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01_Brandon estate of Brandon v. County of Richardson

JoAnn BRANDON, Personal Representative of the ESTATE OF Teena BRANDON, deceased, Appellant and Cross-Appellee, v. The COUNTY OF RICHARDSON, Nebraska, and Charles B. Laux, Richardson County Sheriff, appellees and cross-appellants.

S-00-022. No.

-- April 20, 2001

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

David S. Buckel, and, of Counsel, Doni Gewirtzman and Marvin Peguese, of Lambda Legal Defense and Education Fund, Inc., Michael J. Hansen, P.C., Herbert J. Friedman, of Friedman Law Offices, and John Stevens Berry, Lincoln, of Berry, Kelley & Reiman, for appellant.Richard L. Boucher and Kim K. Sturzenegger, Lincoln, of Boucher Law Firm, for appellees.Kristin E. Yates, and, of Counsel, Shannon Minter and Jennifer Levi for amicus curiae Harry Benjamin International Gender Dysphoria Association.Jeffry D. Patterson, Lincoln, of Healey & Wieland Law Firm, for amicus curiae Nebraska Association of Trial Attorneys.Amy A. Miller, Omaha, of American Civil Liberties Union of Nebraska, and, of Counsel, Michael Adams and Jennifer Middleton, of American Civil Liberties Union, New York, and of Counsel, Melvyn L. Cantor, Reuven L. Cohen, and Matthew D.  Strada, New York City, of Simpson, Thacher & Bartlett, for amici curiae American Civil Liberties Union Foundation et al.John G. Taylor, Lincoln, of Taylor Law Office, and M. Elaine Johnston, Patrick Barnett, and Marc L. Moore, New York City, of White & Case, L.L.P., for amici curiae Parents of Murdered Children, Inc., and National Center for Victims of Crime.Pamela Coukos, of Mehri, Malkin & Ross, P.L.L.C., and Susan Ann Koenig and Angela J. Dunne, of Law Office of Susan Ann Koenig, P.C., for amici curiae Nebraska Domestic Violence Sexual Assault Coalition et al.Charles B. Crisman, Jr., and, of Counsel, W. Mason Emnett and Richard L. Parker for amici curiae Gender Public Advocacy Coalition et al.

INTRODUCTION

On December 31, 1993, Teena Brandon (Brandon), Lisa Lambert, and Phillip Devine were found murdered in Lambert's rural Humboldt farmhouse in Richardson  John L. Lotter and Thomas M. Nissen, also known as Marvin T. County, Nebraska.   See State v. Lotter, 255 Neb. 456, 586 Nissen, were convicted of the murders.   N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). Brandon's mother, JoAnn Brandon (JoAnn), brought an action against Richardson County and Sheriff Charles B. Laux for negligence, wrongful death, and intentional infliction of emotional distress in connection with Brandon's murder and the events leading up to her death.

The district court found the county negligent and awarded economic damages of  However, the court reduced the $6,223.20 and noneconomic damages of $80,000.  damage award on the negligence claim by 85 percent for the intentional torts of  The court Lotter and Nissen, and by 1 percent for the negligence of Brandon.  denied recovery on the intentional infliction of emotional distress claim and  awarded “nominal damages” for loss of society, comfort, and companionship.  JoAnn appeals, and the county cross-appeals.

FACTUAL BACKGROUND

Brandon had been sexually abused as a child, and in her late teens, developed gender identity disorder, a condition in which one develops a strong dislike for one's own gender and assumes the characteristics, both behaviorally and  In November 1993, Brandon came to Richardson emotionally, of the other gender.   Brandon had been convicted County after leaving Lincoln due to legal troubles.   of forgery in Lancaster County and had violated the terms of her probation.   Brandon had While in Richardson County, Brandon presented herself as a man.  obtained a driver's license identifying Brandon as a male by the name of Charles Brayman.

In December 1993, Brandon met Lana Tisdel, a young woman who resided in Falls City. Tisdel, believing Brandon to be a male, dated Brandon for approximately 1  After moving to Richardson County, Brandon also became acquainted with month.  Lo On December 15, Brandon was booked into the Richardson tter and Nissen.   County jail on forgery charges for forging checks in Richardson County.   Brandon was placed in an area of the jail where females are usually held.  While Brandon was being held at the jail, Laux referred to Brandon as an “it”  A during a conversation with Tisdel which took place in Brandon's presence.  few days later, Nissen secured Brandon's release from jail by posting bail with  Thereafter, Lotter and Nissen became suspicious money Tisdel gave to Nissen.  of Brandon's sexual identity.

On December 24, 1993, several people, including Brandon and Tisdel, attended  In the early morning hours of December 25, in an a party at Nissen's home.  attempt to prove to Tisdel that Brandon was a female, Lotter and Nissen pulled Brandon's pants down in Tisdel's presence.

Later that same morning, Lotter and Nissen beat Brandon, hitting her in the  Lotter and Nissen head, kicking her in the ribs, and stepping on her back.  then drove Brandon to a remote location where both Lotter and Nissen sexually   After the sexual assaults, Nissen beat Brandon again.  assaulted Brandon.   When they returned to Nissen's house, Brandon escaped by kicking out a bathroom window and ran to the home of Linda Gutierres, Tisdel's mother.

When Brandon arrived at Gutierres' home at approximately 6 a.m., Brandon had a swollen, bloody lip, scratches, and a “shoe print” on her back, and she was  An ambulance was called, and Brandon was transported to the local crying.  hospital, where Brandon reported that she had been beaten and sexually  A rape examination was performed at the hospital, and the results, assaulted.  which showed that Brandon had been sexually penetrated, were turned over to law enforcement.

Around noon that same day, Brandon provided a written statement to the Falls  Later that day, Laux and Deputy City Police Department regarding the rapes.  Tom Olberding of the Richardson County sheriff's office conducted a  Prior to the interview, Laux had been tape-recorded interview with Brandon.  informed by the hospital staff that Brandon had been beaten and sexually  Olberding conducted the initial interview, during which Brandon penetrated.  described the rapes, including the location where the rapes occurred, and that  Brandon also indicated Lotter and Nissen had used condoms during the rapes.   that she had a pair of rolled-up socks in her pants at the time of the rapes.  Laux was present in the interview room the entire time Olberding was questioning Brandon.

After Brandon had initially related the details of the rapes to Olberding and Laux, Laux began questioning Brandon regarding the details of the rapes a second  Shortly after time, beginning at approximately 3:40 p.m. on December 25, 1993.   At that time, Laux began questioning Brandon, Olberding left the room.  Olberding had a brief conversation with Keith Hayes, an investigator with the  Falls City Police Department, who was present outside the interview room.  Olberding indicated that he left the room because he “didn't like the way [the  Olberding returned to the interview room a short time interview] was going.”  (All quotations from the December 25 interview appearing in this opinion later.  are taken from the tape-recorded version of the interview.)

While questioning Brandon about the incident that occurred at Nissen's house during which Lotter and Nissen pulled down Brandon's pants, the following exchange took place:

[A]fter he pulled your pants down and seen you was a girl, what did he  Q.  Did he fondle you any? do?

No. A.

․ Doesn't  Didn't that kind of amaze you?  He didn't fondle you any, huh.  Q. that kind of, ah, get your attention somehow that he would've put his hands in your pants and play with you a little bit?

[Y]ou were all half-ass drunk․ I can't believe that if he pulled your Q. pants down and you are a female that he didn't stick his hand in you or his finger in you.

Well, he didn't. A.

I can't believe he didn't. Q.

While interviewing Brandon regarding the rapes, Laux's statements and questions included the following:  “So they got ready to poke you”;  “[t]hey tried sinking it in your vagina”;  “So then after he couldn't stick it in your vagina he stuck it in your box or in your buttocks, is that right?”;  “[D]id it feel like he stuck it in very far or not?”;  “Did he tell you anything about this is how they do it in the penitentiary?”;  “Was he enjoying it?”;  “Did he think it was funny?”;  “Did he play with your breasts or anything?”;   and “Well, was he fingering you?”

02_Brandon estate of Brandon v. County of Richardson

Laux confronted Brandon regarding the position of her legs during the sexual assault by Nissen in the following manner:

How did you have your legs when he was trying to do that? Q.

He had them positioned on each side and he was positioned in between my A. legs.

You had your legs, ah, your feet up around his back or did you just have Q. them off to the sides or what?

I had one foot on the floor and the other on the seat. A.

He had you on the back seat and you had one leg on the seat the one leg up Q. up over the front seat or where?

One leg on the floor and the other just laying [sic] on the seat not on A. top of the guy.

 You had one leg on the back seat and one leg laying [sic] on the floor.  Q. Now just earlier when I asked you, you  said you had one leg up around him and one leg over the seat.

No, I didn't. A.

Yeah, because I can play it back for you. Q.

Then play it back because I don't understand it. A.

After the above exchange took place, Laux asked Brandon no further questions  The tape-recorded interview shows that about the position of her legs.  Brandon's description of the position of her legs during the rapes was in fact consistent.

The following exchange occurred when Laux questioned Brandon about Lotter's sexually assaulting her:

After he got his pants down he got a spread of you, or had spread you out, Q. and he got a spread of you then, then what happened?

When he finished he got out of the car and got back in the driver's A. door.

 First of all you Well, how did, ah, let's back up here for a second.  Q.  Did he have a hard on when he got didn't say anything about him getting it up.  back there or what?

 I didn't look. I don't know.  A.

 Did  Did he take a little time working it up, or what?  You didn't look.  Q. you work it up for him?

No, I didn't. A.

You didn't work it up for him? Q.

No. A.

Then you think he had it worked up on his own, or what? Q.

I guess so, I don't know. A.

You don't know Did, when he got in the back seat you were already spread Q. out back there ready for him, waiting on him.

No, I was sitting up when he got back there. A.

Laux questioned Brandon about her prior sexual experience in the following manner:

And you have never had any sex before? Q.

No. A.

How old are you? Q.

21. A.

And if you're 21, you think you'd have, you'd have, trouble getting it Q. in?

Who me? A.

Yeah. Q.

 He was. I guess so.  A.

Laux further asked questions regarding Brandon's gender identity crisis such as, “Do you run around once in a while with a sock in your pants to make you  At one point during the interview, the following exchange look like a boy?”  took place:

Why do you run around with girls instead of, ah, guys being you are a girl Q. yourself?

Why do I what? A.

Why do you run around with girls instead of guys beings you're a girl Q.  Why do you make girls think you're a guy? yourself?

I haven't the slightest idea. A.

 You go around kissing other girls? You haven't the slightest idea?  Q. [T]he girls that don't know about you, th  Do you inks [sic] you are a guy.  kiss them?

What does this have to do with what happened last night? A.

Because I'm trying to get some answers so I know exactly what's going on. Q.  Now, do you want to answer that question for me or not? 

I don't see why I have to. A.

Huh? Q.

I don't see why I have to. A.

 It's, this is all voluntary Olberding: You, you don't have to answer.  information.

Laux: The only thing is if it goes to court, that answer, that question is going to come up in court and I'm going to want an answer for it before it goes  I'm trying to have the answer there so we can  See what I'm saying?  to court.  try to avoid that question if it's not the answer I want to hear.

Brandon: ‘Cause I have a sexual identity crisis.

Your what? Q.

I have a sexual identity crisis. A.

You want to explain that? Q.

I don't know if I can even talk about it A.

Brandon agreed to file complaints against Lotter and Nissen and agreed to  At the conclusion of the interview, Laux told Brandon, testify against them.  “I'm not trying to make it rough on you, but I've got to have the information that we need and the only way by getting that is asking some very personal questions.”

Laux and Olberding then went to the location where Brandon claimed the rapes  At that location, they recovered two condoms, a pair of rolled-up occurred. These items were collected as evidence. socks, and a beer can.

On December 25 and 26, 1993, statements were taken from Tisdel; Gutierres; Lotter's girl friend, Rhonda McKenzie; and Tisdel's sister, Leslie Mayfield.  Each of these statements corroborated certain aspects of Brandon's account of  When Gutierres was at the sheriff's office on the events of December 25.  December 25 to give her statement, Laux again referred to Brandon as an “it” in a conversation with Gutierres.

On December 28, 1993, Nissen voluntarily went to the police station and,  after being read his Miranda rights, gave a statement to Olberding and Hayes.  Nissen admitted that he had pulled Brandon's pants down to determine her gender.  He further revealed that during an argument at his house over Brandon's lying   about her gender, he hit Brandon in the mouth and kicked Brandon in the back.  He admitted that he, Lotter, and Brandon were at the location where Brandon claimed the rapes occurred, but denied that he had sexually assaulted Brandon.

On December 29, 1993, Brandon came to the sheriff's office and identified the  The sheriff's office socks which were found at the rape scene as hers. However, requested that Brandon return that afternoon for another interview.  when Brandon arrived at the courthouse that afternoon, Lotter and Nissen, who had not yet been arrested, were outside the courthouse, and Brandon did not go  Law enforcement did not make any attempt to contact Brandon about the in.  missed interview.

04_Brandon estate of Brandon v. County of Richardson

On cross-examination, the prosecutor acknowledged that prosecutors have a different role in the investigation and prosecution of sexual assault cases than  The prosecutor gave no testimony indicating that do law enforcement officers.  the interviews of sexual assault victims that she had witnessed were conducted  She admitted that she had never within hours of the sexual assault incident.   The prosecutor interviewed a rape victim immediately after the rape occurred.  also testified that she was not informed that Olberding left the interview room  at one point due to his disagreement with Laux's conduct during the interview.  When asked if she would instruct officers to interrogate a rape victim in a manner similar to that used by Laux, the prosecutor stated, “I don't think some of the language he used was what I would suggest to anybody.”

Mario Scalora, a licensed clinical psychologist and assistant professor of psychology at the University of Nebraska at Lincoln, testified as a  Scalora had been licensed as a clinical psychological expert for JoAnn.  psychologist since 1989 and had worked with 300 to 400 victims of sexual abuse.  Scalora reviewed Brandon's mental health records, Brandon's criminal record,  Brandon's medical records regarding the emergency room examination performed subsequent to the rapes, police reports relating to the rapes, the entire transcript of the December 25, 1993, interview, and a portion of the  Scalora also conducted interviews with tape-recorded December 25 interview.  JoAnn and Schweitzer regarding Brandon's history from infancy up to the time of her death.

Based on this information, Scalora testified that Brandon was the victim of childhood sexual abuse, which had a substantial and negative effect on how  Scalora testified that Brandon Brandon perceived her own sexuality.  subsequently developed gender identity disorder, which may have been related to  He further testified that Brandon was “very her childhood sexual abuse.   negatively impacted” by the rapes Lotter and Nissen committed upon her.  Regarding the impact of Laux's conduct during the December 25, 1993, interview, Scalora testified that considering Brandon's history, Brandon had “very open  When asked for emotional sores” upon arriving at the December 25 interview.  his opinion regarding what impact Laux's behavior during the December 25 interview had on Brandon, Scalora testified that “the interrogation had a  Scalora testified that Brandon's significant negative effect on this woman.”  responses during the interview indicated that she believed she was not being  Scalora further testified that considering the fact that taken seriously.  Brandon had been raped just hours before the interview was conducted, “that type of interrogation process  is like pouring  vinegar on an open wound.”

JoAnn also testified regarding Brandon's reaction to the December 25, 1993,  JoAnn testified that she spoke with Brandon on the telephone almost interview.   She described Brandon as “emotionally dead” during every day after the rapes.   JoAnn testified that Brandon told her that Laux was “more those conversations.  concerned about her identity crisis than he was about the rape” and that she was “scared” of Laux “[b]ecause of the way he was towards her.”

JoAnn further testified that she had a close relationship with Brandon.  JoAnn described Brandon as an “outgoing and happy” child. Schweitzer testified that her and Brandon's father was killed in a car accident before Brandon was born and that she and Brandon had a close relationship with their mother because  “it was just the three of us all the time, so we had nobody but each other.”  Pat Brayman, Brandon's aunt, testified that Brandon “loved her mom dearly and  JoAnn and Schweitzer testified she let her mother know that she loved her.”   A booklet of drawings and that Brandon spent every Christmas with her family.  photographs documenting Brandon's life from infancy to young adulthood was  Photographs in  the booklet depict Brandon's admitted into evidence.  participation in family gatherings and other activities.

JoAnn testified that she began witnessing changes in Brandon at age 17 when Brandon began wearing masculine hair and clothing styles. JoAnn testified that when Brandon began portraying herself as a male, JoAnn discussed this issue with  JoAnn also attended counseling Brandon but often “didn't know what to say.”  JoAnn testified that after Brandon began presenting herself as a with Brandon.  man, Brandon became more distant from her family but still maintained contact.  JoAnn testified that Brandon would call, stop by, or leave a rose in the door for JoAnn.

JoAnn also testified that Brandon was interested in becoming a commercial artist and had applied to the Colorado Institute of Art. After Brandon's death,  JoAnn JoAnn received a letter that Brandon's application had been accepted.  also stated that after the rapes occurred, Brandon told JoAnn that she wanted to  come back to Lincoln and “get things back together” and “get her life back.”  Brandon told JoAnn that Brandon planned to return to Lincoln on January 3, 1994.

On December 6, 1999, the district court issued a “Memorandum Finding,” determining that the county had a duty to protect Brandon due to the special relationship between the county and Brandon which was created when Brandon  The court agreed to assist the county by testifying against Lotter and Nissen.  determined that the county was negligent in that it failed to take measures to  The court awarded economic damages of $6,223.20 and protect Brandon.   noneconomic damages of $80,000 for Brandon's predeath pain and suffering.  However, the court determined that Brandon herself was negligent and that the  The court did damage award should be reduced by 1 percent for such negligence.   The court further reduced not specifically state how Brandon was negligent.  the damage award by 85 percent, allocating that percentage to the intentional  Thus, the court determined that the county was torts of Lotter and Nissen.   The court entered responsible for 14 percent of the noneconomic damages.  judgment against the county for a total of $17,360.97.

The court denied recovery on the intentional infliction of emotional distress claim, determining that Laux's conduct was not extreme and outrageous because “the evidence does not reach such high status” and that in addition there was “a failure to prove that [Brandon] suffered” as a result of Laux's conduct.

The court further determined that “the major award arises under [JoAnn]'s  The court then stated that Brandon's cause for pre-death pain and suffering.”  “history does not support likely contributions of money to anyone” and that JoAnn, as Brandon's next of kin, was entitled to “nominal damages” for loss of  Interpreting the order as a whole, we society, comfort, and companionship.  conclude that the award of “nominal damages” was in effect an award of zero damages.

JoAnn appeals, and the county cross-appeals.

ASSIGNMENTS OF ERROR

JoAnn claims the district court erred in (1) reducing the damage award by 85 percent due to the intentional torts of Lotter and Nissen; (2) determining that Laux's conduct during the December 25, 1993, interview was not extreme and outrageous and that JoAnn failed to prove Brandon suffered severe emotional distress as a result of the conduct; (3) awarding “nominal damages” for loss of society, comfort, and companionship; and (4) determining that Brandon was negligent and reducing the damage award by 1 percent due to such negligence.

The county claims the district court erred in determining that the county was negligent.

STANDARD OF REVIEW

To the extent an appeal calls for statutory interpretation or presents  questions of law, an appellate court must reach an independent conclusion Essen v. Gilmore, irrespective of the determination made by the court below.  259 Neb. 55, 607 N.W.2d 829 (2000).

In a bench trial of an action at law, the factual findings by the trial  court have the effect of a jury verdict and will not be set aside unless they Strategic Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d are clearly wrong.   When reviewing the sufficiency of the evidence to sustain a 230 (2000).  judgment, every controverted fact must be resolved in favor of the successful party, and such party is entitled to the benefit of every inference that can Baldwin v. City of Omaha, 259 Neb. 1, reasonably be deduced from the evidence.  607 N.W.2d 841 (2000).

ANALYSIS

allocation of Damages

JoAnn first claims that the district court erred in its application of  25-21,185.10 (Reissue 1995), by allocating 85 percent of the Neb.Rev.Stat. § damages to the intentional torts of Lotter and Nissen, thereby reducing the  JoAnn judgment against the county for noneconomic damages by 85 percent.  claims the court impermissibly shifted liability from the county, a negligent tort-feasor, to Lotter and Nissen, intentional tort-feasors.

Statutory interpretation presents a question of law, in connection with  which an appellate court has an obligation to reach an independent conclusion  Philpot v. Aguglia, 259 irrespective of the decision made by the court below.   In the absence of anything to the contrary, Neb. 573, 611 N.W.2d 93 (2000).  statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory Id. words which are plain, direct, and unambiguous.

03_Brandon estate of Brandon v. County of Richardson

At the time Brandon reported the rapes, Laux was aware that Lotter and Nissen  He was aware that Lotter had once escaped from custody had criminal records.  in the middle of the day wearing an orange prison uniform and had had to be  He knew that Lotter had been involved in a scuffle chased down by deputies.  with a Missouri Highway Patrol officer, which resulted in the officer's drawing  Laux knew that people in the community were afraid of his gun on Lotter.   Laux also knew that Nissen had been incarcerated in the Lotter.  penitentiary.

The sheriff's office was also aware that Lotter and Nissen had threatened to  Gutierres informed Laux that Lotter harm Brandon if she reported the rapes.   Before the and Nissen had threatened Brandon's life if she reported the rapes.  interview with Brandon was conducted, Gutierres told Laux that Brandon was “afraid,” “feared for her life,” and was “scared to death” because Lotter and  Tammy Schweitzer, Brandon's sister, Nissen had threatened Brandon's life.  called Laux on December 27, 1993, and informed him that Brandon was afraid that Lotter and Nissen would kill Brandon for reporting the rapes.

After the rapes, Brandon spoke to JoAnn over the telephone on several  On December 25, 1993, Brandon told JoAnn that she was afraid to occasions.  return to JoAnn's home in Lincoln because Lotter and Nissen had her address book  Brandon decided to stay with and would be able to locate her at JoAnn's home.  her friend Lambert at Lambert's house in rural Humboldt because Brandon believed that Lotter and Nissen did not know where Lambert lived.

On December 31, 1993, Brandon, Lambert, and Devine, another friend, were  That same day, Lotter and Nissen were found murdered in Lambert's house.   Lotter and Nissen arrested for the December 25 sexual assaults on Brandon. See State v. were later charged with and convicted of the three murders.  Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

On January 2, 1994, several of Brandon's family members, including Schweitzer, went to the sheriff's office to obtain information regarding  At that Brandon's death and to retrieve some of Brandon's personal effects.  time, they encountered Laux, who called Schweitzer a “bitch” and asked her “what kind of sister did [you] have?”

On April 19, 1994, JoAnn filed a claim under the Political Subdivisions Tort Claims Act. The 6 month period for the county and Laux to respond to the claim  JoAnn then withdrew the claim and brought an expired without a response.  action against the county and Laux, alleging that the county was negligent by failing to protect Brandon and that Laux's conduct during the December 25, 1993,  The county interview constituted intentional infliction of emotional distress.  filed a demurrer to JoAnn's second amended petition, which was sustained without  On appeal, this court reversed, determining that further leave to amend.  sufficient facts had been pled to qualify as an exception to the rule that law enforcement officials may not be held liable for failure to protect individual  See Brandon v. County of Richardson, citizens from harm by criminal conduct.   We determined that if true, 252 Neb. 839, 566 N.W.2d 776 (1997) (Brandon I).  the facts pled established that a special relationship was created between Brandon and the county when Brandon went to law enforcement officials and Id. We also offered to testify and aid the prosecution of Lotter and Nissen.  determined that JoAnn should have been granted leave to amend her petition with Id. respect to the intentional infliction of emotional distress claim.

JoAnn then filed a third amended petition, and trial to the court without a  At trial, portions of Laux's deposition jury commenced on September 22, 1999.   In this testimony, Laux testimony were admitted and read into evidence.  admitted that Brandon told him that Lotter and Nissen had threatened her and  At trial, Laux testified that he that he was aware that Brandon was afraid.   Laux also never offered Brandon special protection from Lotter and Nissen.  testified that his manner of questioning Brandon during the December 25, 1993,  interview was due to concerns he had as to whether Brandon was being truthful.  He questioned Brandon's credibility because she had been charged with forgery and had been deceiving people in the community as to her gender and because she  However, Laux was taking a long time to answer questions during the interview.  admitted that Brandon's gender identity disorder was not relevant to whether she had been raped.

Laux also testified that Brandon failed to return to the sheriff's office for the second December 29, 1993, interview that had been scheduled for Brandon and  A that the sheriff's office believed Brandon had gone back to Lincoln.  dispatcher at the sheriff's office testified that some time between December 25 and 31, she received a telephone call from Brandon stating that Brandon was going back to Lincoln.

Several law enforcement officers involved in investigating the rapes and  Olberding testified that Brandon surrounding events testified at trial.  appeared “frightened” and “traumatized” when she arrived for the December 25,  Olberding further stated that when Laux began questioning 1993, interview.  Brandon, Olberding left the room for a short time because he did not believe further questioning was necessary and “didn't think it was right to do that .” Olberding testified that he was aware Lotter and Nissen had threatened Brandon, that he believed Brandon was telling the truth during the December 25 interview, and that he believed on December 28 that there was probable cause to arrest  Olberding stated that Brandon was not keeping the sheriff's Lotter and Nissen. However, office advised of her whereabouts between December 25 and 31.  Olberding also testified that the sheriff's office never offered Brandon any protection from Lotter and Nissen if she stayed in Richardson County.

Deposition testimony of John Caverzagie, who was assistant chief for the  Caverzagie Falls City Police Department in 1993, was also admitted at trial.  listened to the December 25 tape-recorded interview and testified that he believed that “just about everything” Laux said during the interview was “very  Hayes, the unprofessional” and agreed that such conduct was outrageous.  investigator who was present outside the interview room while the interview was being conducted, read the transcript of the interview and testified that Laux's questioning was “intimidating” and that he could think of no legitimate reason  Hayes agreed that Laux's to question Brandon about her gender identity crisis.  conduct during parts of the interview indicated that Laux was treating Brandon “as an accused rather than the victim.”

Jack Wyant, a retired Nebraska State Patrol criminal investigator, testified  Wyant testified that in his opinion, based on as an expert witness for JoAnn.  the information that was available to law enforcement, an attempt should have been made to bring Brandon in for safekeeping if Lotter and Nissen were not  Wyant further testified that even if he felt he was not getting arrested.  truthful and accurate answers from an alleged rape victim, he could see no reason to be rude or abrasive while questioning the alleged victim.

A prosecutor who had prosecuted numerous sexual assault cases and had worked with law enforcement regarding sexual assault cases testified as an expert  In preparing her testimony, the prosecutor reviewed witness for the county.   However, the majority of the transcript of the December 25, 1993, interview.  the prosecutor's testimony dealt with her opinion regarding the manner in which the county conducted the overall rape investigation, including whether Lotter  The prosecutor was not asked for and Nissen should have been arrested sooner.  her opinion and did not render an opinion as to whether Laux's conduct during the December 25 interview was extreme and outrageous.

A portion of the prosecutor's testimony on direct examination specifically  That related to Laux's conduct during the December 25, 1993, interview.  testimony consisted of the following:

“Q How would you characterize the interview by Sheriff Laux and Teena Brandon?”

“My characterization of the interview was that it appeared to me that he A.  was seeking her story, he was trying to get an idea of her version of events.  He was trying to get detailed information from her about the chronology of events as well as what the events were.

“As I reviewed the transcript of that I found that he certainly used some  There were times when it language that I didn't find particularly appropriate.  appeared that he was using what I would consider locker room talk and that I think some would find offensive.

“But with respect to being confrontational necessarily with Teena Brandon, I didn't find that he was, quite frankly, as confrontational as many officers I've seen doing interviews with victims of sexual assault.

“I can honestly say that I have interviewed victims of sexual assault prior to trial, prior to preliminary hearings, prior to depositions and have been myself much more confrontational with them about areas where I might feel that they have been inconsistent or where they have given information that seems difficult to understand and may bear on areas where a defense attorney is going to make a big stink so to speak.

And you mentioned some of the language was not appropriate, could you “Q. give us a few examples?

Oh, one that sticks out in my mind is he is asking her about the actual “A. sexual assault itself by either Lotter or Nissen, I don't recall which one, and it may have been with both of them, where he says, okay, you're in the back, you're, and I don't recall what he says, he says you're spread and they're getting ready to poke you or something along that line.

“And I, those are seemingly not very sensitive terms to use when you're  That one stands out in my talking to somebody about an alleged sexual assault.  mind.”

05_Brandon estate of Brandon v. County of Richardson

Section 25-21,185.10 provides in relevant part:

In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be  Each defendant shall be liable only for the amount of noneconomic joint.  damages allocated to that defendant in direct proportion to that defendant's percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.

JoAnn claims this section provides for allocation of damages among negligent tort-feasors only and does not allow for such allocation due to the acts of  We determine that JoAnn's assertion is correct. intentional tort-feasors.

2-21,185 to Nebraska's comparative negligence law, Neb.Rev.Stat. §§  25-21,185.12 (Reissue 1995), applies only to civil actions in which contributory 25-21,185.07. This court has previously recognized negligence is a defense. § that contributory neg“ ligence is not a defense to an intentional tort.  ‘[W]here the defendant's conduct is actually intended to inflict  harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault;  and the defense [contributory negligence] never has been extended to such Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb. intentional torts.’ ”  873, 881-82, 332 N.W.2d 196, 202 (1983), quoting William L. Prosser, Handbook of 25-21,185.10 provides that  Furthermore, § 65 (4th ed.1971).  the Law of Torts § “[e]ach defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant's percentage  Section 25-21,185.10 does not provide of negligence ․” (Emphasis supplied).   The for allocation of damages to a defendant for his or her intentional torts.  plain language of Nebraska's comparative negligence law does not allow for allocation of damages to intentional tort-feasors.

Negligent and intentional torts are different in degree, in kind, and in Turner v. Jordan, 957 society's view of the relative culpability of each act.   See, also, Welch v. Southland Corp., 134 Wash.2d 629, S.W.2d 815 (Tenn.1997).  635, 952 P.2d 162, 166 (1998) (recognizing negligent and intentional torts are of “ ‘wholly different legal realm’ ”);  Merrill Crossings Associates v. McDonald, 705 So.2d 560, 562 (Fla.1997) (negligent acts are “ ‘fundamentally different’ ” from intentional acts); Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712, 719 (La.1994) (recognizing intentional torts are of  Because of these “fundamentally different nature” than negligent torts).  differences, allowing allocation of damages between negligent and intentional  Fact finders  Turner, supra.  tort-feasors presents practical difficulties.  are likely to allocate most, if not all, of the damages to the intentional tort-feasor due to the higher degree of social condemnation attached to Id. Thus, allocation of a intentional, as opposed to negligent, torts.  percentage of the damages to an intentional tort-feasor reduces the negligent Id. See, party's incentive to comply with the applicable standard of care.   Furthermore, it would be irrational to allow a party who also, Veazey, supra.  negligently fails to discharge a duty to protect to reduce its liability because there is an intervening intentional tort when the intervening intentional tort Merrill is exactly what the negligent party had a duty to protect against.   See, also, Turner, supra; Kansas State Bank Crossings Associates, supra.  & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991).

Other courts have concluded that allocation of damages to intentional  See, Whitehead tort-feasors is not allowed under comparative negligence law.  v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir.1998); Welch, supra; Merrill Crossings Associates, supra; Turner, supra;  Veazey, supra; McLean v. Kirby Co., 490 N.W.2d 229 (N.D.1992); Kansas State Bank &  Tr. Co., supra.  Several of these courts have simply determined, as we have, that the plain meaning of their statutes does not authorize allocation of damages to Whitehead, supra; Welch, supra; Merrill Crossings intentional tort-feasors.  Associates, supra; McLean, supra.

For these reasons, we determine the trial court erred in allocating 85 percent of the noneconomic damages to the intentional torts of Lotter and Nissen.

intentional Infliction of Emotional Distress

JoAnn next claims the trial court erred in denying recovery for intentional   JoAnn claims the trial court erred in infliction of emotional distress.  determining that Laux's conduct during the December 25, 1993, interview was not extreme and outrageous and in finding that JoAnn failed to prove that Brandon suffered as a result of Laux's conduct.

This court has long held that three elements must be alleged and proved  before a plaintiff can recover on a cause of action for intentional infliction  Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000).  of emotional distress.  To recover for intentional infliction of emotional distress, a plaintiff must prove the following: (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected Id.; Brandon I. A claim for intentional infliction of emotional to endure it.  Brandon I. The parties in the distress survives the death of the victim.  present case have not raised any issues regarding whether the first element of  The dispute is to the tort, intentional  or reckless conduct, had been met.  the second and third elements.

Regarding the second element of the tort, it is for the court to determine,  in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is See, 46, comment h. (1965).   Restatement (Second) of Torts § necessarily so.   Only if also, Behringer v. Behringer, 884 S.W.2d 839 (Tex.App.1994).  reasonable minds may differ does the fact finder then determine whether the conduct in a particular case is sufficiently extreme and outrageous as to result  The  See, also, Behringer, supra.   Restatement, supra.  in liability.  district court in the present case determined that Laux's conduct during the December 25, 1993, interview was not extreme and outrageous, stating that “the  The district court further stated evidence does not reach such high status.”  that Laux's conduct was “reasonable and necessary to prepare [Brandon] to testify at public trial in the face of confrontation by and on behalf of Nissen and Lotter.”

It is unclear whether the district court found the evidence of outrageous  However, conduct to be insufficient as a matter of fact or as a matter of law.  we determine, as set forth below, that the material facts are undisputed and that Laux's conduct was extreme and outrageous as a matter of law.

Whether conduct is extreme and outrageous is judged on an objective standard  Doe v. Calumet based on all the facts and circumstances of the particular case.   In determining City, 161 Ill.2d 374, 641 N.E.2d 498, 204 Ill.Dec. 274 (1994).  whether certain conduct is extreme and outrageous, the relationship between the parties and the susceptibility of the plaintiff to emotional distress are  Drejza v. Vaccaro, 650 A.2d 1308 (D.C.1994).  important factors to consider.  Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities that result from living in society do not rise to the level of  Restatement, supra, comment d. However, extreme and outrageous conduct.  conduct which might otherwise be considered merely rude or abusive may be deemed outrageous when the defendant knows that the plaintiff is particularly  See, also, Restatement,  Doe, supra.  susceptible to emotional distress.  supra, comment f.

The extreme and outrageous character of conduct may also arise from the See, also, Restatement, supra, Doe, supra.  abuse of a position of power.  comment e. The Restatement specifically mentions police officers among those who may be held liable for intentional infliction of emotional distress due to abuse  See, also, Doe, supra.  Restatement, supra.  of their position.

In considering the relationship between the parties in the present case, the record shows that prior to conducting the interview, Laux had developed a  negative attitude toward Brandon because of her gender identity disorder.  Laux's reference to Brandon as an “it” when Brandon was housed in the jail on  Laux December 15, 1993, reflects this negative attitude.  again referred to  Laux's comment Brandon as an “it” on the very day the interview was conducted.  to Schweitzer, asking her “what kind of sister did [you] have?” reflects that  The record further this attitude continued even after Brandon's death.  reflects that Laux, as a law enforcement official, was in a position of power in relation to Brandon, the victim of a crime who sought assistance from law enforcement.

Furthermore, Brandon was in a particularly vulnerable emotional state at the time the interview was conducted, having been beaten and raped earlier that day.  See Drejza, supra (being victim of rape, standing alone, is enough to  At the time the demonstrate particularly vulnerable emotional condition).  interview was conducted, Laux knew that Brandon had been beaten as the results  Laux knew that the of the beating were readily visible on Brandon's face.   Laux hospital examination showed that Brandon had been sexually penetrated.  was informed prior to conducting the interview that Brandon was “afraid,” “feared for her life,” and was “scared to death” because Lotter and Nissen had threatened Brandon. Laux was also aware that Brandon was upset and crying during the interview.