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SUPREME COURT OF NEBRASKA
Brandon
v.
County of Richardson, et al.
No. S-01-1158.
264 Neb. 1020; 653 N.W.2d
829
December 6, 2002, Filed
Gerrard, J. 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 [*1022] 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 noneconomic 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 [*1023]
"nominal damages" for loss of society, [**834] 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 severe
emotional distress and that Laux's conduct was a proximate cause of that
distress; and (3) for a determination of the amount of damages for loss of
society.
Upon remand, the district court
shall not reduce the award of $80,000 for Brandon's predeath pain and suffering
or reduce any additional amounts that may be awarded for loss of society or
intentional infliction of emotional distress by allocating a percentage of the
damage to intentional acts on the part of Lotter and Nissen. Further, as there
is no evidence to support a finding of negligence on the part of Brandon, the
district court shall not reduce any damages awarded to JoAnn due to any acts of
Brandon. Brandon II, 261 Neb. at
670-71, 624 N.W.2d at 629.
After remand, the district court made
additional factual findings based upon the record from the previous trial. The
district court found damages for JoAnn in the amount of $7,000 on the claim of
intentional infliction of emotional distress. The district court examined the
evidence regarding loss of society and determined, in essence, that the
testimony offered by Brandon's family regarding their relationship with her was
not consistent with their conduct during the undisputed sequence of events that
preceded Brandon's death. The district court awarded damages for loss of
society in the amount of $5,000. The district court added these awards to the
damages awarded at the previous trial and entered judgment in the amount of
$98,223.20. JoAnn appeals.
ASSIGNMENTS OF ERROR
JoAnn assigns that the district court erred in finding (1) on the
wrongful death claim, that JoAnn's loss of society, comfort, [*1024] and
companionship amounted to $5,000 in damages and (2) on the intentional
infliction of emotional distress claim, that the severe emotional distress caused by Laux's extreme and
outrageous conduct amounted to $7,000 in damages.
STANDARD OF REVIEW
[1,2] The amount of damages to be awarded is a determination solely for
the fact finder, and the fact finder's decision will not be disturbed on appeal
if it is supported by the evidence and bears a reasonable relationship to the
elements of the damages proved. Suburban
Air Freight v. Aust, 262 Neb. 908, 636 N.W.2d 629 (2001). In an action brought
pursuant to the Political Subdivisions Tort Claims Act, or in a bench trial of
an action at law, the factual findings by the trial court will not be disturbed
on appeal unless they are clearly wrong.
Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001).
ANALYSIS
Loss of Society
We turn first to JoAnn's
argument that the award of $5,000 on the wrongful death claim, as damages for
loss of society, was clearly wrong.
[3-6] This court has consistently
recognized that in an action for wrongful death of a child, recoverable damages
include [**835] parental loss of the child's society, comfort, and
companionship. Brandon II, citing Reiser v. Coburn , 255 Neb. 655, 587 N.W.2d
336 (1998). The term "society" embraces a broad range of mutual
benefits each family member receives from the others' continued existence, including love, affection, care, attention,
companionship, comfort, and protection. Brandon II. When a child is wrongfully
killed, a parent's investment in that child of money, affection, guidance,
security, and love is destroyed. Id., citing Reiser, supra. Destruction of such
value is recognized whether the child is a minor or an adult. Id. Parental loss
is not limited to or necessarily dependent upon deprivation of the child's
monetary contribution toward parental well-being. Id.
[7-9] Damages for
loss of society must be determined upon a consideration of the facts of each
case. Id. There is no exact fiscal formula for determination of damages
recoverable for loss of [*1025] society, comfort, and companionship, a loss
which is not subject to some strict accounting method based on monetary
contributions, past or prospective. Id. Because it is impossible to generalize
the extent to which persons enjoy each other's companionship and society, the
value of such highly personal relationships must be decided on a case-by-case
basis. Brandon II.
[10] Because the parent-child relationship has intrinsic value, once a
parent-child relationship is proved to exist, destruction of that relationship
through the wrongful death of the child entitles the parent, who is the
surviving next-of-kin, to damages. Id., citing Reiser, supra. Evidence
regarding the quality and extent of the parent-child relationship may then be
utilized in determining the amount of those damages. Id.
[11] In reversing the district court's first award of "nominal
damages," we stated in Brandon II, 261 Neb. at 665-66, 624 N.W.2d at 626:
JoAnn testified that she had a close
relationship with Brandon. [Brandon's sister, Tammy] Schweitzer testified that
she and Brandon had a close relationship with JoAnn because "we had nobody
but each other." Brayman, Brandon's aunt, testified that Brandon
"loved her mom dearly and she let her mother know that she loved
her." Brandon spent every Christmas with her family.
Although JoAnn often "didn't know what
to say" when Brandon began experiencing her sexual identity crisis, JoAnn
and Brandon did discuss the issue. JoAnn also attended counseling with Brandon.
Even after Brandon began presenting herself as a man, Brandon would call JoAnn,
stop by to see her, or leave a rose in the door for her. Brandon spoke to JoAnn
nearly every day on the telephone after the rapes occurred. Brandon was
interested in becoming a commercial artist, and Brandon told JoAnn that she
wanted to come back to Lincoln and "get her life back."
The record in the present case shows that a
relationship between JoAnn and Brandon did indeed exist. The county does not
assert that there was no relationship between JoAnn and Brandon. The county
asserts that the award of "nominal damages" was reasonable because
JoAnn's relationship with Brandon was "strained and undeveloped"
[*1026] due to Brandon's legal troubles and gender identity disorder. Brief for
appellee at 23. However, Brandon's personal problems are relevant only to the
extent that they impacted her relationship with JoAnn. Damages for loss of society
are not necessarily dependent on the personal qualities of the child. We have
previously recognized that "we will not [**836] enter into a discussion in
which we compare the relative accomplishments of deceased children in wrongful
death actions." Caradori v. Fitch, 200 Neb. 186, 194, 263 N.W.2d 649, 655
(1978). See, also, Brahatcek v. Millard School District, 202 Neb. 86, 273
N.W.2d 680 (1979).
The county's argument addresses
the extent and quality of the relationship between JoAnn and Brandon, not
whether such relationship existed. Contrary to the county's assertion,
the parent-child relationship has intrinsic value, even if that relationship is
less than perfect. A parent-child relationship may exist in spite of any
personal problems the child might have, as the record in this case
demonstrates. In recognizing the "intrinsic value of the relationship
between parent and child," as we did in Reiser v. Coburn, 255 Neb. 655,
664, 587 N.W.2d 336, 342 (1998), we conclude that an award of $0 for the loss
of Brandon's society, comfort, and companionship sustained by JoAnn as a result
of Brandon's death bears no reasonable relationship to the evidence and shocks
the conscience. The award of $0 on JoAnn's loss of society claim is therefore
inadequate as a matter of law.After remand, the district court attempted to
calculate the intrinsic value of Brandon's relationship with her family. The
district court acknowledged the facts set forth above and our holding in Brandon
II. The district court relied on evidence that, according to the district
court, demonstrated that while a parent-child relationship might have existed,
"no real society existed and there is no evidence or reason to believe in
its future development."
The district court noted testimony
indicating that Brandon had been sexually abused by an uncle starting when
Brandon was about 6 or 7 years of age and continuing until Brandon was 14. The
district court also noted that JoAnn later became aware of the sexual abuse,
but nonetheless testified that Brandon had a [*1027]"happy"
childhood. The district court contrasted Schweitzer's testimony that she and
Brandon were "open with [their] mother" and "'there was always
honesty and trust between the three of us,'" with Schweitzer's admission
that she had been sexually abused by the same uncle and that she had witnessed
Brandon being sexually abused, but that Schweitzer and Brandon agreed not to
say anything about it.
The district court also noted that while
Brandon was afraid of Nissen and Lotter, "there is plenty of evidence that
[Brandon] chose not to go home in the face of her fear and danger."
Brandon thought it would be safer to stay with Lambert than to return home. The
district court observed that although Brandon had been raped on Christmas Eve,
Brandon did not go to her family on Christmas Day, nor did any members of
Brandon's family go to her. The district court generally found that prior to
the rape, the relationship between Brandon and the members of her family had
become strained and distrustful and that Brandon had isolated herself from her
family.
[12-14] Given our
standard of review and the record with which we are presented, further recitation
of which would serve no useful purpose, we cannot say the district court's
determination of damages for loss of society was clearly wrong. An award of
damages may be set aside as inadequate when, and not unless, it is so
inadequate as to be the result of passion, prejudice, mistake, or some other
means not apparent in the record. See Holden v. Wal-Mart Stores, 259 Neb. 78,
608 N.W.2d 187 (2000). If an award of damages shocks the conscience, it
necessarily follows that the award was the result of [**837] passion,
prejudice, mistake, or some other means not apparent in the record. Id. On
appeal, we give the fact finder's determination of damages great deference. Norman
v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).
While the district court concluded, as it was required to do, that
the parent-child relationship in this
case had intrinsic value, the district court examined the record and concluded
that the objective evidence of "'"love, affection, care, attention,
companionship, comfort, and protection"'" in that relationship did
not necessarily match the testimony in that regard. See Reiser v. Coburn, 255
Neb. 655, 662, 587 N.W.2d 336, 341 (1998). While [*1028] this does not mean
that there is no relationship for which compensation can be awarded, see
Brandon II, it is certainly relevant to the amount of damages to be awarded,
particularly given the lack of an "'exact fiscal formula for determination
of damages recoverable for loss of society, comfort, and companionship.'" Reiser,
255 Neb. at 663, 587 N.W.2d at 341. After a thorough review of the record, we
conclude that the trier of fact in this case made a determination that is
supported by competent evidence and is not clearly wrong.
Intentional Infliction of
Emotional Distress
The district court awarded
$7,000 for Brandon's damages resulting from Laux's liability for intentional
infliction of emotional distress. JoAnn alleges that these damages are
insufficient and clearly wrong.
The district court acknowledged
that Laux's conduct was intentional and so outrageous and extreme that it was
intolerable and that Laux's conduct was itself "very strong" evidence
of Brandon's mental suffering. See Brandon II. However, the district court
relied on witnesses who saw or spoke to Brandon after her interview with Laux
and testified regarding Brandon's apparent emotional state. Lana Tisdel
testified that when Brandon came out of the room where Laux had interviewed
Brandon, Brandon described Laux as a "fuckin' asshole" and was
"pretty upset." Linda Gutierres testified that Brandon returned to
Gutierres' house after the interview and generally described Brandon as being
as upset and scared as Brandon had been before the interview. JoAnn spoke to
Brandon on the telephone after the interview and testified, generally, that
Brandon was scared of Laux and did not want to talk to him again, but that
Brandon's fears were focused primarily on Lotter and Nissen.
In other words, the district court
found that although Brandon was upset and afraid during the time between her
interview with Laux and her death, Brandon's emotions were affected primarily
by Nissen and Lotter and the mental anguish resulting from the rape and threat
to her life. Laux's conduct, considered discretely by the district court, was
not found to have caused substantial emotional distress. [*1029]
[15,16] In awarding damages for mental anguish, the fact finder must
rely upon the totality of the circumstances surrounding the incident; the
credibility of the evidence and the witnesses and the weight to be given all of
these factors rest in the discretion of the fact finder. See Woitalewicz v.
Wyatt, 229 Neb. 626, 428 N.W.2d 216 (1988). This court is reluctant to
interfere with the judgment of the fact finder in awarding damages for mental
anguish, where the law provides no precise measurement. See Bishop v. Bockoven,
Inc., 199 Neb. 613, 260 N.W.2d 488 (1977). In this case, the district court's
award of damages bears a reasonable relation to the evidence and is not clearly
wrong. Given the great deference that the fact finder's determination of
damages is given on appeal, [**838]see Norman v. Ogallala Pub. Sch. Dist., 259
Neb. 184, 609 N.W.2d 338 (2000), JoAnn's assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we
conclude that the district court's determination of damages is supported by
competent evidence and is not clearly wrong. The district court judgment, in
the amount of $98,223.20, is affirmed.
Affirmed.