*1 a convenience than at liquor store or a full-service local tavern beer at purchasing store, prefer customers or that some by offered commodities they purchase other time same convenience stores. relating factors no similar in these cases discloses
The record failed to meet necessity. Oseo has and public convenience licenses is or issuing of these establishing that the its burden public future convenience present required will be affirming denial necessity. court was correct The district licenses, judgment is affirmed. and its
Affirmed. JJ., participating. not Lanphier, White parent through Kelly Christianson, and next her V. Virginia L. appellants, al., Christianson, friend, et appellees. Unit No. 16 al., et Educational Service Nos. S-91-045, S-91-050 through S-91-055. June 4, 1993. Filed *2 Welsh, Sibbernsen, James R. of Welsh & appellants. for Nolan, Hansen, Locher, Brian D. Engles & appellees for S-91-045, S-91-052, (cases Nos. S-91-054). Orr, Wright, Jacobsen,
William T. Nelson, Wright, Lindstrom, P.C., S-91-050, Harder & appellees (cases for Nos. S-91-051, S-91-053, S-91-055). C.J.,
Hastings, Boslaugh, White, Caporale, Shanahan, JJ. Fahrnbruch, Lanphier,
Fahrnbruch, J. for separate actions involve the dismissal appeals These mentally handicapped seven damages behalf of filed on abuse and sexual allegedly physical who suffered individuals (E.S.U.) No. 16 Unit in Educational Service while enrolled also claimed Platte, individuals Three of the Nebraska. North emotionally abused. were against the they were filed when All the claims were denied Act, Neb. Claims to the State Tort pursuant Nebraska State of they were 81-8,209 when etseq. (Reissue 1987), and Rev. Stat. § Tort Political Subdivisions pursuant to the against filed E.S.U. Act, seq. (Reissue et Stat. 13-901 Claims Neb. Rev. Lincoln Thereafter, in the district court for was filed a lawsuit mentally handicapped County of each of on behalf administrators, E.S.U., the State two E.S.U. individuals. The suits were as defendants. Nebraska were named in the district hearings pretrial on motions for consolidated argument to this court were consolidated appeals court. The disposition. 1989, following hearing, the district court In October *3 by the State of Nebraska filed in each case a demurrer sustained alia, jurisdiction over had no alleged, inter court which Nebraska, State of the action as to the matter of agency.” since E.S.U. “is not a state motions, the trial court Subsequently, upon the defendants’ definite and petitions their more to make ordered so, again upon the refused to do When the certain. motions, plaintiff’s court struck each the district defendants’ Thereafter, each of entirety. the court dismissed in its prejudice. without plaintiffs’ petitions in each of the court’s dismissal order We affirm the district cases.
FACTS individuals, hereinafter mentally handicapped Each of the collectively at plaintiffs, as singularly plaintiff referred to for the 1988attended a School between 1973 and various times by in North Mentally Handicapped operated E.S.U. Trainable operated and maintained Platte, This school was Nebraska. provide E.S.U. custodial and educational facilities for handicapped eligibility individuals who fell within the guidelines school.
There are 17 educational service units created statute. See Neb. Rev. Stat. seq. (Reissue 79-2201 et § A number of assigned are counties to each educational service unit. Each educational service unit has an elected authority board with taxes, levy appropriate money, expenditures. and make Id. composition, duties, Because of its powers, and an educational service unit falls under the Political Subdivisions Tort Claims Act. seq. 13-901et 13, 1989, April
On separate lawsuits were filed on behalf of plaintiffs, seven six of whom were minors and one of whom legal was age. Each claimed he or she suffered physical and sexual abuse negligence because of the of each of the named defendants. As previously, stated three of the also claimed emotionally were abused. Additionally, all plaintiffs alleged the defendants violated rights civil under 42 U.S.C. The claimed allegedly incidents of abuse early occurred as as 1973 for some plaintiffs and as late as plaintiffs. 1988for other
Each plaintiffs’ petitions separated into “Division One,” “Negligence,” Two,” and “Division “42 U.S.C. Section Two,” 1983.” In “Division praying addition to damages, attorney seeks fees. The “divisions” are not two causes of actions because both divisions are based but one most, set of facts. At recovery sought legal was on two theories. situation, In such a law, under Nebraska plaintiff, if successful, is entitled recovery. to but one specifically We disapprove of the form of the in these cases. The pleading approach used here could result in degree some chaos both at the analysis trial level and in the on review. See Chiles, Co., DeSciose v. Heider & 476 N.W.2d 200(1991). cases, each of the the defendants moved for an
order requiring plaintiff each petition make his or her more definite and Specifically, certain. the defendants asked that plaintiff specify each person alleged name of each to have abused plaintiff, abuse, alleged dates of the and how the ordinary defendants failed to prevent exercise care to such abuse. plaintiffs
All but one resisted the defendants’ motions to make more definite and certain on the basis that the matters sought defendants to have included in the petitions were fact, matters of evidence and not ultimate and that those by matters should be addressed Discovery Nebraska Rules. Plaintiff apparently Harold Lutkehus II did not file a resistance. The district court sustained entirety in its defendants’ motion to petition make Lutkehus’ more definite certain, part and sustained in the motions as to the remaining plaintiffs.
A pleadings series of amended case, was filed in each and the defendants continued plaintiffs’ to meet the pleadings by filing motions to make more definite and certain. All petitions amended their times, at least three plaintiff and one amended petition his five hearing times. At a on October all ultimately elected to stand on their pleadings. The defendants then moved to plaintiff’s strike each petition. granted. The motions were Between December 5 and 11, 1990, the district court struck all of the entirety captioned dismissed each of the matters prejudice. without plaintiff timely Each appealed to this court.
ASSIGNMENTS OF ERROR All the make assignments identical of error. The assignments four error combine to assert that the district court dismissing erred in plaintiff’s petition for failure petition to make the more definite and certain. None plaintiffs assigned as error the trial court’s sustainment of the State of alleged Nebraska’s demurrer that that the trial court jurisdiction lacked over the matter of the action because E. S.U. agency. was not a state
STANDARD OF REVIEW It is within the discretion of the district court to dismiss a prejudice without for disobedience of a concerning reasonable order the proceedings in the action. Vodehnal v. Daily Independent, Grand Island An order of the district requiring court *5 certain will be sustained made more definite and
a to be abused its clearly that the court appears it appeal on unless Id. discretion. PLEADING OF CODE
NATURE whether the district court turning question of Before by dismissing plaintiffs’ petitions for its discretion abused court, we first review obey to a reasonable order of failure Nebraska purpose pleading of under the the nature and statutes. (1) to
Generally, purpose pleading of is twofold: legal which have no eliminate from consideration contentions guide parties and the court in the significance (2) to Friedenthal, Mary Kay Kane & Jack H. conduct cases. See Miller, 5.2 This court has Arthur R. Civil Procedure § “ pleadings to frame the issues purpose held that [t]he adversary to be tried and advise the as to what which a cause is 17, 21, 352 Turner, 218 Neb. N.W.2d he must meet.” Bashus v. 161, 165(1984). into one two pleading in the United States falls
Modern general categories. or “fact” is based on what is Code Code, commonly the New York Code of known as the Field Fleming into law in that state in 1848. See Civil Practice enacted Hazard, Jr., Leubsdorf, James, Jr., Geoffrey C. & John Civil (4th pleading attempted ed. Code Procedure 3.5§ system, by simplify highly technical common law writ by majority the late 1930’sit had been embraced of the states. Friedenthal, Miller, supra, See Kane & §5.1. hand, pleading,
“Notice” on the other was first introduced by (FRCP) the Federal Rules of Civil Procedure 1938. Miller, FRCP, Friedenthal, supra, 5.1. The Kane & which entirely represented approach pleading, new have since an adopted par in whole or in t a number of the states. Id. been system pleading adopted Nebraska of code 1867. See 1939, year seq. (Reissue 1989). Neb. Rev. Stat. 25-801 et FRCP, adoption Legislature after the the Nebraska Supreme authorized and directed the Nebraska Court practice for the state courts. See 1939Neb. promulgate rules of 30, p. 164. Laws ch. adopt
Whether Nebraska should practice rules of based on hotly the federal model was debated members of the Supreme Advisory Court of Nebraska Committee on Rules of See, Bongardt, Practice. Charles F. Report, Final Draft Procedure, “Pro”, Nebraska Rules Civil 21 Neb. L. Rev. 76 (1942) (arguing Harry Shackelford, in favor of adoption); W. Why Adopt Practice?, New Rules Pleading and 21 Neb. L. (1942) (arguing Rev. 94 against adoption). Ultimately, the Legislature rejected Supreme proposed Court’s See, 236; FRCP-based rules. 1943 Neb. Laws p. ch. *6 Comp. Stat. 27-231 et seq. (Supp. result, § As a Nebraska has maintained system a code-based of civil procedure. seq. See 25-801 et §
There are distinctive differences pleading between the requirements state, of Nebraska a pleading as code and the requirements of federal federal-replica and pleading. state pleading Notice requires only party that a set forth “a short and plain showing statement the pleader of claim is entitled to relief.” Fed. 8(a)(2). litigant R. Civ. P. A required is not action, state a cause simply give of but must opposing party the sufficient notice of the claim so as to prepare be able to to meet Friedenthal, Miller, it. Kane & supra, Although 5.7. pleader § in pleading required notice is to refer to circumstances and upon based, events which the claim is pleader required the is not allege specific every fact to cover substantive element of claim. Id. pleading, contrast to notice Nebraska law defines
pleadings
as “the written
parties
statements
facts
constituting
respective
claims and
(Emphasis
defenses.”
supplied.)
“petition
25-801. A
must contain . . . a statement
constituting
action,
the cause
ordinary
in
and
facts
language,
concise
repetition
and
(Emphasis
without
. . . .”
supplied.)
25-804(2). The ultimate facts to be
established
alleged
should
pleading.
Kleman,
be
in a
State ex rel. Warren v.
564,
(1965).
178 Neb.
A
is not to state conclusions of
Kleman,
Riesland,
Neb.
supra; Ripp
ex rel. Warren v.
v.
Card,
(1964);
without members of the clients, judiciary. only and their well for the bar as as When required, reputedly, practicing lawyers notice often fully complain that do not become aware of the issue many prolonged discovery. cases until after This results in litigants delay increased costs to the untoward cases reaching stage. pleading, pleadings trial Under code if the properly prepared, apparent immediately are are issues filing filing of a and the of an answer. If either clearly a petition litigant’s or an answer does not set forth a issues, sustaining a motion to make more definite and certain issues, expeditiously clarify will litigants save the expense, promote judicial economy, unwarranted and avoid unnecessary delay reaching stage. in a case the trial legislatively judicially
It is with the above mandated and interpreted requirements purposes pleading, of fact as well considerations, practical analyze in mind that we whether the dismissing district court abused its discretion in *7 plaintiffs’ petitions.
NEGLIGENCE ACTIONS plaintiffs’ “Division One” each of the petitions is Summarized, “Negligence.” denominated petition alleges defendants, individually that the through and agents, departments, employees, negligently and operated and maintained the E.S.U. school mentally for trainable handicapped by hiring individuals retaining and certain likely physically sexually, individuals who were to and in students; emotionally, some cases abuse the failing to ordinary exercise protect handicapped care to students from abuse; by failing such implement policies procedures to discover, prevent, investigate, report, to and treat incidents of petition alleges plaintiff such abuse. Each that the was abused alleged “one or more” individuals. From three to six abusers petitions. are named in the recognized employer
Nebraska an has that liability physical persons resulting for from the harm to third employer’s negligent employee. improper selection of an See Millard, Greening v. School Dist. 223 Neb. 393 N.W.2d 51(1986). negligence, plead To state a cause of action for one must facts legal from which it be can inferred that the defendant owed duty protect injury, from that the defendant duty, discharge damage proximately failed to and that Sandell, 798, 464 Widga resulted from such failure. 236 Neb. liability (1991). Specifically, impose an employer negligently selecting entrusting or work to an employee, only employer must not show that
negligently person incapable performing the selected a incompetent work but also show that the conduct of the employee proximate injury The was a cause of to another. characteristic, employee’s quality, deficiency must or proximately producing injury cause the harm to another. Millard, Greening v. at School Dist. Neb.
N.W.2d at 58. petitions adequately have set forth facts
alleging duty that the defendants owed a of due care to the plaintiffs. However, alleged the facts in the are not sufficiently respect definite to inform the defendants in what duty had or breached their to the how any proximate defendants’ actions were the cause of alleged injury damage plaintiffs. or “ allegations ‘If the are so indefinite uncertain precise meaning apparent, remedy party of the other is not pleading in that application is an to the Court to have the ” particular made definite and certain. . . .’ Rhodes v. more Crites, 501, 506, 113 N.W.2d Accordingly, plaintiff specify that each the defendants moved allegedly failed to in his or her how the defendants *8 care, ordinary specify person exercise the name alleged plaintiff, approximate have abused the as well the alleged the place. dates acts of abuse took plaintiff’s A bald assertion that a defendant has failed to ordinary exercise care is insufficient to inform a defendant how such defendant duty has breached the defendant’s the Co., plaintiff. See Chmelka v. Continental Western Ins. Neb. (1984) (stating petition N.W.2d 613 if that merely alleged that an negligent freeing insured driver was his ditch, vehicle from a such would be to a motion to make certain). more definite and
Similarly, by failing plead the dates on or about when the alleged allegedly incidents of place abuse took and the names of alleged specificity, the abusers with the have failed to advise the negligent defendants of how the retention of certain employees proximately injury defendants caused plaintiffs. petition alleges Each plaintiff was abused during virtually period the entire of time the attended the E.S.U. school. periods range These of time from 15months years. to 15 vague general
Such pleading does not meet Nebraska’s pleading requirement code pleading advise the adversary adversary of what issues must meet. See Bashus Turner, example, For prepare the defendants could not to defend the basis that particular employed individual was not at E.S.U. when a particular plaintiff allegedly was knowing abused without when allegedly abused, was and whom.
The arguments why they advance two should not required be to make their petitions any more definite and First, already certain than they argue have. that their enough are definite and certain to allow the this, defendants to answer and defend the support matter. In rely heavily applying on federal cases Fed. R. Civ. 12(e) progeny. noted, R and its previously As Nebraska has rejected the liberal requirements of pleading. notice argument first point on the is without merit.
Second, plaintiffs argue sought by that the facts defendants are matters within knowledge of the defendants through the the defendants are available to themselves or *9 are, which long held that facts discovery process. This court has be, within the peculiarly presumes the law to or which may alleged with less party be knowledge opposing of the necessary, otherwise be certainty particularity than would belief, may even be or may alleged on information be or Graham, 284 135 Neb. entirely. Graham omitted argument ignores the (1939). second N. W.2d 280 discovery is available to process fact that the Although Nebraska has declined well as to the defendants. FRCP, discovery rules for civil cases Nebraska adopt the modification, federal rules of are, based on the with some See, Discovery, Comment on discovery. Ct. R. of Nebraska Discovery (rev. 1992); Norquay v. Union Rules Civil Pacific Railroad, 527, 407 (1987). 225 Neb. scope practice, state of comparable the FRCP and Under Friedenthal, Mary extremely Jack H. discovery broad. See is Miller, Civil Procedure 7.2 Kay & Arthur P. Kane very (rev. 1992), which defines the 26(b)(1) of Disco Neb. Ct. R. Nebraska, discovery civilcases in states: general scope of for matter, discovery regarding any not may Parties obtain matter involved privileged, which is relevant to action, whether it relates to the claim or pending in the discovery seeking or to the claim party defense of the existence, including any party, defense of other condition, nature, custody, of and location description, books, documents, things tangible and the any or other knowledge any identity persons having and location of ground objection that the matter. It is not discoverable if the sought will be inadmissible at the trial information reasonably sought appears calculated to lead information discovery evidence. of admissible discovery, Ct. R. approach to Neb. with this broad Consistent party perpetuate Discovery (rev. 1992) permits even taking before an action has testimony by depositions discovery after govern Court rules begun. Supreme Other See, Discovery 30 Neb. Ct. R. of of the action. commencement any person after 30 deposition of 1992) (permitting oral (rev. summons, court); and sooner with leave days from service of Discovery (rev. 1992) Neb. Ct. R. of (permitting written depositions); Discovery (rev. 1992) Neb. Ct. R. of .(permitting interrogatories). written purpose
“A
discovery process
exploration
of all
properly
available and
discoverable
information
narrow the
controversy
may
fact issues in
so that a trial
be an efficient and
economical resolution
dispute.” Norquay
of a
v. Union Pacific
Railroad,
citing
at
407 N.W.2d at
Company,
Tabatchnick v. G. D. Searle &
(D.N.J.
Nonetheless, though period even approximately elapsed months from the time the filed their lawsuits April 1989 until their were dismissed the district *10 1990, court in though December and even the had repeatedly by been ordered the court to make their certain, more definite and the only records before us reflect that discovery minimal attempted by was plaintiffs. the In October granted the court plaintiffs’ the permission counsel to review, inspect, copy personnel and employees, the files of all past present, and any of E.S.U. Nowhere in the records is there indication that the defendants or the district court have attempted hamper any discovery to by plaintiffs. efforts the any Nor is there indication in the record could by interrogatories not obtain written requests admissions properly plead sufficient facts to their cases. The records why before us fail to show should be permitted discovery to shift the burden of to the defendants and duty plead thus avoid their own ultimate facts. Nor do the records show that the possessed any defendants are of more concerning plaintiffs’ facts allegations than are the plaintiffs.
42U.S.C. 1983ACTION § petition, the second “division” of each plaintiff has alleged a violation of his rights, including or her constitutional 4th, rights 5th, 8th, 9th, but not limited to secured and
565 14th Amendments to the Incorporating by U.S. Constitution. reference language “division,” of the first each plaintiff alleges a 42 violation of U.S.C. 1983 that the actions § employees conduct of E.S.U.’s were scope done within the of employment, acting the defendants were under color of law, state and the actions employees and conduct of the E.S.U. proximately plaintiff disability, caused the injury, to suffer impairment earning capacity. of requested Each attorney pursuant fees to 42 1988(1988). U.S.C. §
Unfortunately,
1983 claims suffer
§
from the
same deficiencies
pleading
under code
their negligence
do
claims. At least some of the federal courts have held that
although
pleading
generally sufficient,
notice
is
1983
heightened
pleading requirements
must state in
particularity
factual detail and with
the basis of
See,
Charleroi,
the claim.
Borough
v.
Rotolo
In
Appeals
the U.S. Court of
for the Third Circuit held
plaintiff’s
complaint
sufficiently specific
amended
was
alleged
violating
because the
had
“the conduct
his
rights (racially discriminatory
(March 17,
activity),
1976),
time
place (King Prussia)
responsible
(various
those
state and
Similarly, Boykins
officials).”
bank
CONCLUSION pleadings. The stand on their Courts plaintiffs elected to power to dismiss an action for disobedience have the inherent Warren, Bert Cattle Co. v. Neb. of court order. allegations of N.W.2d set forth their hiring the negligent employees retention of E.S.U. and rights the civil under 1983in uncertain plaintiffs’ violation of plaintiffs’ petitions comply do not and indefinite terms. The pleading. with Nebraska’s rules of Underlying plaintiffs’ petitions the court’s dismissal of the comply was to prejudice plaintiffs’ without failure with petitions their order of the court make more definite gave every opportunity The trial certain. court Ultimately, plead properly cases. refused plead further the court. ordered cases, In view the these it be said that the records in cannot dismissing plaintiffs’ trial court abused its discretion in Therefore, dismissing petitions. orders of district court are affirmed.
Affirmed. Shanahan, J., concurring. appeals involve an examination of the district court’s
These
judgments to determine whether the trial court abused its
*12
dismissing
discretion in
prejudice.
the actions without
judicial abuse of discretion
when judge,
exists
a
within
[A]
the
judicial
effective limits of authorized
power, elects to
action,
act or
from
refrain
but
option
the selected
results
in a decision which
unfairly deprives
is untenable and
a
litigant
right
just
of a substantial
or
in
a
result matters
disposition
judicial
submitted
through
system.
a
Juki,
43,
33,
State
v.
234 Neb.
449 N.W.2d
209 (1989).
Accord,
368, 488
Uhing Uhing,
v.
241 Neb.
N.W.2d 366 (1992);
V.,
re Interest
L.
Neb. Rev. 13-919(5) 1991) Stat. § of the Political acknowledges Subdivisions Tort Claims Act that Neb. Rev. (Reissue 1989) Stat. 25-213 applies tort brought § claims act, under the 13-919(1)specifies an action under the § act be years must commenced within after the of cause action has accrued. Section 25-213 states: person bring a any entitled to action mentioned in this
[I]f chapter the Political Tort Subdivisions Claims Act... [or] is, accrued, at the time age the cause of action the within twenty years, person disorder, with a mental or imprisoned, every person bring such be shall entitled to such within respective action times limited this chapter disability after such is removed. petition alleges
The plaintiff, Kelly, Christianson “is incompetent an person” exception within 25-213. With Duncan, Heather all other in several actions are alleged to be age years within the of 20 when their causes of action accrued. Heather years Duncan became 21 old on Consequently, October 1992. the statute of limitations applicable otherwise to commencement of an action under the Political suspended Subdivisions Tort Claims Act is in 25-213, accordance with so that each in these actions against entitled commence an action Educational Service by refiling during Unit No. 16 plaintiff’s an action legal disability period years disability within after the has reason, been removed. For that each in the present immediately may against cases refile an action educational service unit inasmuch as dismissal has been without appeals present
prejudice. Because day on the his or her court may and achieve refile an action any claims, deprived not has dismissal respective merits of hence, has an of discretion right; abuse of a substantial dismissal. as the result not occurred concerning the differences between majority’s opinion *13 Procedure, while Rules of Civil and the Federal code only issue in these interesting reading, is extraneous is, abused its discretion appeals, the district court that whether in light of 25-213 dismissing prejudice. without cases Claims Act and Subdivisions Tort relation to Political the district view the of an abuse discretion absence of dismissal court, judgments the district court’s I concur that should be affirmed.
Kerry al., appellees, Gravel, Inc., P. et Petska Olson appellant.