Wilken v. City of Lexington

Citations: 754 N.W.2d 616; 16 Neb. Ct. App. 817Docket: A-07-553

Court: Nebraska Court of Appeals; July 1, 2008; Nebraska; State Appellate Court

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Shauna Wilken, representing her minor children and Jeffery Wilken, filed a negligence lawsuit against the City of Lexington after the City was granted summary judgment in the district court for Dawson County. The court's decision was based on the finding of an efficient intervening cause that absolved the City of liability for the injuries sustained by the Wilkens. 

The case background involves a report on October 4, 2004, concerning a missing juvenile, W.V., from Elm Creek, Nebraska. The following day, investigator Kenneth Schumacher from the Lexington Police Department located W.V. at an acquaintance's home. W.V. voluntarily accompanied Schumacher to the police station without any restraints or signs of resistance. At the station, she was interviewed unrestrained and confirmed her status as the missing juvenile. Schumacher arranged for her transfer to the Buffalo County sheriff's office, and throughout the process, W.V. exhibited no intent to flee or resist. During this interaction, W.V. disclosed details about having run away, taking a vehicle without permission, and using methamphetamine recently, although she did not appear under the influence at the time.

Schumacher parked his police vehicle at a gas station in Overton while waiting for Tvrdik, leaving W.V. unrestrained in the passenger seat, except for her seatbelt. When Tvrdik arrived, Schumacher instructed W.V. to exit the vehicle and then left the car running with the keys inside to approach Tvrdik. W.V. then took control of Schumacher's vehicle and fled at high speed, prompting a pursuit by Tvrdik that was soon halted for public safety reasons. Schumacher was on duty, and his vehicle was a police asset owned by the City. 

W.V. later returned to Lexington, picked up E.G., and stole another vehicle before abandoning Schumacher's car, which was recovered on October 6, 2004. The stolen vehicle contained a loaded police-issued shotgun, which W.V. and E.G. had taken. On the same day, W.V. shot at a Nebraska State Patrol officer using the stolen shotgun. After abandoning that vehicle, W.V. and E.G. stole a third vehicle, leading to a pursuit by law enforcement in Phelps County, where E.G. fired at a pickup truck driven by Wilken, injuring his children, Cheyenne and Wyatt. 

On October 21, 2005, the Appellants filed a complaint against the City under Nebraska's Political Subdivisions Tort Claims Act, alleging negligence that resulted in physical and mental injuries to the children and mental injuries to Wilken. They claimed Schumacher's failure to secure W.V. and his vehicle contributed to the incident and that the City negligently supervised him. The Appellants sought compensatory damages for medical costs, psychiatric treatment, and pain and suffering. The City filed for summary judgment on March 15, 2007, while the Appellants sought partial summary judgment on the negligence claim. Following a hearing, the district court denied the Appellants' motion and granted summary judgment in favor of the City on May 11, 2007.

The court analyzed foreseeability and proximate cause in relation to third-party actions, noting that typically a relationship exists between the negligent party and the third party. In this case, E.G., the individual responsible for the injury, was identified as a fourth party with no direct connection to the City, the alleged negligent party. E.G. used resources from W.V., a third party connected to the City’s alleged negligence. The district court determined there was no genuine issue of material fact regarding the control exerted by the Lexington Police Department over W.V. and found a special relationship existed, imposing a duty on the City to control W.V.’s actions.

However, the court concluded that Schumacher failed to control W.V., leading to W.V. stealing his vehicle, an act deemed foreseeable. In terms of proximate causation, the court found that E.G.'s shotgun discharge was a new, independent force that intervened between the City’s negligence and the injuries suffered by Wilken, Cheyenne, and Wyatt. E.G.’s actions were not reasonably foreseeable by the City, as it had no knowledge of E.G.’s dangerousness or any relationship between him and W.V. The court highlighted a lack of Nebraska case law requiring an actor to foresee the intentional criminal acts of a fourth party aided by a third party with whom there was a special relationship. The court concluded that while the City might have had a duty to foresee potential dangers from the theft of a police vehicle, the resulting injuries were not a natural consequence of the City's actions. Consequently, E.G.’s criminal acts were seen as an efficient intervening cause, negating any claim that the City’s negligence was the proximate cause of the injuries.

The Appellants contended the district court erred in granting the City’s summary judgment, while the City cross-appealed, arguing that the court incorrectly determined the existence of a special relationship with W.V., Schumacher's failure to control W.V., and the foreseeability of W.V.’s vehicle theft.

Summary judgment is appropriate when there are no genuine disputes regarding material facts, allowing the moving party to prevail as a matter of law. In reviewing such judgments, appellate courts consider the evidence favorably for the non-moving party, drawing all reasonable inferences in their favor. In the case at hand, the Appellants contend the district court wrongly granted summary judgment to the City, arguing that the court mischaracterized E.G.'s actions as an efficient intervening cause that severed the City's liability for negligence. A negligence claim under the Political Subdivisions Tort Claims Act involves establishing duty, breach, causation, and damages. The court acknowledged that while the Lexington Police Department had a duty to control W.V.'s actions, E.G.'s unforeseen criminal conduct was deemed an efficient intervening cause, thus breaking the causal link between the City's alleged negligence and the injuries sustained by Wilken, Cheyenne, and Wyatt. 

To establish proximate cause, three criteria must be met: the injury must not have occurred "but for" the negligence, it must be a natural and probable result of the negligence, and no efficient intervening cause should exist. An efficient intervening cause is characterized as a new and independent act by a third party that serves as a proximate cause of the injury and disrupts the causal chain from the original conduct. Moreover, such an intervening act eliminates tort liability if it was not foreseeable. Generally, if a willful, malicious criminal act occurs between the initial negligence and an accident—and it was not intended or foreseeable by the negligent party—the causal chain is broken. The Nebraska Supreme Court has reiterated that if a third party's negligence intervenes between the defendant's negligence and the plaintiff's injury, and that third party’s actions were not anticipated, the causal connection is disrupted. The conduct of a third party committing a crime can be considered a superseding cause of harm, even if the original negligent party's actions created the circumstances that allowed for the third party's criminal act, unless the original actor could have foreseen such an opportunity.

An employee with a criminal history stole poison from his employer and subsequently poisoned individuals by breaking into their homes. As a result, several people were harmed, leading to a lawsuit against the employer for negligence in failing to uncover the employee's background and for allowing access to the poison. The Nebraska Supreme Court ruled that the employee's criminal actions were the proximate cause of the injuries and deaths, noting that the employer's alleged failures were unrelated to the employee's criminal acts, which were not foreseeable given his past did not involve theft or poisoning. The court identified an efficient intervening cause, contrasting it with the case of Anderson/Couvillon, where the State's negligence was directly linked to the sexual assaults by a foster child. In that case, the State had prior knowledge of the foster child's violent tendencies, which allowed for the anticipation of harm, establishing a duty to disclose that information. In contrast, the City in the present case had no knowledge of the employee's potential for violence, rendering his actions a superseding cause of the injuries. Generally, law enforcement and governmental entities are not liable for failing to protect citizens from criminal acts, with exceptions for specific protections promised to individuals or for informers. A duty to control another’s harmful conduct exists only in special relationships that impose such duties.

The record does not indicate that the Appellants were informants or witnesses requiring protection, nor is there any explicit promise from the City to safeguard them from harm. Additionally, there is no evidence of a special relationship between the City and E.G. that would impose a duty on the City to control E.G.'s actions and prevent him from inflicting injury. Similarly, no special relationship exists between the City and the Appellants that would create a duty for the City to protect them from criminal acts. Analyzing the evidence favorably for the Appellants, the court finds no error in the district court's conclusion that E.G.'s actions were not foreseeable and served as an intervening cause, severing the causal link between the City's actions and the injuries sustained by Wilken, Cheyenne, and Wyatt. Consequently, the appellate court affirms the district court's summary judgment in favor of the City. The City's cross-appeal is rendered unnecessary by this resolution, as appellate courts are not required to analyze matters not essential to the case at hand. The overall conclusion is that the district court's decision to grant summary judgment was correct.