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Brandon v. County of Richardson12/6/2002
NATURE OF CASE
JoAnn Brandon (JoAnn) appeals from the judgment of the district court awarding damages in the amount of $98,223.20 for negligence, wrongful death, and intentional infliction of emotional distress in connection with the murder of JoAnn's daughter Teena Brandon (Brandon) and the events leading up to Brandon's death. JoAnn contends that the damages awarded by the district court are insufficient and constitute clear error.
BACKGROUND
On December 31, 1993, Brandon, Lisa Lambert, and Phillip Devine were found murdered in Lambert's rural Humboldt farmhouse in Richardson County, Nebraska. John L. Lotter and Thomas M. Nissen, also known as Marvin T. Nissen, were convicted of the murders. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). 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. JoAnn also brought a civil rights action against Lotter, Nissen, and Laux in federal court; the federal court dismissed the claims against Laux. See Brandon v. Lotter, 976 F. Supp. 872 (D. Neb. 1997), aff'd 157 F.3d 537 (8th Cir. 1998).
In the state court case, the district court dismissed JoAnn's second amended petition based on the defendants' demurrer alleging that the petition did not state a cause of action. We reversed that determination. See Brandon v. County of Richardson, 252 Neb. 839, 566 N.W.2d 776 (1997) (Brandon I). The case proceeded to trial. See Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (2001) (Brandon II). The evidence adduced at the trial is summarized in Brandon II and will not be repeated here. The district court found the county negligent and awarded economic damages (funeral expenses) of $6,223.20 and non-economic damages of $80,000. However, the district court reduced the damage award on the negligence claim by 85 percent for the intentional torts of Lotter and Nissen, and by 1 percent for the negligence of Brandon. The district court denied recovery on the intentional infliction of emotional distress claim and awarded "nominal damages" for loss of society, comfort, and companionship. See id. JoAnn appealed. We reversed the judgment of the district court and remanded the cause, stating as follows:
We affirm the district court's determination that the county had a duty to protect Brandon, its finding that the county was negligent in failing to discharge that duty, and its finding that Brandon suffered predeath pain and suffering damages in the amount of $80,000.
We reverse the district court's allocation of 85 percent of the predeath pain and suffering damages to the intentional torts of Lotter and Nissen as Nebraska's comparative negligence law does not allow for allocation of damages to the acts of intentional tort-feasors. We also reverse the district court's determination that Laux's conduct during the December 25, 1993, interview was not extreme and outrageous. We further reverse the district court's award of "nominal damages" for loss of society, comfort, and companionship and its finding that Brandon was 1 percent contributorily negligent.
We therefore remand this cause to the district court (1) for a determination of whether JoAnn has proved that Brandon suffered emotional distress so severe that no reasonable person should be expected to endure it and, if so, whether Laux's conduct was a proximate cause of any such distress; (2) to award damages for intentional infliction of emotional distress if JoAnn has proved both that Brandon suffered s
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