Fickle v. State

735 N.W.2d 754

273 Neb. 990

Gail FICKLE, both individually and as parent and guardian of Jacob Wagner, Appellee and Cross-Appellant, v. STATE of Nebraska, Appellant and Cross-Appellee.

No. S-04-1250.

Supreme Court of Nebraska.

July 20, 2007.

Jon Bruning, Attorney General, Michele M. Lewon, and Matthew F. Gaffey for appellant.

Douglas J. Peterson and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellee.

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

WRIGHT, J.

I. NATURE OF CASE

Jacob Wagner was seriously injured when the car he was driving collided with a semitrailer truck at an intersection controlled by a traffic signal. His mother, Gail Fickle, sued the State of Nebraska under the State Tort Claims Act, Neb.Rev. Stat. § 81-8,209 et seq. (Reissue 1996). She alleged that the accident was caused by a malfunction of the traffic signal, which displayed green lights in conflicting directions. Following a bench trial, a judgment was entered against the State. The issues in this appeal are whether the State had notice of the alleged malfunction and, if so, whether the State corrected the malfunction within a reasonable time. On cross-appeal, Fickle challenges the amount of the awards for economic and noneconomic damages.

II. SCOPE OF REVIEW

A district court's findings of fact in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly erroneous. Hradecky v. State, 264 Neb. 771, 652 N.W.2d 277 (2002).

Whether the allegations made by a plaintiff constitute a claim under the State Tort Claims Act or whether the allegations set forth a claim that is precluded by the exemptions set forth in the act are questions of law. See, Blitzkie v. State, 241 Neb. 759, 491 N.W.2d 42 (1992); Hammond v. Nemaha Cty., 7 Neb.App. 124, 581 N.W.2d 82 (1998). An appellate court has an obligation to reach its conclusions on these questions independent from the conclusions reached by the trial court. Blitzkie v. State, supra.

The amount of damages awarded in a case under the State Tort Claims Act is a matter solely for the finder of fact, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of damages proved at trial. Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999).

III. FACTS

Shortly after 10 p.m. on February 14, 1999, Wagner was driving a car southbound on Nebraska Highway 15 in Colfax County. At approximately the same time a semitrailer truck owned by Metz Baking Company (Metz) was westbound on U.S. Highway 30. The two vehicles collided at the intersection of Highways 15 and 30 in Schuyler, Nebraska, which was controlled by a traffic signal. The semitrailer truck struck the driver's side of Wagner's car, and Wagner was seriously injured.

In her individual capacity and as Wagner's parent and guardian, Fickle sued the City of Schuyler, the county of Colfax, Metz, and the State. The city, the county, and Metz were dismissed from the action before trial. The record reflects that Fickle entered into settlement agreements with the city and Metz. There is no indication whether a settlement agreement or other release was reached with the county, and no such information was presented to the district court.

Fickle presented evidence that at the time of the accident, the traffic signal was displaying green lights for both southbound and westbound traffic. Evidence showed that in the 6 months preceding the accident, the city of Schuyler, the county of Colfax, and the State had received complaints from citizens regarding conflicting green lights at the same intersection.

As a result of the accident, Wagner was in a coma for 19 days. He was subsequently transferred to a rehabilitation hospital that specialized in treating traumatic brain injuries. Wagner experienced problems with vision, respiration, blood pressure, and the ability to communicate. After 8 months of physical therapy, Wagner could communicate by blinking his eyes and vocalizing a few words.

Wagner continues to have cognitive and visual impairment and requires a wheelchair. He has significant spasticity in his arms and legs. It is unlikely that his condition will improve. Because Wagner's family found it difficult to meet his needs at home, he resides in Village Northwest Unlimited, an intermediate care facility in Sheldon, Iowa. The facility treats persons with severe brain injuries. This type of facility provides Wagner with the best chance to maintain the functioning level he achieved at the rehabilitation hospital. He will probably need to live at this or a similar facility for the remainder of his life. His life expectancy from the time of trial was approximately 40 years.

The district court concluded that the State was negligent in the operation, maintenance, inspection, and repair of the traffic signal and that this negligence proximately caused the collision in which Wagner was injured. The court found that the negligence of Wagner, the city of Schuyler, and Metz also contributed to the accident. The court assigned 10 percent of the negligence to Wagner, 10 percent to Metz, 15 percent to the city, and 65 percent to the State.

The district court found that Fickle, in her individual capacity, had incurred economic damages of $1,013,417.01. In her representative capacity for Wagner, Fickle's economic damages were $3.5 million, and her noneconomic damages were $500,000. The court then took into account the percentages of negligence assigned to Wagner and the other actors and considered Fickle's settlements with Metz and the city of Schuyler. Judgment was entered against the State for economic damages in the amount of $3,928,575.31 and noneconomic damages in the amount of $325,000.

The State appealed, and Fickle has cross-appealed. Additional facts will be set forth below as they are relevant for analyzing the issues presented.

IV. ASSIGNMENTS OF ERROR

The State claims, rephrased, that the district court erred (1) in denying the State immunity from liability under § 81-8,219, (2) in finding that the State was liable for Wagner's injuries, and (3) in permitting Fickle's expert to testify at trial.

On cross-appeal, Fickle claims that the district court's awards for economic and noneconomic damages were inadequate.

V. ANALYSIS

1. STATE'S APPEAL

(a) Question of Sovereign Immunity

The first question is whether this action against the State was precluded by exemptions set forth in the State Tort Claims Act. At all times relevant to this case, the applicable statute provided:

The State Tort Claims Act shall not apply to:

. . . .

(9) Any claim arising out of the malfunction, destruction, or unauthorized removal of any traffic or road sign, signal, or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction, or removal.

§ 81-8,219.

Under this provision, the State is immune from liability against allegations of a malfunctioning traffic signal unless the malfunction was not corrected by the State within a reasonable time after it received actual or constructive notice of the problem. Whether the allegations made by a plaintiff present a claim that is precluded by exemptions set forth in the State Tort Claims Act is a question of law. See, Blitzkie v. State, 241 Neb. 759, 491 N.W.2d 42 (1992); Hammond v. Nemaha Cty., 7 Neb.App. 124, 581 N.W.2d 82 (1998). An appellate court has an obligation to reach its conclusion on this question independent from the conclusion reached by the trial court. Blitzkie v. State supra. To determine whether Fickle's action was precluded by the traffic-signal exemption in the State Tort Claims Act, the district court had to determine that the State had notice of a malfunction in the traffic signal but did not correct the malfunction within a reasonable time. On appeal under the State Tort Claims Act, the findings of the trial court will not be disturbed unless clearly wrong. Blitzkie v. State, supra.

(i) Notice of Signal Malfunction

We first consider whether the State had actual or constructive notice that the traffic signal had malfunctioned. The State argues it had no notice of a malfunction on February 14, 1999, the date of the accident. The State claims it was contacted only twice about conflicting green lights at the intersection in the months preceding the accident. Fickle asserts that the State received several complaints concerning the malfunction of the traffic signal before and immediately after the accident.

Evidence presented at trial showed that the State was notified of conflicting green lights at the intersection of Highways 15 and 30. Joseph Sobota reported conflicting green lights from the traffic signal on September 22, 1998. Sobota's call was confirmed by Robert Simard, a traffic signal engineer for the State. The telephone log of the Colfax County Sheriff's Department recorded that on October 16, a person named "Chrissy" reported that the traffic signal was displaying red lights for westbound and southbound traffic and green lights for eastbound and northbound traffic. The log reflects that the sheriff's department notified the State about the signal problem. This call was also confirmed by Simard at trial.

Brenda Rist, a dispatcher for the sheriff's department and a manager for the Gas 'N Shop located on the corner of Highways 15 and 30, testified that on various occasions in 1998 and 1999, she had observed that the lights on the traffic signal in question were all red or all green. She observed conflicting green lights numerous times before the accident occurred. She contacted the State once or twice before the accident.

Eugene Sindelar traveled through the intersection on a daily basis. Before the accident, he observed many times that the lights on the traffic signal were green in...