Dion v. City of Omaha
973 N.W.2d 666
Neb.2022Background
- Bryce Dion, a sound tech for Langley Productions filming the TV show COPS, was fatally shot by Omaha police officers while riding with officers during a robbery response; the crew filmed pursuant to a written Agreement between Langley and the City of Omaha.
- The Agreement granted Langley access to ride with officers and included a clause that Langley "shall indemnify, defend and hold harmless" the City and name the City as an additional insured on Langley’s CGL policy.
- Dion’s estate sued the City for wrongful death alleging negligent training, failure to account for the crew’s presence, failure to identify a target, excessive force, and related proximate-cause failures.
- The City asserted sovereign immunity under the Political Subdivisions Tort Claims Act (PSTCA), § 13-910(7)’s intentional-tort exemption ("any claim arising out of ... battery"), and filed a third-party breach-of-contract/indemnity claim against Langley after Langley’s insurer refused defense/indemnity.
- After trial the district court found the officers intentionally shot at the suspect (constituting a battery by transferred intent), concluded the Estate’s claim "arose out of" that battery and therefore was barred by sovereign immunity, and alternatively found no negligence/proximate causation.
- The court also granted summary judgment for Langley on the City’s breach claim, holding the indemnity provision did not clearly and unambiguously require Langley to indemnify the City for the City’s own negligence; the City appealed that ruling while the Estate appealed the sovereign-immunity dismissal.
Issues
| Issue | Plaintiff's Argument (Estate) | Defendant's Argument (City / Langley) | Held |
|---|---|---|---|
| Whether the Estate’s wrongful-death claim is barred by PSTCA § 13-910(7) as "arising out of" a battery | Estate: Claim is negligence-based, not a battery; injuries to bystanders are distinct and not automatically "arising from" an intentional tort | City: Officers intended to shoot the suspect; transferred intent makes Dion’s injury arise out of a battery; §13-910(7) therefore bars suit | Held: Affirmed—claim arose out of a battery and is barred by sovereign immunity under §13-910(7) |
| Whether transferred intent or the fact the officers intended the suspect (not Dion) prevents application of the battery exemption | Estate: Transferred intent should not convert a bystander negligence claim into an excluded battery claim | City: Restatement and Nebraska precedent permit transferred intent; intent to hit suspect that results in third-party harm can establish battery for §13-910(7) purposes | Held: Transferred intent applies; officers’ intent toward suspect that resulted in Dion’s death satisfies battery elements for §13-910(7) |
| Whether the officers’ asserted privilege (reasonable use of force) defeats the characterization of the conduct as a battery for sovereign-immunity purposes | Estate: If shooting was privileged (reasonable), then no battery occurred and PSTCA exemption does not apply | City: Privilege is immaterial to whether the claim "arises out of" an intentional act; moreover, Estate’s recovery depends on showing the conduct was unprivileged, which makes the claim arise from battery | Held: Privilege cannot be asserted for immunity while denied for merits; because Estate’s claim depends on the contact being unprivileged, it arises from battery and is barred |
| Whether the Agreement required Langley to indemnify and defend the City for the City’s own negligence | City: Broad indemnity language ("any and all claims for damage and liability for injury to or death of persons") covers defense/indemnity for claims of City negligence | Langley: Indemnity does not clearly and unambiguously cover the City’s own negligence; standard presumes no indemnity for indemnitee’s negligence absent clear language | Held: Affirmed summary judgment for Langley—clause does not clearly and unequivocally express intent to indemnify City for its own negligence; no duty to indemnify or defend for Estate’s negligence claim |
Key Cases Cited
- Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011) (held negligence claims that stem from a shooting are barred by PSTCA intentional-tort exemption when claim is inextricably linked to battery)
- Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361 (2016) (discussed law-enforcement privilege and reasonableness standard for force that may injure bystanders)
- Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021) (articulated gravamen test and broad reading of §13-910(7); statutory waivers construed narrowly)
- Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989) (indemnity clause analysis—certain language can clearly show intent to indemnify indemnitee for its own negligence)
- Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009) (example where contract language was construed to require indemnification for indemnitee’s negligence)