Fales v. County of Stanton , 297 Neb. 41 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/15/2017 09:11 AM CDT
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    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.
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    FALES v. COUNTY OF STANTON
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    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).
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    FALES v. COUNTY OF STANTON
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    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
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    FALES v. COUNTY OF STANTON
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    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,
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    FALES v. COUNTY OF STANTON
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    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
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    FALES v. COUNTY OF STANTON
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    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
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    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).
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    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.
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    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.
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    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.
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    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.
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    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).