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08_Brandon estate of Brandon v. County of Richardson

The county next alleges Brandon failed to keep the sheriff's office accurately informed as to her whereabouts and failed to return for the second  However, the evidence does not demonstrate how interview on December 29, 1993.  Brandon's conduct in failing to keep the sheriff's office accurately informed as to her whereabouts and failing to return for the second December 29 interview  The county was concurred and cooperated with the county's negligence. The record is absolutely clear that negligent by failing to protect Brandon.  there was never any plan to provide protection to Brandon, which would require  her to keep law enforcement accurately informed as to her whereabouts.  Furthermore, nothing in the record indicates that Brandon's failure to return for the second December 29 interview contributed to the county's failure to  The record also indicates that when Brandon arrived at the protect Brandon.  courthouse for the second December 29 interview, Lotter and Nissen were outside, so Brandon did not go in.

The record further fails to show that Brandon's conduct contributed to the  A proximate cause is a cause (1) that produces a injury as a proximate cause.  result in a natural and continuous sequence and (2) without which the result  The record does not show that had Norman, supra.  would not have occurred.  Brandon kept law enforcement accurately informed of her whereabouts or returned for the second interview on December 29, 1993, the result would have been  The record shows that the county took no action to protect Brandon different.  and had no plan to do so, regardless of Brandon's whereabouts or whether she returned for the second December 29 interview.

We find no evidence in the record to support a finding that Brandon was  The district court's finding of 1 percent contributorily negligent.  contributory negligence against Brandon was clearly wrong.

cross-Appeal

In its cross-appeal, the county claims the district court erred in finding   The county first claims that there was no special the county negligent.  relationship between the county and Brandon and that, therefore, the county did not have a duty to protect Brandon.

In Brandon I, we noted that exceptions exist to the general rule that law  enforcement officials may not be held liable for failure to protect individual  One such exception to this “no-duty rule” is when citizens from criminal acts.  there is a special relationship between the individual and law enforcement because the individual has agreed to aid law enforcement officials in the Id. In Brandon I, we stated: performance of their duties.

We conclude that Brandon has stated facts sufficient to qualify for an exception to the no-duty rule because the victim witnessed a crime and agreed to  A special relationship was created when the victim went to law aid the police.  enforcement officials and offered to testify and aid in the prosecution of Lotter and Nissen.

The fact that Brandon went to law 252 Neb. at 844, 566 N.W.2d at 780.  enforcement and offered to testify and aid in the prosecution of Lotter and  There was a special relationship between the Nissen was proved at trial. county and Brandon, and therefore the county had a duty to protect Brandon.  The county's argument that it did not have a duty to protect Brandon is without merit.

The county next claims that it discharged the duty to protect Brandon by  Brief for appellee at 32. “conducting a reasonable investigation of her rape.” However, the specific finding of negligence against the county was its failure   Because of its special relationship with Brandon, the to protect Brandon.  county had a duty to Brandon beyond simply performing a reasonable investigation  The fact that the county conducted a reasonable of her complaint.  investigation of the rape allegations does not demonstrate that the county discharged its duty to protect Brandon from the danger posed by Lotter and Nissen.

The county further claims that the district court's specific findings of   negligence against the county were not a proximate cause of Brandon's death.  The district court determined the county should have (1) investigated Brandon's location, (2) offered Brandon transportation to Lincoln and the relative safety of her family, (3) offered Brandon protective custody, and (4) arranged an  The district court found it interview for Brandon with social services.  unreasonable for the county to not make such an effort and that “its lack of  The effort and failure was a violation of its duty to protect [Brandon.]” county claims that its failure to take any of the above-mentioned actions was not a proximate cause of Brandon's death because had any of those actions been taken, the result would have been no different.

As stated previously, a proximate cause is a cause that produces a result in  a natural and continuous sequence, and without which the result would not have Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 occurred.   (2000); Baldwin v. City of Omaha, 259 Neb. 1, 607 N.W.2d 841 (2000).  Determination of causation is ordinarily a matter for the trier of fact. Baldwin, supra. 

The record in this case is clear that the county did nothing to discharge its  The duty to protect Brandon from the threat posed by Lotter and Nissen.  complete lack of protection by the county left Brandon vulnerable to Lotter and  Based on Nissen, who followed through on their threats and murdered Brandon.  the record, we conclude that the district court did not err in determining that the county's negligence was a proximate cause of Brandon's death.

Lastly, the county claims JoAnn's third amended petition, upon which the case was tried, did not include an allegation that the county was negligent in failing to protect Brandon, but alleged only that the county was negligent by failing to arrest Lotter and Nissen. The record shows that the pleadings were  The county does not argue or assign amended to conform to the proof at trial.   The county contends that any error claiming that such amendment was improper.  even after the pleadings were amended to conform to the proof at trial, the pleadings did not include an allegation that the county was negligent in failing  However, the record clearly shows that these amendments to protect Brandon.  did include an allegation that the county was negligent in failing to protect Brandon, stating that the county breached its duty to Brandon “by failing to arrest Lotter and Nissen and to protect Brandon from them.”

The county's assignment of error is without merit.

CONCLUSION

We affirm the district court's determination that the county had a duty to protect Brandon, its finding that the county was negligent in failing to discharge that duty, and its finding that Brandon suffered predeath pain and suffering damages in the amount of $80,000.

We reverse the district court's allocation of 85 percent of the predeath pain and suffering damages to the intentional torts of Lotter and Nissen as Nebraska's comparative negligence law does not allow for allocation of damages  We also reverse the district court's to the acts of intentional tort-feasors.  determination that Laux's conduct during the December 25, 1993, interview was  We further reverse the district court's award of not extreme and outrageous.  “nominal damages” for loss of society, comfort, and companionship and its finding that Brandon was 1 percent contributorily negligent.

We therefore remand this cause to the district court (1) for a determination of whether JoAnn has proved that Brandon suffered emotional distress so severe that no reasonable person should be expected to endure it and, if so, whether Laux's conduct was a proximate cause of any such distress; (2) to award damages for intentional infliction of emotional distress if JoAnn has proved both that Brandon suffered severe emotional distress and that Laux's conduct was a proximate cause of that distress; and (3) for a determination of the amount of damages for loss of society.

Upon remand, the district court shall not reduce the award of $80,000 for Brandon's predeath pain and suffering or reduce any additional amounts that may be awarded for loss of society or intentional infliction of emotional distress by allocating a percentage of the damage to intentional acts on the part of  Further, as there is no evidence to support a finding of Lotter and Nissen.  negligence on the part of Brandon, the district court shall not reduce any damages awarded to JoAnn due to any acts of Brandon.

affirmed in part, and in part reversed and remanded for further proceedings.

HENDRY, Chief Justice.