Maclovi-Sierra v. City of Omaha ( 2015 )

Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 443
Cite as 290 Neb. 443Walter Maclovi-Sierra, appellant, v.
City of Omaha, Nebraska, appellee.
___ N.W.2d ___
Filed March 27, 2015. No. S-13-1139.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
turb the factual findings of the trial court unless they are clearly wrong.
2. 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 favorable 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.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
4. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: Motor
Vehicles: Strict Liability. Neb. Rev. Stat. § 13-911 (Reissue 2007) creates
strict liability on the part of a political subdivision when (1) a claimant suffers
death, injury, or property damage; (2) such death, injury, or property damage is
proximately caused by the actions of a law enforcement officer employed by the
political subdivision during vehicular pursuit; and (3) the claimant is an innocent
third party.
5. Police Officers and Sheriffs: Motor Vehicles. Whether law enforcement sought
to apprehend a motorist is a mixed question of law and fact.
6. Police Officers and Sheriffs: Motor Vehicles: Proximate Cause. Whether an
injury to an innocent third party is proximately caused by the action of a law
enforcement officer during vehicular pursuit is a question of fact which must
necessarily be determined on a case-by-case basis.
7. Proximate Cause: Evidence. The question of proximate cause, in the face of
conflicting evidence, is ordinarily one for the trier of fact, and the court’s deter-
mination will not be set aside unless clearly wrong.
Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed.
Robert M. Knowles and Christina M. Knowles, of Knowles
Law Firm, for appellant.
Thomas O. Mumgaard, Deputy Omaha City Attorney, for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Nebraska Advance Sheets
444 290 NEBRASKA REPORTS
Stephan, J.
Walter Maclovi-Sierra brought this action against the City
of Omaha under the Political Subdivisions Tort Claims Act
(the Act),1 seeking damages for injuries he sustained when
he was struck by a stolen vehicle allegedly being pursued by
Omaha police officers. Following a bench trial, the district
court for Douglas County dismissed the action after find-
ing that any pursuit had terminated prior to the accident and
that the actions of the officers did not proximately cause the
accident and resulting injuries. Maclovi-Sierra perfected this
timely appeal, which we moved to our docket on our own
motion pursuant to our authority to regulate the caseloads
of the appellate courts of this state.2 The issues presented on
appeal are primarily factual. Because we conclude that the fac-
tual findings of the district court are not clearly erroneous, we
affirm its judgment.
I. BACKGROUND
This action was brought pursuant to a section of the Act
which provides in part: “In case of death, injury, or property
damage to any innocent third party proximately 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.”3 Maclovi-Sierra contends that at all relevant times, the
stolen vehicle that struck him was being pursued by Omaha
police officers.
1. Evidence
On January 14, 2011, at approximately 11:05 a.m., Maclovi-
Sierra was standing on the south side of Q Street near the
southbound entrance ramp to Highway 75 in Omaha, Nebraska.
He was struck by a stolen vehicle operated by Gino Main and
sustained permanent injuries.
1
Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2007 & Cum. Supp. 2010).
2
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3
§ 13-911(1).
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 445
Cite as 290 Neb. 443Earlier that morning, Monica Anderson, an off-duty Sarpy
County deputy sheriff, learned from her father that his blue
Chevrolet Silverado pickup had been stolen from the driveway
of his home near 28th and Washington Streets. At approxi-
mately 10 a.m., Anderson and her husband set out in their
personal vehicle to try to find the stolen pickup.
They first drove around downtown Omaha and then went to
South Omaha. At approximately 10:30 a.m., they spotted the
pickup traveling southbound on 24th Street. Anderson called
the 911 emergency dispatch service and told her husband, who
was operating their vehicle, to follow the pickup. Anderson
saw that the pickup was being driven by a man subsequently
identified as Main. The pickup turned right on J Street and
parked near a medical facility between 26th and 27th Streets.
Anderson and her husband parked nearby, and she reported
its location to the dispatcher. Over the next 5 to 10 minutes,
Anderson observed Main sitting in the parked pickup while
a passenger went in and out of the medical facility two or
three times.
Anderson and her husband followed as the pickup left its
parked location and proceeded west on J Street and then north
on 27th Street. She testified that the pickup was traveling at a
normal rate of speed at that time. As the northbound pickup
approached the intersection of 27th and H Streets, Anderson
saw an Omaha police cruiser driving south on 27th Street. The
cruiser was operated by Omaha police officer Mark Cupak,
who was alone in the cruiser.
While on patrol that morning, Cupak was dispatched to the
area of 27th and J Streets where a stolen pickup had been spot-
ted. Cupak proceeded south on 27th Street with his cruiser’s
flashing, rotating lights activated, but not his siren. Just before
he reached the intersection of 27th and H Streets, Cupak saw
the northbound pickup approaching his cruiser from approxi-
mately 1 to 11⁄2 blocks away. At that location, 27th Street was a
two-lane street in a primarily residential area with a speed limit
of 25 miles per hour. When Cupak first observed the stolen
pickup, it was being operated at a normal rate of speed, and
if the pickup had not been reported stolen, it would not have
drawn Cupak’s attention.
Nebraska Advance Sheets
446 290 NEBRASKA REPORTS
Cupak attempted to stop the pickup at the intersection of
27th and H Streets by turning his southbound cruiser into the
northbound lane of 27th Street and stopping with his cruiser’s
lights activated. Cupak remained inside his cruiser, and he
drew his sidearm and pointed it at the approaching northbound
pickup, hoping to block the pickup from proceeding north. But,
in Cupak’s words, the pickup “just went into the southbound
lane, and . . . just nonchalantly just drove around my cruiser
and kept going northbound” toward F Street. Cupak explained
that the pickup “didn’t accelerate, didn’t go up over the curb
to get around me. It was just — he just maintained his speed,
and it was just like a Sunday drive, just drifted around me and
continued north.”
At that point, Cupak told his dispatcher what had occurred,
put away his sidearm, and turned his cruiser around. This
took several seconds. He then proceeded northbound on 27th
Street with his cruiser’s lights flashing but did not activate
his siren. At that point, he could not see the pickup. Cupak
testified that he accelerated to between 35 and 40 miles per
hour in an effort to catch up to the pickup, but never did. He
explained that to “catch up” to a vehicle is different than to
chase or pursue it in that there is no intent to stop the vehicle.
He did not advise his dispatcher that he was in pursuit of
the pickup.
As Cupak approached the intersection of 27th and F
Streets, he saw another police cruiser westbound on F Street
with its lights activated, so he assumed the stolen pickup had
turned onto F Street. When he heard a radio report that the
pickup had struck another vehicle at the Highway 75 ramp
on F Street and left the scene, Cupak proceeded to that loca-
tion and completed an accident report. In his report, Cupak
described the stolen pickup as “fleeing an attempted traf-
fic stop.”
Anderson gave a somewhat different account of Cupak’s
encounter with the stolen pickup. She testified that when the
northbound pickup approached Cupak’s southbound cruiser
near the intersection of 27th and H Streets, the driver of the
pickup “gunned it” and “accelerated to a high rate of speed,”
which she estimated to be at 45 miles per hour. She said that
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 447
Cite as 290 Neb. 443Cupak turned his cruiser around and followed the pickup at the
same speed with its lights flashing. Anderson saw the pickup
proceed north on 27th Street and then turn west on F Street,
with two other police cruisers following.
Anderson and her husband drove to a point on 28th Street
where they could observe traffic on Highway 75. From there,
Anderson saw the pickup enter the southbound lanes of
Highway 75 at a speed which she estimated to be 70 miles
per hour, followed by two police cruisers with their lights
activated traveling at the same speed. She lost sight of the
vehicles as they approached J Street. Anderson told the police
dispatcher that the cruisers were “‘in pursuit’” of the pickup.
Anderson and her husband then proceeded to the Q Street
overpass on Highway 75, where they saw that the pickup
had crashed.
The two cruisers which Anderson saw following the pickup
on F Street were operated by Omaha police officer Makayla
Stiles and Omaha police sergeant Timothy Brown, with Brown
in the lead cruiser. Both were at a police assembly area approx-
imately one-half mile from 27th and F Streets when they heard
a police dispatch concerning a stolen vehicle at that location.
Each proceeded to that intersection, traveling east on F Street.
Brown arrived first, and Stiles arrived a few seconds later. As
she approached the intersection, Stiles saw Brown’s cruiser
stopped at the intersection, facing west on F Street. Stiles then
saw the stolen pickup turn left from 27th Street onto F Street
in front of Brown’s cruiser. Brown followed the pickup, and
Stiles followed Brown. Both officers had activated the flash-
ing lights on their cruisers, and both activated their sirens after
several blocks.
Stiles’ cruiser was equipped with a system which made a
video and audio recording of events beginning at 11:02:46
a.m. when the pickup turned left onto F Street and proceeded
west in front of Brown’s westbound cruiser. The recording,
which was received in evidence, depicts the subsequent events
from Stiles’ perspective as she followed Brown’s cruiser and
eventually came upon the scene of the accident on Q Street at
the top of the Highway 75 southbound exit ramp. The record-
ing shows an elapsed time of 1 minute 45 seconds from the
Nebraska Advance Sheets
448 290 NEBRASKA REPORTS
time the stolen pickup turned west onto F Street until Stiles
arrived at the accident scene and stopped her cruiser.
The recording shows the stolen pickup turning west onto
F Street without stopping at the stop sign. Brown’s lights were
activated, and Stiles activated hers approximately 4 seconds
after the pickup turned onto F Street. After the pickup turned,
Brown accelerated, but was several car lengths behind the
pickup, and Stiles followed several car lengths behind Brown.
A siren is not heard on the recording until 9 seconds after the
pickup turns. The cruisers followed the stolen pickup for sev-
eral blocks to the Highway 75 entrance ramp.
The posted speed limit on F Street was 30 miles per hour.
The two officers’ opinions differed on whether they exceeded
this speed as they followed the stolen pickup west on F Street.
George Lynch, an accident reconstruction expert retained by
Maclovi-Sierra, testified that in his opinion, Brown’s cruiser
was traveling approximately 40 miles per hour for at least part
of the time on F Street. Brown testified that while following
the pickup on F Street with his cruiser’s lights and siren acti-
vated, he intended to close the distance so that the driver would
understand his intent to make a traffic stop.
The stolen pickup proceeded west on F Street for approxi-
mately 14 to 15 seconds before sideswiping a stopped vehi-
cle while turning onto the southbound Highway 75 entrance
ramp. The pickup accelerated down the ramp and merged onto
Highway 75 approximately 11 to 12 seconds after sideswiping
the vehicle. Brown and Stiles followed, entering the ramp at
a speed of 20 miles per hour. Stiles maintained a fairly con-
sistent distance behind Brown. Both cruisers accelerated and
reached a maximum speed of 70 miles per hour just as Brown
merged onto Highway 75. The posted speed limit was 55 miles
per hour. Upon entering Highway 75, both cruisers reduced
their speed to between 60 and 68 miles per hour as they pro-
ceeded south.
The recording established that 12 seconds after entering the
Highway 75 entrance ramp, Brown radioed: “I’m not going
to be in pursuit.” Seven seconds later, he radioed that the
suspect was going “southbound in the fast lane . . . just going
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 449
Cite as 290 Neb. 443under the L Street” overpass. One second later, Brown turned
off his cruiser’s flashing lights and siren.
Brown testified that while he was still on the Highway 75
entrance ramp, he realized the pickup would not stop and made
the decision not to pursue but that he nevertheless accelerated
down the ramp because he wanted to keep the pickup in sight
long enough to alert other officers to the speed and direction
of travel. Brown testified that he did not consider himself to be
in pursuit at any point, but did not say so on his radio earlier
because he thought it was more important to first transmit the
location and direction of the pickup. Brown lost sight of the
pickup when it passed under the L Street overpass. Stiles was
still on the entrance ramp when she lost sight of the stolen
pickup as it reached the L Street overpass.
The video recording shows Brown’s cruiser passing beneath
the L Street overpass 10 seconds after shutting down his cruis-
er’s lights and sirens and 11 seconds after the stolen pickup
passed that point. Still southbound on Highway 75, Brown
passed beneath the Q Street exit 27 to 28 seconds after turning
off his lights and siren.
Stiles exited Highway 75 at Q Street, intending to go back
to the sideswiped vehicle on F Street. She came upon an acci-
dent at the top of the ramp. The video recording shows Main
running from the scene as Stiles is approaching the top of the
ramp. A few seconds later, she came to a stop approximately 1
minute 45 seconds after the stolen pickup initially turned onto
F Street and 1 minute after Brown deactivated his cruiser’s
lights and siren. Upon exiting her cruiser, Stiles learned that
Maclovi-Sierra had been struck by the pickup driven by Main,
which remained at the scene of the accident. Main fled on foot,
but was later captured a short distance away.
Main testified by deposition during his incarceration for
offenses related to this incident. He was 19 years old at the
time of the accident. He admitted to stealing the pickup. Main
testified that when he encountered Cupak’s cruiser on 27th
Street, Cupak exited the cruiser, drew his weapon, and ordered
him to stop. Main said he stopped for a few seconds before
driving around the cruiser and proceeding north, accelerating
Nebraska Advance Sheets
450 290 NEBRASKA REPORTS
up to 45 miles per hour as he did so. He then observed Cupak
following him with his cruiser’s flashing lights activated, but
said Cupak was never able to catch up with him. Main testified
that as he approached F Street, he saw two police cruisers at
the intersection with flashing lights activated and thought they
were waiting to chase him.
Main testified that as he proceeded west on F Street at
speeds exceeding the speed limit, he observed the cruisers
behind him with lights and sirens activated and thought they
were chasing him. He decided to “get on the interstate and
try to outrun them and then head over to Iowa” because he
believed the police would not pursue him across the state
line. Main entered Highway 75 at F Street and exited at
Q Street. He testified that while southbound on Highway 75,
he changed lanes several times and reached speeds of up to
110 miles per hour. Just south of the L Street overpass, he
lost sight of the two cruisers behind him, but he still believed
he was being pursued. He exited Highway 75 at Q Street,
intending to r­eenter Highway 75 northbound en route to
Iowa, but lost control of the pickup and struck Maclovi-Sierra
before hitting a utility pole. Main testified that he could hear
sirens when he got out of the pickup after the accident and
believed he was still being pursued. Main testified that from
the time he reached 27th and H Streets until the moment of
the accident, he was actively trying to resist apprehension by
Omaha police.
Main acknowledged that he had previously stolen two or
three vehicles and attempted to elude police on one of these
occasions. He believed that if he reached a speed in excess
of 85 miles per hour, police were required to stop the pursuit.
On the day in question, he was attempting to drive in excess
of that speed so he would not be pursued. He estimated that
he was traveling at a speed of 100 miles per hour at the time
he reached the L Street overpass. Main admitted that when he
exited Highway 75 at Q Street, he could no longer see any
police cruisers behind him and that he thought exiting the
highway might be a smart idea, because police did not know
where he was. But he did not believe he had completely eluded
police, because “you can’t outrun a radio.” Main explained
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 451
Cite as 290 Neb. 443that based on his prior experience attempting to elude police,
he thought there were usually multiple cruisers in the area,
and that he felt he needed to keep fleeing whether or not he
could actually see police cruisers pursuing him. But he said he
intended to slow down to a normal speed as soon as he could
no longer hear police sirens so as not to attract suspicion.
Lynch testified that the distance between the L Street over-
pass and the scene of the accident is one-half mile. He testified
it took Main between 20.42 and 24.4 seconds to travel that
distance, assuming Main was going between 80 to 110 miles
per hour. Lynch agreed, based upon his review of the video
recording, that Main’s speed exceeded that of Brown from the
time that both vehicles entered Highway 75.
After the incident, all three officers completed a “Chief’s
Report,” which required them to place the incident in one of
four categories. Cupak characterized his contact with Main as
a “Refuse to Stop/Vehicle Fled/Non-pursuit.” Initially, Stiles
and Brown used the same characterization in their reports. But,
Lt. Gregg Barrios, who was Brown’s immediate supervisor,
directed Brown to revise his report to characterize the incident
as “Vehicle Chase (Pursuit).” He indicated that Stiles would be
required to do the same. Brown and Stiles subsequently filed
revised reports as directed.
Barrios testified that after reviewing the incident with his
superior, Capt. Katherine Gonzalez, he believed that Brown
and Stiles were engaged in a vehicular pursuit “at some point.”
He believed that the pursuit ended when Brown announced
over his radio that he would not be in pursuit. Barrios did
not believe that Cupak had ever engaged in a vehicular pur-
suit. Gonzalez testified that after reviewing the incident with
Barrios, she made the decision that Brown and Stiles should
report the incident as a pursuit. She explained:
[I]f there is any reason to believe that the fleeing person
may have thought they were being chased, then it’s bet-
ter for us to write down that it’s a pursuit, rather, because
oftentimes the pursuit review will actually kick the report
back and say it, in fact, was a pursuit.
She noted that “we always try to err on the side of caution, so
there is no negative connotation by putting a pursuit down.”
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452 290 NEBRASKA REPORTS
The Omaha Police Department’s policy regarding vehicular
pursuits was received in evidence. The policy utilizes the same
definition of “pursuit” found in § 13-911. According to the
policy, the use of emergency lights and sirens “merely to gain
the attention of a driver to pull over” is not an active attempt
to apprehend.
The parties stipulated that at all relevant times, Maclovi-
Sierra was an “innocent third party” within the meaning of
§ 13-911(1) and that he complied with the provisions of the
Act with respect to providing notice of his tort claim and
withdrawing it from consideration prior to filing suit. The par-
ties further stipulated that the medical expenses incurred by
Maclovi-Sierra were necessitated by the accident and were fair
and reasonable and that he will experience future pain and suf-
fering as a result of his injuries.
2. Findings of District Court
The district court made detailed factual findings regarding
the evidence summarized above. The court determined that
where Anderson’s testimony regarding the events on F Street
and Highway 75 differed from the video recording, the record-
ing was “the most accurate record of events.” The court noted
that Main’s statements about the incident were frequently
contradicted by other witnesses and evidence, and it specifi-
cally determined that Main’s testimony that he could still hear
sirens at the time of the accident was contradicted by the
video recording and Lynch’s testimony. The court found that
“Main did not see or hear cruisers after he went under the
‘L’ Street overpass.”
Based upon its factual findings, the court determined that
Cupak attempted to make a traffic stop but did not initiate a
vehicular pursuit of Main. The court found that Cupak “made
no attempt to overtake or catch up to Main and did not engage
in any further observation of Main after he proceeded onto
‘F’ Street.”
The court also determined that “Brown and Stiles did not
engage in a pursuit as defined by the statute. Their actions are
more consistent with those described by the Omaha Police
Department’s policy on pulling over a driver for a traffic
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 453
Cite as 290 Neb. 443stop.” The court reasoned that the existence of a “pursuit”
within the meaning of the statute required the coexistence
of two elements: “(1) an active attempt by a law enforce-
ment officer operating a motor vehicle to apprehend one or
more occupants of another motor vehicle, when (2) the driver
of the fleeing vehicle is resisting apprehension.” The court
determined that although Main was resisting apprehension
by Brown and Stiles, “there was no active attempt to appre-
hend him.”
Finally, the court concluded that even if Brown and Stiles
had been attempting to apprehend Main, “the officers’ actions
were not the proximate cause of the accident in which [Maclovi-
Sierra] was injured.”
II. ASSIGNMENTS OF ERROR
Maclovi-Sierra assigns, restated and renumbered, that the
district court erred in (1) finding that the actions of the city’s
police officers did not constitute a vehicular pursuit as defined
by § 13-911(5), (2) finding that any pursuit was terminated
prior to the accident, (3) finding that the actions of the police
officers were not the proximate cause of Maclovi-Sierra’s
damages, and (4) misapplying the applicable law with respect
to proximate cause.
III. STANDARD OF REVIEW
[1] In actions brought under the Act, an appellate court will
not disturb the factual findings of the trial court unless they are
clearly wrong.4
[2] In actions brought pursuant to the Act, when determin-
ing 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 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.5
4
Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013);
Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
5
See, Werner v. County of Platte, supra note 4; Richter v. City of Omaha,
273 Neb. 281, 729 N.W.2d 67 (2007).
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454 290 NEBRASKA REPORTS
[3] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion.6
IV. ANALYSIS
[4] Section 13-911 creates strict liability on the part of a
political subdivision when (1) a claimant suffers death, injury,
or property damage; (2) such death, injury, or property dam-
age is proximately caused by the actions of a law enforcement
officer employed by the political subdivision during vehicular
pursuit; and (3) the claimant is an innocent third party.7 In this
case, there is no dispute regarding the first and third elements.
The case turns on whether Maclovi-Sierra’s injuries were prox-
imately caused by a “vehicular pursuit” of the stolen pickup by
Omaha police officers.
1. Vehicular Pursuit
(a) General Principles
[5] The Legislature defined the phrase “vehicular pursuit” as
used in § 13-911 to mean
an active attempt by a law enforcement officer operat-
ing a motor vehicle to apprehend one or more occupants
of another motor vehicle, when the driver of the flee-
ing vehicle is or should be aware of such attempt and is
resisting apprehension by maintaining or increasing his or
her speed, ignoring the officer, or attempting to elude the
officer while driving at speeds in excess of those reason-
able and proper under the conditions.8
Whether law enforcement sought to apprehend a motorist is
a mixed question of law and fact.9 As the Nebraska Court of
6
Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731(2012); Tymar v. Two Men and a Truck, 282 Neb. 692, 805 N.W.2d 648(2011).
7
Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006); Stewart
v. City of Omaha, 242 Neb. 240, 494 N.W.2d 130 (1993), disapproved on
other grounds, Henery v. City of Omaha, 263 Neb. 700, 641 N.W.2d 644(2002).
8
§ 13-911(5).
9
See Werner v. County of Platte, supra note 4.
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 455
Cite as 290 Neb. 443Appeals has noted, vehicular pursuit as defined by § 13-911(5)
“involves multiple elements and, thus, is a much more nuanced
matter than simply deciding whether one vehicle is trying to
‘catch up’ to, or maintain sight of, another.”10
(b) Actions of Cupak
In concluding that Cupak was not in pursuit of the stolen
pickup as it proceeded north on 27th Street from H Street to
F Street, the district court obviously credited Cupak’s ver-
sion of the events over the testimony of Main and, to some
extent, Anderson. As the trier of fact, it was entitled to do so.
Cupak testified that when he turned his cruiser around after the
pickup drove past him, he could no longer see the pickup and
was not certain whether it stayed on 27th Street or turned onto
an intersecting street. He did not advise the police dispatcher
that he was in pursuit, which would have been required under
department policy if he intended to initiate a pursuit. Cupak
explained that he did not initiate a pursuit because he could no
longer see the pickup and “had no idea where he was.” Cupak
testified that he was attempting to “catch up” to the pickup not
with the intent of stopping it, but to be available in the event of
a foot chase or other event.
These circumstances are similar in some respects to the
first of two incidents which we reviewed in Mid Century Ins.
Co. v. City of Omaha.11 There, an officer followed a motor-
ist who drove away after being questioned by an officer and
hearing a dispatch that he was suspected of involvement in a
hit-and-run accident. The officer returned to his vehicle and
accelerated in the direction that the vehicle had gone but did
not actually see the vehicle. The officer testified that he did
not know whether the vehicle had proceeded in that direction
or turned off. The officer never again saw the vehicle before
it collided with another vehicle, causing personal injuries to
the occupants of that vehicle. We concluded that the trial court
10
Perez v. City of Omaha, 15 Neb. App. 502, 515, 731 N.W.2d 604, 613
(2007).
11
Mid Century Ins. Co. v. City of Omaha, 242 Neb. 126, 494 N.W.2d 320(1992).
Nebraska Advance Sheets
456 290 NEBRASKA REPORTS
was not clearly wrong in determining that the officer was not
engaged in a pursuit within the meaning of § 13-911.
We reach the same conclusion with respect to Cupak’s
actions. Viewing the evidence in a light most favorable to the
city, as our standard of review requires, there is evidence from
which a trier of fact could reasonably conclude that Cupak
made no active attempt to apprehend Main after the unsuc-
cessful attempt to stop him at 27th and H Streets. The district
court did not err in concluding that Cupak was not engaged in
a vehicular pursuit within the meaning of § 13-911.
(c) Actions of Brown and Stiles
The district court determined that Brown and Stiles “did not
engage in a pursuit as defined by the statute” and that “[t]heir
actions are more consistent with those described by the Omaha
Police Department’s policy on pulling over a driver for a traffic
stop.” But it also determined that even if the officers’ actions
could be regarded as an active attempt to apprehend Main, that
attempt was terminated by the time Main passed under the
L Street overpass on Highway 75.
Whether Brown and Stiles were engaged in a vehicular
pursuit in their initial encounter with the pickup is a close
question, as is evident from the testimony of Barrios and
Gonzalez. For purposes of our analysis, we will assume
without deciding that Brown and Stiles initiated a vehicular
pursuit of Main when he turned left at 27th and F Streets
and proceeded west. However, the record fully supports the
district court’s finding that any pursuit was terminated prior
to the accident when Brown transmitted over his radio that he
would not be in pursuit and turned off his cruiser’s emergency
lights and siren.
2. P roximate Cause
The district court found that the actions of Brown and
Stiles “were not the proximate cause of the accident” in
which Maclovi-Sierra was injured. Maclovi-Sierra argues that
the court misapplied the law of proximate cause, because
he was not required to prove that the conduct of the officers
was the proximate cause, only that it was a proximate cause.
His understanding of the applicable law is correct. In Meyer
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 457
Cite as 290 Neb. 443v. State,12 we held that a provision of the State Tort Claims
Act which imposed strict liability for injuries to innocent
third parties proximately caused by a law enforcement pursuit
“require[d] that the actions of a law enforcement officer during
a vehicular pursuit be merely a proximate cause of the damage,
and not the sole proximate cause.” We subsequently held in
Staley v. City of Omaha13 that the same principle applied to the
similar language in § 13-911.
But we are not persuaded that the district court misap-
plied these principles. We understand the district court’s find-
ings to be that any causal connection between the actions of
Brown and Stiles and the accident was broken when Brown
announced that he was not in pursuit and deactivated his
cruiser’s emergency equipment, so that the subsequent actions
of Main in driving the stolen pickup constituted the sole
proximate cause of the accident. The court concluded that
Main chose to “drive recklessly” at the Q Street exit ramp
“not based upon any objective observations” of Brown and
Stiles “but rather because of a prior experience in an unre-
lated high speed chase.” The court further found that “Main’s
reckless driving in anticipation of the possibility that other
officers may arrive was the proximate cause of [Maclovi-
Sierra’s] injuries.”
In Staley, a trial court determined that a police pursuit
was a proximate cause of a personal injury accident involv-
ing the pursued vehicle, notwithstanding the fact that the
police had terminated the pursuit prior to the accident. We
affirmed, reasoning:
A law enforcement officer’s decision and action to ter-
minate a vehicular pursuit do not instantaneously elimi-
nate the danger to innocent third parties contemplated
in § 13-911. That danger continues until the motorist
reasonably perceives that the pursuit has ended and has
an opportunity to discontinue the hazardous, evasive
driving behaviors contemplated in the statute.14
12
Meyer v. State, 264 Neb. 545, 550, 650 N.W.2d 459, 463 (2002).
13
Staley v. City of Omaha, supra note 7.
14
Id. at 551, 713 N.W.2d at 467.
Nebraska Advance Sheets
458 290 NEBRASKA REPORTS
Staley involved a pursuit in a residential neighborhood during
hours of darkness. Because the police cruiser’s siren was not
functioning, the pursued motorist had no audible signal that
the pursuit had been terminated. A passenger in the pursued
vehicle testified that she saw the cruiser’s flashing lights
approximately 30 seconds before the accident. The fleeing
motorist testified that he was attempting to evade police
prior to and at the time of the accident. We concluded that
under the totality of the circumstances, we could not say that
the fleeing motorist’s belief that he was being pursued was
unreasonable, and we therefore affirmed the determination
of the trial court that the pursuit was a proximate cause of
the accident.
[6] But as we also said in Staley, “whether an injury to an
innocent third party is ‘proximately caused by the action of
a law enforcement officer . . . during vehicular pursuit’ is a
question of fact which must necessarily be determined on a
case-by-case basis.”15 In this case, the trial court made different
findings of fact and reached a different conclusion than the trial
court in Staley. Based upon the video and Lynch’s testimony,
the court discredited Main’s testimony that he could hear sirens
when he exited Highway 75, and it made a specific finding
that “Main could not see or hear any trailing cruisers after he
passed the ‘L’ Street overpass” and that Main’s “subsequent
decisions were based upon his assumption, from a previous
high speed chase, that the trailing officers had radioed his loca-
tion and other cruisers in the area may respond.” The court
further found:
If Brown and Stiles were at any point in pursuit as
defined by the statute, that pursuit had terminated. Main
recognized the termination as he could no longer see or
hear Brown and Stiles and continued to drive recklessly
in anticipation of the arrival of other law enforcement that
may search for him. Main’s reckless driving in anticipa-
tion of the possibility that other officers may arrive was
the proximate cause of [Maclovi-Sierra’s] injuries.
15
Id.
Nebraska Advance Sheets
MACLOVI-SIERRA v. CITY OF OMAHA 459
Cite as 290 Neb. 443The court found that after Main could no longer see or hear the
cruisers that had been following him on Highway 75, he chose
to exit the highway with the intent of crossing over and reen-
tering the highway “heading the opposite direction at a normal
pace to disguise his flight from potential additional respond-
ing officers.”
The court found that “Main was aware, or should reason-
ably have realized, that he had outrun the original cruisers to
the extent that they were no longer visible and that sirens were
no longer audible.” The court further found: “Assuming Main
believed, for his first 14 seconds of travel on the ramp and onto
Hwy 75, that the officers were or may pursue him; he certainly
should have reasonably perceived that any pursuit from Brown
and Stiles had ended.”
[7] The question of proximate cause, in the face of con-
flicting evidence, is ordinarily one for the trier of fact, and
the court’s determination will not be set aside unless clearly
wrong.16 Here, the district court determined that Main’s actions
leading to the accident were not motivated by a police pursuit,
but, rather, by an intent to evade other law enforcement person-
nel who might be looking for him but who were not then in
actual pursuit. While we acknowledge that another trier of fact
may have viewed the evidence differently, that is so of almost
any factual determination made on the basis of conflicting evi-
dence. Based upon our review of the record, we cannot say that
the determination of the district court with respect to proximate
cause was clearly wrong.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Heavican, C.J., participating on briefs.
16
Staley v. City of Omaha, supra note 7; Meyer v. State, supra note 12.