Walters v. Frakes

29 Neb.App. 740

957 N.W.2d 203 (Mem)

Richard WALTERS, appellant,

v.Scott FRAKES et al., appellees.

No. A-19-532.

Court of Appeals of Nebraska.

Filed April 13, 2021.

F. Matthew Aerni, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellees.

Pirtle, Chief Judge, and Bishop and Welch, Judges.

SUPPLEMENTAL OPINION

Per Curiam.

This case is before us on a motion for rehearing filed by the appellee, State of Nebraska, concerning our opinion in Walters v. Frakes , ante p. 315, 953 N.W.2d 831 (2021). We over-rule the motion, but we modify the opinion as follows.

In the analysis section of the opinion under the heading "1. Jurisdiction," and the subheading "(b) Application of § 81-8,219(1)," the sixth paragraph is withdrawn and substituted with the following:

Because we hold that the standard of care announced in Goodenow v. State , 259 Neb. 375, 610 N.W.2d 19 (2000), is properly reflective of the standard of care owed by the prison guards to Walters in these circumstances, we disagree with the Appellees’ contention that Walters failed to properly plead his claim against DCS by failing to articulate a "community standard" of care. In short, Walters alleged that the DCS’ prison guards breached their duty by failing to immediately report his medical complaints to prison medical staff following his disclosures to them. That pleading created a fact issue for the trier of fact under the standard of care by prison officials to inmates articulated in Reiber v. County of Gage , 303 Neb. 325, 928 N.W.2d 916 (2019), and Goodenow, supra , as set forth previously. In this case, the district court determined that Walters failed to meet his burden of proof.

The...