Dion v. City of Omaha

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/03/2022 09:10 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
DION v. CITY OF OMAHA
Cite as 311 Neb. 522Trevor Dion, Personal Representative of the Estate
of Bryce David Dion, deceased, appellant and
cross-appellee, v. City of Omaha, defendant
and third-party plaintiff, appellee and
cross-appellant, and Langley Productions,
Inc., a foreign corporation organized
under the laws of California,
third-party defendant, appellee
and cross-appellee.
___ N.W.2d ___
Filed May 6, 2022. No. S-21-545.
1. Political Subdivisions Tort Claims Act. Whether the allegations made
by a plaintiff set forth claims which are precluded by exemptions under
the Political Subdivisions Tort Claims Act presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. 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.
5. Contracts. The interpretation of a contract and whether the contract is
ambiguous are questions of law subject to independent review.
6. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit:
Immunity. If an exemption under Neb. Rev. Stat. § 13-910 (Reissue
2012) applies, the political subdivision is immune from the claim and the
proper remedy is to dismiss it for lack of subject matter jurisdiction.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 5227. Statutes: Immunity: Waiver. Statutes purporting to waive the protec-
tion of sovereign immunity are to be strictly construed in favor of the
sovereign and against waiver.
8. Political Subdivisions Tort Claims Act: Immunity: Waiver. Courts
apply a broad reading to statutory exemptions from a waiver of sover-
eign immunity, such as Neb. Rev. Stat. § 13-910(7) (Reissue 2012).
9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
only where stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other reason-
able construction.
10. Political Subdivisions Tort Claims Act: Appeal and Error. No mat-
ter how a tort claim has been framed and regardless of the assailant’s
employment status, appellate courts have variously described that the
intentional tort exemption applies whenever the claim stems from, arises
out of, is inextricably linked to, is essential to, and would not exist
without, one of the underlying intentional torts listed in Neb. Rev. Stat.
§ 13-910(7) (Reissue 2012).
11. Complaints: Words and Phrases. The gravamen is the substantial point
or essence of a claim, grievance, or complaint and is found by examin-
ing and construing the substance of the allegations of the complaint as a
whole without regard to the form or label adopted by the pleader or the
relief demanded.
12. Political Subdivisions Tort Claims Act: Immunity: Waiver:
Complaints. To determine the gravamen of the complaint, courts look
to whether the plaintiff has alleged an injury independent of that caused
by the excluded acts, i.e., that the injury is linked to a duty to act that
is entirely separate from the acts expressly excluded from the statutory
waiver of sovereign immunity.
13. Battery: Appeal and Error. Although appellate courts have sometimes
described battery as any intentional, unlawful physical violence or con-
tact inflicted on a human being without his or her consent, “unlawful”
in that context simply means unconsented to.
14. Torts: Liability: Intent. A person will be liable for intentional tortious
conduct directed at one person but which unintentionally results to harm
to another person.
15. Police Officers and Sheriffs: Liability. A law enforcement officer is
not liable to a third person harmed by a stray bullet when shooting at an
escaping felon when there was little or no probability that any person
other than the felon would be hit.
16. Police Officers and Sheriffs. A law enforcement officer is unprivileged
to shoot at an escaping felon if it was unreasonable under the circum-
stances to risk causing grave harm to bystanders.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 52217. Claims: Immunity. A plaintiff cannot allege that the harmful or offen-
sive contact causing the injuries the plaintiff seeks to recover for are
privileged for the purpose of sovereign immunity while unprivileged for
the purpose of determining the merits of the claim.
18. Political Subdivisions Tort Claims Act: Battery: Intent. If recovery
for the injury in question depends upon an intentional, harmful, or offen-
sive contact’s being unprivileged, then it depends also upon a battery and
is “arising from” it for purposes of Neb. Rev. Stat. § 13-910(7) (Reissue
2012). In such circumstances, the claim does not allege an injury inde-
pendent of that caused by one of the excluded intentional torts.
19. Moot Question. Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the dispute’s
resolution that existed at the beginning of the litigation.
20. Contracts: Negligence: Liability: Presumptions. There is a pre-
sumption against any intention to indemnify against an indemnitee’s
own negligence.
21. Contracts: Negligence: Liability. Clauses indemnifying the indemni-
tee for the indemnitee’s own negligence are strictly construed against
the claimant.
22. Contracts: Negligence: Liability: Intent. To ensure that the parties
truly intended to indemnify for the indemnitee’s negligence, a contract
of indemnity will not be construed to indemnify the indemnitee against
losses resulting from the indemnitee’s own negligence unless the inten-
tion of the parties is clearly and unambiguously expressed.
23. ____: ____: ____: ____. The intention to indemnify the indemnitee for
the indemnitee’s own negligence need not be stated through a specific
reference to indemnification against liability for negligence; but, if not
so expressed, it must otherwise clearly appear from the language used
or from a determination that no other meaning could be ascribed to the
contract such that the court is firmly convinced that such interpretation
reflects the intention of the parties.
24. ____: ____: ____: ____. To determine if the contract indemnifies against
an indemnitee’s own negligence, courts generally first examine whether
the express language covers the indemnitee’s own negligence and, sec-
ond, whether the contract contains clear and unequivocal language that
it was the parties’ intention to cover the indemnitee’s own negligence.
25. Contracts: Negligence: Liability. Standing alone, general, broad, and
seemingly all-inclusive language is simply not sufficient to impose
liability for the negligence of the indemnitee.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522Christian T. Williams, Brian E. Jorde, and David A. Domina,
of Domina Law Group, P.C., L.L.O., for appellant.
Ryan J. Wiesen, Assistant Omaha City Attorney, for appellee
City of Omaha.
Bruce A. Smith and Audrey R. Svane, of Woods Aitken,
L.L.P., for appellee Langley Productions, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
A member of a television crew that was filming law enforce-
ment activities was shot and killed at the scene of a robbery
when officers fired their weapons at the suspect. The filming
was conducted pursuant to a contract between the city and the
television production company. The estate of the crew member
who died sued the city for wrongful death. The city brought a
third-party claim against the production company for breach
of alleged contractual agreements to defend, indemnify, and
insure the city. Following summary judgment against the city
on its claim against the production company for breach of
contract, a bench trial was held on the estate’s wrongful death
claim. A verdict was rendered in favor of the city. The court
reasoned that the wrongful death action arose out of a battery
and therefore was barred by sovereign immunity. Alternatively,
the court found the estate had failed to prove the elements of
breach and proximate causation. The estate appeals, and the
city cross-appeals.
II. BACKGROUND
Bryce David Dion worked for Langley Productions, Inc.
(Langley), as a sound technician on the filming crew for the
“COPS” television program. In the summer of 2014, Dion
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522was part of a two-person crew that, pursuant to an agreement
between Langley and the City of Omaha (City), rode with and
filmed the activities of two Omaha Police Department (OPD)
officers. On August 26, 2014, while at the scene of a robbery
in progress at a fast-food restaurant, Dion was hit by a bullet
fired by OPD officers as they aimed and shot at the suspect
after the suspect had threatened the officers by pointing what
appeared to be a firearm at them. It was later determined
that the handgun the suspect brandished was not, in fact, an
actual firearm.
1. Agreement
Under the agreement signed by the City’s mayor and the
producer of COPS (Agreement), the City granted Langley
access to OPD and its personnel. It allowed video and audio to
be recorded during production “in all circumstances and loca-
tions” and gave the COPS crew “reasonable access to officers
and situations such officers encounter.” All film activity was
“subject to and under [the] control of the [OPD] officer in
charge,” and Langley agreed to “comply with all instructions
and restrictions as directed by [OPD].”
Paragraph 5 of the Agreement provided for a duty to defend
and indemnify as follows:
[Langley] agrees that it shall indemnify, defend and hold
harmless, the City, its officers, agents, employees and
administrators from and against any and all claims for
damage and liability for injury to or death of persons; and
for damage to or destruction of property occurring dur-
ing and arising out of the acts or omission of [Langley],
its employees and/or agents with regard to [Langley’s]
filming; and shall pay the reasonable cost of defending
lawsuits resulting therefrom, including, but not limited
to, reasonable attorneys fees, court costs and any judg-
ment awarded to a third party as the result of such suit.
In accordance with the foregoing, [Langley] also agrees
to indemnify, defend and hold harmless the City from
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522and against all claims related to intellectual property
claims arising out of [Langley’s] filming activities.
Another portion of paragraph 5 stated that the City shall be
named an additional insured on Langley’s comprehensive gen-
eral liability insurance policy.
2. Complaint for Wrongful Death
Dion’s estate (Estate) filed a wrongful death action against
the City, alleging that OPD owed Dion a special duty of care
and protection and that its police officers negligently shot Dion
while acting within the scope of their employment.
The Estate alleged, summarized, that OPD did not pro-
vide adequate protection of the filming crew through various
alleged deficiencies of general training and instruction of OPD
personnel and the crew. It also alleged that on August 26, 2014,
OPD failed to adequately monitor and communicate to other
officers the filming crew’s whereabouts, give the filming crew
adequate instructions for its safety, or carry out OPD duties in
a manner that accounted for the presence of the filming crew
at the scene. Finally, the Estate alleged that the OPD officers at
the scene failed to identify the proper target before discharging
their firearms, used excessive force, and acted unreasonably in
light of the presence of innocent bystanders.
Prior to filing its action, the Estate had timely filed a notice
of its claim in accordance with the Political Subdivisions Tort
Claims Act (PSTCA). The claim was not acted upon by the City
and was withdrawn more than 6 months after it was filed.
The City filed an answer affirmatively alleging sovereign
immunity as a defense, on the grounds that the Estate’s claim
arose out of an intentional tort of battery. Alternatively, the
City alleged that the use of force was objectively reasonable
and privileged. Further, the City alleged that Dion assumed
the risk associated with filming law enforcement personnel
while on duty and that Dion voluntarily and without notify-
ing the officers had placed himself within an active armed-
robbery situation.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 5223. Third-Party Complaint Against Langley
The City filed a third-party complaint against Langley for
breach of contract. It also brought a claim against Langley for
promissory estoppel, which is not at issue in this appeal.
The City had sent a letter to Langley requesting that it for-
ward the wrongful death complaint to its insurance carrier for
defense against the Estate’s claims. Langley’s insurance carrier
thereafter notified the City it was denying the City’s request
for defense and indemnification under the commercial general
liability policy issued to Langley.
The City alleged in its third-party complaint that Langley
was contractually required to indemnify the City against any
claim for damages and liability for injury to or death of per-
sons, defend the City against any claim for injury to or death
of persons, name the City as an additional insured in Langley’s
general liability insurance policy, and abide by a duty of
fair dealing.
4. Motions For Summary Judgment
The City moved for summary judgment against the Estate
on the grounds that it was immune from the wrongful death
suit, which arose out of a battery, as set forth in Neb. Rev.
Stat. § 13-910(7) (Reissue 2012), which provides in relevant
part that the PSTCA shall not apply to “[a]ny claim arising out
of assault, battery, false arrest, false imprisonment, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.”
Langley moved for summary judgment against the City on
the third-party claims against it. The City filed a cross-motion
for summary judgment against Langley.
(a) Wrongful Death
The district court denied summary judgment in favor of the
City on the Estate’s wrongful death action.
At the hearing on the motion, the City had argued that the
historical facts were undisputed and that a battery occurred
by virtue of the officers’ intentional act of firing at the
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522suspect. The City relied on a standard from the Restatement
(Second) of Torts, 1 quoted in Britton v. City of Crawford, 2 that
an actor is subject to liability to another for battery if (1) he
or she acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and (2) a harmful contact with
the person of the other directly or indirectly results. The City
argued that it was undisputed that the City intended to cause
harmful contact to the suspect, a third person, which indirectly
caused harmful contact to Dion.
The Estate argued, among other things, that the actions of
the officers lawfully using their firearms in the course of duty
would not constitute an intentional tort. It was also discussed
that the officers were exonerated by a grand jury of any crimi-
nal activity in connection with placing the filming crew in
harm’s way.
In denying summary judgment against the Estate, the court
reasoned that our opinion in Phillips v. Liberty Mut. Ins. Co. 3
stands for the proposition that actions for injuries to bystanders
by law enforcement in the course of pursuing a suspect are not
immune under § 13-910(7). And the court found there was a
genuine issue as to whether OPD acted reasonably in relation
to the events leading to Dion’s death.
(b) Breach of Contract
The court granted Langley’s motion for summary judg-
ment as to the City’s claim against Langley for breach of
contract, which was based on paragraph 5 of the Agreement.
The court reasoned that the contract did not affirmatively
and unambiguously protect the City from its own negligence
and that the duty to be named an additional insured was
immaterial because Langley’s policy included only operations
performed by Langley or on Langley’s behalf and excluded
1
Restatement (Second) of Torts § 13 (1965).
2
Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
3
Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361 (2016).
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522bodily injury arising out of operations performed for the state
or municipality.
(c) Promissory Estoppel
The court denied Langley’s motion for summary judg-
ment on the City’s claim for promissory estoppel. It gener-
ally denied the City’s cross-motion for summary judgment
against Langley.
5. Wrongful Death Verdict
The court bifurcated for separate bench trials the Estate’s
wrongful death action against the City and the City’s third-
party action against Langley for promissory estoppel. The trials
were held before a different judge than the judge who presided
over the summary judgment hearing. The court ultimately
issued a verdict in favor of the City on the Estate’s wrongful
death claim, first, on the grounds of sovereign immunity and,
alternatively, on the failure to prove negligence.
(a) Findings of Fact
In its order following the trial on the Estate’s wrongful death
claim, the court summarized the relevant evidence and made
findings of historical facts.
The court found that the only explicit restriction OPD and
the City placed upon the filming crew was that it was not to
exit the patrol car during large crowd disturbances involving
more than 10 people. Otherwise, OPD and the City generally
expected that the crew would follow and observe the offi-
cers’ orders.
On the day in question, Dion and Mike Lee, the cameraman
for the two-person filming crew, were riding with OPD officers
Brooks Riley and Jason Wilhelm. The court found that Dion
had ridden with Riley and Wilhelm several times previously
over the course of the preceding 8 weeks and had developed a
cooperative and professional relationship with them.
The officers were aware that the filming crew always
exited the patrol car and followed them everywhere they
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522went while on duty. Dion had advised the officers they should
act like the crew was not there, although the officers testified
the crew would take direction from officers and follow offi-
cers’ commands or directives.
On the night in question, OPD detective Darren Cunningham
radioed that a robbery suspect had entered a fast-food restau-
rant. Cunningham waited for responding officers to arrive in
order to set up a perimeter around the restaurant. Riley and
Wilhelm, who were only a few blocks away, proceeded directly
to the scene.
When Riley and Wilhelm arrived, they exited their patrol
car. A civilian in the parking lot yelled to Wilhelm and Riley,
“Help, help, they need help inside.” Riley and Wilhelm did not
give any instructions to Dion and Lee. As Riley and Wilhelm
approached Cunningham, they did not identify Dion and Lee
to Cunningham, who assumed they were law enforcement,
because they were wearing dark clothing and were with Riley
and Wilhelm. Cunningham did not observe the video camera,
boom microphone, and audio equipment carried by Dion and
Lee. Dion and Lee did not wear any clothing identifying them-
selves as media.
Cunningham and Riley entered the restaurant on the east
side of the building through the south vestibule door, followed
by Lee. Wilhelm circled around the building to enter through
the western entrance.
There was a customer at the service counter and an employee
standing behind the service counter handing money from the
cash register to the suspect, who was behind the counter.
Riley testified he saw neither the customer nor the employee.
Cunningham and Wilhelm saw the employee.
When Cunningham and Riley entered the area behind the
counter and confronted the suspect, the suspect drew what
appeared to be a black handgun, pointed it at Cunningham and
Riley, and pulled the trigger. Although the suspect’s weapon
was later determined to be a pellet gun, the court found that the
officers reasonably believed it was a real firearm.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522Cunningham discharged his firearm once and retreated into
the hallway in order to avoid endangering the employee,
who was in his line of fire. The suspect also exited into the
hallway, where he again pointed his firearm at Cunningham.
Cunningham attempted to discharge his firearm at the suspect,
but it briefly malfunctioned.
The suspect fled toward the east vestibule doors, pointing
his firearm at Riley, who, in turn, discharged his firearm at
the suspect. Wilhelm, seeing the suspect attempting what he
believed to be deadly force against Cunningham and Riley,
also discharged his firearm at the suspect.
The three officers discharged their firearms at the suspect as
he exited the restaurant through the east vestibule doors and
ran through the parking lot. The suspect was no longer firing
what was believed to be a deadly weapon at that time, but
the officers believed the suspect continued to pose a threat to
their lives and the lives of others, including other officers who
could be responding to assist and the members of the public
at large.
The court noted that all three officers testified that they were
aiming and shooting directly at the suspect while he fled. The
officers testified that they did not accidentally pull the trig-
ger of their guns or drop their firearms, but instead intended
to use deadly force against the suspect. The court found that
the officers’ shots were fired in a directed manner and not in a
haphazard manner.
The court found that none of the officers saw Dion at any
point after entering the scene and that they were not aware of
where Dion might be. The three officers were not even aware
Dion had entered the restaurant until after they had all ceased
discharging their weapons. All three officers testified that had
they seen Dion within their line of fire, they would not have
discharged their firearms and would instead have changed their
position so as to obtain a clear line of fire toward the suspect.
The court specifically found the officers’ testimony to be cred-
ible and supported by the evidence.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522The court found that although the suspect was initially in the
vicinity of an employee and a customer, he moved away from
both in his attempt to escape. The court found that although
there were civilians present in the northeast corner of the res-
taurant’s parking lot, civilians were not congregating around
the east entrance when the suspect fled, and there was no evi-
dence the suspect was near any civilians outside.
The officers discharged their weapons a combined total of
36 times. The majority of the bullets, 24, were fired as the
suspect exited through the east vestibule. It could not be deter-
mined which officer fired the single bullet that killed Dion.
Dion was later found slumped on the floor in the middle of the
east vestibule. However, the court found there was no evidence
as to Dion’s precise location or body positioning when he sus-
tained the bullet wound. Nor, found the court, did the evidence
rule out the possibility that Dion was struck by a bullet that had
ricocheted or initially struck the suspect.
(b) Sovereign Immunity
The court concluded, as a threshold matter, that the Estate’s
action was barred by sovereign immunity. The court did not
agree with the prior judge’s reading of Phillips as it pertained
to § 13-910(7). 4
The court concluded that the elements of battery had been
met because the officers intended to cause harmful contact
with the suspect, which resulted in harmful contact with Dion.
The court relied on the definition of battery from Britton as
an infliction of unconsented contact with another, 5 as well as
case law from other jurisdictions holding that under a theory
of transferred intent, an actor may still be found liable for
battery when the harmful contact occurs to a third person
4
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
5
Britton v. City of Crawford, supra note 2.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522who was not the intended target of the contact. 6 The court
also relied upon the Restatement (Second) of Torts’ statement
that an actor is liable for battery if the actor intended to cause
harmful or offensive contact with the person of the other or
a third person, or imminent apprehension of such contact,
and a harmful contact with the person of the other directly or
indirectly results. 7 In this analysis, the court did not consider
whether the officers could have committed a battery if their
acts of shooting at the suspect were privileged.
The court reasoned that to fall under § 13-910(7), the under-
lying action need not be an action “for” one of the listed inten-
tional torts, but need only be any claim “arising out of” one of
those intentional torts. Even if the complaint alleged acts of
negligence, concluded the court, the wrongful death action was
inextricably linked to a battery and thus was barred by sover-
eign immunity.
(c) Negligence
Alternatively, the court concluded that the Estate had failed
to prove negligence.
The court found no special relationship between Dion and
the City creating a heightened duty of care. Rather, it found
that OPD owed Dion an ordinary duty of reasonable care under
the circumstances. The court reasoned that Dion was neither a
party nor a third-party beneficiary to the Agreement and that
case law did not generally support a special duty to protect
a bystander from the intentional conduct of an employee of
the defendant.
The court utilized negligence propositions from Phillips
describing the balancing of the duty of law enforcement to
apprehend violators against the duty of care to the general
6
See, Hensley on behalf of North Carolina v. Price, 876 F.3d 573 (4th Cir.
2017); Hensley v. Suttles, 167 F. Supp. 3d 753 (W.D.N.C. 2016); Alteiri v.
Colasso, 168 Conn. 329, 362 A.2d 798 (1975).
7
See Restatement, supra note 1.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522public, as well as the privilege to use reasonable force in
effecting a lawful arrest, which extends to harm caused to
innocent bystanders unless the officers’ actions were unreason-
able under the circumstances. 8 The court found under these
propositions that the officers acted reasonably. Therefore, the
officers did not breach the applicable duty of care.
The court rejected the Estate’s argument that the officers
should have refrained from engaging the suspect until they
affirmatively ascertained Dion’s whereabouts. The court stated:
It is unreasonable to expect an officer, when faced with a
suspect who is within close proximity to the officer and
pulling the trigger on what appears to be a real firearm,
to simply stand there or try to take cover merely because
a third-person, who the officer does not observe, but
who could possibly be somewhere in the vicinity, may
be present.
The court also rejected the Estate’s contention that the suspect
had fled through a “crowded thoroughfare,” given the lack
of evidence that civilians were in the parts of the parking lot
affected by the line of fire.
In any event, the court weighed the surrounding circum-
stances for determining whether the act of shooting into a
crowded thoroughfare is privileged, including the nature of
the crime, the harm that may ensue if the officer does not
act, and the officer’s skill in the use of the weapon. The court
found these factors weighed heavily in favor of the City. The
suspect was engaging in violence, including what the officers
reasonably believed to be attempted homicide; it was reason-
able to conclude that such a suspect might also shoot at other
responding officers or innocent civilians; and all three officers
specifically aimed at the suspect and not merely in his gen-
eral vicinity.
The court also found that the Estate had failed to prove
proximate causation. The court explained that there was no
8
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522evidence for it to come to a conclusion, absent speculation or
conjecture, that Dion’s death was caused by any failure of the
City or OPD to advise him to remain outside the restaurant or
to wear any clothing that identified him as media.
6. Verdict on Promissory Estoppel
The court found that in light of its verdict against the Estate
on its wrongful death action, there was no actual case or con-
troversy with respect to a claim under promissory estoppel for
indemnification. As for the duty to defend, the court found that
promissory estoppel, which was based on oral statements made
before the written contract, was not a viable theory of recovery
because the written contract covered the same subject matter.
The court alternatively found that the alleged statements on
Langley’s behalf were too vague and indefinite to support a
claim for promissory estoppel. Finally, the court found that it
was not reasonable for the City to rely upon statements made
on Langley’s behalf during negotiations of a contract.
III. ASSIGNMENTS OF ERROR
The Estate assigns that the district court erred by (1) dis-
missing Dion’s claims against the City, ruling that the PSTCA
barred those claims; (2) ruling Dion’s claims arose out of an
intentional tort for which sovereign immunity is not waived by
the PSTCA; (3) ruling that OPD acted reasonably at all times;
and (4) holding that OPD officers did not owe Dion a height-
ened duty of care.
On cross-appeal, the City assigns that the district court
erred by (1) holding as a matter of law that the indemnifica-
tion and defense provisions of the Agreement were ambi­g­
uous, (2) holding as a matter of law that the indemnification
and defense provisions in the Agreement were unenforceable,
and (3) dismissing with prejudice the City’s third-party breach
of contract claims against Langley seeking indemnification
and defense of the Estate’s claims against the City. The City
assigns as error the court’s order rendering its verdict on
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522promissory estoppel only “to the extent it became a final[,]
appealable order enabling appellate review of the [order grant-
ing summary judgment in favor of Langley on its breach of
contract claim].”
IV. STANDARD OF REVIEW
[1] Whether the allegations made by a plaintiff set forth
claims which are precluded by exemptions under the PSTCA
presents a question of law. 9
[2] When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the con-
clusion reached by the trial court. 10
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 11
[4] 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. 12
[5] The interpretation of a contract and whether the con-
tract is ambiguous are questions of law subject to indepen-
dent review. 13
V. ANALYSIS
The Estate appeals from the judgment in the wrongful death
action, which dismissed the action with prejudice. The City
cross-appeals the court’s order on summary judgment dismiss-
ing with prejudice its third-party claim against Langley for
breach of contract. We first address the Estate’s appeal in the
wrongful death action.
9
Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
10
Id.11
Id.12
Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).
13
Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019).
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DION v. CITY OF OMAHA
Cite as 311 Neb. 5221. Wrongful Death
As a threshold issue, we must determine if the Estate’s
wrongful death action was barred by sovereign immunity. Neb.
Const. art. V, § 22, provides: “The state may sue and be sued,
and the Legislature shall provide by law in what manner and
in what courts suits shall be brought.” The Estate asserts that
sovereign immunity was waived by the PSTCA. 14
Under the PSTCA, a political subdivision has no liability
for the torts of its officers, agents, or employees, “except to
the extent, and only to the extent, provided by the [PSTCA].” 15
In suits brought under the PSTCA, a political subdivision is
“liable in the same manner and to the same extent as a private
individual under like circumstances,” except “as otherwise pro-
vided in the [PSTCA].” 16
[6] The Legislature has allowed through the PSTCA a lim-
ited waiver of a political subdivision’s sovereign immunity
with respect to some, but not all, types of tort claims. 17 Section
13-903 defines a “[t]ort claim” as
any claim against a political subdivision for money only
on account of damage to or loss of property or on account
of personal injury or death, caused by the negligent or
wrongful act or omission of any employee of the political
subdivision, while acting within the scope of his or her
office or employment, under circumstances in which the
political subdivision, if a private person, would be liable
to the claimant for such damage, loss, injury, or death
but shall not include any claim accruing before January
1, 1970.
Section 13-910, in turn, exempts certain tort claims from
the limited waiver of sovereign immunity of the PSTCA.
14
See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
15
§ 13-902.
16
§ 13-908.
17
Edwards v. Douglas County, supra note 9.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522If an exemption under § 13-910 applies, the political subdivi-
sion is immune from the claim and the proper remedy is to
dismiss it for lack of subject matter jurisdiction. 18
(a) Arising Out of Listed Intentional Tort
At issue in this case is subsection (7) of § 13-910. Under
§ 13-910(7), the PSTCA shall not apply to “[a]ny claim arising
out of assault, battery, false arrest, false imprisonment, mali-
cious prosecution, abuse of process, libel, slander, misrepre-
sentation, deceit, or interference with contract rights.” Section
13-910(7) sets forth what is generally referred to as the “inten-
tional tort” exemption. 19
We have discussed that a similar intentional tort exemp-
tion from the waiver of sovereign immunity under the Federal
Tort Claims Act 20 reflects public policy determinations against
allowing government employees to engage at the government’s
expense in lawless activities that are practically, if not legally,
outside the scope of their proper functions. 21 This was deemed
contrary to the promotion of high standards of performance
by a sovereign’s employees. 22 Also, it was determined to be
against public policy to expose the public fisc to intentional
tort claims, which are often unwieldy, being easy for plaintiffs
to exaggerate and difficult to defend. 23 The Legislature implic-
itly adopted similar public policy stances through the inten-
tional tort exemptions of the PSTCA and the State Tort Claims
Act. 24 Such public policy is the province of the Legislature
rather than the courts. 25
18
See id.
19
See id.
20
See 28 U.S.C. §§ 1346(b) and 2671 to 2680 (2018).
21
See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
22
See id.23
See id.24
See id.25
See id.- 540 -
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522[7-9] Statutes purporting to waive the protection of sov-
ereign immunity are to be strictly construed in favor of the
sovereign and against waiver. 26 As a corollary to this canon
of construction, and in order to strictly construe the PSTCA
against a waiver of sovereign immunity, we apply a broad read-
ing to statutory exemptions from a waiver of sovereign immu-
nity, such as § 13-910(7). 27 A waiver of sovereign immunity
is found only where stated by the most express language of a
statute or by such overwhelming implication from the text as
will allow no other reasonable construction. 28
We recently observed in Edwards v. Douglas County 29 that
the language used by the Legislature in § 13-910(7) is “strik-
ingly broad” and that “without qualification or limitation, it
exempts from the waiver of sovereign immunity ‘[a]ny claim
arising out of’” the listed intentional torts.
[10] No matter how a tort claim has been framed and regard-
less of the assailant’s employment status, we have variously
described that the intentional tort exemption applies whenever
the claim stems from, arises out of, is inextricably linked to, is
essential to, and would not exist without one of the underlying
intentional torts listed in § 13-910(7). 30 We held in Edwards,
“All of these articulations speak to the same point: when a tort
claim against the government seeks to recover damages for
personal injury or death stemming from an assault, the claim
necessarily ‘arises out of assault’ and is barred by the inten-
tional tort exemption under the PSTCA.” 31
[11,12] In the context of the other intentional torts speci-
fied in § 13-910(7), such as for any claim arising out of
misrepresentation or deceit, we have described that under
26
Edwards v. Douglas County, supra note 9.
27
See id.28
Id.29
Id. at 276, 953 N.W.2d at 755-56.
30
See Edwards v. Douglas County, supra note 9.
31
Id. at 277-78, 953 N.W.2d at 756.
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Cite as 311 Neb. 522the “‘gravamen of the complaint test,’” an appellate court
examines the underlying substance of a dispute in order to
determine whether sovereign immunity lies. 32 In general, the
“gravamen” is the “substantial point or essence of a claim,
grievance, or complaint” 33 and is found by examining and
construing the substance of the allegations of the complaint
as a whole without regard to the form or label adopted by
the pleader or the relief demanded. 34 Thus, to determine the
gravamen of the complaint, we look to whether the plain-
tiff has alleged an injury independent of that caused by the
excluded acts, i.e., that the injury is linked to a duty to act that
is entirely separate from the acts expressly excluded from the
statutory waiver of sovereign immunity. 35
In Edwards, the plaintiff sought to recover for injuries
directly incurred from what was undisputed to be an assault
by a former boyfriend. 36 We ultimately held that the action
based on allegations that the county negligently handled emer-
gency telephone calls and did not arrive in time to prevent or
stop the assault on the plaintiff was inextricably linked to an
assault and, thus, was exempted under § 13-910(7) from the
waiver of sovereign immunity of the PSTCA. We said that
although it was “conceivable there could be circumstances
where the claim is so attenuated from an assault that it can-
not fairly be characterized as arising out of the assault,”
this was not such a claim. 37 Plaintiffs cannot circumvent the
32
Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 627, 905 N.W.2d
551, 559 (2018). See, also, Jill B. & Travis B. v. State, supra note 21;
Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825
N.W.2d 204 (2013); Stonacek v. City of Lincoln, supra note 12.
33
Black’s Law Dictionary 845 (11th ed. 2019).
34
See 1A C.J.S. Actions § 121 (2016).
35
See Stonacek v. City of Lincoln, supra note 12.
36
Edwards v. Douglas County, supra note 9.
37
Id. at 279, 953 N.W.2d at 757.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522e­ xemption of § 13-910(7) through artful pleading that relies
on a semantic recasting of events. 38
(b) Elements of Battery
[13] The district court in this case concluded that the
Estate’s action fell under § 13-910(7) because it arose out of a
battery. The intentional tort of battery is defined as an actual
infliction of an unconsented injury upon or unconsented con-
tact with another. 39 A harmful contact intentionally done is the
essence of battery. 40 This is consistent with the Restatement
(Second) of Torts, which has been relied upon by this court
and provides:
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or
an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other
directly or indirectly results. 41
We observed in Britton that the Restatement (Second) of Torts
does not use the term “unlawful” in its definition of battery. 42
In any event, although we have sometimes described battery as
any intentional, unlawful physical violence or contact inflicted
on a human being without his or her consent, “unlawful” in
that context simply means unconsented to. 43
In the comments to the Restatement (Second) of Torts,
it is clarified that the meaning of the term “intending” goes
only to the act itself. 44 It is immaterial that the actor is not
38
Id.
39
Britton v. City of Crawford, supra note 2.
40
Id.
41
Restatement, supra note 1, § 13 at 25.
42
See Britton v. City of Crawford, supra note 2.
43
See id.
44
See Restatement, supra note 1, § 13, comment c.
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Cite as 311 Neb. 522inspired by any personal hostility to the other or a desire to
injure anyone. 45 Thus, for example, so long as the other has
not actually consented, a defendant who intentionally inflicts
bodily harm upon another as a practical joke is not immune
from liability, even if the actor erroneously believed the other
would regard it as a joke or erroneously believed that the other
consented to the contact. 46
The comments to the Restatement (Second) of Torts also
clarify the meaning of the phrase “subject to liability” and state
that the defendant’s act must be a “legal cause” of the contact
with the plaintiffs. 47 Such liability is defeated by any privilege
available to the defendant. 48
(c) Negligence Actions Arising Out of Battery
In several cases, we have held that plaintiffs’ negligence
actions arose from a battery and thus fell within the scope
of § 13-910(7) and were barred by sovereign immunity. 49 In
Britton, for example, we affirmed the lower court’s order grant-
ing what was effectively a motion for summary judgment in
favor of the political subdivision on the grounds that the claim,
although framed as negligence, fell under the intentional tort
exemption to the limited waiver of sovereign immunity under
the PSTCA, because it arose out of a battery. 50
The claim derived from the death of the suspect in
Britton after law enforcement shot him when he refused to
45
See id.
46
See id.
47
See id., comment d. at 25.
48
Id.
49
See, Britton v. City of Crawford, supra note 2; Rutledge v. City of Kimball,
304 Neb. 593, 935 N.W.2d 746 (2019); City of Lincoln v. County of
Lancaster, 297 Neb. 256, 898 N.W.2d 374 (2017). See, also, Williams v.
State, 310 Neb. 588, 967 N.W.2d 677 (2021); Moser v. State, 307 Neb. 18,
948 N.W.2d 194 (2020); Johnson v. State, 270 Neb. 316, 700 N.W.2d 620(2005); Pieper v. State, 29 Neb. App. 912, 962 N.W.2d 715 (2021).
50
Britton v. City of Crawford, supra note 2.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522comply with directives to show his hands and drop his weapon
and instead pointed his weapon at the officers. The action
alleged law enforcement had been negligent in the techniques
implemented in a barricaded suspect situation, which negli-
gence ultimately led to the death of the suspect when an officer
shot him.
We explained that although the claim of the suspect’s estate
may have been “for” negligence, the injuries the estate sued the
political subdivision for ultimately stemmed from a battery, an
intentional tort. We reasoned, “While other factors may have
contributed to the situation which resulted in [the suspect’s]
death, but for the battery, there would have been no claim.” 51
Even if negligence was a factor in the suspect’s death, no
semantic recasting of events could alter the fact that the shoot-
ing that ultimately caused the suspect’s death was inextricably
linked to a battery. 52
In so holding in Britton, we specifically rejected the argu-
ment that because the officer had been found not guilty of
assault, on the grounds of self-defense, the officer’s conduct
did not fall under the intentional tort of battery and the excep-
tion found in § 13-910(7). Noting that we had not before
considered whether an affirmative defense would remove
an intentional tort from coverage under the exception, we
observed that, on its face, § 13-910(7) does not contemplate
whether such intentional acts are legally justified. Nor does
the exception state that the waiver of sovereign immunity
only applies to claims based on intentional torts for which
the actor could be held liable. We also observed that we have
consistently recognized that the key requirement of the inten-
tional torts exception is that the actor intended the conduct.
We ultimately held that in deciding whether the plaintiff’s
claim arose out of a battery, “[w]e need not determine whether
the actor ultimately could be held liable for any damage
51
Id. at 386, 803 N.W.2d at 518.
52
See id.
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Cite as 311 Neb. 522resulting from the battery, based on the presence or absence of
affirmative defenses.” 53
(d) Estate’s Arguments
We have not before specifically addressed whether injury to
a bystander in the course of law enforcement’s pursuit of or
engagement with a suspect arises from a battery for purposes
of § 13-910(7). On appeal, the Estate presents four arguments
as to why it believes that its wrongful death action did not
arise out of a battery and that the district court erred in con-
cluding differently. First, the Estate points out that it did not
sue for battery, but, rather, sued for negligence. Second, the
Estate asserts that the elements of battery were not met in
this case because the officers alleged that discharging lethal
force at the suspect was not wrongful and was privileged.
Third, the Estate asserts that the injuries Dion suffered did
not arise from a battery, because the officers intended to shoot
the suspect and not Dion, and that transferred intent does not
apply to § 13-910(7). Fourth, the Estate asserts that our opin-
ion in Phillips indicates that actions to recover for injuries to
bystanders incurred in the course of law enforcement’s pursuit
or engagement with a suspect do not arise from a battery for
purposes of § 13-910(7). 54
i. Sued “For” Versus Arises From
As stated in Edwards and Britton, what the plaintiff sues
“for” is not determinative of whether that action arose from
a battery for purposes of § 13-910(7). 55 Thus, it does not
matter that the Estate sued “for” negligence rather than a bat-
tery. The question is whether the injury the plaintiff seeks to
recover for stems from, arises out of, is inextricably linked
to, and would not exist without an underlying assault or
53
Id. at 383, 803 N.W.2d at 516.
54
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
55
See, Edwards v. Douglas County, supra note 9; Britton v. City of Crawford,
supra note 2.
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Cite as 311 Neb. 522battery. 56 Stated another way, without regard to the form or
label adopted by the pleader or the relief demanded, we look
to the gravamen of the complaint to determine whether the
plaintiff has alleged an injury independent of that caused by
the excluded acts.
ii. Phillips v. Liberty Mut. Ins. Co.
Phillips does not hold, as the Estate suggests, that when the
underlying injury is to an innocent bystander of allegedly neg-
ligent law enforcement actions directed at a suspect, the plain-
tiff’s action necessarily arises out of negligence rather than a
battery. In Phillips, we affirmed a summary judgment in favor
of the county in an action brought by an innocent bystander
who was injured by being knocked over when deputies ran
in pursuit of a person to effectuate an arrest. 57 The officers
subsequently apprehended the person, forcing her hands off a
doorknob that she was gripping, placing her on the ground, and
handcuffing her.
While the Estate points out that in Phillips “no battery was
found to have been committed by the police officer,” 58 this is
a misleading characterization of our holding. We decided the
appeal on the grounds that there was no negligence, despite the
fact that the lower court had determined the claim was barred
by sovereign immunity because it arose out of battery.
We noted in Phillips that the parties below had discussed
the theory that the officers had committed a battery on the
resisting person and that the officers’ intent was transferred
to the injured bystander. We then said, “based on their read-
ing of Britton v. City of Crawford, [the parties below] placed
considerable, arguably undue, emphasis on the ‘intent’ of the
deputies.” 59 But we did not elaborate or otherwise comment
56
See Edwards v. Douglas County, supra note 9.
57
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
58
Brief for appellant at 21.
59
Phillips v. Liberty Mut. Ins. Co., supra note 3, 293 Neb. at 129, 876
N.W.2d at 367.
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Cite as 311 Neb. 522on whether an injury to a bystander during the pursuit of a
suspect could fall under § 13-910(7).
We did not hold in Phillips that the district court’s decision
on sovereign immunity was wrong; we simply affirmed the
order on the alternative ground that there was no genuine issue
that the deputies did not act negligently. Phillips thus does not
stand for the proposition that actions stemming from officers’
injuring bystanders in the course of pursuing or engaging a
suspect fall outside of § 13-910(7). To the extent Phillips could
be read otherwise, we disapprove of any such reading.
iii. Transferring Intent
We disagree with the Estate’s contention that an action does
not arise out of a battery whenever the actor did not intend
contact with the plaintiff and instead intended the contact to a
third party. While we have not previously addressed this sce-
nario as it applies to § 13-910(7), the Restatement (Second) of
Torts describes that a battery occurs when a person acts intend-
ing to cause a harmful or offensive contact with the person
of the other or a third person and a harmful contact with the
person of the other directly or indirectly results. 60
[14] Further, the Restatement (Second) of Torts states in
relevant part:
(2) If an act is done with the intention of affecting a
third person in the manner stated in Subsection (1) but
causes an offensive bodily contact to another, the actor
is subject to liability to such other as fully as though he
intended so to affect him. 61
Other authorities have explained that a person will be liable for
intentional tortious conduct directed at one person but which
unintentionally results to harm to another person. 62
60
Restatement, supra note 1.
61
Id., § 20 at 36.
62
See Dan B. Dobbs, Law of Torts § 40 (2000).
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522That the officers did not intend to direct lethal force
toward Dion does not mean Dion’s death was not the result
of a battery.
iv. “Wrongful” Contact and Privileges
We turn lastly to the Estate’s argument that the officers did
not, in the first place, commit a battery of the suspect, of Dion,
or of anyone else. The Estate argues that a battery does not
occur if the unconsented to touching was privileged. And the
Estate points out that the officers alleged as a defense that their
actions of shooting at the suspect while he fled were privi-
leged. Indeed, the court ultimately so found.
[15,16] The privilege at issue was described in Phillips,
wherein we said, in the context of negligence, that if a law
enforcement officer is privileged to shoot at an escaping felon,
the law enforcement officer is not liable to a third person
harmed by a stray bullet when shooting at an escaping felon
when there was little or no probability that any person other
than the felon would be hit. 63 In contrast, a law enforcement
officer is unprivileged to shoot at an escaping felon if it was
unreasonable under the circumstances to risk causing grave
harm to bystanders. 64
We quoted the Restatement (Second) of Torts concerning
reasonable care with respect to innocent bystanders of police
conduct and the confines of the law enforcement privilege:
“[I]f an actor is privileged to shoot at an escaping felon,
he is not liable to a third person harmed by a stray bul-
let, if when he shot there was little or no probability
that any person other than the felon would be hit. But
when he shoots into a crowded thoroughfare, and unin-
tentionally hits a passerby, his act is unprivileged if, in
view of the surrounding conditions, including the nature
63
Phillips v. Liberty Mut. Ins. Co., supra note 3.
64
See id.
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Cite as 311 Neb. 522of the crime for which he seeks to arrest, recapture, or
maintain custody, the harm which may ensue if he does
not act, and his skill or lack of skill in the use of the
weapon, it is unreasonable for him to take the chance of
causing grave harm to bystanders.” 65
We held as a matter of law in Phillips that the deputies had
a duty and were required to exercise that degree of care toward
innocent persons as would be exercised by a reasonable deputy
effectuating an arrest under the circumstances. We explained
that reasonable force is an objective standard constituting that
amount of force which an ordinary, prudent, and intelligent
person with the knowledge and in the situation of the arrest-
ing police officer would have deemed necessary under the
circumstances. 66 The context is important in determining the
reasonableness of the action taken, but, broadly, the privilege
to use reasonable force toward the arrestee extends to harm
to an innocent bystander caused by force directed toward the
arrestee unless under the circumstances it was unreasonable
for law enforcement to take the chance of causing grave harm
to bystanders. 67
We explained that whether the deputies in Phillips acted
unreasonably and breached their duty was a question of fact.
However, noting that there was no evidence the deputies were
using weapons or were chasing the person in a way that could
be described as reckless, we held that there was no genuine
issue that the deputies acted reasonably in chasing the person
when she ran away. Nothing in the record indicated the depu-
ties objectively should have realized their actions created an
unreasonable risk of harm to any innocent third persons. Thus,
the deputies were not negligent.
65
Id. at 135-36, 876 N.W.2d at 370-71, quoting Restatement, supra note 1,
§ 137, comment c.
66
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
67
See id.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522As already set forth above, a privilege to make the contact is
a defense to battery 68 such that an actor is not subject to liabil-
ity for battery, because the actor’s conduct was not the legal
cause of the injury. This is sometimes referred to as a “privi-
lege to commit battery,” 69 but it is perhaps more exact to state
that it is a privilege to commit what would otherwise be a bat-
tery. 70 A privileged act is generally defined as one that would
ordinarily be tortious, but which, under the circumstances, does
not subject the actor to liability. 71
Under the principle that, to be a battery, the acts must have
been the legal cause of the injury, the Estate argues that if the
relevant actions were privileged, there was no battery from
which the injuries it seeks to recover for could have arisen for
purposes of § 13-910(7). While under the facts presented in
Britton, we rejected a similar argument, the Estate asks this
court to overturn that holding. 72 We decline to do so. Even if
there are hypothetical scenarios in which a privilege to commit
the act causing the injury at issue could negate the requisite
connection described in § 13-910(7) between the claim and the
listed intentional torts, such was not the case in Britton and it
is not the case here.
As Phillips illustrates, the same privilege the Estate argues
makes the underlying conduct not a battery also defeats the
negligence theories under which the Estate seeks to recover
68
See Baranowski v. City of Milwaukee, 70 Wis. 2d 684, 235 N.W.2d 279(1975).
69
See, Roberson v. Borough of Glassboro, Cases Nos. 1:20-02765 and
1:20-02769, 2021 WL 5154000 (D.N.J. Nov. 5, 2021); Gilmore v. Superior
Court, 230 Cal. App. 3d 416, 281 Cal. Rptr. 343 (1991); Morrison v.
Horseshoe Casino, 2020 Ohio 4131, 157 N.E.3d 406 (2020); Edwards v.
City of Philadelphia, 860 F.2d 568 (3rd Cir. 1988).
70
See Restatement, supra note 1, ch. 4, topic 2, scope note (1965).
71
Gilmore v. Superior Court, supra note 69.
72
See Britton v. City of Crawford, supra note 2.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522in its action against the City. 73 The Estate pled, among other
things, that law enforcement officers failed to identify the
correct and proper target before discharging their firearms,
misdirected their gunfire, and used excessive deadly force. The
theory litigated in the Estate’s action was that when the suspect
was fleeing through the east vestibule and no longer firing
what was believed to be a deadly weapon, it was unreasonable
under the circumstances to take the chance of causing grave
harm to bystanders like Dion.
[17] A plaintiff cannot allege that the harmful or offensive
contact causing the injuries the plaintiff seeks to recover for
are privileged for the purpose of sovereign immunity while
unprivileged for the purpose of determining the merits of the
claim. Logically, an act is not simultaneously privileged and
unprivileged. The Estate concedes its wrongful death claim
depends upon the theory that the officers’ acts of firing at
the suspect were no longer privileged when the officers fired
the bullet that killed Dion. Thus, no matter how framed, the
Estate’s negligence claim depends upon allegations that the
injuries were caused by unprivileged harmful or offensive con-
tact, which in substance is an allegation that the injuries were
caused by a battery.
[18] In sum, the underlying substance of the Estate’s claim
is that Dion’s death arose out of a battery. If recovery for
the injury in question depends upon an intentional, harmful,
or offensive contact’s being unprivileged, then it depends
also upon a battery and is “arising from” it for purposes of
§ 13-910(7). In such circumstances, the claim does not allege
an injury independent of that caused by one of the excluded
intentional torts. We need not decide whether a claim arises
out of a battery for purposes of § 13-910(7) when recovery
for that claim does not depend upon the offensive contact
being unprivileged, because that scenario is not presented in
this appeal.
73
See Phillips v. Liberty Mut. Ins. Co., supra note 3.
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Cite as 311 Neb. 522(e) Conclusion on Wrongful Death Claim
We are unpersuaded by the four arguments presented on
appeal by the Estate in support of its assertion that its wrong-
ful death claim did not arise out of battery for purposes of
§ 13-910(7). We affirm the judgment of the district court
that the Estate’s wrongful death action is barred by sovereign
immunity. We turn to the City’s cross-appeal in its breach of
contract action against Langley.
2. Breach of Contract
In the City’s breach of contract claim, it alleged that Langley
agreed to indemnify and defend it against any and all claims
for damages and liability for injury to or death of persons. It
asserts this contractual obligation included duties to indemnify
and defend against claims of negligence such as the Estate’s
wrongful death action.
[19] Given our resolution of the appeal with respect to the
wrongful death claim, the City’s claim as it pertains to an
alleged duty to indemnify is, strictly speaking, moot. Mootness
refers to events occurring after the filing of a suit which eradi-
cate the requisite personal interest in the dispute’s resolution
that existed at the beginning of the litigation. 74 Because the
Estate has lost its wrongful death action, there is nothing for
Langley to indemnify.
Here, the Agreement stated that Langley “shall pay the rea-
sonable cost of defending lawsuits resulting therefrom, includ-
ing, but not limited to, reasonable attorneys fees, court costs
and any judgment.” Because the City seeks under the duty to
defend to recover from Langley the costs incurred by the City
in defending itself in the Estate’s action that was ultimately
unsuccessful, that aspect of its breach of contract claim is not
rendered moot by the judgment against the Estate in its wrong-
ful death action.
74
Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
DION v. CITY OF OMAHA
Cite as 311 Neb. 522The provision at issue is as follows:
[Langley] agrees that it shall indemnify, defend and hold
harmless, the City, its officers, agents, employees and
administrators from and against any and all claims for
damage and liability for injury to or death of persons; and
for damage to or destruction of property occurring dur-
ing and arising out of the acts or omission of [Langley],
its employees and/or agents with regard to [Langley’s]
filming; and shall pay the reasonable cost of defending
lawsuits resulting therefrom, including, but not limited
to, reasonable attorneys fees, court costs and any judg-
ment awarded to a third party as the result of such suit.
In accordance with the foregoing, [Langley] also agrees
to indemnify, defend and hold harmless the City from and
against all claims related to intellectual property claims
arising out of [Langley’s] filming activities.
The City argues that the broad language of “indemnify, defend
and hold harmless, the City, its officers, agents, employees and
administrators from and against any and all claims for damage
and liability for injury to or death of persons” includes defend-
ing the City against claims it was negligent, such as the wrong-
ful death action brought by the Estate.
[20-22] However, as the district court noted, there is a
presumption against any intention to indemnify against an
indemnitee’s own negligence. 75 Clauses indemnifying the
indemnitee for the indemnitee’s own negligence are strictly
construed against the claimant. 76 To ensure that the parties
truly intended to indemnify for the indemnitee’s negligence, a
contract of indemnity will not be construed to indemnify the
indemnitee against losses resulting from the indemnitee’s own
75
42 C.J.S. Indemnity § 20 (2017).
76
41 Am. Jur. 2d Indemnity § 16 (2015). See, also, 8 Richard A. Lord, A
Treatise on the Law of Contracts by Samuel Williston § 19:19 (4th ed.
2010); 42 C.J.S. supra note 75.
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522negligence unless the intention of the parties is clearly and
unambiguously expressed. 77
[23,24] The intention to indemnify the indemnitee for the
indemnitee’s own negligence need not be stated through a
specific reference to indemnification against liability for negli-
gence; but, if not so expressed, it must otherwise clearly appear
from the language used or from a determination that no other
meaning could be ascribed to the contract such that the court
is firmly convinced that such interpretation reflects the inten-
tion of the parties. 78 To determine if the contract indemnifies
against an indemnitee’s own negligence, we generally first
examine whether the express language covers the indemnitee’s
own negligence and, second, whether the contract contains
clear and unequivocal language that it was the parties’ inten-
tion to cover the indemnitee’s own negligence. 79
Thus, in Oddo v. Speedway Scaffold Co., 80 we held that a
provision to indemnify against all conduct “‘including active,
passive, primary or secondary,’” while excluding indemnifica-
tion for “‘wilful misconduct,’” expressed an intention to indem-
nify for negligence clearly and unequivocally, even though it
did not contain the word “negligence.” Likewise, we found in
Kuhn v. Wells Fargo Bank of Neb. 81 that an indemnification
clause of a lease clearly and unequivocally expressed the par-
ties’ intention to indemnify the indemnitee for the indemnitee’s
own negligence. The clause at issue provided:
77
See, Anderson v. Nashua Corp., 251 Neb. 833, 560 N.W.2d 446 (1997);
Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989). See,
also, id.78
See 42 C.J.S. supra note 75.
79
See Anderson v. Nashua Corp., supra note 77.
80
Oddo v. Speedway Scaffold Co., supra note 77, 233 Neb. at 9, 443 N.W.2d
at 602. See, also, Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb.
638, 805 N.W.2d 468 (2011).
81
Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
DION v. CITY OF OMAHA
Cite as 311 Neb. 522“With the exception of those claims arising out of
[­lessor’s] gross negligence or willful misconduct, [­lessee]
shall indemnify [lessor] and hold it harmless from any
claim or damage arising out of any injury, death or
property damage occurring in, on or about the Property,
the Building, the Leased Premises and appurtenances
thereto to [lessee] or an employee, customer or invitee
of [lessee].” 82
We explained that the language required the lessee to indem-
nify the lessor for “something.” 83 Looking at the provision as a
whole and giving it a reasonable instruction, we reasoned that
if “any injury” did not include the indemnitee’s negligence,
it would have been unnecessary to specifically exclude gross
negligence. 84 We held that because it placed a duty to indem-
nify for any injury other than gross negligence, it clearly still
included negligence that was “less than gross.” 85
In contrast, in Anderson v. Nashua Corp., 86 we held lan-
guage that the indemnitor would protect the indemnitee against
“‘all risks and from any claims that may arise out of or per-
tain to the performance of such work,’” neither constituted
express language covering the indemnitee’s own negligence
nor clear and unequivocal language that it was the parties’
intention to cover the indemnitee’s own negligence. Similarly,
in Omaha P. P. Dist. v. Natkin & Co., 87 we held that a contract
to protect the indemnitee from “‘claims for damages for per-
sonal injury, including wrongful death, as well as claims for
property damages, which may arise from operations’” was, at
82
Id. at 431, 771 N.W.2d at 109.
83
Id. at 440, 771 N.W.2d at 115.
84
Id. at 441, 771 N.W.2d at 115.
85
Id. at 441, 771 N.W.2d at 116.
86
Anderson v. Nashua Corp., supra note 77, 251 Neb. at 840, 560 N.W.2d at
450.
87
Omaha P. P. Dist. v. Natkin & Co., 193 Neb. 518, 520, 227 N.W.2d 864,
866 (1975).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
DION v. CITY OF OMAHA
Cite as 311 Neb. 522best, ambiguous as to whether the parties intended to indem-
nify the indemnitee from its own negligence. Thus, it did not
overcome the presumption against any intention to indemnify
against an indemnitee’s own negligence.
[25] The language of the Agreement is similar to the lan-
guage in Anderson and Omaha P. P. Dist. that we found
failed to clearly and unambiguously express an intention to
indemnify the indemnitee for the indemnitee’s own negli-
gence. The express language does not cover the indemnitee’s
own negligence, and the contract does not contain clear and
unequivocal language that it was the parties’ intention to cover
the indemnitee’s own negligence. While the reference in the
Agreement to “any and all claims for damage and liability
for injury to or death of persons” is facially broad, standing
alone, general, broad, and seemingly all-inclusive language is
simply not sufficient to impose liability for the negligence of
the indemnitee. 88
And there is no other provision in the Agreement, such as
was present in Kuhn, excluding a higher degree of negligence
or otherwise clearly expressing an intention to indemnify the
City for its own negligence. 89 To the contrary, albeit speci-
fied for property claims and separated by a semicolon from
the broad reference to “any and all claims for damage and
liability for injury to or death of persons,” the Agreement
refers to claims “during and arising out of the acts or omis-
sion of [Langley], its employees and/or agents with regard to
[Langley’s] filming.”
There was not clear and unequivocal language in the
Agreement overcoming the presumption that the parties did
not intend that the indemnitee would be indemnified for a
loss occasioned by the indemnitee’s own negligence. Langley
was not obligated to indemnify the City in the event the
Estate’s claim was successful, because the wrongful death
88
42 C.J.S. supra note 75.
89
See Kuhn v. Wells Fargo Bank of Neb., supra note 81.
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Nebraska Supreme Court Advance Sheets
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522claim, relying on allegations of negligence against the City,
was outside the Agreement. Because the claim was outside the
Agreement, Langley did not have a duty to defend the City
against the action. Accordingly, we affirm the district court’s
dismissal of the City’s third-party breach of contract claim.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Miller‑Lerman, J., concurring in part, and in part
dissenting.
As an initial matter, consistent with my dissenting views
in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020);
Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744(2021); and Williams v. State, 310 Neb. 588, 967 N.W.2d 677(2021), I reiterate that I continue to dissent from the court’s
many holdings regarding the intentional tort exceptions to
the waiver of sovereign immunity pertaining to battery, see
Neb. Rev. Stat. § 81‑8,219(4) (Cum. Supp. 2020) (State Tort
Claims Act) and Neb. Rev. Stat. § 13‑910(7) (Reisue 2012)
(Political Subdivisions Tort Claims Act), including that these
provisions apply if there is an assault or battery anywhere in
the picture and regardless of the assailant’s employment status.
Also, although I recognize that both the State Tort Claims Act
and the Political Subdivisions Tort Claims Act limit economic
exposure, I continue to believe that it is inappropriate for this
court to directly consider the outcome’s effect on “public fisc”
in rendering its interpretation of these statutes. Nevertheless, I
am bound to apply this court’s holdings unless or until they are
corrected by, inter alia, the Legislature. See 2021 Neb. Laws,
L.B. 54.
I concur in the result. Unlike some previous cases which
were decided on preliminary motions, this matter went to
trial. The district court found as follows: “The elements of a
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
DION v. CITY OF OMAHA
Cite as 311 Neb. 522battery have clearly been met when this Court applies the ele-
ments to the evidence in this case.” That is, the district court
found that the City’s officers had committed the intentional
tort of battery, the death arose from the battery, and the action
was barred by the sovereign immunity retained by the City
under the intentional tort exception found in § 13‑910(7).
Thus, the district court did not have jurisdiction of the wrong-
ful death claim.
Assuming transferred intent applied and based on earlier
cases, the district court concluded that the Estate’s claims arose
out of the battery and were barred by sovereign immunity. Like
the district court, the majority opinion rejects the Estate’s argu-
ments asserting that the wrongful death claim did not arise out
of a battery. The majority affirms the district court’s findings
that the claims arose from the battery and that the action is
barred by sovereign immunity. Given the absence of jurisdic-
tion, I find it puzzling that the majority opinion nevertheless
proceeds to a negligence analysis and writes extensively about
“privilege,” which the district court did not consider in its
sovereign immunity analysis. If there is no jurisdiction, why
consider the merits?
“Battery is an intentional tort. ‘. . . [T]here is no such thing
as a negligent battery.’ 1 DOBBS, LAW OF TORTS § 26 at
51 (2001).” District of Columbia v. Chinn, 839 A.2d 701, 706
(2003). In this case, the district court did not base its deci-
sion on privilege so neither should we. As the City urges, the
district court found the claims arose from the battery; as the
City further states, privilege is “immaterial” and the City is
shielded by sovereign immunity. Brief for appellee the City at
17. I agree.
The district court found, based on evidence, that it lacked
jurisdiction. I respectfully suggest that by proceeding with
its negligence analysis, the majority opinion has conflated
its consideration of jurisdiction with the merits of the negli-
gence claim, something which should be avoided. See Florida
Highway Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020).
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DION v. CITY OF OMAHA
Cite as 311 Neb. 522Instead, my focus remains on the district court’s finding that
the action arose from the battery and is barred by sovereign
immunity, and I note the significance of this finding. “[T]he
presence of sovereign immunity does not render the State’s
actions nontortious (it simply means that the State has not
consented to suit in its courts with regard to certain claims).”
Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009) (emphasis
in original). The State’s actions are not nonliable. See id. The
presence of sovereign immunity is distinct from lack of liabil-
ity. See id.So with respect to the preclusive effect, if any, of the district
court’s finding as affirmed by this court that the claims arose
from the battery committed by the City’s officers, I note that
it has been observed that immunity under one statute does not
necessarily indicate that an action will be barred under another
statute with a differing scheme. See Davis v. Harrod, 407 F.2d
1280 (D.C. Cir. 1969).
In this case, the City’s officers responded to a robbery at a
fast‑food restaurant, fired 36 bullets, and killed a member of
a film crew. As the City urged, the trial court found that the
City’s officers had committed a battery and the majority of
this court agrees. So under current Nebraska law, the City is
immune from suit in this case. But the presence of sovereign
immunity under § 13‑910(7) in this case does not necessarily
render the City’s actions nontortious for other purposes.