gesin: “Have you ever attempted suicide?” “Are you
currently thinking about suicide?” Gesin verbally answered
“no.” Lock provided Gesin with a printed copy of his answers,
which he signed.
Gesin took a preliminary breath test which registered his
blood alcohol content of .103. Lock testified that Gesin did
not appear to be severely intoxicated. She informed Gesin that,
based on jail policy, he would be placed in a cell alone until
his blood alcohol content lowered to .05.
Lock testified that she had received training in suicide pre-
vention and stated that symptoms of a suicidal inmate included
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previous suicide attempts, the presence of suicidal thoughts
or plans, unusual reactions to being confined, and emotional
withdrawal or isolation. Based on her observations, Gesin
presented to her as an ordinary arrestee. She testified that it is
common for arrestees to come into jail irritated and agitated
about their charges. Lock did not have any concern that Gesin
was a suicide risk and saw no reason to place Gesin on sui-
cide watch.
Near the end of booking, Gesin spoke on the telephone
with his mother and brother. Gesin asked them to post his bail
and said that he would repay them the following day. Gesin
expressed concern that he would lose his son and his job, and
he became tearful for a brief period. Gesin’s mother testified
that she did not think Gesin was suicidal when she spoke with
him on the telephone.
Gesin’s Suicide
At 6:05 p.m., Gesin was escorted from the booking room to
a single-male, maximum-security cell due to his intoxication.
Gesin was not placed on suicide watch. Had he been, he would
have been stripped of his clothing, placed in a suicide smock,
and given a blanket which is less likely to tear. Instead, he was
provided with a regular blanket and “portable phone” located
outside of his cell.
Gage County Sheriff Millard Gustafson testified that jail
standards dictate that cell checks for inmates without any
special needs are to be conducted once every hour. Checks on
inmates who are intoxicated or on suicide watch are conducted
four times per hour. Gustafson testified that checks on an
inmate under special management are conducted on irregular
rather than exact time intervals so that the inmate does not
know exactly when the check will occur.
A shift change occurred with Rue’s departure, and Officer
Shana West came on duty. At 6:15 p.m., West performed the
first cell check on Gesin, who appeared to be asleep in his
bunk. The jail’s telephone records show that Gesin placed
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four calls from the portable telephone, between 6:19 p.m. and
6:24 p.m. Lock testified that she heard Gesin pressing keys on
the telephone. At 6:40 p.m., Lock and West escorted female
inmates back to their cells. At 6:45 p.m., Lock returned to
Gesin’s cell and found that Gesin had tied a blanket around the
cell bars and his neck and appeared to be leaning forward in a
seated position. Lock called for assistance and radioed for an
ambulance, and she retrieved a hook knife from the booking
room. A Gage County sheriff’s deputy used the knife to cut
Gesin free from the blanket. The deputy performed cardiopul-
monary resuscitation on Gesin until the ambulance arrived.
Gesin was transported to the hospital, where he was placed on
life support. Gesin died on July 9, 2013.
Trial
Reiber, as the special administrator of Gesin’s estate, filed
suit in the district court for Gage County, asserting claims
under the U.S. Constitution, the Nebraska Constitution,
42 U.S.C. § 1983 (2012), and the PSTCA. The lawsuit
was removed to the U.S. District Court for the District of
Nebraska. The federal court dismissed Reiber’s constitutional
and § 1983 claims and remanded the matter to the district
court for Gage County for proceedings on Reiber’s negli-
gence claim under the PSTCA. Gage County and Gustafson
(collectively appellees) filed a motion for summary judgment
pursuant to § 13-910(1), which the court overruled. The court
conducted a bifurcated bench trial on the issue of liability on
January 25 and 26, 2018.
At trial, over Reiber’s foundation and relevancy objec-
tions, the court heard testimony from appellees’ expert wit-
ness Dr. Terry Davis, a psychiatrist who ran the Region VI
Douglas County psychiatric crisis center in Omaha, Nebraska,
from 1991 to 2001. Davis testified that the crisis center was
essentially a psychiatric emergency room where he evaluated
patients brought in by law enforcement or who came volun-
tarily or who were under a mental health board petition. Davis
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would evaluate the individuals for dangerousness to self or
others, presence of mental illness, and need for treatment and
hospitalization. According to Davis, he evaluated over 8,000
patients while at the crisis center.
Davis opined that the 2011 incident in which Gesin stabbed
himself was not a genuine suicidal attempt. Davis provided
testimony based on his review of Gesin’s medical records
from 2011, which other witnesses had not discussed in their
testimony. Davis stated that Gesin’s medical records indicated
that the stab wounds were fairly superficial and that Gesin had
denied that the 2011 stabbing was a suicide attempt. Davis
agreed with the decision made in 2011 to dismiss the EPC
without a commitment.
Davis further testified that from the perspective of a psy-
chiatrist in a clinical setting and based on information known
at the time, he would not have thought Gesin to be suicidal in
2013. Davis stated that Gesin had some factors indicating sui-
cidal risk, such as being a white male who had been drinking
alcohol, but stated that Gesin’s age, previous law violations,
lack of a high level of intoxication, and forward-thinking
behavior were not risk factors. Therefore, Davis would not
have reasonably foreseen the need to undertake suicide pre-
cautions with Gesin. Davis also opined that the jail personnel
appropriately evaluated and screened Gesin for suicide. The
court found in its judgment on the merits that “Davis’ testi-
mony was credible, relevant, and helpful.”
Following trial, the court determined that Reiber’s action
was barred under § 13-910(1), because appellees acted with
due care in accordance with jail rules and regulations. The
court found that even if the action were not barred under
§ 13-910(1), appellees would have prevailed on the merits of
the negligence action, because Gesin’s death was not reason-
ably foreseeable and appellees acted with reasonable care.
Regarding the video of Gesin’s statements to Maloley during
booking, the court found that “it appears that [Gesin] was brag-
ging and insinuating that he stabbed himself as a tactic to get
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placed into [EPC] to avoid any criminal prosecution, and that
the tactic was successful.”
The court concluded that (1) Gesin’s death was not reason-
ably foreseeable to the jail staff; (2) Reiber failed to prove that
the jail staff lacked the appropriate training; (3) there was no
claim that the jail staff failed to properly respond to an emer-
gency; (4) there was no evidence that different staff members
would have prevented Gesin’s suicide; (5) it was not reason-
ably foreseeable that Gesin posed a threat to himself; (6) there
was no reason to believe that Gesin needed to be transferred to
a mental health facility; (7) Gesin was not placed in a safety
cell with a suicide smock, because there was no reasonably
foreseeable risk that he would harm himself; and (8) there was
no evidence of negligent hiring or supervision.
Reiber appealed. We moved the appeal to our docket pursu-
ant to our statutory authority to regulate the caseloads of the
appellate courts of this state.1
ASSIGNMENTS OF ERROR
Reiber assigns, restated, that the district court erred in (1)
permitting the expert witness testimony of Davis absent foun-
dation, relevance, and assistance to the fact finder; (2) finding
that the jail staff acted with due care in applying the rules of
the Jail Standards Board; and (3) finding that appellees acted
with reasonable care.
STANDARD OF REVIEW
[1,2] In actions brought pursuant to the PSTCA, the factual
findings of a trial court will not be disturbed on appeal unless
they are clearly wrong.2 In reviewing a judgment awarded in a
bench trial, the appellate court does not reweigh the evidence,
but considers the judgment in a light most favorable to the
successful party and resolves evidentiary conflicts in favor of
1
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
2
See Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009).
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the successful party, who is entitled to every reasonable infer-
ence deducible from the evidence.3
[3] Statutory interpretation presents a question of law.4
[4] An appellate court reviews for abuse of discretion a
trial court’s decision whether to admit or exclude an expert’s
testimony.5
ANALYSIS
We first address Reiber’s contention that the district court
erred by admitting Davis’ testimony. We then discuss the
court’s conclusion that Reiber’s claim is barred by sovereign
immunity under § 13-910(1).
No A buse of Discretion
Reiber raises two arguments in support of his contention
that the district court erred in admitting the expert witness tes-
timony of Davis. First, Reiber argues Davis’ testimony lacked
foundation and relevance, because, as a psychiatrist and foren-
sic psychiatrist, Davis could not render an opinion regarding
the standard of care applicable to jailers. Second, Reiber argues
Davis’ testimony was not helpful to the trier of fact, because
Davis’ testimony that Gesin’s suicide was not reasonably fore-
seeable amounted to an opinion as to how the court should
decide the case.
[5] Whether a witness is qualified as an expert is a prelimi-
nary question for the trial court.6 A trial court is allowed discre-
tion in determining whether a witness is qualified to testify as
an expert, and unless the court’s finding is clearly erroneous,
such a determination will not be disturbed on appeal.7 In a
3
Id. See, Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016);
Williams v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015).
4
Rohde v. City of Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007).
5
See State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018).
6
State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004); State v. Aguilar,
268 Neb. 411, 683 N.W.2d 349 (2004).
7
Id.
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bench trial, an expert’s testimony will be admitted under Neb.
Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), and
given the weight to which it is entitled.8
Evidence rule 702 governs the admissibility of expert tes-
timony and provides: “If scientific, technical, or other spe-
cialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness quali-
fied as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion
or otherwise.” When faced with a proffer of expert scientific
testimony, a trial judge must determine at the outset whether
the expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or determine a
fact in issue.9 The trial court should focus on the principles and
methodology utilized by expert witnesses, and not on the con-
clusions that they generate.10 We have held in another context
that expert testimony concerning a question of law is generally
not admissible.11
[6] A negligence action brought under the PSTCA has the
same elements as a negligence action brought against a private
individual—a plaintiff must show a legal duty owed by the
defendant to the plaintiff, a breach of such duty, causation,
and damages.12 While the existence of a duty and the iden-
tification of the applicable standard of care are questions of
law, the ultimate determination of whether a party deviated
from the standard of care and was therefore negligent is a
question of fact.13 To resolve the issue, a finder of fact must
8
City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432
(2005).
9
Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).
10
Id.
11
See id.
12
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
13
Cingle, supra note 2.
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determine what conduct the standard of care would require
under the particular circumstances presented by the evidence
and whether the conduct of the alleged tort-feasor conformed
with the standard.14
[7] When one person owes a legal duty to another, the stan-
dard of care which defines the scope and extent of the duty
is typically general and objective and is often stated as the
reasonably prudent person standard, or some variation thereof;
that is, what a reasonable person of ordinary prudence would
have done in the same or similar circumstances.15 When the
conduct in question involves specialized knowledge, skill, or
training, expert testimony may be helpful or even necessary
to a determination of what the standard of care requires under
particular circumstances.16
The threshold issue in any negligence action is whether the
defendant owes a legal duty to the plaintiff.17 Here, the par-
ties do not dispute that prison officials owe inmates a legal
duty, and we agree.18 In Goodenow v. State,19 we held that
the standard of care by prison officials to inmates is as fol-
lows: “A jailer is required to exercise a degree of care neces-
sary to provide reasonably adequate protection for his or her
inmates.” What constitutes “‘reasonably adequate protection’
. . . necessarily depends upon what correctional officers knew
or should have known about a particular risk of injury before
it occurred.”20
14
Id.
15
Id.
16
Id.
17
Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 907 N.W.2d
705 (2018).
18
See, Ginapp, supra note 12; Goodenow v. State, 259 Neb. 375, 610
N.W.2d 19 (2000).
19
Goodenow, supra note 18, 259 Neb. at 381, 610 N.W.2d at 23.
20
Cingle, supra note 2, 277 Neb. at 966, 766 N.W.2d at 388 (citing
Goodenow, supra note 18).
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Reiber claims that Davis’ testimony lacked foundation and
relevance, because Davis had not reviewed the jail’s protocols
and had not examined Gesin in a clinical setting, and because
“the standard of care for a psychiatrist evaluating a patient is
not the same as that of a jailer evaluating a prisoner.”21
Davis testified regarding his 10 years of experience in eval-
uating psychiatric patients who were admitted to the Douglas
County psychiatric crisis center. Davis assessed patients for
dangerousness to themselves or others, presence of mental
illness, and need for treatment and hospitalization. In prepa-
ration for his testimony, Davis reviewed affidavits submitted
by Trantham, Lock, and West; the booking video; the medical
questionnaires completed during booking; the custody authori-
zation form; and Gesin’s hospital records from 2011 and 2013.
Based on his experience and review of these materials, Davis
opined that Gesin’s stabbing incident in 2011 was not a genu-
ine suicide attempt. In addition, Davis opined that, as a psy-
chiatrist who adheres to a higher standard than that applicable
to a jailer, he would not have considered Gesin to be a suicide
risk based on the information known at the time.
Based on the record, we find that Reiber’s claim that
appellees knew or should have known Gesin was suicidal
concerns an issue of specialized knowledge and that expert
testimony would aid a finder of fact in evaluating the claim.
Davis is a medical professional with experience assessing
suicidal risk. Although as a psychiatrist, Davis’ testimony was
based upon a more stringent standard of care than that of a
jailer, Davis discussed many of the same assessment factors
required under the jail’s procedures for screening for a sui-
cidal inmate.
[8] We agree with the district court that Reiber’s objec-
tions do not bear on Davis’ qualifications or methodology,
but, rather, go to the weight to be given to Davis’ testimony.
The determination of the weight that should be given expert
21
Brief for appellant at 10.
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testimony is uniquely the province of the fact finder.22 As such,
we find the court did not abuse its discretion in admitting
Davis’ testimony. Moreover, Reiber has not argued that she
was unfairly prejudiced by the admission of Davis’ testimony.
In a civil case, the admission or exclusion of evidence is not
reversible error unless it unfairly prejudiced a substantial right
of the complaining party.23
Regarding Reiber’s second argument, evidence rules 701
and 70224 allow opinion testimony, whether by a lay or expert
witness, only if it is helpful to the trier of fact in making a
determination of a fact in issue.25 “The ‘“ultimate issue”’ rule
was an evidentiary rule in many jurisdictions that prohibited
witnesses from giving opinions or conclusions on an ultimate
fact in issue because such testimony, it was believed, ‘“usurps
the function” or “invades the province” of the jury.’”26
Evidence rule 704,27 which abolished the ultimate issue rule
in Nebraska, states that “[t]estimony in the form of an opin-
ion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact.”
Under rule 704, the basic approach to opinions, lay and
expert, is to admit them when helpful to the trier of fact.28 Rule
704 does not lower the bar so as to admit all opinions, because
22
Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).
23
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).
24
Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2016), and § 27-702.
25
See State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).
26
See State v. Rocha, 295 Neb. 716, 732, 890 N.W.2d 178, 194 (2017)
(quoting 1 McCormick on Evidence § 12 (Kenneth S. Broun et al. eds., 7th
ed. 2013 & Supp. 2016), and citing Chicago, R. I. & P. R. Co. v. Holmes,
68 Neb. 826, 94 N.W. 1007 (1903); R. Collin Mangrum, Mangrum on
Nebraska Evidence 760 (2016); and Fed. R. Evid. 704).
27
Neb. Evid. R. 704, Neb. Rev. Stat. § 27-704 (Reissue 2016). See, also,
Fed. R. Evid. 704.
28
Rocha, supra note 26.
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rules 701 through 703 provide the bases for exclusion.29 Under
these rules, a witness may not give an opinion as to how the
case should be decided, but, rather, must leave the conclusions
to be drawn by the trier of fact, because such opinions are
not helpful.30
We disagree with Reiber’s claim that Davis gave opinions as
to how to decide the case and therefore provided opinions that
were not helpful. Davis’ testimony went directly to Reiber’s
theory that appellees failed to adhere to the jail’s protocols and
knew or should have known that Gesin was suicidal. Davis’
testimony was based on evidence in the record and helped the
court identify factors which can determine whether an individ-
ual in custody poses a suicide risk. Davis’ testimony assisted
the trier of fact in determining whether appellees’ conclusions
regarding Gesin’s risk of suicide were accurate.
Davis’ opinion regarding the reasonable foreseeability of
Gesin’s suicide cannot be characterized as an opinion as to how
the court should decide the case. For example, Davis did not
offer the ultimate legal conclusion as to whether appellees were
liable for Gesin’s death. As Reiber pointed out in her relevance
objection, Davis did not offer testimony regarding the standard
of care to be applied to a jailer. Rather, Davis offered the court
a comparative point of view based on the more specialized
and higher standard of care applicable to a psychiatrist. Reiber
had a full opportunity to cross-examine Davis and argue to
the court that it should not be persuaded by Davis’ testimony.
As indicated, the court specifically found in its posttrial order
that “Davis’ testimony was credible, relevant, and helpful.”
We find the court did not abuse its discretion in admitting
Davis’ testimony.
Claim Barred Under § 13-910(1)
[9] The PSTCA reflects a limited waiver of governmen-
tal immunity and prescribes the exclusive procedure for
29
Id.
30
See id.
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maintenance of a tort claim against a political subdivision or
its officers, agents, or employees.31 Gage County is a politi-
cal subdivision of the State of Nebraska.32 The Gage County
sheriff is an officer of Gage County.33 Where an officer or
employee of a political subdivision is sued in his or her indi-
vidual capacity, but is acting within the scope of his or her
employment as a government official, the PSTCA applies, and
the individual is immune unless the State has expressly waived
its sovereign immunity.34
[10] The PSTCA eliminates, in part, the traditional immu-
nity of political subdivisions for the negligent acts of their
employees.35 Except as otherwise provided, in all suits brought
under the PSTCA, “the political subdivision shall be liable in
the same manner and to the same extent as a private individ-
ual under like circumstances.”36
[11] However, § 13-910(1) provides that political subdi-
visions are immune from suit under the PSTCA for actions
based upon the acts or omissions of an employee exercising
due care in the execution of a rule or regulation. If a claim
comes within the exemption under § 13-910(1), then the claim
is barred by sovereign immunity and the political subdivision,
officer, or employee cannot be liable. A suit that is barred
by sovereign immunity is dismissed for lack of subject mat-
ter jurisdiction.37
[12,13] Statutes that purport to waive the protection of
sovereign immunity of the State or its subdivisions are
strictly construed in favor of the sovereign and against the
31
§ 13-902; Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).
32
§ 13-903(1).
33
See Koepf v. York County, 198 Neb. 67, 251 N.W.2d 866 (1977).
34
See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
35
Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
36
§ 13-908.
37
See, Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d
551 (2018); Davis, supra note 34.
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waiver.38 In order to strictly construe the PSTCA against a
waiver of sovereign immunity, we broadly read exemptions
from a waiver of sovereign immunity.39 Section 13-910(1)
is clear and unambiguous. Accordingly, the issue is whether
Reiber’s negligence claim falls within § 13-910(1).
Following a trial on the issue of liability, the district court
concluded that “Gesin’s death was not reasonably foreseeable
. . . and the jailers were acting with due care.” The court found
that Reiber failed to prove appellees did anything beyond
exercising due care in carrying out jail rules and regulations.
The jail rules and regulations referred to by the trial court are
regulations established by the Jail Standards Board and which
are promulgated pursuant to statute.40 Under Neb. Rev. Stat.
§ 83-4,126(1) (Reissue 2014), the Jail Standards Board shall
have the following authority and responsibility:
(a) To develop minimum standards for the construction,
maintenance, and operation of criminal detention facili-
ties [and]
(b) To perform other duties as may be necessary to
carry out the policy of the state regarding criminal deten-
tion facilities, juvenile detention facilities, and staff
secure juvenile facilities as stated in sections 83-4,124 to
83-4,134.01[.]
The trial court cited to “the rules of the Jail Standards
Board” discussed at trial regarding the jail’s responsibility to
screen inmates for the need for mental health attention,41 the
risk of serious harm to themselves or another person,42 or the
need to place an inmate in a safety cell.43 The court found that
38
Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
(2019).
39
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
40
Neb. Rev. Stat. § 83-4,124 (Reissue 2014).
41
81 Neb. Admin. Code, ch. 4, § 002.07 (2012).
42
81 Neb. Admin. Code, ch. 4, § 002.01B (2012).
43
81 Neb. Admin. Code, ch. 5, § 003.01C (2014).
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Reiber failed to prove appellees did anything beyond exercis-
ing due care in carrying out jail rules and regulations.
We agree that the record shows that standard procedures
designed to detect an inmate’s suicide risk were followed.
Trantham, the arresting officer, informed the jail staff of the
prior stabbing incident, completed a custody authorization
form, did not observe any indication that Gesin might engage
in self-harming behavior, and did not believe Gesin to be a
suicide risk. Maloley, who placed Gesin in EPC in 2011, did
not consider Gesin to be a suicide risk and did not think that
an EPC was necessary. Gesin was angry and agitated when
he arrived at the jail, but calmed during the booking process.
Although Gesin had a blood alcohol level of .103, he was not
significantly inebriated, as there was no slurring of speech; his
thought process was clear; and he was easily able to answer
questions about his Social Security number, place of birth,
mother’s maiden name, and telephone number. The booking
video showed that Gesin exhibited forward-thinking behav-
ior and was focused on posting bail. The jail staff completed
a medical questionnaire and asked Gesin whether he had
ever attempted suicide and whether he was presently having
suicidal thoughts, and Gesin verbally responded in the nega-
tive. Lock, who had received training in suicide prevention,
testified that Gesin presented as a normal arrestee and saw
no reason to place him on suicide watch. Reiber spoke with
Gesin minutes before his suicide, and she testified that she
did not think that he was suicidal. Davis testified that even he
would not have foreseen the suicide. The greater weight of the
evidence in the record therefore supports the district court’s
finding that appellees exercised due care in following jail
rules and regulations in order to detect the risk of an inmate’s
suicidal behavior.
The jail staff followed its policy to place an intoxicated
inmate alone in a safety cell. The officers began exercising the
precaution of making frequent cell checks on Gesin. Gesin was
placed in his cell at 6:05 p.m., West conducted the first cell
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check at 6:15 p.m., and Lock heard Gesin using the telephone
about 5 minutes later. The next check was conducted at 6:45
p.m., at which time Lock discovered that Gesin was hanging
himself. Reiber’s claim relies on hindsight and speculation
rather than on the information actually known by the jailers.
However, we agree with the district court that the evidence
showed that under the circumstances, Gesin did not present
a known or reasonably foreseeable suicide risk and appel-
lees exercised due care. Reiber offered no expert testimony
to establish the foreseeable risk of suicide or lack of due care
exercised by appellees. Reading § 13-910(1) broadly, as we
must, we conclude that Reiber’s claim is based on acts or omis-
sions of appellees exercising due care in the execution of a rule
or regulation.
The court did not err when it concluded that Reiber’s claim
for money damages was barred under § 13-910(1) and that
appellees were entitled to judgment in their favor. Because we
conclude that appellees are immune from Reiber’s claim, we
need not consider Reiber’s assignment of error regarding the
district court’s alternative conclusion in favor of appellees on
the merits of Reiber’s negligence claim.
CONCLUSION
We agree with the district court that Reiber’s claim was
barred under § 13-910(1). As a result, we affirm the district
court’s determination that it lacked subject matter jurisdiction
over Reiber’s claim and that appellees are entitled to judgment
in their favor.
A ffirmed.