Wilken v. City of Lexington

754 N.W.2d 616, 16 Neb. Ct. App. 817
CourtNebraska Court of Appeals
DecidedJuly 1, 2008
DocketA-07-553
StatusPublished
Cited by1 cases

This text of 754 N.W.2d 616 (Wilken v. City of Lexington) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilken v. City of Lexington, 754 N.W.2d 616, 16 Neb. Ct. App. 817 (Neb. Ct. App. 2008).

Opinion

754 N.W.2d 616 (2008)
16 Neb. App. 817

Shauna WILKEN, Mother and Next Friend of Cheyenne Wilken and Wyatt Wilken, Minor Children, and Jeffery Wilken, Appellants and Cross-Appellees,
v.
CITY OF LEXINGTON, a Political Subdivision of the State of Nebraska, Appellee and Cross-Appellant.

No. A-07-553.

Court of Appeals of Nebraska.

July 1, 2008.

*619 Maren Lynn Chaloupka and Robert Paul Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for appellants.

Thomas J. Culhane and Jason R. Yungtum, of Erickson & Sederstrom, P.C., Omaha, for appellee.

SIEVERS, MOORE, and CASSEL, Judges.

MOORE, Judge.

INTRODUCTION

Shauna Wilken, mother and next friend of the minor children, Cheyenne Wilken and Wyatt Wilken, and Jeffery Wilken (Wilken) brought a negligence action against the City of Lexington, Nebraska (City), in the district court for Dawson County. The district court granted summary judgment in favor of the City. Shauna and Wilken (hereinafter the Appellants) appeal, and the City cross-appeals. Because the court did not err in finding an efficient intervening cause cutting off any liability on the part of the City for the injuries to Wilken, Cheyenne, and Wyatt, we affirm the order granting the City's motion for summary judgment.

BACKGROUND

On October 4, 2004, the Buffalo County sheriff's office received a report of a missing juvenile, W.V., who resided in Elm Creek, Nebraska, and was reported missing by her mother. The Lexington Police Department received the missing person report the day it was issued.

On October 5, 2004, Kenneth Schumacher, an investigator with the Lexington Police Department, received a report from an acquaintance that the acquaintance's son had brought home an unknown young girl. Schumacher went to the acquaintance's home in Lexington, where he met a female juvenile who identified herself as W.V. Schumacher asked W.V. to come with him to the police department. W.V. left the house, walked to Schumacher's vehicle, and rode with Schumacher to the police station without any restraints such as handcuffs. Nor did Schumacher control W.V. by holding on to her.

When Schumacher and W.V. arrived at the police station, W.V. got out of the vehicle, walked into the station, and accompanied Schumacher to his office without any restraints or resistance. Schumacher interviewed W.V. in his office without incident. Schumacher telephoned the Buffalo County sheriff's office, learned additional information about W.V., determined *620 that she was the missing juvenile, and arranged for delivery of W.V. to the Buffalo County sheriff's office, all while W.V. was unrestrained in his office.

Schumacher and Buffalo County Deputy Sheriff Katherine Tvrdik arranged to meet near the county line in Overton, Nebraska, to allow Tvrdik to pick up W.V. and return her to Buffalo County authorities. Shortly after making these arrangements, Schumacher and W.V. left the Lexington Police Department, walked to Schumacher's vehicle, and began the drive to Overton. W.V.'s entry into Schumacher's vehicle and the trip to Overton were completed without incident. At no time during the trip was W.V. restrained, and she made no effort to flee or resist Schumacher in his efforts to return her to Buffalo County.

During the time Schumacher and W.V. were together on October 5, 2004, W.V advised Schumacher that she had run away from home and that she had taken a vehicle from Elm Creek the previous day that was not hers, but that she believed she was authorized to drive it. W.V. also told Schumacher that she had used methamphetamine in the preceding year and had used it during the 24 hours preceding her apprehension by Schumacher. According to Schumacher, W.V. did not appear to be under the influence of any substance, including methamphetamine, despite her disclosure. Schumacher also learned that W.V. had been involved in an argument and possibly a fistfight with another girl at her school on the previous day.

Upon reaching Overton, Schumacher parked his car at a gas station to wait for Tvrdik. W.V. was seated in the front passenger seat of Schumacher's vehicle and was unrestrained except for the seatbelt that she had worn during the trip. When Tvrdik arrived, Schumacher told W.V. to leave the car, and he watched while she unbuckled her seatbelt and began to open the passenger-side door. Schumacher then got out of the vehicle, leaving the key in the ignition and the engine running, and he walked to the vehicle driven by Tvrdik.

As Schumacher was handing a written report to Tvrdik, W.V. climbed behind the steering wheel of Schumacher's vehicle and drove off at a high rate of speed. Schumacher got into Tvrdik's vehicle, and Tvrdik began a pursuit of W.V. The pursuit was terminated before W.V. was apprehended, due to public safety concerns. At all relevant times, Schumacher was on duty as an investigator for the City and the car driven initially by Schumacher and then taken by W.V. was owned and maintained as a police vehicle by the City.

After taking Schumacher's vehicle, W.V. returned to Lexington and picked up E.G., also a juvenile. W.V. and E.G. drove to Cozad, Nebraska, stealing another vehicle and subsequently abandoning Schumacher's vehicle. Schumacher's vehicle was recovered on October 6, 2004, outside of Lexington, where it had been abandoned by W.V. and E.G. W.V. and E.G. took various items from Schumacher's vehicle, including a loaded police-issued shotgun which was in the trunk of the vehicle.

W.V. and E.G.'s next encounter with law enforcement officials occurred on October 6, 2004, when a Nebraska State Patrol officer spotted them in the vehicle stolen from Cozad and attempted to stop them. E.G. was driving, and when E.G. stopped the vehicle, W.V. got out and used the shotgun taken from Schumacher's vehicle to shoot at the patrol officer. After escaping from the patrol officer, W.V. and E.G. abandoned the vehicle stolen from Cozad and stole a third vehicle.

On October 7, 2004, W.V. and E.G. were seen in Holdrege, Nebraska, and officers from various law enforcement agencies began *621 a pursuit of W.V. and E.G. in Phelps County, Nebraska. The law enforcement officers pursued W.V. and E.G. on Phelps County Road 748, at which time the stolen vehicle encountered a pickup truck being driven in the opposite direction by Wilken. In the rear seat of Wilken's pickup were his two children, Cheyenne and Wyatt. As the stolen vehicle approached Wilken's pickup, E.G., using the shotgun and ammunition stolen from the trunk of Schumacher's vehicle, fired a shot at the pickup. The shot hit the rear side window of the pickup, shattering the glass. Cheyenne and Wyatt sustained physical injuries. Later on October 7, the pursuit of W.V. and E.G. concluded at a different location, at which time W.V. and E.G. were apprehended.

On October 21, 2005, the Appellants filed a complaint against the City under Nebraska's Political Subdivisions Tort Claims Act. The Appellants alleged that Cheyenne and Wyatt sustained physical and mental injuries and that Wilken sustained mental injuries, all of which were proximately caused by the City's negligence. Specifically, the Appellants alleged that the City was negligent in that (1) Schumacher left an unrestrained prisoner and a loaded shotgun in his running vehicle, while he exited the vehicle to visit with another person, and failed to take reasonable measures to prevent W.V. from absconding with his vehicle and weapon and (2) the City negligently supervised Schumacher during the course of his employment.

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Cite This Page — Counsel Stack

Bluebook (online)
754 N.W.2d 616, 16 Neb. Ct. App. 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilken-v-city-of-lexington-nebctapp-2008.