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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?”