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.


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.


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).


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.