TREVOR DION, PERSONAL REPRESENTATIVE OF THE ESTATE OF BRYCE DAVID DION, DECEASED, APPELLANT AND CROSS-APPELLEE, V. CITY OF OMAHA, DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLEE AND CROSS-APPELLANT, AND LANGLEY PRODUCTIONS, INC., A FOREIGN CORPORATION ORGANIZED UNDER THE LAWS OF CALIFORNIA, THIRD-PARTY DEFENDANT, APPELLEE AND CROSS-APPELLEE.
No. S-21-545
Nebraska Supreme Court
May 6, 2022
311 Neb. 522
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/03/2022 09:10 AM CDT
Political Subdivisions Tort Claims Act. Whether the allegations made by a plaintiff set forth claims which are precluded by exemptions under the Political Subdivisions Tort Claims Act presents a question of law. - Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
- Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
- Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the factual findings of a trial court will not be disturbed on appeal unless they are clearly wrong.
- Contracts. The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review.
- Political Subdivisions Tort Claims Act: Dismissal and Nonsuit: Immunity. If an exemption under
Neb. Rev. Stat. § 13-910 (Reissue 2012) applies, the political subdivision is immune from the claim and the proper remedy is to dismiss it for lack of subject matter jurisdiction. Statutes: Immunity: Waiver. Statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and against waiver. - Political Subdivisions Tort Claims Act: Immunity: Waiver. Courts apply a broad reading to statutory exemptions from a waiver of sovereign immunity, such as
Neb. Rev. Stat. § 13-910(7) (Reissue 2012). - Statutes: Immunity: Waiver. A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.
- Political Subdivisions Tort Claims Act: Appeal and Error. No matter how a tort claim has been framed and regardless of the assailant‘s employment status, appellate courts have variously described that the intentional tort exemption applies whenever the claim stems from, arises out of, is inextricably linked to, is essential to, and would not exist without, one of the underlying intentional torts listed in
Neb. Rev. Stat. § 13-910(7) (Reissue 2012). - Complaints: Words and Phrases. The gravamen is the substantial point or essence of a claim, grievance, or complaint and is found by examining and construing the substance of the allegations of the complaint as a whole without regard to the form or label adopted by the pleader or the relief demanded.
- Political Subdivisions Tort Claims Act: Immunity: Waiver: Complaints. To determine the gravamen of the complaint, courts look to whether the plaintiff has alleged an injury independent of that caused by the excluded acts, i.e., that the injury is linked to a duty to act that is entirely separate from the acts expressly excluded from the statutory waiver of sovereign immunity.
- Battery: Appeal and Error. Although appellate courts have sometimes described battery as any intentional, unlawful physical violence or contact inflicted on a human being without his or her consent, “unlawful” in that context simply means unconsented to.
- Torts: Liability: Intent. A person will be liable for intentional tortious conduct directed at one person but which unintentionally results to harm to another person.
- Police Officers and Sheriffs: Liability. A law enforcement officer is not liable to a third person harmed by a stray bullet when shooting at an escaping felon when there was little or no probability that any person other than the felon would be hit.
- Police Officers and Sheriffs. A law enforcement officer is unprivileged to shoot at an escaping felon if it was unreasonable under the circumstances to risk causing grave harm to bystanders.
Claims: Immunity. A plaintiff cannot allege that the harmful or offensive contact causing the injuries the plaintiff seeks to recover for are privileged for the purpose of sovereign immunity while unprivileged for the purpose of determining the merits of the claim. - Political Subdivisions Tort Claims Act: Battery: Intent. If recovery for the injury in question depends upon an intentional, harmful, or offensive contact‘s being unprivileged, then it depends also upon a battery and is “arising from” it for purposes of
Neb. Rev. Stat. § 13-910(7) (Reissue 2012). In such circumstances, the claim does not allege an injury independent of that caused by one of the excluded intentional torts. - Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute‘s resolution that existed at the beginning of the litigation.
- Contracts: Negligence: Liability: Presumptions. There is a presumption against any intention to indemnify against an indemnitee‘s own negligence.
- Contracts: Negligence: Liability. Clauses indemnifying the indemnitee for the indemnitee‘s own negligence are strictly construed against the claimant.
- Contracts: Negligence: Liability: Intent. To ensure that the parties truly intended to indemnify for the indemnitee‘s negligence, a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from the indemnitee‘s own negligence unless the intention of the parties is clearly and unambiguously expressed.
- ____: ____: ____: ____. The intention to indemnify the indemnitee for the indemnitee‘s own negligence need not be stated through a specific reference to indemnification against liability for negligence; but, if not so expressed, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.
- ____: ____: ____: ____. To determine if the contract indemnifies against an indemnitee‘s own negligence, courts generally first examine whether the express language covers the indemnitee‘s own negligence and, second, whether the contract contains clear and unequivocal language that it was the parties’ intention to cover the indemnitee‘s own negligence.
- Contracts: Negligence: Liability. Standing alone, general, broad, and seemingly all-inclusive language is simply not sufficient to impose liability for the negligence of the indemnitee.
Appeal from the District Court for Douglas County: JAMES M. MASTELLER, Judge. Affirmed.
Ryan J. Wiesen, Assistant Omaha City Attorney, for appellee City of Omaha.
Bruce A. Smith and Audrey R. Svane, of Woods Aitken, L.L.P., for appellee Langley Productions, Inc.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
FREUDENBERG, J.
I. INTRODUCTION
A member of a television crew that was filming law enforcement activities was shot and killed at the scene of a robbery when officers fired their weapons at the suspect. The filming was conducted pursuant to a contract between the city and the television production company. The estate of the crew member who died sued the city for wrongful death. The city brought a third-party claim against the production company for breach of alleged contractual agreements to defend, indemnify, and insure the city. Following summary judgment against the city on its claim against the production company for breach of contract, a bench trial was held on the estate‘s wrongful death claim. A verdict was rendered in favor of the city. The court reasoned that the wrongful death action arose out of a battery and therefore was barred by sovereign immunity. Alternatively, the court found the estate had failed to prove the elements of breach and proximate causation. The estate appeals, and the city cross-appeals.
II. BACKGROUND
Bryce David Dion worked for Langley Productions, Inc. (Langley), as a sound technician on the filming crew for the “COPS” television program. In the summer of 2014, Dion
1. AGREEMENT
Under the agreement signed by the City‘s mayor and the producer of COPS (Agreement), the City granted Langley access to OPD and its personnel. It allowed video and audio to be recorded during production “in all circumstances and locations” and gave the COPS crew “reasonable access to officers and situations such officers encounter.” All film activity was “subject to and under [the] control of the [OPD] officer in charge,” and Langley agreed to “comply with all instructions and restrictions as directed by [OPD].”
Paragraph 5 of the Agreement provided for a duty to defend and indemnify as follows:
[Langley] agrees that it shall indemnify, defend and hold harmless, the City, its officers, agents, employees and administrators from and against any and all claims for damage and liability for injury to or death of persons; and for damage to or destruction of property occurring during and arising out of the acts or omission of [Langley], its employees and/or agents with regard to [Langley‘s] filming; and shall pay the reasonable cost of defending lawsuits resulting therefrom, including, but not limited to, reasonable attorneys fees, court costs and any judgment awarded to a third party as the result of such suit. In accordance with the foregoing, [Langley] also agrees to indemnify, defend and hold harmless the City from
and against all claims related to intellectual property claims arising out of [Langley‘s] filming activities.
Another portion of paragraph 5 stated that the City shall be named an additional insured on Langley‘s comprehensive general liability insurance policy.
2. COMPLAINT FOR WRONGFUL DEATH
Dion‘s estate (Estate) filed a wrongful death action against the City, alleging that OPD owed Dion a special duty of care and protection and that its police officers negligently shot Dion while acting within the scope of their employment.
The Estate alleged, summarized, that OPD did not provide adequate protection of the filming crew through various alleged deficiencies of general training and instruction of OPD personnel and the crew. It also alleged that on August 26, 2014, OPD failed to adequately monitor and communicate to other officers the filming crew‘s whereabouts, give the filming crew adequate instructions for its safety, or carry out OPD duties in a manner that accounted for the presence of the filming crew at the scene. Finally, the Estate alleged that the OPD officers at the scene failed to identify the proper target before discharging their firearms, used excessive force, and acted unreasonably in light of the presence of innocent bystanders.
Prior to filing its action, the Estate had timely filed a notice of its claim in accordance with the Political Subdivisions Tort Claims Act (PSTCA). The claim was not acted upon by the City and was withdrawn more than 6 months after it was filed.
The City filed an answer affirmatively alleging sovereign immunity as a defense, on the grounds that the Estate‘s claim arose out of an intentional tort of battery. Alternatively, the City alleged that the use of force was objectively reasonable and privileged. Further, the City alleged that Dion assumed the risk associated with filming law enforcement personnel while on duty and that Dion voluntarily and without notifying the officers had placed himself within an active armed-robbery situation.
The City filed a third-party complaint against Langley for breach of contract. It also brought a claim against Langley for promissory estoppel, which is not at issue in this appeal.
The City had sent a letter to Langley requesting that it forward the wrongful death complaint to its insurance carrier for defense against the Estate‘s claims. Langley‘s insurance carrier thereafter notified the City it was denying the City‘s request for defense and indemnification under the commercial general liability policy issued to Langley.
The City alleged in its third-party complaint that Langley was contractually required to indemnify the City against any claim for damages and liability for injury to or death of persons, defend the City against any claim for injury to or death of persons, name the City as an additional insured in Langley‘s general liability insurance policy, and abide by a duty of fair dealing.
4. MOTIONS FOR SUMMARY JUDGMENT
The City moved for summary judgment against the Estate on the grounds that it was immune from the wrongful death suit, which arose out of a battery, as set forth in
Langley moved for summary judgment against the City on the third-party claims against it. The City filed a cross-motion for summary judgment against Langley.
(a) Wrongful Death
The district court denied summary judgment in favor of the City on the Estate‘s wrongful death action.
At the hearing on the motion, the City had argued that the historical facts were undisputed and that a battery occurred by virtue of the officers’ intentional act of firing at the
The Estate argued, among other things, that the actions of the officers lawfully using their firearms in the course of duty would not constitute an intentional tort. It was also discussed that the officers were exonerated by a grand jury of any criminal activity in connection with placing the filming crew in harm‘s way.
In denying summary judgment against the Estate, the court reasoned that our opinion in Phillips v. Liberty Mut. Ins. Co.3 stands for the proposition that actions for injuries to bystanders by law enforcement in the course of pursuing a suspect are not immune under
(b) Breach of Contract
The court granted Langley‘s motion for summary judgment as to the City‘s claim against Langley for breach of contract, which was based on paragraph 5 of the Agreement. The court reasoned that the contract did not affirmatively and unambiguously protect the City from its own negligence and that the duty to be named an additional insured was immaterial because Langley‘s policy included only operations performed by Langley or on Langley‘s behalf and excluded
(c) Promissory Estoppel
The court denied Langley‘s motion for summary judgment on the City‘s claim for promissory estoppel. It generally denied the City‘s cross-motion for summary judgment against Langley.
5. WRONGFUL DEATH VERDICT
The court bifurcated for separate bench trials the Estate‘s wrongful death action against the City and the City‘s third-party action against Langley for promissory estoppel. The trials were held before a different judge than the judge who presided over the summary judgment hearing. The court ultimately issued a verdict in favor of the City on the Estate‘s wrongful death claim, first, on the grounds of sovereign immunity and, alternatively, on the failure to prove negligence.
(a) Findings of Fact
In its order following the trial on the Estate‘s wrongful death claim, the court summarized the relevant evidence and made findings of historical facts.
The court found that the only explicit restriction OPD and the City placed upon the filming crew was that it was not to exit the patrol car during large crowd disturbances involving more than 10 people. Otherwise, OPD and the City generally expected that the crew would follow and observe the officers’ orders.
On the day in question, Dion and Mike Lee, the cameraman for the two-person filming crew, were riding with OPD officers Brooks Riley and Jason Wilhelm. The court found that Dion had ridden with Riley and Wilhelm several times previously over the course of the preceding 8 weeks and had developed a cooperative and professional relationship with them.
The officers were aware that the filming crew always exited the patrol car and followed them everywhere they
On the night in question, OPD detective Darren Cunningham radioed that a robbery suspect had entered a fast-food restaurant. Cunningham waited for responding officers to arrive in order to set up a perimeter around the restaurant. Riley and Wilhelm, who were only a few blocks away, proceeded directly to the scene.
When Riley and Wilhelm arrived, they exited their patrol car. A civilian in the parking lot yelled to Wilhelm and Riley, “Help, help, they need help inside.” Riley and Wilhelm did not give any instructions to Dion and Lee. As Riley and Wilhelm approached Cunningham, they did not identify Dion and Lee to Cunningham, who assumed they were law enforcement, because they were wearing dark clothing and were with Riley and Wilhelm. Cunningham did not observe the video camera, boom microphone, and audio equipment carried by Dion and Lee. Dion and Lee did not wear any clothing identifying themselves as media.
Cunningham and Riley entered the restaurant on the east side of the building through the south vestibule door, followed by Lee. Wilhelm circled around the building to enter through the western entrance.
There was a customer at the service counter and an employee standing behind the service counter handing money from the cash register to the suspect, who was behind the counter. Riley testified he saw neither the customer nor the employee. Cunningham and Wilhelm saw the employee.
When Cunningham and Riley entered the area behind the counter and confronted the suspect, the suspect drew what appeared to be a black handgun, pointed it at Cunningham and Riley, and pulled the trigger. Although the suspect‘s weapon was later determined to be a pellet gun, the court found that the officers reasonably believed it was a real firearm.
The suspect fled toward the east vestibule doors, pointing his firearm at Riley, who, in turn, discharged his firearm at the suspect. Wilhelm, seeing the suspect attempting what he believed to be deadly force against Cunningham and Riley, also discharged his firearm at the suspect.
The three officers discharged their firearms at the suspect as he exited the restaurant through the east vestibule doors and ran through the parking lot. The suspect was no longer firing what was believed to be a deadly weapon at that time, but the officers believed the suspect continued to pose a threat to their lives and the lives of others, including other officers who could be responding to assist and the members of the public at large.
The court noted that all three officers testified that they were aiming and shooting directly at the suspect while he fled. The officers testified that they did not accidentally pull the trigger of their guns or drop their firearms, but instead intended to use deadly force against the suspect. The court found that the officers’ shots were fired in a directed manner and not in a haphazard manner.
The court found that none of the officers saw Dion at any point after entering the scene and that they were not aware of where Dion might be. The three officers were not even aware Dion had entered the restaurant until after they had all ceased discharging their weapons. All three officers testified that had they seen Dion within their line of fire, they would not have discharged their firearms and would instead have changed their position so as to obtain a clear line of fire toward the suspect. The court specifically found the officers’ testimony to be credible and supported by the evidence.
The officers discharged their weapons a combined total of 36 times. The majority of the bullets, 24, were fired as the suspect exited through the east vestibule. It could not be determined which officer fired the single bullet that killed Dion. Dion was later found slumped on the floor in the middle of the east vestibule. However, the court found there was no evidence as to Dion‘s precise location or body positioning when he sustained the bullet wound. Nor, found the court, did the evidence rule out the possibility that Dion was struck by a bullet that had ricocheted or initially struck the suspect.
(b) Sovereign Immunity
The court concluded, as a threshold matter, that the Estate‘s action was barred by sovereign immunity. The court did not agree with the prior judge‘s reading of Phillips as it pertained to
The court concluded that the elements of battery had been met because the officers intended to cause harmful contact with the suspect, which resulted in harmful contact with Dion. The court relied on the definition of battery from Britton as an infliction of unconsented contact with another,5 as well as case law from other jurisdictions holding that under a theory of transferred intent, an actor may still be found liable for battery when the harmful contact occurs to a third person
The court reasoned that to fall under
(c) Negligence
Alternatively, the court concluded that the Estate had failed to prove negligence.
The court found no special relationship between Dion and the City creating a heightened duty of care. Rather, it found that OPD owed Dion an ordinary duty of reasonable care under the circumstances. The court reasoned that Dion was neither a party nor a third-party beneficiary to the Agreement and that case law did not generally support a special duty to protect a bystander from the intentional conduct of an employee of the defendant.
The court utilized negligence propositions from Phillips describing the balancing of the duty of law enforcement to apprehend violators against the duty of care to the general
The court rejected the Estate‘s argument that the officers should have refrained from engaging the suspect until they affirmatively ascertained Dion‘s whereabouts. The court stated:
It is unreasonable to expect an officer, when faced with a suspect who is within close proximity to the officer and pulling the trigger on what appears to be a real firearm, to simply stand there or try to take cover merely because a third-person, who the officer does not observe, but who could possibly be somewhere in the vicinity, may be present.
The court also rejected the Estate‘s contention that the suspect had fled through a “crowded thoroughfare,” given the lack of evidence that civilians were in the parts of the parking lot affected by the line of fire.
In any event, the court weighed the surrounding circumstances for determining whether the act of shooting into a crowded thoroughfare is privileged, including the nature of the crime, the harm that may ensue if the officer does not act, and the officer‘s skill in the use of the weapon. The court found these factors weighed heavily in favor of the City. The suspect was engaging in violence, including what the officers reasonably believed to be attempted homicide; it was reasonable to conclude that such a suspect might also shoot at other responding officers or innocent civilians; and all three officers specifically aimed at the suspect and not merely in his general vicinity.
The court also found that the Estate had failed to prove proximate causation. The court explained that there was no
6. VERDICT ON PROMISSORY ESTOPPEL
The court found that in light of its verdict against the Estate on its wrongful death action, there was no actual case or controversy with respect to a claim under promissory estoppel for indemnification. As for the duty to defend, the court found that promissory estoppel, which was based on oral statements made before the written contract, was not a viable theory of recovery because the written contract covered the same subject matter. The court alternatively found that the alleged statements on Langley‘s behalf were too vague and indefinite to support a claim for promissory estoppel. Finally, the court found that it was not reasonable for the City to rely upon statements made on Langley‘s behalf during negotiations of a contract.
III. ASSIGNMENTS OF ERROR
The Estate assigns that the district court erred by (1) dismissing Dion‘s claims against the City, ruling that the PSTCA barred those claims; (2) ruling Dion‘s claims arose out of an intentional tort for which sovereign immunity is not waived by the PSTCA; (3) ruling that OPD acted reasonably at all times; and (4) holding that OPD officers did not owe Dion a heightened duty of care.
On cross-appeal, the City assigns that the district court erred by (1) holding as a matter of law that the indemnification and defense provisions of the Agreement were ambiguous, (2) holding as a matter of law that the indemnification and defense provisions in the Agreement were unenforceable, and (3) dismissing with prejudice the City‘s third-party breach of contract claims against Langley seeking indemnification and defense of the Estate‘s claims against the City. The City assigns as error the court‘s order rendering its verdict on
IV. STANDARD OF REVIEW
[1] Whether the allegations made by a plaintiff set forth claims which are precluded by exemptions under the PSTCA presents a question of law.9
[2] When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.10
[3] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.11
[4] In actions brought pursuant to the PSTCA, the factual findings of a trial court will not be disturbed on appeal unless they are clearly wrong.12
[5] The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review.13
V. ANALYSIS
The Estate appeals from the judgment in the wrongful death action, which dismissed the action with prejudice. The City cross-appeals the court‘s order on summary judgment dismissing with prejudice its third-party claim against Langley for breach of contract. We first address the Estate‘s appeal in the wrongful death action.
As a threshold issue, we must determine if the Estate‘s wrongful death action was barred by sovereign immunity.
Under the PSTCA, a political subdivision has no liability for the torts of its officers, agents, or employees, “except to the extent, and only to the extent, provided by the [PSTCA].”15 In suits brought under the PSTCA, a political subdivision is “liable in the same manner and to the same extent as a private individual under like circumstances,” except “as otherwise provided in the [PSTCA].”16
[6] The Legislature has allowed through the PSTCA a limited waiver of a political subdivision‘s sovereign immunity with respect to some, but not all, types of tort claims.17
any claim against a political subdivision for money only on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the political subdivision, while acting within the scope of his or her office or employment, under circumstances in which the political subdivision, if a private person, would be liable to the claimant for such damage, loss, injury, or death but shall not include any claim accruing before January 1, 1970.
(a) Arising Out of Listed Intentional Tort
At issue in this case is subsection (7) of
We have discussed that a similar intentional tort exemption from the waiver of sovereign immunity under the
We recently observed in Edwards v. Douglas County29 that the language used by the Legislature in
[10] No matter how a tort claim has been framed and regardless of the assailant‘s employment status, we have variously described that the intentional tort exemption applies whenever the claim stems from, arises out of, is inextricably linked to, is essential to, and would not exist without one of the underlying intentional torts listed in
[11,12] In the context of the other intentional torts specified in
In Edwards, the plaintiff sought to recover for injuries directly incurred from what was undisputed to be an assault by a former boyfriend.36 We ultimately held that the action based on allegations that the county negligently handled emergency telephone calls and did not arrive in time to prevent or stop the assault on the plaintiff was inextricably linked to an assault and, thus, was exempted under
(b) Elements of Battery
[13] The district court in this case concluded that the Estate’s action fell under
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.41
We observed in Britton that the Restatement (Second) of Torts does not use the term “unlawful” in its definition of battery.42 In any event, although we have sometimes described battery as any intentional, unlawful physical violence or contact inflicted on a human being without his or her consent, “unlawful” in that context simply means unconsented to.43
In the comments to the Restatement (Second) of Torts, it is clarified that the meaning of the term “intending” goes only to the act itself.44 It is immaterial that the actor is not
The comments to the Restatement (Second) of Torts also clarify the meaning of the phrase “subject to liability” and state that the defendant’s act must be a “legal cause” of the contact with the plaintiffs.47 Such liability is defeated by any privilege available to the defendant.48
(c) Negligence Actions Arising Out of Battery
In several cases, we have held that plaintiffs’ negligence actions arose from a battery and thus fell within the scope of
The claim derived from the death of the suspect in Britton after law enforcement shot him when he refused to
We explained that although the claim of the suspect’s estate may have been “for” negligence, the injuries the estate sued the political subdivision for ultimately stemmed from a battery, an intentional tort. We reasoned, “While other factors may have contributed to the situation which resulted in [the suspect’s] death, but for the battery, there would have been no claim.”51 Even if negligence was a factor in the suspect’s death, no semantic recasting of events could alter the fact that the shooting that ultimately caused the suspect’s death was inextricably linked to a battery.52
In so holding in Britton, we specifically rejected the argument that because the officer had been found not guilty of assault, on the grounds of self-defense, the officer’s conduct did not fall under the intentional tort of battery and the exception found in
(d) Estate’s Arguments
We have not before specifically addressed whether injury to a bystander in the course of law enforcement’s pursuit of or engagement with a suspect arises from a battery for purposes of
i. Sued “For” Versus Arises From
As stated in Edwards and Britton, what the plaintiff sues “for” is not determinative of whether that action arose from a battery for purposes of
ii. Phillips v. Liberty Mut. Ins. Co.
Phillips does not hold, as the Estate suggests, that when the underlying injury is to an innocent bystander of allegedly negligent law enforcement actions directed at a suspect, the plaintiff’s action necessarily arises out of negligence rather than a battery. In Phillips, we affirmed a summary judgment in favor of the county in an action brought by an innocent bystander who was injured by being knocked over when deputies ran in pursuit of a person to effectuate an arrest.57 The officers subsequently apprehended the person, forcing her hands off a doorknob that she was gripping, placing her on the ground, and handcuffing her.
While the Estate points out that in Phillips “no battery was found to have been committed by the police officer,”58 this is a misleading characterization of our holding. We decided the appeal on the grounds that there was no negligence, despite the fact that the lower court had determined the claim was barred by sovereign immunity because it arose out of battery.
We noted in Phillips that the parties below had discussed the theory that the officers had committed a battery on the resisting person and that the officers’ intent was transferred to the injured bystander. We then said, “based on their reading of Britton v. City of Crawford, [the parties below] placed considerable, arguably undue, emphasis on the ‘intent’ of the deputies.”59 But we did not elaborate or otherwise comment
We did not hold in Phillips that the district court’s decision on sovereign immunity was wrong; we simply affirmed the order on the alternative ground that there was no genuine issue that the deputies did not act negligently. Phillips thus does not stand for the proposition that actions stemming from officers’ injuring bystanders in the course of pursuing or engaging a suspect fall outside of
iii. Transferring Intent
We disagree with the Estate’s contention that an action does not arise out of a battery whenever the actor did not intend contact with the plaintiff and instead intended the contact to a third party. While we have not previously addressed this scenario as it applies to
[14] Further, the Restatement (Second) of Torts states in relevant part:
(2) If an act is done with the intention of affecting a third person in the manner stated in Subsection (1) but causes an offensive bodily contact to another, the actor is subject to liability to such other as fully as though he intended so to affect him.61
Other authorities have explained that a person will be liable for intentional tortious conduct directed at one person but which unintentionally results to harm to another person.62
iv. “Wrongful” Contact and Privileges
We turn lastly to the Estate’s argument that the officers did not, in the first place, commit a battery of the suspect, of Dion, or of anyone else. The Estate argues that a battery does not occur if the unconsented to touching was privileged. And the Estate points out that the officers alleged as a defense that their actions of shooting at the suspect while he fled were privileged. Indeed, the court ultimately so found.
[15,16] The privilege at issue was described in Phillips, wherein we said, in the context of negligence, that if a law enforcement officer is privileged to shoot at an escaping felon, the law enforcement officer is not liable to a third person harmed by a stray bullet when shooting at an escaping felon when there was little or no probability that any person other than the felon would be hit.63 In contrast, a law enforcement officer is unprivileged to shoot at an escaping felon if it was unreasonable under the circumstances to risk causing grave harm to bystanders.64
We quoted the Restatement (Second) of Torts concerning reasonable care with respect to innocent bystanders of police conduct and the confines of the law enforcement privilege:
“[I]f an actor is privileged to shoot at an escaping felon, he is not liable to a third person harmed by a stray bullet, if when he shot there was little or no probability that any person other than the felon would be hit. But when he shoots into a crowded thoroughfare, and unintentionally hits a passerby, his act is unprivileged if, in view of the surrounding conditions, including the nature
of the crime for which he seeks to arrest, recapture, or maintain custody, the harm which may ensue if he does not act, and his skill or lack of skill in the use of the weapon, it is unreasonable for him to take the chance of causing grave harm to bystanders.”65
We held as a matter of law in Phillips that the deputies had a duty and were required to exercise that degree of care toward innocent persons as would be exercised by a reasonable deputy effectuating an arrest under the circumstances. We explained that reasonable force is an objective standard constituting that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances.66 The context is important in determining the reasonableness of the action taken, but, broadly, the privilege to use reasonable force toward the arrestee extends to harm to an innocent bystander caused by force directed toward the arrestee unless under the circumstances it was unreasonable for law enforcement to take the chance of causing grave harm to bystanders.67
We explained that whether the deputies in Phillips acted unreasonably and breached their duty was a question of fact. However, noting that there was no evidence the deputies were using weapons or were chasing the person in a way that could be described as reckless, we held that there was no genuine issue that the deputies acted reasonably in chasing the person when she ran away. Nothing in the record indicated the deputies objectively should have realized their actions created an unreasonable risk of harm to any innocent third persons. Thus, the deputies were not negligent.
Under the principle that, to be a battery, the acts must have been the legal cause of the injury, the Estate argues that if the relevant actions were privileged, there was no battery from which the injuries it seeks to recover for could have arisen for purposes of
As Phillips illustrates, the same privilege the Estate argues makes the underlying conduct not a battery also defeats the negligence theories under which the Estate seeks to recover
[17] A plaintiff cannot allege that the harmful or offensive contact causing the injuries the plaintiff seeks to recover for are privileged for the purpose of sovereign immunity while unprivileged for the purpose of determining the merits of the claim. Logically, an act is not simultaneously privileged and unprivileged. The Estate concedes its wrongful death claim depends upon the theory that the officers’ acts of firing at the suspect were no longer privileged when the officers fired the bullet that killed Dion. Thus, no matter how framed, the Estate’s negligence claim depends upon allegations that the injuries were caused by unprivileged harmful or offensive contact, which in substance is an allegation that the injuries were caused by a battery.
[18] In sum, the underlying substance of the Estate’s claim is that Dion’s death arose out of a battery. If recovery for the injury in question depends upon an intentional, harmful, or offensive contact’s being unprivileged, then it depends also upon a battery and is “arising from” it for purposes of
We are unpersuaded by the four arguments presented on appeal by the Estate in support of its assertion that its wrongful death claim did not arise out of battery for purposes of
2. BREACH OF CONTRACT
In the City’s breach of contract claim, it alleged that Langley agreed to indemnify and defend it against any and all claims for damages and liability for injury to or death of persons. It asserts this contractual obligation included duties to indemnify and defend against claims of negligence such as the Estate’s wrongful death action.
[19] Given our resolution of the appeal with respect to the wrongful death claim, the City’s claim as it pertains to an alleged duty to indemnify is, strictly speaking, moot. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute’s resolution that existed at the beginning of the litigation.74 Because the Estate has lost its wrongful death action, there is nothing for Langley to indemnify.
Here, the Agreement stated that Langley “shall pay the reasonable cost of defending lawsuits resulting therefrom, including, but not limited to, reasonable attorneys fees, court costs and any judgment.” Because the City seeks under the duty to defend to recover from Langley the costs incurred by the City in defending itself in the Estate’s action that was ultimately unsuccessful, that aspect of its breach of contract claim is not rendered moot by the judgment against the Estate in its wrongful death action.
[Langley] agrees that it shall indemnify, defend and hold harmless, the City, its officers, agents, employees and administrators from and against any and all claims for damage and liability for injury to or death of persons; and for damage to or destruction of property occurring during and arising out of the acts or omission of [Langley], its employees and/or agents with regard to [Langley’s] filming; and shall pay the reasonable cost of defending lawsuits resulting therefrom, including, but not limited to, reasonable attorneys fees, court costs and any judgment awarded to a third party as the result of such suit. In accordance with the foregoing, [Langley] also agrees to indemnify, defend and hold harmless the City from and against all claims related to intellectual property claims arising out of [Langley’s] filming activities.
The City argues that the broad language of “indemnify, defend and hold harmless, the City, its officers, agents, employees and administrators from and against any and all claims for damage and liability for injury to or death of persons” includes defending the City against claims it was negligent, such as the wrongful death action brought by the Estate.
[20-22] However, as the district court noted, there is a presumption against any intention to indemnify against an indemnitee’s own negligence.75 Clauses indemnifying the indemnitee for the indemnitee’s own negligence are strictly construed against the claimant.76 To ensure that the parties truly intended to indemnify for the indemnitee’s negligence, a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from the indemnitee’s own
[23,24] The intention to indemnify the indemnitee for the indemnitee’s own negligence need not be stated through a specific reference to indemnification against liability for negligence; but, if not so expressed, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.78 To determine if the contract indemnifies against an indemnitee’s own negligence, we generally first examine whether the express language covers the indemnitee’s own negligence and, second, whether the contract contains clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.79
Thus, in Oddo v. Speedway Scaffold Co.,80 we held that a provision to indemnify against all conduct “‘including active, passive, primary or secondary,‘” while excluding indemnification for “‘wilful misconduct,‘” expressed an intention to indemnify for negligence clearly and unequivocally, even though it did not contain the word “negligence.” Likewise, we found in Kuhn v. Wells Fargo Bank of Neb.81 that an indemnification clause of a lease clearly and unequivocally expressed the parties’ intention to indemnify the indemnitee for the indemnitee’s own negligence. The clause at issue provided:
“With the exception of those claims arising out of [lessor’s] gross negligence or willful misconduct, [lessee] shall indemnify [lessor] and hold it harmless from any claim or damage arising out of any injury, death or property damage occurring in, on or about the Property, the Building, the Leased Premises and appurtenances thereto to [lessee] or an employee, customer or invitee of [lessee].”82
We explained that the language required the lessee to indemnify the lessor for “something.”83 Looking at the provision as a whole and giving it a reasonable instruction, we reasoned that if “any injury” did not include the indemnitee’s negligence, it would have been unnecessary to specifically exclude gross negligence.84 We held that because it placed a duty to indemnify for any injury other than gross negligence, it clearly still included negligence that was “less than gross.”85
In contrast, in Anderson v. Nashua Corp.,86 we held language that the indemnitor would protect the indemnitee against “‘all risks and from any claims that may arise out of or pertain to the performance of such work,‘” neither constituted express language covering the indemnitee’s own negligence nor clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence. Similarly, in Omaha P. P. Dist. v. Natkin & Co.,87 we held that a contract to protect the indemnitee from “‘claims for damages for personal injury, including wrongful death, as well as claims for property damages, which may arise from operations‘” was, at
[25] The language of the Agreement is similar to the language in Anderson and Omaha P. P. Dist. that we found failed to clearly and unambiguously express an intention to indemnify the indemnitee for the indemnitee’s own negligence. The express language does not cover the indemnitee’s own negligence, and the contract does not contain clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence. While the reference in the Agreement to “any and all claims for damage and liability for injury to or death of persons” is facially broad, standing alone, general, broad, and seemingly all-inclusive language is simply not sufficient to impose liability for the negligence of the indemnitee.88
And there is no other provision in the Agreement, such as was present in Kuhn, excluding a higher degree of negligence or otherwise clearly expressing an intention to indemnify the City for its own negligence.89 To the contrary, albeit specified for property claims and separated by a semicolon from the broad reference to “any and all claims for damage and liability for injury to or death of persons,” the Agreement refers to claims “during and arising out of the acts or omission of [Langley], its employees and/or agents with regard to [Langley’s] filming.”
There was not clear and unequivocal language in the Agreement overcoming the presumption that the parties did not intend that the indemnitee would be indemnified for a loss occasioned by the indemnitee’s own negligence. Langley was not obligated to indemnify the City in the event the Estate’s claim was successful, because the wrongful death
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
MILLER-LERMAN, J., concurring in part, and in part dissenting.
As an initial matter, consistent with my dissenting views in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020); Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021); and Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021), I reiterate that I continue to dissent from the court’s many holdings regarding the intentional tort exceptions to the waiver of sovereign immunity pertaining to battery, see
I concur in the result. Unlike some previous cases which were decided on preliminary motions, this matter went to trial. The district court found as follows: “The elements of a
Assuming transferred intent applied and based on earlier cases, the district court concluded that the Estate’s claims arose out of the battery and were barred by sovereign immunity. Like the district court, the majority opinion rejects the Estate’s arguments asserting that the wrongful death claim did not arise out of a battery. The majority affirms the district court’s findings that the claims arose from the battery and that the action is barred by sovereign immunity. Given the absence of jurisdiction, I find it puzzling that the majority opinion nevertheless proceeds to a negligence analysis and writes extensively about “privilege,” which the district court did not consider in its sovereign immunity analysis. If there is no jurisdiction, why consider the merits?
“Battery is an intentional tort. ‘. . . [T]here is no such thing as a negligent battery.’ 1 DOBBS, LAW OF TORTS § 26 at 51 (2001).” District of Columbia v. Chinn, 839 A.2d 701, 706 (2003). In this case, the district court did not base its decision on privilege so neither should we. As the City urges, the district court found the claims arose from the battery; as the City further states, privilege is “immaterial” and the City is shielded by sovereign immunity. Brief for appellee the City at 17. I agree.
The district court found, based on evidence, that it lacked jurisdiction. I respectfully suggest that by proceeding with its negligence analysis, the majority opinion has conflated its consideration of jurisdiction with the merits of the negligence claim, something which should be avoided. See Florida Highway Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020).
So with respect to the preclusive effect, if any, of the district court’s finding as affirmed by this court that the claims arose from the battery committed by the City’s officers, I note that it has been observed that immunity under one statute does not necessarily indicate that an action will be barred under another statute with a differing scheme. See Davis v. Harrod, 407 F.2d 1280 (D.C. Cir. 1969).
In this case, the City’s officers responded to a robbery at a fast-food restaurant, fired 36 bullets, and killed a member of a film crew. As the City urged, the trial court found that the City’s officers had committed a battery and the majority of this court agrees. So under current Nebraska law, the City is immune from suit in this case. But the presence of sovereign immunity under