Drake v. Drake

618 N.W.2d 650

260 Neb. 530

Sharlene DRAKE, appellant, v. Virgil DRAKE et al., appellees.

No. S-99-998.

Supreme Court of Nebraska.

October 20, 2000.

Monte L. Neilan, of Huenergardt & Neilan, for appellant.

Sterling T. Huff and Michael J. Javoronok, of Michael J. Javoronok Law Firm, Omaha, for appellees Cheyenne County, John Jenson, and John Does 31-40.

John F. Simmons, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellees Herbert L. Stevens, Village of Potter, and Rural Fire Protection District No. 4.

Stephen W. Kay, of Kay & Kay, North Platte, for appellees Sidney Medical, Inc., Steve Long, Diana Tritt, Risa Kinder, and John Does 1-10.

Don Stenberg, Attorney General, and Hobert B. Rupe, for appellee Nebraska State Patrol.

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

WRIGHT, J.

NATURE OF CASE

Sharlene Drake (Sharlene) appeals from an order of the Cheyenne County District Court which sustained the demurrers of all the defendants except Virgil Drake (Virgil) and dismissed her first and second amended petitions.

SCOPE OF REVIEW

Whether a petition states a cause of action is a question of law, regarding which an appellate court has an obligation to reach a conclusion independent of that of the inferior court. Brown v. Social Settlement Assn., 259 Neb. 390, 610 N.W.2d 9 (2000).

When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the legal conclusions of the pleader. Id.

FACTS

The facts as alleged by Sharlene are that at about 5:45 a.m. on December 30, 1996, she was involved in a one-car accident in which her husband, Virgil, was the driver. A passing motorist reported the accident using his cellular telephone. Around 6 a.m., an ambulance arrived accompanied by persons designated as "John Doe Defendants." An emergency response vehicle also arrived with defendant Herb Stevens and other persons designated as "John Doe Defendants." At 6:03 a.m., a second ambulance arrived accompanied by defendants Steve Long, Diana Tritt, Risa Kinder, and others designated as "John Doe Defendants." John Jenson and certain "John Doe Defendants" also arrived in a Cheyenne County Sheriff's Department vehicle at that time.

Kinder, Jenson, and two "John Doe Defendants" from the Village of Potter and Rural Fire Protection District No. 4 questioned Virgil regarding undiscovered victims of the accident. Sharlene did not allege any response made by Virgil.

The passing motorist also telephoned Sharlene's mother and told her that Virgil was the only victim found. Sharlene's mother then called Sharlene's sister, who in turn called the Nebraska State Patrol and requested assistance in locating Sharlene. The State Patrol operator responded that the Cheyenne County Sheriff's Department, not the State Patrol, was handling the accident.

One ambulance transported Virgil, but the other left the accident scene without a patient because Sharlene had not yet been discovered. For about 30 minutes, Sharlene remained undiscovered in a ditch approximately 20 feet from where Virgil had been located. She was eventually found, and the second ambulance then returned to the scene around 6:54 a.m. and transported Sharlene to a hospital. Sharlene suffered an "anoxic/hypoxic brain injury with associated complications." She was released from institutional care on August 16, 1997, but continued to require constant care and supervision.

Sharlene alleged that at all times relevant, the defendants Long, Tritt, Kinder, and John Does 1 through 10 were acting as the servants, agents, or employees of Sidney Medical, Inc.; that the defendants Stevens, John Does 11 through 20, and John Does 21 through 30 were acting as the servants, agents, or employees of the defendants Village of Potter and Rural Fire Protection District No. 4; that Jenson and John Does 31 through 40 were acting as the servants, agents, or employees of Cheyenne County; and that John Does 41 through 50 were acting as the servants, agents, or employees of the State Patrol in furtherance of its purposes.

She alleged the timely filing of a claim pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1997), and the refusal of the appropriate political subdivisions to make a final disposition of her claim. She also alleged the timely filing of a claim pursuant to the State Tort Claims Act, Neb.Rev. Stat. § 81-8,209 et seq. (Reissue 1996), and the refusal of the State to make a final disposition of her claim.

Sharlene alleged that the State Patrol could have and should have deployed personnel to the crash scene so as to hasten her discovery and should have and could have communicated information received from her sister to other defendants at the crash scene, but that they failed to do so.

Sharlene alleged that Cheyenne County, Jenson, John Does 31 through 40, the State Patrol, and John Does 41 through 50 owed her a duty to use care in timely rendering medical assistance, timely discovering victims, timely conducting a proper physical search, timely and properly evaluating evidence indicating the need to physically search for victims, timely establishing an adequate command structure, and adequately coordinating the rescue effort. She alleged that the defendants Sidney Medical, Long, Tritt, Kinder, John Does 1 through 10, the Village of Potter, John Does 11 through 20, Rural Fire Protection District No. 4, Stevens, and John Does 21 through 30 owed her a duty to refrain from grossly negligent actions and inactions in timely rendering medical assistance, timely discovering victims, timely conducting a proper physical search, timely and properly evaluating evidence indicating the need to physically search for such victims, timely establishing an adequate command structure, and adequately coordinating the rescue effort. Sharlene alleged that these defendants were acting pursuant to certain preexisting legal duties and were not acting gratuitously within the meaning of Neb.Rev.Stat. § 25-21,186 (Reissue 1995) and that the defendants were performing ministerial activities at the operational level, none of which amounted to a permissible exercise of public policy judgment.

She alleged that the Village of Potter and Rural Fire Protection District No. 4 were public entities which maintained private liability insurance at public expense and that the immunity set forth in Neb. Rev.Stat. § 35-107 (Reissue 1998) was inapplicable to public entities which maintain such liability insurance.

She alleged that Cheyenne County, Jenson, and John Does 31 through 40 were in privity with her by virtue of responding to the crash scene, which action constituted an explicit assurance of protection upon which she relied and an assumption of the duty alleged. She alleged that the State Patrol and John Does 41 through 50 were in privity with her by virtue of engaging in the conversation with her sister that constituted an explicit assurance of protection upon which she relied.

She alleged that the defendants were negligent or grossly negligent in failing to perform their duties and that such negligence or gross negligence was a concurrent proximate cause of exacerbating her injuries.

These defendants demurred on the ground that no cause of action had been stated. The trial court sustained the demurrers, concluding that there was no reasonable possibility that Sharlene could cure the defects by amendment and dismissed her petitions as to these defendants. As mandated by Neb.Rev.Stat. § 25-705(6) (Cum.Supp.1998), the court determined there was no just reason for delay and expressly directed the entry of a judgment in favor of all defendants other than Virgil.

ASSIGNMENTS OF ERROR

Sharlene assigns as error the trial court's sustaining of the demurrers on the ground that the operative petitions did not state a cause of action.

ANALYSIS

In this case, the scope of our inquiry is whether the facts pled, together with the reasonable inferences that may be drawn therefrom, state a cause of action. A cause of action consists of the fact or facts which give one a right to judicial relief against another. Bargmann v. State, 257 Neb. 766, 600 N.W.2d 797 (1999). In order to state a cause of action, one must allege events, acts, and things done or omitted which show a legal liability on the part of the defendant to the plaintiff. Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997).

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. 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. Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000). Whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. Id. In order for Sharlene to set forth a cause of action, she must set forth facts that establish that there was a duty owed by the defendants to Sharlene. Since the trial court concluded that Sharlene could not cure the defects by amendment and therefore dismissed the petitions, we also consider whether Sharlene could amend the petitions to state a cause of action. If, upon the sustainment of a demurrer, it is clear that no reasonable possibility exists that an amendment will correct a pleading defect, leave to amend need not be granted. Prokop v. Hoch, 258 Neb. 1009, 607 N.W.2d 535 (2000). Before error can be predicated upon the refusal of a trial court to permit an amendment to a petition after a demurrer is sustained, the record must show that, under the circumstances, the ruling of the court...