Fales v. County of Stanton ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 09:08 AM CDT
- 41 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
Dillon Fales, appellant and cross-appellee,
v. County of Stanton, Nebraska,
appellee and cross-appellant.
___ N.W.2d ___
Filed June 23, 2017. No. S-16-936.
1. Statutes: Appeal and Error. Statutory interpretation is a question
of law, which an appellate court must resolve independently of the
trial court.
2. Political Subdivisions Tort Claims Act: Appeal and Error. In actions
brought under the Political Subdivisions Tort Claims Act, an appellate
court will not disturb the factual findings of the trial court unless they
are clearly wrong.
3. Political Subdivisions Tort Claims Act: Judgments: Appeal and
Error. In actions brought pursuant to the Political Subdivisions Tort
Claims Act, when determining the sufficiency of the evidence to sustain
the trial court’s judgment, it must be considered in the light most favor-
able to the successful party; every controverted fact must be resolved in
favor of such party, and it is entitled to the benefit of every inference
that can reasonably be deduced from the evidence.
4. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs:
Motor Vehicles: Damages. Neb. Rev. Stat. § 13-911 (Reissue 2012)
provides a remedy to an innocent third party for damages caused by a
law enforcement officer’s vehicular pursuit.
5. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs:
Motor Vehicles: Words and Phrases. An “innocent third party” under
Neb. Rev. Stat. § 13-911 (Reissue 2012) is one who has not promoted,
provoked, or persuaded the driver to engage in flight from law enforce-
ment personnel and one who is not sought to be apprehended in the
fleeing vehicle.
6. Police Officers and Sheriffs. Whether law enforcement sought to
apprehend an individual is a mixed question of law and fact.
- 42 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
7. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs:
Motor Vehicles. If during a pursuit under Neb. Rev. Stat. § 13-911
(Reissue 2012) a passenger takes some action that makes him or her
become a person sought to be apprehended, the passenger does not
remain an innocent third party by virtue of the fact that law enforcement
began the pursuit to apprehend the driver only.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Terry M. Anderson and Timothy J. O’Brien, of Hauptman,
O’Brien, Wolf & Lathrop, P.C., for appellant.
Vincent Valentino and Brandy R. Johnson for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
INTRODUCTION
During an alleged vehicular pursuit by law enforcement,
an underage passenger threw out beer containers to avoid
being apprehended with the evidence. After his vehicle crashed
and he was seriously injured, he sued the County of Stanton,
Nebraska (County), claiming to be an “innocent third party.”1
Following a trial, the district court determined that when the
passenger tossed the beer, he became a subject of the pursuit,
thereby disqualifying him as an innocent third party. Because
the court’s factual findings were not clearly erroneous and its
conclusion followed our case law, we affirm the judgment.
BACKGROUND
Facts
Dillon Fales and Bryant Irish—both minors—attended a
party in a trailer park and consumed beer while there. At
1
See Neb. Rev. Stat. § 13-911 (Reissue 2012).
- 43 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
approximately 12:45 a.m. on February 9, 2014, they left the
party. Irish drove a pickup truck, and Fales sat in the passen-
ger seat.
The trailer park was located south of County Road 844 and
just east of where that road intersects Highway 35 in Stanton
County. A more direct route back to Norfolk, Nebraska, would
have been to turn west onto County Road 844 and then turn
onto Highway 35. But because Fales and Irish heard that law
enforcement officers were on the way, they took “back roads.”
Irish therefore turned east out of the trailer park onto County
Road 844.
As part of his patrol, Stanton County Deputy Sheriff
Michael Petersen had parked his vehicle on the northeast cor-
ner of the trailer park. He observed Irish’s pickup “fishtail[]”
as it turned east onto County Road 844 and decided to fol-
low it. Petersen could not see how many people were inside
the pickup.
Irish proceeded east on County Road 844 and then turned
south onto County Road 560. Petersen followed. He observed
the pickup turn west onto County Road 842 without signal-
ing its turn. Fales testified that when they turned onto County
Road 842, they were able to confirm that a sheriff’s vehicle
was following them.
As Petersen turned onto County Road 842, he activated his
emergency lights in an attempt to initiate a traffic stop. He
intended to stop the vehicle for a turn signal violation and pos-
sibly for speeding. Petersen “called in to dispatch” at 12:54
a.m. When Fales and Irish saw the emergency lights and real-
ized the deputy was following them, Irish asked Fales if they
“should run for it or pull over.” Fales testified that he shrugged
his shoulders and replied, “‘I don’t know.’” According to
Fales, Irish then “[p]retty much floored” the pickup.
Shortly after Irish accelerated, Fales threw an unopened
30-pack box of beer out of the window. He did so because he
was scared that they would be pulled over by law enforcement,
and he “figured it was better if we didn’t have any beer in the
- 44 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
vehicle.” Petersen observed several beer cans and a beer box
on the road. A transcript of the “radio traffic” shows that at
12:55 a.m., Petersen reported “[b]eer box out, maybe two” and
“[t]hey are throwing out more Bud Light beverages.” Petersen
considered this to be destruction of evidence and to be a part
of his apprehension. He formed the opinion that the occupant
or occupants in the pickup were minors.
Near the Stanton County line, Petersen slowed and deacti-
vated his emergency lights. It is unclear how far Petersen was
behind the pickup at that time.
As the pickup approached a sharp curve, it was traveling
too fast for the conditions and left the roadway. An accident
reconstructionist opined that the vehicle’s minimum speed at
the time it began to brake was 86.74 miles per hour. At 12:57
a.m., Petersen radioed: “[T]hey just wrecked. They are in the
ditch.” The pickup struck a concrete culvert. As a result of the
accident, Fales suffered a severe head wound and paralysis
from the chest down.
Pleadings
Fales sued the County, alleging that he was an innocent
third party and that the County was strictly liable to him by
operation of § 13-911. Fales also alleged that the County was
negligent in its pursuit of the vehicle in violation of Neb. Rev.
Stat. § 60-6,114(1) and (3) (Reissue 2010).
The County filed an answer and an amended counter-
claim for declaratory judgment. The counterclaim alleged
that § 13-911(1) and (5) were unconstitutional in violation
of Neb. Const. art. III, § 14. It claimed that the legislation
was “logrolled by amendment to a non-germane bill that was
already engrossed and read pursuant to Legislative Rule.” The
County also asserted that § 13-911(1) and (2) were unconsti-
tutional because the strict liability standard conflicted with or
implicitly amended § 60-6,114(1), (2), and (3), which imposed
an ordinary negligence standard on “‘police vehicles’” dur-
ing a pursuit. The County requested, among other things,
- 45 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
a declaration that 1981 Neb. Laws, L.B. 273, was facially
unconstitutional, null, and void.
After the district court overruled a motion for summary
judgment by the County on its amended counterclaim for
declaratory judgment, the County filed an amended answer and
second amended counterclaim for declaratory judgment. The
amended answer alleged that the County was entitled to sov-
ereign immunity under Neb. Rev. Stat. § 13-910(1) (Reissue
2012). With respect to the County’s amended counterclaim, it
alleged that § 13-911(1) and (5) were unconstitutional, because
their strict liability standard “conflicts with and/or implicitly
amends” the ordinary negligence standard contained in Neb.
Rev. Stat. §§ 13-903(4) (Reissue 2012) and 13-910(1). It fur-
ther alleged that a “tort claim alleging strict liability but not
negligent conduct by an employee of a political subdivision
does not fall within the definition of ‘tort claim.’”
District Court’s Judgment
The district court entered judgment in favor of the County.
With respect to Fales’ first cause of action, the court found
that Fales failed to sustain his burden to prove that he quali-
fied as an innocent third party. The court specifically found
the following:
• 
Petersen “affirmed that when observing the destruction of
evidence, such as when beer gets thrown out of a vehicle, that
his focus of apprehension broadens to include the individual
responsible for committing this potential act of concealing
criminal activity.”
• When Fales threw the box of beer cans out of the pickup,
“he was actively engaging in criminal activity which was
observed by the law enforcement officer in pursuit of
the vehicle.”
• “[W]hen Fales threw the beer out of the pickup truck, which
Petersen observed, he lost his status as a potential ‘inno-
cent third party.’” And although Petersen “did not know it
was Fales who was the passenger in the truck, or even if
there were any passengers in the truck, Petersen’s purpose
- 46 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
of apprehension broadened to include any and all persons
inside the vehicle who may have attempted to destroy or con-
ceal evidence.”
The court also rejected Fales’ second cause of action asserting
negligence under § 60-6,114. Finally, the court “decline[d]
to return to the constitutional claim of the [County] under
which it previously sought summary judgment and was
unsuccessful.”
Fales filed a timely appeal, and the County cross-appealed.
We moved the case to our docket.2
ASSIGNMENTS OF ERROR
Fales assigns that the district court erred in (1) finding he
was not an innocent third party under § 13-911 and (2) dismiss-
ing his complaint “on his cause of action under . . . § 13-911.”
On cross-appeal, the County assigns that the district court
erred in not declaring 1981 Neb. Laws, L.B. 273, § 31, and
1984 Neb. Laws, L.B. 590, § 2, unconstitutional as in viola-
tion of Neb. Const. art. III, § 14.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law, which an
appellate court must resolve independently of the trial court.3
[2,3] In actions brought under the Political Subdivisions
Tort Claims Act, an appellate court will not disturb the factual
findings of the trial court unless they are clearly wrong.4 In
such actions, when determining the sufficiency of the evidence
to sustain the trial court’s judgment, it must be considered in
the light most favorable to the successful party; every contro-
verted fact must be resolved in favor of such party, and it is
entitled to the benefit of every inference that can reasonably be
deduced from the evidence.5
2
See Neb. Rev. Stat. § 24-1106 (Reissue 2016).
3
Will. v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015).
4
Id.
5
Id.
- 47 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
ANALYSIS
Statute
[4] Section 13-911 provides a remedy to an “innocent third
party” for damages caused by a law enforcement officer’s
“vehicular pursuit.”6 The statute provides: “In case of death,
injury, or property damage to any innocent third party proxi-
mately caused by the action of a law enforcement officer
employed by a political subdivision during vehicular pursuit,
damages shall be paid to such third party by the political
subdivision employing the officer.”7 Thus, to recover under
§ 13-911, three components must be proved: (1) the person
seeking to recover was an innocent third party, (2) law enforce-
ment was engaged in a vehicular pursuit, and (3) the pursuit
proximately caused the death, injury, or property damage.
Innocent Third Party
The district court began and ended its inquiry with the
innocent-third-party component. We will likewise begin by
­
considering whether Fales was an innocent third party. If
he was not, the County is not liable regardless of whether a
vehicular pursuit occurred and whether the pursuit proximately
caused his injuries.
[5] An “innocent third party” under § 13-911 is one who
has not promoted, provoked, or persuaded the driver to engage
in flight from law enforcement personnel and one who is not
sought to be apprehended in the fleeing vehicle.8 In using the
phrase “innocent third party,” we stated that “the Legislature
was concerned with the actions of the third party as those
actions may relate to the flight of the driver sought to be
apprehended.”9 The district court found that “when Fales threw
6
Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
7
§ 13-911(1).
8
Werner v. County of Platte, supra note 6.
9
Henery v. City of Omaha, 263 Neb. 700, 707, 641 N.W.2d 644, 649
(2002).
- 48 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
the beer out of the pickup truck, which Petersen observed, he
lost his status as a potential ‘innocent third party.’”
[6] Whether law enforcement sought to apprehend an indi-
vidual is a mixed question of law and fact.10 Fales contends
that the court’s conclusion was wrong under both the facts and
the law. We disagree.
First, we consider whether the district court’s factual find-
ings were clearly wrong. The court noted that Petersen testi-
fied in his deposition that even if he had known Fales was a
passenger, he had no intent to apprehend Fales. But the court
recognized a limitation of the question posed: It did not “relate
. . . Fales as the individual who threw the beer out of the
vehicle.” Indeed, Petersen later testified that he did not have
a reason to apprehend Fales because he did not know who
Fales was.
Fales contends that there was no “factual basis” for Petersen’s
conclusion that the beer came from the pickup.11 Fales directs
us to Petersen’s deposition, where Petersen testified that he did
not see anyone in the pickup throw the beer. Although Petersen
may not have observed who in the pickup threw the beer,
he testified that he realized beer was being tossed from the
vehicle. And this perception is supported by the radio traffic.
According to a transcript, Petersen reported, in real time, that
a beer box had been thrown and that “[t]hey are throwing out
more Bud Light beverages.”
Fales also challenges the district court’s purported reli-
ance on a hypothetical question asked of Petersen. During
trial, counsel for the County asked Petersen the following
questions:
Q. Now, when . . . you began to see [beer cans and a
beer box] as you . . . were traveling on [County Road]
842 — have you ever been involved with somebody that’s
jettisoned evidence out of a vehicle?
10
See Werner v. County of Platte, supra note 6.
11
Brief for appellant at 24.
- 49 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
A. Yes.
Q. Isn’t that called destruction of evidence?
A. Yes, it is.
Q. Isn’t that a felony?
A. Yes.
Q. In other words, someone is trying to conceal their
criminal activity, are they not?
A. They are.
Q. And when they seek to destroy evidence of a crime,
that gets into another level that you would consider as
part of your — part of your apprehension?
A. Yes.
Although the question was hypothetical in nature, Petersen’s
answers square with his deposition testimony that if he had
been able to get the pickup stopped, he would have issued
a citation to whomever threw the beer out of the window.
The court determined that “[e]ven though . . . Petersen
did not know it was Fales who was the passenger in the
truck . . . Petersen’s purpose of apprehension broadened to
include any and all persons inside the vehicle who may have
attempted to destroy or conceal evidence.” In making this
determination, the court made logical inferences from the
evidence. We cannot say that the court’s factual findings were
clearly erroneous.
Fales contends that the Nebraska Court of Appeals’ decision
in Jura v. City of Omaha12 mandates a different result in this
case. We disagree. In Jura, the Court of Appeals reviewed the
trial court’s finding that a passenger in a stolen vehicle was
not an innocent third party. The officer began a pursuit once
he learned that the vehicle was stolen, and the officer testified
that he “‘wanted everybody inside the vehicle.’”13 The officer
explained: “‘When you have a stolen vehicle with multiple
occupants, you don’t know who stole the vehicle, where it
12
Jura v. City of Omaha, 15 Neb. App 390, 727 N.W.2d 735 (2007).
13
Id. at 397, 727 N.W.2d at 740.
- 50 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
was taken from, who might have been driving it earlier. You
don’t have that information before you stop the vehicle and
question the occupants.’”14 Similarly, in the instant case,
Petersen did not know who in the pickup discarded the beer.
It is reasonable to infer that he sought to apprehend everyone
within the pickup.
In Jura, the Court of Appeals agreed that the passenger was
a person sought to be apprehended. The court stated:
A police officer’s grounds for seeking to apprehend occu-
pants in a vehicular chase situation must have a reason-
able basis in the law and facts. Such a basis clearly exists
in this case, because the vehicle was a stolen vehicle,
as opposed to, for example, a chase starting with a traf-
fic violation.15
Fales focuses on the latter sentence and asserts that when the
pursuit is initiated because of a traffic violation “the pursu-
ing officer intends to apprehend only the driver of the flee-
ing vehicle, not the other occupants of the vehicle.”16 We
agree that this is frequently true at the beginning of such
a pursuit.
[7] We reject the notion that a passenger who may have
qualified as an innocent third party at the beginning of a pur-
suit cannot lose that status. If during the pursuit a passenger
takes some action that makes him or her become a person
sought to be apprehended, the passenger does not remain an
innocent third party by virtue of the fact that law enforcement
began the pursuit to apprehend the driver only. Here, Fales’
act of throwing beer out of Irish’s fleeing vehicle was such
an action.
Fales also relies to some extent on our decision in Werner
v. County of Platte.17 In that case, the trial court found that the
14
Id.
15
Id. at 397, 727 N.W.2d at 740-41.
16
Brief for appellant at 19.
17
Werner v. County of Platte, supra note 6.
- 51 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
passenger was an innocent third party even though the pas-
senger was discovered, after the fact, to be in possession of
illegal drugs. We affirmed, stating that “the record supports the
pertinent factual underpinnings of the court’s conclusion, and
thus, they are not clearly wrong.”18 We explained that the offi-
cer “sought to pull over the car for suspected driving under the
influence and speeding—only the driver could have been guilty
of those crimes.”19 We agreed with the trial court that the pas-
senger was never the target of the officer’s pursuit. Based on
Werner, Fales contends that “doing something that constitutes
a crime during a pursuit does not by itself cause the passengers
to become occupants to be apprehended.”20
The instant case is distinguishable from Werner in two key
respects. First, the district court here found that Fales was not
an innocent third party, while the trial court in Werner deter-
mined that the passenger was an innocent third party. This is an
important distinction under our standard of review: We defer to
the trial court’s factual findings unless they are clearly wrong,
and we consider the evidence in the light most favorable to the
successful party. Second, we stated in Werner that “[d]uring
the pursuit, [the officer] did not know about [the passenger’s]
breaking the law . . . .”21 But here, Petersen knew about the
beer cans being thrown from the vehicle during the pursuit.
While Petersen did not know at the time that it was Fales
who threw the beer, he was aware of the law violation during
the pursuit.
We agree with the district court that Fales was a person
sought to be apprehended in the fleeing vehicle. Because Fales
was not an innocent third party, the County is not liable for his
injuries under § 13-911.
18
Id. at 917, 824 N.W.2d at 56.
19
Id.
20
Brief for appellant at 18.
21
Werner v. County of Platte, supra note 6, 284 Neb. at 919, 824 N.W.2d
at 57.
- 52 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
FALES v. COUNTY OF STANTON
Cite as 297 Neb. 41
Cross-A ppeal
[8] Because we affirm the district court’s judgment finding
that the County is not liable for Fales’ injuries, we agree with
the concession of the County at oral arguments that we need
not consider the County’s cross-appeal as to the constitutional-
ity of § 13-911. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it.22
CONCLUSION
We consider the evidence in the light most favorable to the
County as the successful party and give it the benefit of every
inference that can reasonably be deduced from the evidence.
Viewed in that light, the district court’s factual findings are not
clearly erroneous. We find no error in the court’s conclusion
that when Fales threw the box of beer out of the window of
Irish’s fleeing pickup, which was observed by Petersen, Fales
became a person sought to be apprehended. Because Fales was
therefore not an innocent third party, we affirm the district
court’s judgment.
A ffirmed.
22
Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421
(2016).