Phillips v. Liberty Mut. Ins. Co. , 293 Neb. 123 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/25/2016 09:05 AM CDT
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293 Nebraska R eports
PHILLIPS v. LIBERTY MUT. INS. CO.
Cite as 293 Neb. 123
Joan C. Phillips, appellant, v. Liberty Mutual Insurance
Company, defendant and third -party plaintiff, appellee,
and Douglas County, a political subdivision of the
State of Nebraska, and Timothy Dunning,
sheriff of Douglas County, Nebraska,
third -party defendants, appellees.
___ N.W.2d ___
Filed March 25, 2016. No. S-15-324.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Summary Judgment. On a motion for summary judgment, the question
is not how the factual issue is to be decided but whether any real issue
of material fact exists.
4. Summary Judgment: Proof. A party moving for summary judgment
makes a prima facie case for summary judgment by producing enough
evidence to demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
5. ____: ____. Once the moving party makes a prima facie case, the bur-
den shifts to the party opposing the motion to produce admissible con-
tradictory evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law.
6. Political Subdivisions Tort Claims Act: Negligence: Proof. A neg-
ligence action brought under the Political Subdivisions Tort Claims
Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), has the same
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elements as a negligence action against an individual. In order to
recover in a negligence action, a plaintiff must show a legal duty owed
by the defendant to the plaintiff, a breach of such duty, causation,
and damages.
7. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
8. Judgments: Appeal and Error. When reviewing a question of law, an
appellate court resolves the question independently of the conclusion
reached by the trial court.
9. Negligence. The existence of a duty generally serves as a legal conclu-
sion that an actor must exercise that degree of care as would be exer-
cised by a reasonable person under the circumstances.
10. ____. Duty rules are meant to serve as broadly applicable guidelines for
public behavior, i.e., rules of law applicable to a category of cases.
11. ____. Whether a duty exists is a policy decision.
12. Police Officers and Sheriffs: Arrests. Under the provisions of Neb.
Rev. Stat. § 28-1412 (Reissue 2008), the use of force upon or toward
the person of another is justifiable when the actor is making or assisting
in making an arrest and the actor believes that such force is immediately
necessary to effect a lawful arrest.
13. ____: ____. Under the provisions of Neb. Rev. Stat. § 28-1412 (Reissue
2008), a police officer in making an arrest must use only reason-
able force, which is that amount of force which an ordinary, prudent,
and intelligent person with the knowledge and in the situation of
the arresting police officer would have deemed necessary under the
circumstances.
14. Police Officers and Sheriffs. The reasonableness inquiry as to exces-
sive force is whether the officer’s actions were objectively reasonable.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
Raymond K. Wilson, Jr., Ronald E. Frank, and Mary M.
Schott, of Sodoro, Daly, Shomaker & Selde, P.C., L.L.O.,
for appellant.
Sandra Connolly, Deputy Douglas County Attorney, for
appellees Douglas County and Timothy Dunning.
Heavican, C.J., Wright, Miller-Lerman, Cassel, and
Stacy, JJ.
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Cite as 293 Neb. 123
Miller-Lerman, J.
NATURE OF CASE
On April 1, 2010, Joan C. Phillips, the appellant, was
injured when she was a bystander while two deputies of the
Douglas County Sheriff’s Department were in the process of
taking a minor student into custody. On June 13, 2011, Phillips
filed her complaint in the district court for Douglas County
against Douglas County (the County) and Timothy Dunning,
the elected sheriff of the County, the appellees. Phillips alleged
that she was injured as a result of the deputies’ negligence and
sought damages. On March 25, 2013, the district court filed an
order in which it granted the motion for summary judgment
in favor of the County and Dunning. Following resolution of
several procedural challenges, the district court again granted
summary judgment in favor of the County and Dunning on
April 2, 2015. Phillips appeals. Although our reasoning differs
from that of the district court, we affirm.
STATEMENT OF FACTS
The underlying facts in this case are generally not in dispute.
Phillips is a resident of Omaha, Nebraska, in the County. The
County is a political subdivision of Nebraska. Dunning, at all
relevant times, was the elected sheriff of the County.
Phillips was employed at an alternative education center in
Omaha. On April 1, 2010, deputies from the Douglas County
Sheriff’s Department arrived at the education center for the
purposes of taking one of the minor students into custody. They
had a warrant. As explained in our analysis, the parties and
the district court treated the matter as effectuating an arrest, as
do we.
Before arriving, the deputies had spoken to Phillips, who
requested that they utilize the back door of the building so
as not to disrupt the classroom. When the deputies arrived,
Phillips led the student to the back door of the building. When
Phillips and the student stepped out of the building, the student
saw the deputies and ran back inside the building. The deputies
ran after the student. While the deputies were in the process
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of chasing after the student, the deputies knocked Phillips into
a wall and to the ground. A deputy grabbed the student as the
student held onto the doorknob to a classroom. The deputies
removed the student’s hands from the doorknob, placed her on
the ground, and placed handcuffs on her.
On June 13, 2011, Phillips filed her complaint against the
County and Dunning, alleging that the deputies were negli-
gent when they knocked her into a wall and to the ground
while in the process of taking the student into custody.
Phillips alleged that as a result of this incident, she sustained
personal injuries which resulted in physical and mental pain
and suffering and that she had incurred medical expenses
and lost wages. Phillips alleged in her complaint that she
had made a claim pursuant to the Political Subdivisions
Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq.
(Reissue 2012), and that the claim had been withdrawn pursu-
ant to the PSTCA.
Apart from this lawsuit, Phillips had received workers’
compensation benefits as a result of this incident. In her
complaint, Phillips listed Liberty Mutual Insurance Company
(Liberty Mutual) as a defendant. Liberty Mutual was Phillips’
employer’s workers’ compensation insurer. Liberty Mutual was
later realigned as a third-party plaintiff, and it is not appearing
in this appeal.
The County and Dunning filed an answer on July 14,
2011, in which they generally denied the allegations contained
in Phillips’ complaint and denied liability. The County and
Dunning also raised various affirmative defenses, including:
The deputies “acted reasonably and with due care,” Phillips’
claim was barred by § 13-910 of the PSTCA, and Phillips
failed to state a claim.
On January 12, 2012, the County and Dunning filed a
motion for judgment on the pleadings, which the district court
overruled on February 10.
On April 23, 2012, the County and Dunning filed a motion
for leave to amend their answer, which the district court granted
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on May 7. The County and Dunning amended their answer to
add the affirmative defense of contributory negligence.
On November 26, 2012, the County and Dunning filed
a motion for summary judgment and sought a dismissal of
Phillips’ complaint. The County and Dunning alleged that there
are no genuine issues of material fact in this case and that they
are entitled to judgment as a matter of law. On March 25, 2013,
the district court filed its order in which it granted summary
judgment in favor of the County and Dunning based upon its
determination that Phillips’ claim was derived from a battery
on the student and was therefore barred by § 13-910(7) of the
PSTCA, which bars suits based on intentional torts.
On April 25, 2013, Phillips appealed from the March 25
order. This appeal was docketed in the Court of Appeals as
case No. A-13-366. On July 17, the Court of Appeals dis-
missed Phillips’ appeal, because the March 25 order did not
explicitly dispose of the claim against Liberty Mutual, citing
Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) and Malolepszy
v. State, 270 Neb. 100, 699 N.W.2d 387 (2005). See Phillips
v. Douglas County, 21 Neb. Ct. App. xx (No. A-13-366, July
17, 2013).
On March 12, 2014, Phillips filed a motion to realign the
parties in which she generally asked to align Liberty Mutual as
a third-party plaintiff, which would allow the court to address
only the County and Dunning as defendants. The district court
granted the motion in an order filed April 3. The court ordered
that “the parties should be and hereby are realigned, making
Liberty Mutual . . . a third party Plaintiff with respect to the
above captioned matter.”
On May 5, 2014, Phillips again appealed from the sum-
mary judgment order. This appeal was docketed in the Court
of Appeals as case No. A-14-387. On July 7, the Court of
Appeals dismissed Phillips’ appeal, because the order appealed
from was not a final, appealable order, citing Neb. Rev. Stat.
§ 25-1902 (Reissue 2008). See Phillips v. Douglas County, 22
Neb. Ct. App. xxxvi (No. A-14-387, July 7, 2014).
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PHILLIPS v. LIBERTY MUT. INS. CO.
Cite as 293 Neb. 123
On April 2, 2015, the district court filed an order titled
“Order Nunc Pro Tunc on Defendant[s’] Motion for Summary
Judgment With Parties Aligned.” The district court ordered
that “Defendants [the County] and . . . Dunning’s Motion for
Summary Judgment is granted as to all claims by all parties.”
This is the order appealed from in the current case, docketed
before us as case No. S-15-324.
ASSIGNMENT OF ERROR
Phillips claims, restated, that the district court erred when
it granted the County and Dunning’s motion for summary
judgment.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d
571 (2015). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. Id.
ANALYSIS
In this case, Phillips filed a complaint against the County
and Dunning in which she alleged that the deputies “negli-
gently knocked [her] into a wall and to the ground,” proxi-
mately causing injuries and damages. The parties variously
refer to the occasion of this alleged negligence as having
occurred while the deputies were at the education center to
cause the apprehension or imminent apprehension of the stu-
dent, effectuate custody of the student, or execute a lawful
warrant for the arrest of the student. Consistent with the man-
ner in which the case was conducted before the district court,
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we treat the matter as one involving effectuating an arrest of
the student.
Following the filing of their amended answer and pre-
liminary motions, the County and Dunning filed a motion
for summary judgment. In connection with the summary
judgment motion, the parties and the district court discussed
whether the student was subjected to a battery and whether
the intent thereof was transferred to Phillips, thus precluding
recovery under § 13-910(7), which bars recovery for inten-
tional torts. In this regard, based on their reading of Britton
v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011),
they placed considerable, arguably undue, emphasis on the
“intent” of the deputies. The district court reasoned that
Phillips’ claim was barred by § 13-910 of the PSTCA and
sustained the motion.
Phillips claims that the district court erred when it granted
the County and Dunning’s motion for summary judgment. As
explained more fully below, with due regard for the plead-
ings and evidence, we view this matter as a negligence action
filed by Phillips against the County and Dunning for which
there is no issue of material fact that they did not breach their
duty and are entitled to summary judgment as a matter of
law. Although our reasoning differs from that of the district
court, as explained below, we affirm the district court’s grant
of summary judgment in favor of the County and Dunning.
See Doe v. Board of Regents, 283 Neb. 303, 809 N.W.2d 263
(2012) (stating that appellate court may affirm lower court’s
ruling which reaches correct result, albeit based on differ-
ent reasoning).
[3] On a motion for summary judgment, the question is
not how the factual issue is to be decided but whether any
real issue of material fact exists. Gonzalez v. Union Pacific
RR. Co., 292 Neb. 281, 872 N.W.2d 579 (2015). In review-
ing a summary judgment, an appellate court views the evi-
dence in a light most favorable to the party against whom
the judgment is granted and gives such party the benefit of
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all reasonable inferences deducible from the evidence. Id.
Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show there is no genuine issue
as to any material facts or as to the ultimate inferences that
may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law. Id.
[4,5] A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence were uncontroverted at trial. Roskop Dairy v. GEA
Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015). Once the
moving party makes a prima facie case, the burden shifts to the
party opposing the motion to produce admissible contradictory
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law. Id.
[6] Subject to certain exceptions, “in all suits brought under
the [PSTCA] the political subdivision shall be liable in the
same manner and to the same extent as a private individual.”
§ 13-908. Accord Connelly v. City of Omaha, 284 Neb. 131,
816 N.W.2d 742 (2012). Thus, we have recognized that a neg-
ligence action brought under the PSTCA has the same elements
as a negligence action against an individual. See Connelly
v. City of Omaha, supra. In order to recover in a negligence
action, a plaintiff must show a legal duty owed by the defend­
ant to the plaintiff, a breach of such duty, causation, and dam-
ages. Peterson v. Kings Gate Partners, 290 Neb. 658, 861
N.W.2d 444 (2015).
[7,8] The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a
particular situation. Id. When reviewing a question of law, an
appellate court resolves the question independently of the con-
clusion reached by the trial court. Kimminau v. City of Hastings,
291 Neb. 133, 864 N.W.2d 399 (2015). In the past, we used the
risk-utility test to determine the existence of a tort duty. See
Peterson v. Kings Gate Partners, supra. However, in A.W. v.
Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
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(2010), we abandoned the risk-utility test and adopted the duty
analysis set forth in the Restatement (Third) of Torts: Liability
for Physical and Emotional Harm (2010). Under this approach,
an actor ordinarily has a duty to exercise reasonable care when
the actor’s conduct creates a risk of physical harm. Riggs v.
Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011). This approach
examines the defendant’s conduct, not in terms of whether the
defendant had a “duty” to take particular actions, but, rather,
in terms of whether the defendant’s conduct breached the duty
to exercise the care that would be exercised by a reasonable
person under the circumstances. Id.
In A.W., we stated:
[F]oreseeable risk is an element in the determination of
negligence, not legal duty. In order to determine whether
appropriate care was exercised, the fact finder must assess
the foreseeable risk at the time of the defendant’s alleged
negligence. The extent of foreseeable risk depends on the
specific facts of the case and cannot be usefully assessed
for a category of cases; small changes in the facts may
make a dramatic change in how much risk is foresee-
able. Thus, courts should leave such determinations to the
trier of fact unless no reasonable person could differ on
the matter.
280 Neb. at 216, 784 N.W.2d at 917.
[9-11] After A.W., the existence of a duty generally serves
as a legal conclusion that an actor must exercise that degree
of care as would be exercised by a reasonable person under
the circumstances. See id. See, also, Peterson v. Kings Gate
Partners, supra. Moreover, “[d]uty rules are meant to serve as
broadly applicable guidelines for public behavior, i.e., rules of
law applicable to a category of cases.” A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. at 212-13, 784 N.W.2d at 914-15.
Whether a duty exists is a policy decision. Peterson v. Kings
Gate Partners, supra. In this case, we conclude as a matter of
law that the deputies who were effectuating the arrest of the
student had a duty and were required to exercise that degree
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of care toward innocent persons, such as Phillips, as would be
exercised by a reasonable deputy effectuating an arrest under
the circumstances.
Our analysis is informed by statutes and the common law in
this area. Neb. Rev. Stat. § 28-1412(1) (Reissue 2008) states:
Subject to the provisions of this section and of section
28-1414, the use of force upon or toward the person of
another is justifiable when the actor is making or assisting
in making an arrest and the actor believes that such force
is immediately necessary to effect a lawful arrest.
Neb. Rev. Stat. § 28-1414 (Reissue 2008), referred to in
§ 28-1412(1), states in part:
(3) When the actor is justified under sections 28-1408
to 28-1413 in using force upon or toward the person of
another but he recklessly or negligently injures or cre-
ates a risk of injury to innocent persons, the justification
afforded by those sections is unavailable in a prosecu-
tion for such recklessness or negligence towards inno-
cent persons.
[12-14] We have stated that under the provisions of
§ 28-1412, the use of force upon or toward the person of
another is justifiable when the actor is making or assisting in
making an arrest and the actor believes that such force is imme-
diately necessary to effect a lawful arrest. State v. Thompson,
244 Neb. 189, 505 N.W.2d 673 (1993). Under the provisions
of § 28-1412, a police officer in making an arrest must use
only reasonable force, which is that amount of force which an
ordinary, prudent, and intelligent person with the knowledge
and in the situation of the arresting police officer would have
deemed necessary under the circumstances. State v. Thompson,
supra; Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d
175 (1991). See, also, Waldron v. Roark, 292 Neb. 889, ___
N.W.2d ___ (2016). The reasonableness inquiry as to excessive
force is whether the officer’s actions were objectively reason-
able. See Tyler v. Kyler, 15 Neb. Ct. App. 939, 739 N.W.2d 463
(2007) (affirming summary judgment where bystander to stop
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for traffic violation became subject of arrest and determining
officer’s use of force was reasonable as matter of law based
on objective standard). See, also, Graham v. Connor, 490 U.S.
386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
In regard to innocent third persons who are injured while an
officer is effectuating an arrest, we have stated that the duty
of law enforcement officers to apprehend violators of the law
must be balanced with a duty of care to the general public as
well. Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800
(1981). A similar duty has been recognized by other jurisdic-
tions. See, e.g., Giant Food v. Scherry, 51 Md. App. 586, 590,
444 A.2d 483, 486 (1982) (stating that “a person has, in effect,
a double responsibility—one to the prospective arrestee not
to use unnecessary force against him, and one to the public at
large to use even reasonable force in a reasonable manner”).
In Giant Food, the Court of Special Appeals of Maryland
described the circumstances in which an officer who is effectu-
ating an arrest may be held liable for injuring an innocent third
person. The court stated:
These kinds of situations, in which an innocent
bystander is injured or killed in the course of an attempt
to apprehend a criminal or defend an attack on one’s per-
son or property, arise in a variety of contexts—some more
life-threatening to the actor than others, some involving
felons and felonies, others involving misdemeanants and
misdemeanors. The context is important in determining
the reasonableness of the action taken, but the basic stan-
dard seems to be the same. Where the evidence shows
that the actor, whether a police officer or a private citizen,
acted without due regard to the danger caused to inno-
cent third parties, he (and his employer) have been held
liable. . . .
Conversely, where the evidence establishes that the
defendant acted reasonably, liability has been denied.
Giant Food v. Scherry, 51 Md. App. at 591-92, 444 A.2d at 487
(collecting cases).
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The treatment we afford the innocent bystander to an arrest
has found support in the construction of a statute comparable
to § 28-1412, as well as in the common law as reflected in
the Restatement (Second) of Torts (1965). With respect to the
statute, in Hyatt v. Anoka Police Dept., 691 N.W.2d 824, 827
(Minn. 2005), the Minnesota Supreme Court construed the
Minnesota reasonable force statute, Minn. Stat. Ann. § 609.06,
subd. 1 (West 2003), which provided:
“Except as otherwise provided in subdivision 2, reason-
able force may be used upon or toward the person of
another without the other’s consent when the following
circumstances exist or the actor reasonably believes them
to exist:
“(1) when used by a public officer or one assisting a
public officer under the public officer’s direction:
“(a) in effecting a lawful arrest[.]”
The Minnesota Supreme Court stated as follows:
[T]he authorization in section 609.06 is stated broadly
to include force that is directed “toward the person of
another.” . . .
The statute does not specifically address the legal
consequence where reasonable force is directed toward
the arrestee but causes harm to an innocent bystander.
But reference to the common law provides some guid-
ance on that issue. Generally, tort law recognizes that the
use of force . . . is “privileged” if it is reasonable and it
is used for the purpose of effecting a lawful arrest. See,
e.g., Restatement (Second) of Torts § 118 (1965) (“The
use of force against another for the purpose of effecting
his arrest and the arrest thereby effected are privileged if
[several applicable] conditions . . . exist”). And, in that
context, the privilege extends to harm to an innocent
bystander caused by force directed toward the arrestee,
unless under the circumstances it was “unreasonable for
[the actor] to take the chance of causing grave harm
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to bystanders.” Restatement (Second) of Torts § 137
cmt. c (1965).
Hyatt v. Anoka Police Dept., 691 N.W.2d at 828-29 (emphasis
in original).
The statutory interpretation and comments of the Minnesota
Supreme Court in Hyatt find application to the present case,
where it is undisputed that the contact the deputies had with
Phillips occurred prior to their contact “upon” the student.
That is, the behavior of the deputies was directed “toward” the
student but not yet “upon” the student at the time they made
contact with Phillips. See § 28-1412. The force used in connec-
tion with the arrest of the student, if reasonable, is privileged,
and in this context, the privilege extends to the harm to the
innocent bystander, Phillips, caused by force directed “toward”
the student, unless it was unreasonable for the officers to take
the chance of causing harm to Phillips.
Our statutes and case law are in accord with the Restatement
(Second), supra. As recognized by the Minnesota Supreme
Court in Hyatt, the Restatement (Second), supra, § 118, gen-
erally provides that an officer is privileged to use reasonable
force in effectuating a lawful arrest. The Restatement extends
this privilege to harm caused to innocent bystanders, unless the
officer’s actions were unreasonable under the circumstances.
See Restatement (Second), supra, § 137.
The Restatement provides commentary to illustrate when an
officer’s conduct while effectuating an arrest creates an unrea-
sonable risk of harm to an innocent third person:
[I]f an actor is privileged to shoot at an escaping felon,
he is not liable to a third person harmed by a stray bul-
let, if when he shot there was little or no probability that
any person other than the felon would be hit. But when
he shoots into a crowded thoroughfare, and unintention-
ally hits a passerby, his act is unprivileged if, in view of
the surrounding conditions, including the nature of the
crime for which he seeks to arrest, recapture, or maintain
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custody, the harm which may ensue if he does not act,
and his skill or lack of skill in the use of the weapon, it is
unreasonable for him to take the chance of causing grave
harm to bystanders.
Restatement (Second) of Torts § 137, comment c. at 246
(1965).
In the present case, the question before us is whether there is
a genuine issue of material fact regarding whether the deputies
were acting reasonably at the point in time when the deputies
“knocked [Phillips] into a wall and to the ground” while they
were effectuating the arrest of the student. Viewing the evi-
dence in the light most favorable to Phillips, we determine that
there is no material issue of fact regarding whether the depu-
ties acted reasonably. The evidence shows that the deputies
arrived at the school pursuant to a warrant to take the student
into custody. When the deputies arrived, Phillips escorted the
student out the back door of the building, but when the student
saw the deputies, she turned and ran back into the building.
The deputies chased after the student in order to effectuate
the arrest. As the deputies ran past Phillips, they knocked her
into a wall and to the ground. Nothing in the record suggests
that the deputies were acting recklessly or unreasonably at the
point in time when they made contact with Phillips. Compare
Giant Food v. Scherry, 51 Md. App. 586, 444 A.2d 483 (1982)
(in case involving apprehension of robber, stating it was ques-
tion for fact finder whether security guard acted unreasonably
by firing second shot at vehicle after first shot failed to stop
robber’s fleeing vehicle, which second shot shattered woman’s
window in apartment complex, causing woman mental and
emotional distress).
There is no evidence in the record before us that the depu-
ties were utilizing weapons in effectuating the arrest of the
student or that they were chasing the student in a way that
could be described as reckless. Based upon the framework set
forth above, the deputies were allowed to use a reasonable
amount of force in effectuating the arrest of the student, and
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nothing in the record indicates that at the point in time when
they bumped into Phillips, the deputies realized or objectively
should have realized that their actions created an unreasonable
risk of harm to any innocent third persons, such as Phillips.
Although whether the deputies acted unreasonably and
breached their duty is a question of fact, even viewing the facts
in the light most favorable to Phillips, no reasonable fact finder
could find that the deputies breached their duty to exercise rea-
sonable care with respect to Phillips. The County and Dunning
demonstrated that they were entitled to judgment as a matter of
law, and thus, the burden shifted to Phillips to present evidence
showing the existence of a material issue of fact regarding
breach which would prevent entry of judgment against her. See
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d
776 (2015). We have reviewed the record and find no evidence
which raises a question of material fact regarding the reason-
ableness of the deputies’ actions or prevents entry of judgment
in favor of the County and Dunning.
CONCLUSION
Even viewing the evidence in the light most favorable to
Phillips, we determine that the County and Dunning were
entitled to summary judgment. Although our reasoning dif-
fers from that of the district court, we affirm the order of the
district court which granted summary judgment in favor of the
County and Dunning.
A ffirmed.
Connolly, J., not participating.