Claypool v. Hibberd

626 N.W.2d 539

261 Neb. 818

Dorothy CLAYPOOL, Personal Representative of the Estate of Carols Olivo, deceased, Appellant, v. Terry HIBBERD et al., Appellees.

No. S-99-1223.

Supreme Court of Nebraska.

May 25, 2001.

Larry W. Beucke, of Parker, Grossart, Bahensky & Beucke, Kearney, for appellant.

William T. Wright, of Jacobsen, Orr, Nelson, Wright & Lindstrom, P.C., Kearney, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Appellant, Dorothy Claypool, as personal representative of the estate of her son, Carlos Olivo, seeks damages for the wrongful death of Carlos against appellees Furnas County, Nebraska, and two of its law enforcement officers, Deputies Terry Hibberd and William Hoyt. Claypool seeks damages for Carlos' death under the Political Subdivisions Tort Claims Act and for damages for an alleged violation of Carlos' federal rights under 42 U.S.C. § 1983 (Supp. IV 1998). Appellees moved for summary judgment. The trial court found that the facts established by the evidence did not give rise to any cause of action against appellees and that appellees were entitled to judgment as a matter of law. This court removed this case from the Nebraska Court of Appeals under our power to regulate the caseloads of this court and the Court of Appeals.

BACKGROUND

On the weekend of November 21 through 23, 1997, Claypool was going out of town to visit her husband who was working in Salina, Kansas. Claypool had three children: Melissa Olivo, age 13; Carlos, age 14; and Jesse Olivo, age 15, all of whom lived with their parents in Arapahoe, Nebraska. Claypool did not permit any of the three children to stay at home alone, but as long as two of the children were at home together, they could stay at home without an adult present. Claypool also left the children information on where she was staying, the telephone number to the motel, the telephone number to her cellular telephone, and various other contact and emergency telephone numbers.

Jesse already had plans to stay with a friend for the weekend. On Saturday, Carlos and Melissa called Claypool and asked her if they could each spend the night at a friend's house. Claypool gave permission for them to spend the night at their friends' houses. After Carlos had obtained this permission, his friend was not able to have Carlos spend the night on Saturday night.

On Sunday, November 23, 1997, Hoyt, who was employed by the Furnas County Sheriff's Department, was on patrol in Arapahoe. At about 1:20 a.m., Hoyt observed two persons walk into an alley from between two buildings. When these two people saw Hoyt, one of them ran, and the other hid behind a tree. Hoyt told the person behind the tree to come out, and he was identified as Carlos.

Carlos told Hoyt he had taken some stereo equipment from a car. Carlos said the equipment that he had taken actually belonged to him. Carlos had given J.R. Utterback two speakers with the assumption that he was going to get paid by Utterback. Hoyt radioed for assistance, and Hibberd responded. After some investigation, members of the Utterback family identified the stereo equipment taken from the car. Utterback said that if Carlos would have asked for the speakers, he would have given them back. Thereafter, Hibberd, Hoyt, and Carlos went to Arapahoe's fire station where the sheriff's department had a satellite office. The deputies held Carlos under "temporary custody" and obtained a written statement from Carlos. They also inquired as to where they could find Carlos' companion who had fled. While at the fire station, Hibberd called Sheriff Hank Pulley and advised him of what had occurred. Pulley told Hibberd to cite Carlos for theft and release him. Pulley believed it to be a relatively minor crime.

Carlos told Hoyt that his companion, David Wendland, may have gone back to Carlos' house. Hoyt asked Carlos where his parents were, and Carlos said that his parents were out of state. Hoyt then asked Carlos if he had a telephone number or a way to contact his parents. Carlos responded that he did not, but that his parents were going to call him the next day. Hoyt and Hibberd took Carlos home to determine if Wendland might be there and to verify that Carlos' parents were not home. Neither Carlos' parents nor Wendland were at Carlos' home.

At this point, the deputies gave Carlos a citation, explained that his parents would have to appear on the designated court date, and then left Carlos at the residence. Both Hibberd, who has lived in rural Nebraska for 34 years, and Hoyt, who has lived in western rural Nebraska his entire life, did not find it unusual or unreasonable in 1997 for the parents of a 14-year-old boy to leave the boy at home overnight without supervision.

Hoyt noted in his police report that Carlos "appeared slightly depressed with the situation." Both Hoyt and Hibberd stated in their affidavits that Carlos' slight depression was comparable to a person who had just received a traffic violation or a minor violation and had to inform his or her parents about the violation. The deputies stated that at all times Carlos was in their presence, he made no statement and demonstrated no action or demeanor which in any way indicated he was a danger to himself or others. Neither Claypool nor her husband were contacted by the Furnas County Sheriff's Department regarding Carlos, and they did not have any notice of these events until after Carlos' death.

Later in the morning on Sunday, November 23, 1997, an explosion and fire occurred at the Claypool residence where Carlos was living. After an investigation at the scene, it was determined that Carlos had died as the result of a self-inflicted gunshot wound to the chest. The State Fire Marshal investigator concluded: (1) Carlos was playing with a propane lantern in the garage and possibly was unable to get it lit at first; (2) Carlos left the valve open, allowing propane to escape, which eventually ignited and caused a flash which singed his face; (3) the gasoline vapors from a tipped-over can of gasoline ignited, causing other combustibles to ignite in the garage, or Carlos may have dropped the lantern or a candle which was burning, igniting the gasoline vapors; and (4) Carlos then went into the house, closing the garage door behind him, which allowed the fire to continue to build until the heat impinged upon the lantern tank, causing a large explosion of the compressed propane.

Carlos' body was found inside the house in the basement. Pulley concluded that all investigators involved in the case agreed that the gunshot wound was self-inflicted.

ASSIGNMENTS OF ERROR

Claypool assigns that the trial court erred in finding (1) that there were no genuine issues of material fact as to whether appellees were liable for Claypool's damages under the Political Subdivisions Tort Claims Act and (2) that there were no genuine issues of material fact as to whether appellees were liable for Claypool's damages under § 1983.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001); McDonald v. DeCamp Legal Servs., 260 Neb. 729, 619 N.W.2d 583 (2000).

When an appellate court is deciding questions of law, the court has an obligation to resolve the questions independently of the conclusions reached by the trial court. Ruble v. Reich, 259 Neb. 658, 611 N.W.2d 844 (2000).

ANALYSIS

Claypool argues that the deputies were under a duty to immediately contact Carlos' parents and to release Carlos to his parents. Claypool asserts that this duty was created by Neb.Rev.Stat. § 43-250 (Cum.Supp.1997) and the Furnas County Sheriff's Department's policy and procedure manual. Appellees contend that as a matter of law, the most appropriate option Hoyt and Hibberd had was the immediate release of Carlos under § 43-250(1) and (2) after conducting such "`reasonable efforts'" to contact Carlos' parents as circumstances allowed. Brief for appellees at 23. The deputies were thus required to balance what constituted "`reasonable efforts to contact'" under the circumstances against the mandate of "`immediate release.'" Id. Appellees assert that under the circumstances of this case, the extended custody of Carlos solely to contact his parents before he was released was not authorized by law.

A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against an individual, i.e., duty, breach of duty, causation, and damages. Drake v. Drake, 260 Neb. 530, 618 N.W.2d 650 (2000); Brandon v. County of Richardson, 252 Neb. 839, 566 N.W.2d 776 (1997). The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty. Drake v. Drake, supra. Whether a legal duty exists for actionable negligence is a question of law dependant on the facts in a particular situation. Id.

Claypool assigns as error the trial court's finding that there was no genuine issue of material fact under her first cause of action. The first cause of action in the second amended petition alleged that appellees were negligent in failing to follow the requirements of § 43-250, in releasing Carlos from their custody without making efforts to contact his parents, and in releasing Carlos from their custody without an adult present.

The pertinent part of § 43-250, entitled "Temporary custody; disposition," states in part:

An officer who takes a juvenile into temporary custody under section 43-248 shall immediately take reasonable measures to notify the juvenile's parent, guardian, custodian, or relative and shall proceed as follows:

(1) The officer shall release such juvenile;

(2) The officer shall prepare in triplicate a written notice requiring the

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