Message

07_Brandon estate of Brandon v. County of Richardson

The district court's erroneous determination that Laux's conduct was not extreme and outrageous effectively removed from the fact finder's consideration important evidence bearing on the question of whether Brandon sustained emotional distress, that being the extreme and outrageous character of the  The extreme and outrageous character of Laux's conduct during conduct itself.  the interview, as discussed previously, is itself important evidence that Brandon, a distraught rape and physical assault victim, suffered as a result of  The district court failed to consider this evidence in Laux's conduct.  determining whether Brandon suffered severe emotional distress as a result of Laux's conduct.

Since we have determined that Laux's conduct was extreme and outrageous, such conduct, in addition to the other evidence that was adduced on this issue, must now be considered by the trial court as bearing upon the factual determination of whether severe emotional distress existed in this particular  Because the trial court failed to consider this evidence, the issue of case.  whether Laux's conduct caused Brandon to suffer emotional distress so severe that no reasonable person should be expected to endure it must be remanded to  If the court finds that Brandon did not suffer severe the district court.  emotional distress or that Laux's conduct was not a proximate cause of any severe emotional distress Brandon may have suffered, JoAnn may not recover on  If the court finds her claim for intentional infliction of emotional distress.  that Brandon suffered severe emotional distress and that Laux's conduct was a proximate cause of such emotional distress, the court shall award damages for intentional infliction of emotional distress.

nominal Damage Award on Loss of Society Claim

JoAnn claims the district court erred in determining that she was entitled   As to “nominal damages” for loss of society, comfort, and companionship.  stated previously, we interpret the district court's award of “nominal damages” as an award of zero damages.

This court has consistently recognized that in an action for wrongful death  of a child, recoverable damages include parental loss of the child's society, Reiser v. Coburn, 255 Neb. 655, 587 N.W.2d 336 comfort, and companionship.   (1998);  Williams v. Monarch Transp., 238 Neb. 354, 470 N.W.2d 751 (1991).  See, also, Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270 “ ‘The (1990);  Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973).  term “society” embraces a broad range of mutual benefits each family member receives from the others' continued existence, including love, affection, care, Williams, 238 Neb. at attention, companionship, comfort, and protection.’ ”  359, 470 N.W.2d at 755.

When a child is wrongfully killed, a parent's investment in that child of   Reiser, supra; money, affection, guidance, security, and love is destroyed.   Destruction of such value is recognized whether the child is  Williams, supra.   Parental loss is not Reiser, supra; Williams, supra.  a minor or an adult.  limited to or necessarily dependent upon deprivation of the child's monetary Reiser, supra;  Williams, supra. contribution toward parental well-being.

Damages for loss of society must be determined upon a consideration of the   There is no exact fiscal Reiser, supra; Williams, supra.  facts of each case.  formula for determination of damages recoverable for loss of society, comfort, and companionship; a loss which is not subject to some strict accounting method Reiser, supra;  Williams, based on monetary contributions, past or prospective.   Because it is impossible to generalize the extent to which persons supra.  enjoy each other's companionship and society, the value of such highly personal Williams, supra. relationships must be decided on a case-by-case basis.

In Reiser, this court recognized that the relationship between parent and  child has “intrinsic value” and reversed an award of zero damages for loss of  Because the parent-child society in the wrongful death of an 18-year-old.  relationship has intrinsic value, once a parent-child relationship is proved to exist, destruction of that relationship through the wrongful death of the child entitles the parent, who i See Reiser, s the surviving next-of-kin, to damages.   Evidence regarding the quality and extent of the parent-child supra.   relationship may then be utilized in determining the amount of those damages.   The amount of damages is a matter solely See, Reiser, supra; Williams, supra.  for the fact finder, whose action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, elements of damages proved.  609 N.W.2d 338 (2000).

 Schweitzer JoAnn testified that she had a close relationship with Brandon.  testified that she and Brandon had a close relationship with JoAnn because “we  Brayman, Brandon's aunt, testified that Brandon had nobody but each other.”   Brandon “loved her mom dearly and she let her mother know that she loved her.”  spent every Christmas with her family.

Although JoAnn often “didn't know what to say” when Brandon began experiencing her sexual identity crisis, JoAnn and Brandon did discuss the  Even after Brandon began  JoAnn also attended counseling with Brandon.  issue.  presenting herself as a man, Brandon would call JoAnn, stop by to see her, or  Brandon spoke to JoAnn nearly every day on leave a rose in the door for her.   Brandon was interested in becoming a the telephone after the rapes occurred.  commercial artist, and Brandon told JoAnn that she wanted to come back to Lincoln and “get her life back.”

The record in the present case shows that a relationship between JoAnn and   The county does not assert that there was no Brandon did indeed exist.   The county asserts that the award of relationship between JoAnn and Brandon.  “nominal damages” was reasonable because JoAnn's relationship with Brandon was “strained and undeveloped” due to Brandon's legal troubles and gender identity  However, Brandon's personal problems are  Brief for appellee at 23.  disorder.   relevant only to the extent that they impacted her relationship with JoAnn.  Damages for loss of society are not necessarily dependent on the personal  We have previously recognized that “[w]e will not qualities of the child.  enter into a discussion in which we compare the relative  accomplishments of  Caradori v. Fitch, 200 Neb. 186, deceased children in wrongful death actions.”   See, also, Brahatcek v. Millard School 194, 263 N.W.2d 649, 655 (1978).  District, 202 Neb. 86, 273 N.W.2d 680 (1979).

The county's argument addresses the extent and quality of the relationship  Contrary to between JoAnn and Brandon, not whether such relationship existed.  the county's assertion, the parent-child relationship has intrinsic value, even  A parent-child relationship may if that relationship is less than perfect.  exist in spite of any personal problems the child might have, as the record in  In recognizing the “intrinsic value of the this case demonstrates.  relationship between parent and child,” as we did in Reiser v. Coburn, 255 Neb. 655, 664, 587 N.W.2d 336, 342 (1998), we conclude that an award of $0 for the loss of Brandon's society, comfort, and companionship sustained by JoAnn as a result of Brandon's death bears no reasonable relationship to the evidence and  The award of $0 on JoAnn's loss of society claim is shocks the conscience.  therefore inadequate as a matter of law.

finding of Negligence Against Brandon

In her final assignment of error, JoAnn asserts that the district court   The court reduced erred in finding that Brandon was contributorily negligent.   The district court made the damage award by 1 percent due to such negligence.  no specific finding as to how Brandon was negligent.

Negligence must be measured against the particular set of facts and  Norman v. Ogallala Pub. Sch. circumstances which are present in each case.   A plaintiff is contributorily Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).  negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a Nickell v. Russell, 260 Neb. 1, 614 N.W.2d 349 (2000); proximate cause.  Carroll v. Chase County, 259 Neb. 780, 612 N.W.2d 231 (2000); Baldwin v. City  Whether contributory negligence of Omaha, 259 Neb. 1, 607 N.W.2d 841 (2000).  Harrison is present in a particular case is a question for the trier of fact.  v. Seagroves, 250 Neb. 495, 549 N.W.2d 644 (1996).

Although the district court stated no basis for its finding that Brandon was negligent, the county asserts several bases which the county claims support a  The county first asserts that Brandon finding that Brandon was negligent.  failed to give consistent, complete, and accurate statements to law enforcement,  including failing to report that Lotter and Nissen had threatened her life.   The record shows that However, this assertion is not supported by the record.  the information Brandon provided was generally consistent, complete, and accurate and was additionally supported by statements given by witnesses and by  The claim that Brandon never told law enforcement that physical evidence.  Lotter and Nissen threatened her life is also not supported by the record.  Although the tape-recorded interview itself does not contain a statement by Brandon regarding the threat, Laux admitted that Brandon told him that Lotter and Nissen had threatened her.