Walters v. Frakes -- supplemental opinion , 29 Neb. Ct. App. 740 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/20/2021 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 740Richard Walters, appellant, v.
Scott Frakes et al., appellees.
___ N.W.2d ___
Filed April 13, 2021. No. A-19-532.
supplemental opinion
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
F. Matthew Aerni, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellees.
Pirtle, Chief Judge, and Bishop and Welch, Judges.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellee, State of Nebraska, concerning our opinion in Walters
v. Frakes, 29 Neb. App. 315, 953 N.W.2d 831 (2021). We over-
rule the motion, but we modify the opinion as follows.
In the analysis section of the opinion under the heading
“1. Jurisdiction,” and the subheading “(b) Application of
§ 81-8,219(1),” the sixth paragraph is withdrawn and substi-
tuted with the following:
Because we hold that the standard of care announced
in Goodenow v. State, 259 Neb. 375, 610 N.W.2d 19(2000), is properly reflective of the standard of care
owed by the prison guards to Walters in these circum-
stances, we disagree with the Appellees’ contention that
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
WALTERS v. FRAKES
Cite as 29 Neb. App. 740Walters failed to properly plead his claim against DCS
by failing to articulate a “community standard” of care.
In short, Walters alleged that the DCS’ prison guards
breached their duty by failing to immediately report his
medical complaints to prison medical staff following his
disclosures to them. That pleading created a fact issue for
the trier of fact under the standard of care by prison offi-
cials to inmates articulated in Reiber v. County of Gage,
303 Neb. 325, 928 N.W.2d 916 (2019), and Goodenow,
supra, as set forth previously. In this case, the district
court determined that Walters failed to meet his burden
of proof.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.