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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.