University of Vermont AAHS

Larreau v. DeLara

Nebraska Court of Appeals
UNPUBLISHED,
2004 WL 2339481

October 19, 2004

 

Summary of Opinion

 

Plaintiff Larreau was seriously injured when his motorcycle collided with a horse in the roadway.  This was a lawsuit against the deputy sheriff who responded to a loose horse call and against the county for which he worked.  There was no evidence the deputy’s course of action—attempting to track the horse while remaining in his patrol unit, was unreasonable.  Therefore, neither the deputy nor the county is liable for the injuries.

 

Text of Opinion

 

INTRODUCTION

 

 This case involves a suit brought pursuant to the Political Subdivisions Tort Claims Act for personal injuries sustained by Joseph C. Larreau when the motorcycle he was traveling on collided with a horse near Scotts Bluff, Nebraska. Larreau's guardians, Leland L. Larreau and Betty Larreau (the plaintiffs), brought this negligence suit against Scotts Bluff County (the County) and Scotts Bluff Deputy Sheriff Robert A. DeLara. The district court found that the plaintiffs failed to meet their burden of proof and dismissed the petition. The plaintiffs filed this timely appeal. For the reasons set forth herein, we affirm.

 

BACKGROUND

 

 At 7:21 p.m., on October 7, 1998, a citizen placed a 911 emergency dispatch call to the Scotts Bluff County communications center notifying the County that there was a horse between the two eastbound and two westbound lanes of U.S. Highway 26. At 7:23 p.m., DeLara was dispatched to respond to the report about the horse. DeLara was approximately 2 miles from the reported location of the horse when he was dispatched. DeLara proceeded directly to the location but did not activate his vehicle's emergency lights or siren. DeLara arrived at the reported location at 7:25 p.m.

 

 DeLara testified that when he arrived at the reported location, he activated his spotlight as well as his alley light in order to locate the horse. The alley light was located on top of the patrol car above the overhead emergency lights. DeLara located the horse in the grassy ditch area adjacent to the shoulder of the westbound lanes of Highway 26. As DeLara approached, the horse began to walk south across the ditch toward Highway 26. DeLara positioned his vehicle between the horse and the highway to prevent the horse from reaching the highway. The horse stopped and began eating. DeLara radioed Chief Deputy Sheriff Richard Blaha for assistance. Blaha indicated he was en route and would be there soon. The horse then turned and began walking east. DeLara put his vehicle in reverse and drove slowly backward in an attempt to prevent the horse from accessing the highway. The horse stopped momentarily but then began running to the east. DeLara testified that it was at this point he realized the horse was going to try to cross the highway and that he activated his vehicle's overhead lights to warn traffic. DeLara continued backing up in an attempt to keep his vehicle between the horse and the highway. The horse, however, ran behind DeLara's vehicle and gained access to Highway 26.

 

 Less than a minute after DeLara activated his vehicle's overhead lights, Larreau, who was traveling westbound by motorcycle on Highway 26, sustained catastrophic injuries after either colliding with the horse or swerving to avoid the horse. The impact occurred at 7:29 p.m., 4 minutes after DeLara had arrived at the scene. Timothy Dean, Larreau's friend who was following Larreau in a pickup truck, testified that as he was approaching, he saw the police lights 1 & frac12; to 2 miles ahead on the right shoulder of the road. Both Dean and Larreau moved to the left lane and slowed to 50 to 55 miles per hour prior to the impact.

 

 On June 30, 2000, the plaintiffs filed a negligence suit against DeLara and the County pursuant to the Nebraska Political Subdivisions Tort Claims Act in their capacity as Larreau's appointed guardians. In their operative amended petition, filed August 30, the plaintiffs alleged, summarized, that DeLara was negligent in (1) failing to exercise reasonable care in preventing the horse from running onto Highway 26, (2) failing to exercise proper traffic control by either warning motorists of the potential hazard or stopping traffic, and (3) failing to timely request adequate assistance. With regard to the County, the plaintiffs alleged, summarized, that the County was negligent in (1) failing to adequately train DeLara, (2) failing to establish and/or implement appropriate policies regarding searching for and restraining horses at large and traffic control, and (3) failing to adequately respond to the report of a horse at large near a highway. DeLara and the County entered general denials to the allegations and affirmatively alleged that the proximate cause of the accident was a combination of the negligence of the horse's owner and keeper and Larreau's own negligence in failing to keep a proper lookout and to keep his motorcycle under control.

 

 The district court on its own motion ordered a bifurcated trial, limiting the initial trial to the issue of liability. The court overruled the parties' respective motions for summary judgment but did find that DeLara owed Larreau a general duty of care.

 

 At the January 2, 2003, bench trial, arguments were heard off the record and evidence was received in the form of depositions and exhibits. The district court dismissed the plaintiffs' petition on February 14, finding that DeLara's actions were reasonable and constituted "an acceptable course of conduct" and concluding accordingly that the plaintiffs had failed to meet their burden of proof. The plaintiffs filed a motion for new trial which was subsequently overruled. The plaintiffs then filed this timely appeal.

 

ASSIGNMENTS OF ERROR

 

 The plaintiffs assign, restated and consolidated, that the district court erred in (1) determining that DeLara conformed to the applicable standard of care of a reasonably prudent person who has been trained at the Nebraska Law Enforcement Training Center and has been certified as a Nebraska law enforcement officer, (2) determining that DeLara did not violate Scotts Bluff County Sheriff's office standard operating policy and procedure No. F-0059, and (3) failing to grant their motion for new trial because the verdict in favor of DeLara was unsupported by the evidence or contrary to law.

 

STANDARD OF REVIEW Standard of Care.

 

 Whether a duty exists at all is a question of law. Defining the scope of an existing duty is likewise a question of law. Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. In re Conservatorship of Hanson, 268 Neb. 200, 682 N.W.2d 207 (2004).

 

 In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of a trial court will not be disturbed on appeal unless they are clearly wrong. Neb.Rev.Stat. § 13-901 et seq. (Reissue 1997); Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003); Brandon v. County of Richardson, 264 Neb. 1020, 653 N.W.2d 829 (2002); Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697 (2001). When determining the sufficiency of the evidence to sustain the judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).

 

 New Trial.

 

 A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Big River Constr. Co. v. L & H Properties, 268 Neb. 207, 681 N.W.2d 751 (2004); Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).

 

ANALYSIS

Standard of Care.

 

 This is a negligence action brought under the Political Subdivisions Tort Claims Act and as such, has the same elements as a negligence action against an individual, i.e., duty, breach of duty, causation, and damages. See, § 13-901 et seq.; Cerny, supra. Because the instant case was bifurcated, the sole issue to be decided at this point in the legal process is that of liability.

 

 Whether a duty exists at all is a question of law. Defining the scope of an existing duty is likewise a question of law. Stahlecker, supra. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. In re Conservatorship of Hanson, supra.

 

 A court must first determine if a duty in fact exists, and if so, it must define the scope and extent of that duty, also known as the standard of care. Cerny, supra. Generally, that standard of care is stated as the reasonably prudent person standard. Id. This objective standard is modified in circumstances in which the alleged tort-feasor has special knowledge, skill, training, or experience pertaining to the conduct in question. Id. In that case, the tort-feasor is held to a standard consistent with his or her specialized knowledge. Id. Once the standard of care has been identified, the determination of whether the alleged tort-feasor deviated from that standard and was therefore negligent is a question of fact. Id.

 

 We find that as a matter of law, DeLara owed a duty of care in responding to the report of the horse near the highway. We agree with the district court's conclusion that given DeLara's special training, the standard of care he is to be held to is that of a reasonably prudent person who has been trained at the Nebraska Law Enforcement Training Center and has been certified as a Nebraska law enforcement officer. Having determined that DeLara owed a duty of care and having defined the scope of that duty, we proceed to the plaintiffs' first assigned error in which they contend that the district court erred in finding that DeLara did not breach his duty of care.

 

 Whether DeLara deviated from the standard of care and was therefore negligent is a question of fact. In answering this question, the district court had to determine what conduct the standard of care required under the particular circumstances presented by the evidence. See Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697 (2001). The district court found that DeLara's decision to use his vehicle as a barrier to try to prevent the horse from entering the highway "constituted an acceptable course of conduct" which was "reasonable under the facts and circumstances as they existed at the time." Pursuant to our standard of review, the district court's findings of fact will not be set aside unless such findings are clearly erroneous. See Hradecky v. State, 264 Neb. 771, 652 N.W.2d 277 (2002).

 

 The plaintiffs contend that DeLara's "only reasonable course of action" was to exit his vehicle and implement learned traffic control procedures. Brief for appellants at 16. Randy Westfall, a former instructor at the Nebraska Law Enforcement Training Center and expert witness for the plaintiffs, testified that because horses are unpredictable, DeLara should have focused on controlling traffic rather than remaining in his vehicle. Westfall opined that DeLara should have stopped traffic and then sought and received assistance in containing the horse before allowing the traffic to proceed.

 

 Although Westfall's testimony supports the plaintiffs' position, deposition testimony from several other sources supports the conclusion that DeLara's actions were reasonable under the circumstances. For example, a patrol sergeant for the County's road patrol division, who had extensive experience dealing with horses, testified that it likely would not have been effective for DeLara to exit his vehicle because the horse was mobile and could change positions quickly. A staff instructor with the Nebraska Law Enforcement Training Center testified that both options, exiting the vehicle to implement traffic control procedures or remaining in the vehicle and attempting to "herd" the horse, had merit. The instructor stated that in his opinion, DeLara's actions were reasonable and did not violate the standard of care. In addition, a veterinary doctor, who was an expert witness for the County, testified that all horses are unpredictable and that he had also used a vehicle as a barrier to keep animals out of areas he did not want them to go. He opined that there was nothing DeLara could have reasonably done that would have ensured that the horse would not enter the highway.

 

 In sum, while the record clearly contains some evidence supporting the plaintiffs' argument that DeLara should have implemented traffic control measures, there is also a substantial amount of evidence to the effect that DeLara's chosen course of conduct had merit and was reasonable in light of the facts and circumstances of the situation. Whether DeLara met the standard of care was a question of fact for the district court to determine. Given the record before us, we cannot conclude that the district court's findings were clearly erroneous. The plaintiffs' first assigned error is therefore without merit.

 

 Standard Operating Policy and Procedure.

 

 In their second assigned error, the plaintiffs allege that the district court erred in failing to find that DeLara violated Scotts Bluff County Sheriff's office standard operating policy and procedure No. F-0059, which provides in relevant part:

 

I. Policy:

It shall be the policy of the Scotts Bluff County Sheriff's Office to report missing, damaged or malfunctioning traffic control devices or signs. If the control device or sign is critical to safety in heavy traffic areas the deputy will provide traffic control until the device or sign is repaired. It is also the policy of the Scotts Bluff County Sheriff's Office to report and have road hazards removed.

II. Procedure:

A. If a deputy finds a control device malfunctioning or a traffic sign has been knocked down or removed, he should:

1. Notify the dispatcher at the Communications Center and request they notify the highway or roads department responsible for the device or sign.

2. On a county controlled road, if the malfunction or unavailable sign presents a critical traffic hazard this information is to [be] given to the County Road Department through Central Communications. The deputy is to remain at the location, providing traffic control, until the situation can be corrected, or until another emergency needs immediate attention, or until a reasonable amount of time for repair crews to arrive has passed or until relieved.

....

B. The same procedures should be followed for any road hazard.

 

The plaintiffs argue that the horse near Highway 26 constituted a road hazard that required DeLara to " 'remain at the location, providing traffic control,' " until the situation could be corrected and that in failing to do so, DeLara was in violation of the standard operating procedure. Brief for appellant at 27. Although procedure No. F-0059(II)(B) does provide that stated procedures be followed for "any" road hazard, the record contains conflicting testimony regarding whether or not under the facts and circumstances of this case the horse near the highway constituted a "hazard" within the purview of procedure No. F-0059.

 

 A captain with the Nebraska State Patrol testified that whether or not a horse by the roadside is a hazard that would require an officer to stop traffic is a judgment call based on an officer's perception of the situation. Blaha, chief deputy sheriff in Scotts Bluff County, testified that a horse by the highway constitutes only a "potential hazard." Westfall, on the other hand, testified that all animals near roadways are hazards.

 

 Pursuant to our standard of review, we view this conflicting evidence in the light most favorable to DeLara. See Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001). Accordingly, we find that the record contains sufficient evidence to support the district court's finding that DeLara's chosen course of action did not violate procedure No. F-0059. The plaintiffs' second assigned error is without merit.

 

New Trial.

 

 Because we find that the district court's decision was supported by sufficient evidence, the plaintiffs' third assigned error contending that the district court erred in failing to grant their motion for new trial is likewise without merit.

 

CONCLUSION

 

 Based on the evidence before it, the district court concluded that the plaintiffs did not establish liability. We find no reversible error.

 

 AFFIRMED.


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