Police Pursuits: Werner v. County of Platte, 284 Neb. 899 (2012)

Issue: Whether trial court properly held passenger was an “innocent third party,” under Political Subdivision Tort Claims Act (“PSTCA”) to allow for recovery, as well as other issues on credits and deductions and whether 5% reduction in damages for failing to wear seatbelt should be reduced from total damages or statutory cap of damages.

Facts: Brian Werner, a passenger, sued Platte County for injuries he sustained during a vehicular pursuit by a law enforcement officer under § 13-911 of the PSTCA, which authorizes compensation for damages to an “innocent third party” who is injured by such pursuit. The trial court held he was an innocent third party and found he sustained $3 million in damages. The court reduced those damages by 5% because Werner was not wearing his seatbelt when the car flipped. The court then reduced the overall award to $1 million under the statutory cap on damages under the PSTCA. An appeal followed as to whether Werner was an “innocent third party”, failing to properly calculate statutory credits and deductions, and failing to properly deduct 5% from the judgment after applying the statutory cap on damages.

Holding: The Supreme Court affirmed holding Werner, as passenger, was an “innocent third party” because he was never the target of the police officer’s pursuit. Whether a person is the target of a police officer’s pursuit is based on the officer’s knowledge before the pursuit occurs, and not what the officer discovers after the fact. An “innocent third party” is defined as a person that was not “sought to be apprehended” by the pursuing officer and as a person who did not promote, provoke, or persuade the driver to flee. The Court noted the Legislature was concerned with the “actions of the third party as those actions may relate to the flight of the driver sought to be apprehended.” Thus, a passenger does not lose “innocent third party” status if they break a law which did not cause the police officer to pursue or instigate the driver to flee.

Generally, a political subdivision can seek a deduction or credit from among other sources, the driver of the fleeing vehicle, or any organization liable for the driver’s conduct of the fleeing vehicle. Because Werner’s actual damages exceeded the capped amount by $2 million, and other sources provided only $140,000, the Supreme Court concluded the trial court properly concluded the County was not entitled to reimbursement.

Further, the 5% reduction for failure to wear a seat belt was properly reduced from the total damages prior to applying the statutory cap.

For a complete copy of the Court’s opinion, click here

Discovery: U.S. Bank Nat. Ass’n v. Peterson, 284 Neb. 820 (2012)

Issue: Whether request for admission was specifically denied to constitute a denial or if it was a bad response and, therefore, considered an admission.

Facts: U.S. Bank National Association (“the Bank”) sued five guarantors following defaults on underlying notes. The Bank served requests for admissions to each guarantor including a request to admit the specific amount due on the note for principal, accrued interest, and a prepayment fee that the Bank claimed was due under each of the notes. The guarantors responded to the prepayment admission stating “Defendant does not have the information with which to admit or deny the numbers set out under Request for Admissions … including prepayment amounts.” The Bank moved for summary judgment and offered the guarantor’s answers to the bank’s request for admissions. The trial court concluded the guarantor’s request for admission as to the prepayment fee was considered a denial and therefore, did not grant summary judgment as to the prepayment fee. The Bank appealed claiming the trial court erred when it treated the guarantor’s response to the Bank’s request for admission as a denial that a prepayment feed was owed.

Holding: The Nebraska Supreme Court reversed the trial court’s decision noting Rule 36 requires the answer to a request for admission “specifically deny the matter” or “set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.” Further, where the party lacks information, the party shall recite information showing he or she has made a reasonable inquiry. The Court considered the guarantor’s answer an admission because the guarantor did not specifically deny that a prepayment was owed and did not make the required assertions that the guarantor had made reasonable inquiry and that the information known or readily obtained by be the guarantor was insufficient to enable the guarantor to admit or deny that a prepayment fee was owed. Noting Rule 36, the Court stated “a bad response is treated as no response” and is an admission. Because the guarantor’s response did not comply with the requirements of Rule 36, it was a “bad response” and, therefore, a failure to respond which should have been treated as an admission.

For a complete copy of the Court’s opinion, click here