Dion v. City of Omaha ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/20/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    DION v. CITY OF OMAHA
    Cite as 
    311 Neb. 522
    Trevor Dion, Personal Representative of the Estate
    of Bryce David Dion, deceased, appellant and
    cross-appellee, v. City of Omaha, defendant
    and third-party plaintiff, appellee and
    cross-appellant, and Langley Productions,
    Inc., a foreign corporation organized
    under the laws of California,
    third-party defendant, appellee
    and cross-appellee.
    ___ N.W.2d ___
    Filed May 6, 2022.     No. S-21-545.
    1. Political Subdivisions Tort Claims Act. Whether the allegations made
    by a plaintiff set forth claims which are precluded by exemptions under
    the Political Subdivisions Tort Claims Act presents a question of law.
    2. Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court has an obligation to resolve the questions independently
    of the conclusion reached by the trial court.
    3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    4. Political Subdivisions Tort Claims Act: Appeal and Error. In actions
    brought pursuant to the Political Subdivisions Tort Claims Act, the fac-
    tual findings of a trial court will not be disturbed on appeal unless they
    are clearly wrong.
    5. Contracts. The interpretation of a contract and whether the contract is
    ambiguous are questions of law subject to independent review.
    6. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit:
    Immunity. If an exemption under 
    Neb. Rev. Stat. § 13-910
     (Reissue
    2012) applies, the political subdivision is immune from the claim and the
    proper remedy is to dismiss it for lack of subject matter jurisdiction.
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    DION v. CITY OF OMAHA
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    7. Statutes: Immunity: Waiver. Statutes purporting to waive the protec-
    tion of sovereign immunity are to be strictly construed in favor of the
    sovereign and against waiver.
    8. Political Subdivisions Tort Claims Act: Immunity: Waiver. Courts
    apply a broad reading to statutory exemptions from a waiver of sover-
    eign immunity, such as 
    Neb. Rev. Stat. § 13-910
    (7) (Reissue 2012).
    9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
    only where stated by the most express language of a statute or by such
    overwhelming implication from the text as will allow no other reason-
    able construction.
    10. Political Subdivisions Tort Claims Act: Appeal and Error. No mat-
    ter how a tort claim has been framed and regardless of the assailant’s
    employment status, appellate courts have variously described that the
    intentional tort exemption applies whenever the claim stems from, arises
    out of, is inextricably linked to, is essential to, and would not exist
    without, one of the underlying intentional torts listed in 
    Neb. Rev. Stat. § 13-910
    (7) (Reissue 2012).
    11. Complaints: Words and Phrases. The gravamen is the substantial point
    or essence of a claim, grievance, or complaint and is found by examin-
    ing and construing the substance of the allegations of the complaint as a
    whole without regard to the form or label adopted by the pleader or the
    relief demanded.
    12. Political Subdivisions Tort Claims Act: Immunity: Waiver:
    Complaints. To determine the gravamen of the complaint, courts look
    to whether the plaintiff has alleged an injury independent of that caused
    by the excluded acts, i.e., that the injury is linked to a duty to act that
    is entirely separate from the acts expressly excluded from the statutory
    waiver of sovereign immunity.
    13. Battery: Appeal and Error. Although appellate courts have sometimes
    described battery as any intentional, unlawful physical violence or con-
    tact inflicted on a human being without his or her consent, “unlawful”
    in that context simply means unconsented to.
    14. Torts: Liability: Intent. A person will be liable for intentional tortious
    conduct directed at one person but which unintentionally results to harm
    to another person.
    15. Police Officers and Sheriffs: Liability. A law enforcement officer is
    not liable to a third person harmed by a stray bullet when shooting at an
    escaping felon when there was little or no probability that any person
    other than the felon would be hit.
    16. Police Officers and Sheriffs. A law enforcement officer is unprivileged
    to shoot at an escaping felon if it was unreasonable under the circum-
    stances to risk causing grave harm to bystanders.
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    DION v. CITY OF OMAHA
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    17. Claims: Immunity. A plaintiff cannot allege that the harmful or offen-
    sive contact causing the injuries the plaintiff seeks to recover for are
    privileged for the purpose of sovereign immunity while unprivileged for
    the purpose of determining the merits of the claim.
    18. Political Subdivisions Tort Claims Act: Battery: Intent. If recovery
    for the injury in question depends upon an intentional, harmful, or offen-
    sive contact’s being unprivileged, then it depends also upon a battery and
    is “arising from” it for purposes of 
    Neb. Rev. Stat. § 13-910
    (7) (Reissue
    2012). In such circumstances, the claim does not allege an injury inde-
    pendent of that caused by one of the excluded intentional torts.
    19. Moot Question. Mootness refers to events occurring after the filing
    of a suit which eradicate the requisite personal interest in the dispute’s
    resolution that existed at the beginning of the litigation.
    20. Contracts: Negligence: Liability: Presumptions. There is a pre-
    sumption against any intention to indemnify against an indemnitee’s
    own negligence.
    21. Contracts: Negligence: Liability. Clauses indemnifying the indemni-
    tee for the indemnitee’s own negligence are strictly construed against
    the claimant.
    22. Contracts: Negligence: Liability: Intent. To ensure that the parties
    truly intended to indemnify for the indemnitee’s negligence, a contract
    of indemnity will not be construed to indemnify the indemnitee against
    losses resulting from the indemnitee’s own negligence unless the inten-
    tion of the parties is clearly and unambiguously expressed.
    23. ____: ____: ____: ____. The intention to indemnify the indemnitee for
    the indemnitee’s own negligence need not be stated through a specific
    reference to indemnification against liability for negligence; but, if not
    so expressed, it must otherwise clearly appear from the language used
    or from a determination that no other meaning could be ascribed to the
    contract such that the court is firmly convinced that such interpretation
    reflects the intention of the parties.
    24. ____: ____: ____: ____. To determine if the contract indemnifies against
    an indemnitee’s own negligence, courts generally first examine whether
    the express language covers the indemnitee’s own negligence and, sec-
    ond, whether the contract contains clear and unequivocal language that
    it was the parties’ intention to cover the indemnitee’s own negligence.
    25. Contracts: Negligence: Liability. Standing alone, general, broad, and
    seemingly all-inclusive language is simply not sufficient to impose
    liability for the negligence of the indemnitee.
    Appeal from the District Court for Douglas County: James
    M. Masteller, Judge. Affirmed.
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    DION v. CITY OF OMAHA
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    311 Neb. 522
    Christian T. Williams, Brian E. Jorde, and David A. Domina,
    of Domina Law Group, P.C., L.L.O., for appellant.
    Ryan J. Wiesen, Assistant Omaha City Attorney, for appellee
    City of Omaha.
    Bruce A. Smith and Audrey R. Svane, of Woods Aitken,
    L.L.P., for appellee Langley Productions, Inc.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    A member of a television crew that was filming law enforce-
    ment activities was shot and killed at the scene of a robbery
    when officers fired their weapons at the suspect. The filming
    was conducted pursuant to a contract between the city and the
    television production company. The estate of the crew member
    who died sued the city for wrongful death. The city brought a
    third-party claim against the production company for breach
    of alleged contractual agreements to defend, indemnify, and
    insure the city. Following summary judgment against the city
    on its claim against the production company for breach of
    contract, a bench trial was held on the estate’s wrongful death
    claim. A verdict was rendered in favor of the city. The court
    reasoned that the wrongful death action arose out of a battery
    and therefore was barred by sovereign immunity. Alternatively,
    the court found the estate had failed to prove the elements of
    breach and proximate causation. The estate appeals, and the
    city cross-appeals.
    II. BACKGROUND
    Bryce David Dion worked for Langley Productions, Inc.
    (Langley), as a sound technician on the filming crew for the
    “COPS” television program. In the summer of 2014, Dion
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    DION v. CITY OF OMAHA
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    311 Neb. 522
    was part of a two-person crew that, pursuant to an agreement
    between Langley and the City of Omaha (City), rode with and
    filmed the activities of two Omaha Police Department (OPD)
    officers. On August 26, 2014, while at the scene of a robbery
    in progress at a fast-food restaurant, Dion was hit by a bullet
    fired by OPD officers as they aimed and shot at the suspect
    after the suspect had threatened the officers by pointing what
    appeared to be a firearm at them. It was later determined
    that the handgun the suspect brandished was not, in fact, an
    actual firearm.
    1. Agreement
    Under the agreement signed by the City’s mayor and the
    producer of COPS (Agreement), the City granted Langley
    access to OPD and its personnel. It allowed video and audio to
    be recorded during production “in all circumstances and loca-
    tions” and gave the COPS crew “reasonable access to officers
    and situations such officers encounter.” All film activity was
    “subject to and under [the] control of the [OPD] officer in
    charge,” and Langley agreed to “comply with all instructions
    and restrictions as directed by [OPD].”
    Paragraph 5 of the Agreement provided for a duty to defend
    and indemnify as follows:
    [Langley] agrees that it shall indemnify, defend and hold
    harmless, the City, its officers, agents, employees and
    administrators from and against any and all claims for
    damage and liability for injury to or death of persons; and
    for damage to or destruction of property occurring dur-
    ing and arising out of the acts or omission of [Langley],
    its employees and/or agents with regard to [Langley’s]
    filming; and shall pay the reasonable cost of defending
    lawsuits resulting therefrom, including, but not limited
    to, reasonable attorneys fees, court costs and any judg-
    ment awarded to a third party as the result of such suit.
    In accordance with the foregoing, [Langley] also agrees
    to indemnify, defend and hold harmless the City from
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    DION v. CITY OF OMAHA
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    311 Neb. 522
    and against all claims related to intellectual property
    claims arising out of [Langley’s] filming activities.
    Another portion of paragraph 5 stated that the City shall be
    named an additional insured on Langley’s comprehensive gen-
    eral liability insurance policy.
    2. Complaint for Wrongful Death
    Dion’s estate (Estate) filed a wrongful death action against
    the City, alleging that OPD owed Dion a special duty of care
    and protection and that its police officers negligently shot Dion
    while acting within the scope of their employment.
    The Estate alleged, summarized, that OPD did not pro-
    vide adequate protection of the filming crew through various
    alleged deficiencies of general training and instruction of OPD
    personnel and the crew. It also alleged that on August 26, 2014,
    OPD failed to adequately monitor and communicate to other
    officers the filming crew’s whereabouts, give the filming crew
    adequate instructions for its safety, or carry out OPD duties in
    a manner that accounted for the presence of the filming crew
    at the scene. Finally, the Estate alleged that the OPD officers at
    the scene failed to identify the proper target before discharging
    their firearms, used excessive force, and acted unreasonably in
    light of the presence of innocent bystanders.
    Prior to filing its action, the Estate had timely filed a notice
    of its claim in accordance with the Political Subdivisions Tort
    Claims Act (PSTCA). The claim was not acted upon by the City
    and was withdrawn more than 6 months after it was filed.
    The City filed an answer affirmatively alleging sovereign
    immunity as a defense, on the grounds that the Estate’s claim
    arose out of an intentional tort of battery. Alternatively, the
    City alleged that the use of force was objectively reasonable
    and privileged. Further, the City alleged that Dion assumed
    the risk associated with filming law enforcement personnel
    while on duty and that Dion voluntarily and without notify-
    ing the officers had placed himself within an active armed-
    robbery situation.
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    DION v. CITY OF OMAHA
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    311 Neb. 522
    3. Third-Party Complaint Against Langley
    The City filed a third-party complaint against Langley for
    breach of contract. It also brought a claim against Langley for
    promissory estoppel, which is not at issue in this appeal.
    The City had sent a letter to Langley requesting that it for-
    ward the wrongful death complaint to its insurance carrier for
    defense against the Estate’s claims. Langley’s insurance carrier
    thereafter notified the City it was denying the City’s request
    for defense and indemnification under the commercial general
    liability policy issued to Langley.
    The City alleged in its third-party complaint that Langley
    was contractually required to indemnify the City against any
    claim for damages and liability for injury to or death of per-
    sons, defend the City against any claim for injury to or death
    of persons, name the City as an additional insured in Langley’s
    general liability insurance policy, and abide by a duty of
    fair dealing.
    4. Motions For Summary Judgment
    The City moved for summary judgment against the Estate
    on the grounds that it was immune from the wrongful death
    suit, which arose out of a battery, as set forth in 
    Neb. Rev. Stat. § 13-910
    (7) (Reissue 2012), which provides in relevant
    part that the PSTCA shall not apply to “[a]ny claim arising out
    of assault, battery, false arrest, false imprisonment, malicious
    prosecution, abuse of process, libel, slander, misrepresentation,
    deceit, or interference with contract rights.”
    Langley moved for summary judgment against the City on
    the third-party claims against it. The City filed a cross-motion
    for summary judgment against Langley.
    (a) Wrongful Death
    The district court denied summary judgment in favor of the
    City on the Estate’s wrongful death action.
    At the hearing on the motion, the City had argued that the
    historical facts were undisputed and that a battery occurred
    by virtue of the officers’ intentional act of firing at the
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    DION v. CITY OF OMAHA
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    311 Neb. 522
    suspect. The City relied on a standard from the Restatement
    (Second) of Torts, 1 quoted in Britton v. City of Crawford, 2 that
    an actor is subject to liability to another for battery if (1) he
    or she acts intending to cause a harmful or offensive contact
    with the person of the other or a third person, or an imminent
    apprehension of such a contact, and (2) a harmful contact with
    the person of the other directly or indirectly results. The City
    argued that it was undisputed that the City intended to cause
    harmful contact to the suspect, a third person, which indirectly
    caused harmful contact to Dion.
    The Estate argued, among other things, that the actions of
    the officers lawfully using their firearms in the course of duty
    would not constitute an intentional tort. It was also discussed
    that the officers were exonerated by a grand jury of any crimi-
    nal activity in connection with placing the filming crew in
    harm’s way.
    In denying summary judgment against the Estate, the court
    reasoned that our opinion in Phillips v. Liberty Mut. Ins. Co. 3
    stands for the proposition that actions for injuries to bystanders
    by law enforcement in the course of pursuing a suspect are not
    immune under § 13-910(7). And the court found there was a
    genuine issue as to whether OPD acted reasonably in relation
    to the events leading to Dion’s death.
    (b) Breach of Contract
    The court granted Langley’s motion for summary judg-
    ment as to the City’s claim against Langley for breach of
    contract, which was based on paragraph 5 of the Agreement.
    The court reasoned that the contract did not affirmatively
    and unambiguously protect the City from its own negligence
    and that the duty to be named an additional insured was
    immaterial because Langley’s policy included only operations
    performed by Langley or on Langley’s behalf and excluded
    1
    Restatement (Second) of Torts § 13 (1965).
    2
    Britton v. City of Crawford, 
    282 Neb. 374
    , 
    803 N.W.2d 508
     (2011).
    3
    Phillips v. Liberty Mut. Ins. Co., 
    293 Neb. 123
    , 
    876 N.W.2d 361
     (2016).
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    DION v. CITY OF OMAHA
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    bodily injury arising out of operations performed for the state
    or municipality.
    (c) Promissory Estoppel
    The court denied Langley’s motion for summary judg-
    ment on the City’s claim for promissory estoppel. It gener-
    ally denied the City’s cross-motion for summary judgment
    against Langley.
    5. Wrongful Death Verdict
    The court bifurcated for separate bench trials the Estate’s
    wrongful death action against the City and the City’s third-
    party action against Langley for promissory estoppel. The trials
    were held before a different judge than the judge who presided
    over the summary judgment hearing. The court ultimately
    issued a verdict in favor of the City on the Estate’s wrongful
    death claim, first, on the grounds of sovereign immunity and,
    alternatively, on the failure to prove negligence.
    (a) Findings of Fact
    In its order following the trial on the Estate’s wrongful death
    claim, the court summarized the relevant evidence and made
    findings of historical facts.
    The court found that the only explicit restriction OPD and
    the City placed upon the filming crew was that it was not to
    exit the patrol car during large crowd disturbances involving
    more than 10 people. Otherwise, OPD and the City generally
    expected that the crew would follow and observe the offi-
    cers’ orders.
    On the day in question, Dion and Mike Lee, the cameraman
    for the two-person filming crew, were riding with OPD officers
    Brooks Riley and Jason Wilhelm. The court found that Dion
    had ridden with Riley and Wilhelm several times previously
    over the course of the preceding 8 weeks and had developed a
    cooperative and professional relationship with them.
    The officers were aware that the filming crew always
    exited the patrol car and followed them everywhere they
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    went while on duty. Dion had advised the officers they should
    act like the crew was not there, although the officers testified
    the crew would take direction from officers and follow offi-
    cers’ commands or directives.
    On the night in question, OPD detective Darren Cunningham
    radioed that a robbery suspect had entered a fast-food restau-
    rant. Cunningham waited for responding officers to arrive in
    order to set up a perimeter around the restaurant. Riley and
    Wilhelm, who were only a few blocks away, proceeded directly
    to the scene.
    When Riley and Wilhelm arrived, they exited their patrol
    car. A civilian in the parking lot yelled to Wilhelm and Riley,
    “Help, help, they need help inside.” Riley and Wilhelm did not
    give any instructions to Dion and Lee. As Riley and Wilhelm
    approached Cunningham, they did not identify Dion and Lee
    to Cunningham, who assumed they were law enforcement,
    because they were wearing dark clothing and were with Riley
    and Wilhelm. Cunningham did not observe the video camera,
    boom microphone, and audio equipment carried by Dion and
    Lee. Dion and Lee did not wear any clothing identifying them-
    selves as media.
    Cunningham and Riley entered the restaurant on the east
    side of the building through the south vestibule door, followed
    by Lee. Wilhelm circled around the building to enter through
    the western entrance.
    There was a customer at the service counter and an employee
    standing behind the service counter handing money from the
    cash register to the suspect, who was behind the counter.
    Riley testified he saw neither the customer nor the employee.
    Cunningham and Wilhelm saw the employee.
    When Cunningham and Riley entered the area behind the
    counter and confronted the suspect, the suspect drew what
    appeared to be a black handgun, pointed it at Cunningham and
    Riley, and pulled the trigger. Although the suspect’s weapon
    was later determined to be a pellet gun, the court found that the
    officers reasonably believed it was a real firearm.
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    DION v. CITY OF OMAHA
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    Cunningham discharged his firearm once and retreated into
    the hallway in order to avoid endangering the employee,
    who was in his line of fire. The suspect also exited into the
    hallway, where he again pointed his firearm at Cunningham.
    Cunningham attempted to discharge his firearm at the suspect,
    but it briefly malfunctioned.
    The suspect fled toward the east vestibule doors, pointing
    his firearm at Riley, who, in turn, discharged his firearm at
    the suspect. Wilhelm, seeing the suspect attempting what he
    believed to be deadly force against Cunningham and Riley,
    also discharged his firearm at the suspect.
    The three officers discharged their firearms at the suspect as
    he exited the restaurant through the east vestibule doors and
    ran through the parking lot. The suspect was no longer firing
    what was believed to be a deadly weapon at that time, but
    the officers believed the suspect continued to pose a threat to
    their lives and the lives of others, including other officers who
    could be responding to assist and the members of the public
    at large.
    The court noted that all three officers testified that they were
    aiming and shooting directly at the suspect while he fled. The
    officers testified that they did not accidentally pull the trig-
    ger of their guns or drop their firearms, but instead intended
    to use deadly force against the suspect. The court found that
    the officers’ shots were fired in a directed manner and not in a
    haphazard manner.
    The court found that none of the officers saw Dion at any
    point after entering the scene and that they were not aware of
    where Dion might be. The three officers were not even aware
    Dion had entered the restaurant until after they had all ceased
    discharging their weapons. All three officers testified that had
    they seen Dion within their line of fire, they would not have
    discharged their firearms and would instead have changed their
    position so as to obtain a clear line of fire toward the suspect.
    The court specifically found the officers’ testimony to be cred-
    ible and supported by the evidence.
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    The court found that although the suspect was initially in the
    vicinity of an employee and a customer, he moved away from
    both in his attempt to escape. The court found that although
    there were civilians present in the northeast corner of the res-
    taurant’s parking lot, civilians were not congregating around
    the east entrance when the suspect fled, and there was no evi-
    dence the suspect was near any civilians outside.
    The officers discharged their weapons a combined total of
    36 times. The majority of the bullets, 24, were fired as the
    suspect exited through the east vestibule. It could not be deter-
    mined which officer fired the single bullet that killed Dion.
    Dion was later found slumped on the floor in the middle of the
    east vestibule. However, the court found there was no evidence
    as to Dion’s precise location or body positioning when he sus-
    tained the bullet wound. Nor, found the court, did the evidence
    rule out the possibility that Dion was struck by a bullet that had
    ricocheted or initially struck the suspect.
    (b) Sovereign Immunity
    The court concluded, as a threshold matter, that the Estate’s
    action was barred by sovereign immunity. The court did not
    agree with the prior judge’s reading of Phillips as it pertained
    to § 13-910(7). 4
    The court concluded that the elements of battery had been
    met because the officers intended to cause harmful contact
    with the suspect, which resulted in harmful contact with Dion.
    The court relied on the definition of battery from Britton as
    an infliction of unconsented contact with another, 5 as well as
    case law from other jurisdictions holding that under a theory
    of transferred intent, an actor may still be found liable for
    battery when the harmful contact occurs to a third person
    4
    See Phillips v. Liberty Mut. Ins. Co., 
    supra note 3
    .
    5
    Britton v. City of Crawford, supra note 2.
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    who was not the intended target of the contact. 6 The court
    also relied upon the Restatement (Second) of Torts’ statement
    that an actor is liable for battery if the actor intended to cause
    harmful or offensive contact with the person of the other or
    a third person, or imminent apprehension of such contact,
    and a harmful contact with the person of the other directly or
    indirectly results. 7 In this analysis, the court did not consider
    whether the officers could have committed a battery if their
    acts of shooting at the suspect were privileged.
    The court reasoned that to fall under § 13-910(7), the under-
    lying action need not be an action “for” one of the listed inten-
    tional torts, but need only be any claim “arising out of” one of
    those intentional torts. Even if the complaint alleged acts of
    negligence, concluded the court, the wrongful death action was
    inextricably linked to a battery and thus was barred by sover-
    eign immunity.
    (c) Negligence
    Alternatively, the court concluded that the Estate had failed
    to prove negligence.
    The court found no special relationship between Dion and
    the City creating a heightened duty of care. Rather, it found
    that OPD owed Dion an ordinary duty of reasonable care under
    the circumstances. The court reasoned that Dion was neither a
    party nor a third-party beneficiary to the Agreement and that
    case law did not generally support a special duty to protect
    a bystander from the intentional conduct of an employee of
    the defendant.
    The court utilized negligence propositions from Phillips
    describing the balancing of the duty of law enforcement to
    apprehend violators against the duty of care to the general
    6
    See, Hensley on behalf of North Carolina v. Price, 
    876 F.3d 573
     (4th Cir.
    2017); Hensley v. Suttles, 
    167 F. Supp. 3d 753
     (W.D.N.C. 2016); Alteiri v.
    Colasso, 
    168 Conn. 329
    , 
    362 A.2d 798
     (1975).
    7
    See Restatement, supra note 1.
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    public, as well as the privilege to use reasonable force in
    effecting a lawful arrest, which extends to harm caused to
    innocent bystanders unless the officers’ actions were unreason-
    able under the circumstances. 8 The court found under these
    propositions that the officers acted reasonably. Therefore, the
    officers did not breach the applicable duty of care.
    The court rejected the Estate’s argument that the officers
    should have refrained from engaging the suspect until they
    affirmatively ascertained Dion’s whereabouts. The court stated:
    It is unreasonable to expect an officer, when faced with a
    suspect who is within close proximity to the officer and
    pulling the trigger on what appears to be a real firearm,
    to simply stand there or try to take cover merely because
    a third-person, who the officer does not observe, but
    who could possibly be somewhere in the vicinity, may
    be present.
    The court also rejected the Estate’s contention that the suspect
    had fled through a “crowded thoroughfare,” given the lack
    of evidence that civilians were in the parts of the parking lot
    affected by the line of fire.
    In any event, the court weighed the surrounding circum-
    stances for determining whether the act of shooting into a
    crowded thoroughfare is privileged, including the nature of
    the crime, the harm that may ensue if the officer does not
    act, and the officer’s skill in the use of the weapon. The court
    found these factors weighed heavily in favor of the City. The
    suspect was engaging in violence, including what the officers
    reasonably believed to be attempted homicide; it was reason-
    able to conclude that such a suspect might also shoot at other
    responding officers or innocent civilians; and all three officers
    specifically aimed at the suspect and not merely in his gen-
    eral vicinity.
    The court also found that the Estate had failed to prove
    proximate causation. The court explained that there was no
    8
    See Phillips v. Liberty Mut. Ins. Co., supra note 3.
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    evidence for it to come to a conclusion, absent speculation or
    conjecture, that Dion’s death was caused by any failure of the
    City or OPD to advise him to remain outside the restaurant or
    to wear any clothing that identified him as media.
    6. Verdict on Promissory Estoppel
    The court found that in light of its verdict against the Estate
    on its wrongful death action, there was no actual case or con-
    troversy with respect to a claim under promissory estoppel for
    indemnification. As for the duty to defend, the court found that
    promissory estoppel, which was based on oral statements made
    before the written contract, was not a viable theory of recovery
    because the written contract covered the same subject matter.
    The court alternatively found that the alleged statements on
    Langley’s behalf were too vague and indefinite to support a
    claim for promissory estoppel. Finally, the court found that it
    was not reasonable for the City to rely upon statements made
    on Langley’s behalf during negotiations of a contract.
    III. ASSIGNMENTS OF ERROR
    The Estate assigns that the district court erred by (1) dis-
    missing Dion’s claims against the City, ruling that the PSTCA
    barred those claims; (2) ruling Dion’s claims arose out of an
    intentional tort for which sovereign immunity is not waived by
    the PSTCA; (3) ruling that OPD acted reasonably at all times;
    and (4) holding that OPD officers did not owe Dion a height-
    ened duty of care.
    On cross-appeal, the City assigns that the district court
    erred by (1) holding as a matter of law that the indemnifica-
    tion and defense provisions of the Agreement were ambi­g­
    uous, (2) holding as a matter of law that the indemnification
    and defense provisions in the Agreement were unenforceable,
    and (3) dismissing with prejudice the City’s third-party breach
    of contract claims against Langley seeking indemnification
    and defense of the Estate’s claims against the City. The City
    assigns as error the court’s order rendering its verdict on
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    promissory estoppel only “to the extent it became a final[,]
    appealable order enabling appellate review of the [order grant-
    ing summary judgment in favor of Langley on its breach of
    contract claim].”
    IV. STANDARD OF REVIEW
    [1] Whether the allegations made by a plaintiff set forth
    claims which are precluded by exemptions under the PSTCA
    presents a question of law. 9
    [2] When reviewing questions of law, an appellate court has
    an obligation to resolve the questions independently of the con-
    clusion reached by the trial court. 10
    [3] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below. 11
    [4] In actions brought pursuant to the PSTCA, the factual
    findings of a trial court will not be disturbed on appeal unless
    they are clearly wrong. 12
    [5] The interpretation of a contract and whether the con-
    tract is ambiguous are questions of law subject to indepen-
    dent review. 13
    V. ANALYSIS
    The Estate appeals from the judgment in the wrongful death
    action, which dismissed the action with prejudice. The City
    cross-appeals the court’s order on summary judgment dismiss-
    ing with prejudice its third-party claim against Langley for
    breach of contract. We first address the Estate’s appeal in the
    wrongful death action.
    9
    Edwards v. Douglas County, 
    308 Neb. 259
    , 
    953 N.W.2d 744
     (2021).
    10
    
    Id.
    11
    
    Id.
    12
    Stonacek v. City of Lincoln, 
    279 Neb. 869
    , 
    782 N.W.2d 900
     (2010).
    13
    Wintroub v. Nationstar Mortgage, 
    303 Neb. 15
    , 
    927 N.W.2d 19
     (2019).
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    1. Wrongful Death
    As a threshold issue, we must determine if the Estate’s
    wrongful death action was barred by sovereign immunity. Neb.
    Const. art. V, § 22, provides: “The state may sue and be sued,
    and the Legislature shall provide by law in what manner and
    in what courts suits shall be brought.” The Estate asserts that
    sovereign immunity was waived by the PSTCA. 14
    Under the PSTCA, a political subdivision has no liability
    for the torts of its officers, agents, or employees, “except to
    the extent, and only to the extent, provided by the [PSTCA].” 15
    In suits brought under the PSTCA, a political subdivision is
    “liable in the same manner and to the same extent as a private
    individual under like circumstances,” except “as otherwise pro-
    vided in the [PSTCA].” 16
    [6] The Legislature has allowed through the PSTCA a lim-
    ited waiver of a political subdivision’s sovereign immunity
    with respect to some, but not all, types of tort claims. 17 Section
    13-903 defines a “[t]ort claim” as
    any claim against a political subdivision for money only
    on account of damage to or loss of property or on account
    of personal injury or death, caused by the negligent or
    wrongful act or omission of any employee of the political
    subdivision, while acting within the scope of his or her
    office or employment, under circumstances in which the
    political subdivision, if a private person, would be liable
    to the claimant for such damage, loss, injury, or death
    but shall not include any claim accruing before January
    1, 1970.
    Section 13-910, in turn, exempts certain tort claims from
    the limited waiver of sovereign immunity of the PSTCA.
    14
    See 
    Neb. Rev. Stat. §§ 13-901
     to 13-928 (Reissue 2012).
    15
    § 13-902.
    16
    § 13-908.
    17
    Edwards v. Douglas County, 
    supra note 9
    .
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    If an exemption under § 13-910 applies, the political subdivi-
    sion is immune from the claim and the proper remedy is to
    dismiss it for lack of subject matter jurisdiction. 18
    (a) Arising Out of Listed Intentional Tort
    At issue in this case is subsection (7) of § 13-910. Under
    § 13-910(7), the PSTCA shall not apply to “[a]ny claim arising
    out of assault, battery, false arrest, false imprisonment, mali-
    cious prosecution, abuse of process, libel, slander, misrepre-
    sentation, deceit, or interference with contract rights.” Section
    13-910(7) sets forth what is generally referred to as the “inten-
    tional tort” exemption. 19
    We have discussed that a similar intentional tort exemp-
    tion from the waiver of sovereign immunity under the Federal
    Tort Claims Act 20 reflects public policy determinations against
    allowing government employees to engage at the government’s
    expense in lawless activities that are practically, if not legally,
    outside the scope of their proper functions. 21 This was deemed
    contrary to the promotion of high standards of performance
    by a sovereign’s employees. 22 Also, it was determined to be
    against public policy to expose the public fisc to intentional
    tort claims, which are often unwieldy, being easy for plaintiffs
    to exaggerate and difficult to defend. 23 The Legislature implic-
    itly adopted similar public policy stances through the inten-
    tional tort exemptions of the PSTCA and the State Tort Claims
    Act. 24 Such public policy is the province of the Legislature
    rather than the courts. 25
    18
    See   id.
    19
    See   id.
    20
    See   
    28 U.S.C. §§ 1346
    (b) and 2671 to 2680 (2018).
    21
    See   Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 
    899 N.W.2d 241
     (2017).
    22
    See   
    id.
    23
    See   
    id.
    24
    See   
    id.
    25
    See   
    id.
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    [7-9] Statutes purporting to waive the protection of sov-
    ereign immunity are to be strictly construed in favor of the
    sovereign and against waiver. 26 As a corollary to this canon
    of construction, and in order to strictly construe the PSTCA
    against a waiver of sovereign immunity, we apply a broad read-
    ing to statutory exemptions from a waiver of sovereign immu-
    nity, such as § 13-910(7). 27 A waiver of sovereign immunity
    is found only where stated by the most express language of a
    statute or by such overwhelming implication from the text as
    will allow no other reasonable construction. 28
    We recently observed in Edwards v. Douglas County 29 that
    the language used by the Legislature in § 13-910(7) is “strik-
    ingly broad” and that “without qualification or limitation, it
    exempts from the waiver of sovereign immunity ‘[a]ny claim
    arising out of’” the listed intentional torts.
    [10] No matter how a tort claim has been framed and regard-
    less of the assailant’s employment status, we have variously
    described that the intentional tort exemption applies whenever
    the claim stems from, arises out of, is inextricably linked to, is
    essential to, and would not exist without one of the underlying
    intentional torts listed in § 13-910(7). 30 We held in Edwards,
    “All of these articulations speak to the same point: when a tort
    claim against the government seeks to recover damages for
    personal injury or death stemming from an assault, the claim
    necessarily ‘arises out of assault’ and is barred by the inten-
    tional tort exemption under the PSTCA.” 31
    [11,12] In the context of the other intentional torts speci-
    fied in § 13-910(7), such as for any claim arising out of
    misrepresentation or deceit, we have described that under
    26
    Edwards v. Douglas County, 
    supra note 9
    .
    27
    See 
    id.
    28
    
    Id.
    29
    
    Id. at 276
    , 953 N.W.2d at 755-56.
    30
    See Edwards v. Douglas County, 
    supra note 9
    .
    31
    
    Id. at 277-78
    , 953 N.W.2d at 756.
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    the “‘gravamen of the complaint test,’” an appellate court
    examines the underlying substance of a dispute in order to
    determine whether sovereign immunity lies. 32 In general, the
    “gravamen” is the “substantial point or essence of a claim,
    grievance, or complaint” 33 and is found by examining and
    construing the substance of the allegations of the complaint
    as a whole without regard to the form or label adopted by
    the pleader or the relief demanded. 34 Thus, to determine the
    gravamen of the complaint, we look to whether the plain-
    tiff has alleged an injury independent of that caused by the
    excluded acts, i.e., that the injury is linked to a duty to act that
    is entirely separate from the acts expressly excluded from the
    statutory waiver of sovereign immunity. 35
    In Edwards, the plaintiff sought to recover for injuries
    directly incurred from what was undisputed to be an assault
    by a former boyfriend. 36 We ultimately held that the action
    based on allegations that the county negligently handled emer-
    gency telephone calls and did not arrive in time to prevent or
    stop the assault on the plaintiff was inextricably linked to an
    assault and, thus, was exempted under § 13-910(7) from the
    waiver of sovereign immunity of the PSTCA. We said that
    although it was “conceivable there could be circumstances
    where the claim is so attenuated from an assault that it can-
    not fairly be characterized as arising out of the assault,”
    this was not such a claim. 37 Plaintiffs cannot circumvent the
    32
    Amend v. Nebraska Pub. Serv. Comm., 
    298 Neb. 617
    , 627, 
    905 N.W.2d 551
    , 559 (2018). See, also, Jill B. & Travis B. v. State, 
    supra note 21
    ;
    Zawaideh v. Nebraska Dept. of Health & Human Servs., 
    285 Neb. 48
    , 
    825 N.W.2d 204
     (2013); Stonacek v. City of Lincoln, 
    supra note 12
    .
    33
    Black’s Law Dictionary 845 (11th ed. 2019).
    34
    See 1A C.J.S. Actions § 121 (2016).
    35
    See Stonacek v. City of Lincoln, 
    supra note 12
    .
    36
    Edwards v. Douglas County, 
    supra note 9
    .
    37
    
    Id. at 279
    , 953 N.W.2d at 757.
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    e­ xemption of § 13-910(7) through artful pleading that relies
    on a semantic recasting of events. 38
    (b) Elements of Battery
    [13] The district court in this case concluded that the
    Estate’s action fell under § 13-910(7) because it arose out of a
    battery. The intentional tort of battery is defined as an actual
    infliction of an unconsented injury upon or unconsented con-
    tact with another. 39 A harmful contact intentionally done is the
    essence of battery. 40 This is consistent with the Restatement
    (Second) of Torts, which has been relied upon by this court
    and provides:
    An actor is subject to liability to another for battery if
    (a) he acts intending to cause a harmful or offensive
    contact with the person of the other or a third person, or
    an imminent apprehension of such a contact, and
    (b) a harmful contact with the person of the other
    directly or indirectly results. 41
    We observed in Britton that the Restatement (Second) of Torts
    does not use the term “unlawful” in its definition of battery. 42
    In any event, although we have sometimes described battery as
    any intentional, unlawful physical violence or contact inflicted
    on a human being without his or her consent, “unlawful” in
    that context simply means unconsented to. 43
    In the comments to the Restatement (Second) of Torts,
    it is clarified that the meaning of the term “intending” goes
    only to the act itself. 44 It is immaterial that the actor is not
    38
    Id.
    39
    Britton v. City of Crawford, supra note 2.
    40
    Id.
    41
    Restatement, supra note 1, § 13 at 25.
    42
    See Britton v. City of Crawford, supra note 2.
    43
    See id.
    44
    See Restatement, supra note 1, § 13, comment c.
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    inspired by any personal hostility to the other or a desire to
    injure anyone. 45 Thus, for example, so long as the other has
    not actually consented, a defendant who intentionally inflicts
    bodily harm upon another as a practical joke is not immune
    from liability, even if the actor erroneously believed the other
    would regard it as a joke or erroneously believed that the other
    consented to the contact. 46
    The comments to the Restatement (Second) of Torts also
    clarify the meaning of the phrase “subject to liability” and state
    that the defendant’s act must be a “legal cause” of the contact
    with the plaintiffs. 47 Such liability is defeated by any privilege
    available to the defendant. 48
    (c) Negligence Actions Arising Out of Battery
    In several cases, we have held that plaintiffs’ negligence
    actions arose from a battery and thus fell within the scope
    of § 13-910(7) and were barred by sovereign immunity. 49 In
    Britton, for example, we affirmed the lower court’s order grant-
    ing what was effectively a motion for summary judgment in
    favor of the political subdivision on the grounds that the claim,
    although framed as negligence, fell under the intentional tort
    exemption to the limited waiver of sovereign immunity under
    the PSTCA, because it arose out of a battery. 50
    The claim derived from the death of the suspect in
    Britton after law enforcement shot him when he refused to
    45
    See id.
    46
    See id.
    47
    See id., comment d. at 25.
    48
    Id.
    49
    See, Britton v. City of Crawford, supra note 2; Rutledge v. City of Kimball,
    
    304 Neb. 593
    , 
    935 N.W.2d 746
     (2019); City of Lincoln v. County of
    Lancaster, 
    297 Neb. 256
    , 
    898 N.W.2d 374
     (2017). See, also, Williams v.
    State, 
    310 Neb. 588
    , 
    967 N.W.2d 677
     (2021); Moser v. State, 
    307 Neb. 18
    ,
    
    948 N.W.2d 194
     (2020); Johnson v. State, 
    270 Neb. 316
    , 
    700 N.W.2d 620
    (2005); Pieper v. State, 
    29 Neb. App. 912
    , 
    962 N.W.2d 715
     (2021).
    50
    Britton v. City of Crawford, supra note 2.
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    comply with directives to show his hands and drop his weapon
    and instead pointed his weapon at the officers. The action
    alleged law enforcement had been negligent in the techniques
    implemented in a barricaded suspect situation, which negli-
    gence ultimately led to the death of the suspect when an officer
    shot him.
    We explained that although the claim of the suspect’s estate
    may have been “for” negligence, the injuries the estate sued the
    political subdivision for ultimately stemmed from a battery, an
    intentional tort. We reasoned, “While other factors may have
    contributed to the situation which resulted in [the suspect’s]
    death, but for the battery, there would have been no claim.” 51
    Even if negligence was a factor in the suspect’s death, no
    semantic recasting of events could alter the fact that the shoot-
    ing that ultimately caused the suspect’s death was inextricably
    linked to a battery. 52
    In so holding in Britton, we specifically rejected the argu-
    ment that because the officer had been found not guilty of
    assault, on the grounds of self-defense, the officer’s conduct
    did not fall under the intentional tort of battery and the excep-
    tion found in § 13-910(7). Noting that we had not before
    considered whether an affirmative defense would remove
    an intentional tort from coverage under the exception, we
    observed that, on its face, § 13-910(7) does not contemplate
    whether such intentional acts are legally justified. Nor does
    the exception state that the waiver of sovereign immunity
    only applies to claims based on intentional torts for which
    the actor could be held liable. We also observed that we have
    consistently recognized that the key requirement of the inten-
    tional torts exception is that the actor intended the conduct.
    We ultimately held that in deciding whether the plaintiff’s
    claim arose out of a battery, “[w]e need not determine whether
    the actor ultimately could be held liable for any damage
    51
    Id. at 386, 803 N.W.2d at 518.
    52
    See id.
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    resulting from the battery, based on the presence or absence of
    affirmative defenses.” 53
    (d) Estate’s Arguments
    We have not before specifically addressed whether injury to
    a bystander in the course of law enforcement’s pursuit of or
    engagement with a suspect arises from a battery for purposes
    of § 13-910(7). On appeal, the Estate presents four arguments
    as to why it believes that its wrongful death action did not
    arise out of a battery and that the district court erred in con-
    cluding differently. First, the Estate points out that it did not
    sue for battery, but, rather, sued for negligence. Second, the
    Estate asserts that the elements of battery were not met in
    this case because the officers alleged that discharging lethal
    force at the suspect was not wrongful and was privileged.
    Third, the Estate asserts that the injuries Dion suffered did
    not arise from a battery, because the officers intended to shoot
    the suspect and not Dion, and that transferred intent does not
    apply to § 13-910(7). Fourth, the Estate asserts that our opin-
    ion in Phillips indicates that actions to recover for injuries to
    bystanders incurred in the course of law enforcement’s pursuit
    or engagement with a suspect do not arise from a battery for
    purposes of § 13-910(7). 54
    i. Sued “For” Versus Arises From
    As stated in Edwards and Britton, what the plaintiff sues
    “for” is not determinative of whether that action arose from
    a battery for purposes of § 13-910(7). 55 Thus, it does not
    matter that the Estate sued “for” negligence rather than a bat-
    tery. The question is whether the injury the plaintiff seeks to
    recover for stems from, arises out of, is inextricably linked
    to, and would not exist without an underlying assault or
    53
    Id. at 383, 803 N.W.2d at 516.
    54
    See Phillips v. Liberty Mut. Ins. Co., supra note 3.
    55
    See, Edwards v. Douglas County, supra note 9; Britton v. City of Crawford,
    supra note 2.
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    battery. 56 Stated another way, without regard to the form or
    label adopted by the pleader or the relief demanded, we look
    to the gravamen of the complaint to determine whether the
    plaintiff has alleged an injury independent of that caused by
    the excluded acts.
    ii. Phillips v. Liberty Mut. Ins. Co.
    Phillips does not hold, as the Estate suggests, that when the
    underlying injury is to an innocent bystander of allegedly neg-
    ligent law enforcement actions directed at a suspect, the plain-
    tiff’s action necessarily arises out of negligence rather than a
    battery. In Phillips, we affirmed a summary judgment in favor
    of the county in an action brought by an innocent bystander
    who was injured by being knocked over when deputies ran
    in pursuit of a person to effectuate an arrest. 57 The officers
    subsequently apprehended the person, forcing her hands off a
    doorknob that she was gripping, placing her on the ground, and
    handcuffing her.
    While the Estate points out that in Phillips “no battery was
    found to have been committed by the police officer,” 58 this is
    a misleading characterization of our holding. We decided the
    appeal on the grounds that there was no negligence, despite the
    fact that the lower court had determined the claim was barred
    by sovereign immunity because it arose out of battery.
    We noted in Phillips that the parties below had discussed
    the theory that the officers had committed a battery on the
    resisting person and that the officers’ intent was transferred
    to the injured bystander. We then said, “based on their read-
    ing of Britton v. City of Crawford, [the parties below] placed
    considerable, arguably undue, emphasis on the ‘intent’ of the
    deputies.” 59 But we did not elaborate or otherwise comment
    56
    See Edwards v. Douglas County, supra note 9.
    57
    See Phillips v. Liberty Mut. Ins. Co., supra note 3.
    58
    Brief for appellant at 21.
    59
    Phillips v. Liberty Mut. Ins. Co., supra note 3, 
    293 Neb. at 129
    , 876
    N.W.2d at 367.
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    on whether an injury to a bystander during the pursuit of a
    suspect could fall under § 13-910(7).
    We did not hold in Phillips that the district court’s decision
    on sovereign immunity was wrong; we simply affirmed the
    order on the alternative ground that there was no genuine issue
    that the deputies did not act negligently. Phillips thus does not
    stand for the proposition that actions stemming from officers’
    injuring bystanders in the course of pursuing or engaging a
    suspect fall outside of § 13-910(7). To the extent Phillips could
    be read otherwise, we disapprove of any such reading.
    iii. Transferring Intent
    We disagree with the Estate’s contention that an action does
    not arise out of a battery whenever the actor did not intend
    contact with the plaintiff and instead intended the contact to a
    third party. While we have not previously addressed this sce-
    nario as it applies to § 13-910(7), the Restatement (Second) of
    Torts describes that a battery occurs when a person acts intend-
    ing to cause a harmful or offensive contact with the person
    of the other or a third person and a harmful contact with the
    person of the other directly or indirectly results. 60
    [14] Further, the Restatement (Second) of Torts states in
    relevant part:
    (2) If an act is done with the intention of affecting a
    third person in the manner stated in Subsection (1) but
    causes an offensive bodily contact to another, the actor
    is subject to liability to such other as fully as though he
    intended so to affect him. 61
    Other authorities have explained that a person will be liable for
    intentional tortious conduct directed at one person but which
    unintentionally results to harm to another person. 62
    60
    Restatement, supra note 1.
    61
    Id., § 20 at 36.
    62
    See Dan B. Dobbs, Law of Torts § 40 (2000).
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    That the officers did not intend to direct lethal force
    toward Dion does not mean Dion’s death was not the result
    of a battery.
    iv. “Wrongful” Contact and Privileges
    We turn lastly to the Estate’s argument that the officers did
    not, in the first place, commit a battery of the suspect, of Dion,
    or of anyone else. The Estate argues that a battery does not
    occur if the unconsented to touching was privileged. And the
    Estate points out that the officers alleged as a defense that their
    actions of shooting at the suspect while he fled were privi-
    leged. Indeed, the court ultimately so found.
    [15,16] The privilege at issue was described in Phillips,
    wherein we said, in the context of negligence, that if a law
    enforcement officer is privileged to shoot at an escaping felon,
    the law enforcement officer is not liable to a third person
    harmed by a stray bullet when shooting at an escaping felon
    when there was little or no probability that any person other
    than the felon would be hit. 63 In contrast, a law enforcement
    officer is unprivileged to shoot at an escaping felon if it was
    unreasonable under the circumstances to risk causing grave
    harm to bystanders. 64
    We quoted the Restatement (Second) of Torts concerning
    reasonable care with respect to innocent bystanders of police
    conduct and the confines of the law enforcement privilege:
    “[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 unin-
    tentionally hits a passerby, his act is unprivileged if, in
    view of the surrounding conditions, including the nature
    63
    Phillips v. Liberty Mut. Ins. Co., supra note 3.
    64
    See id.
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    of the crime for which he seeks to arrest, recapture, or
    maintain 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.” 65
    We held as a matter of law in Phillips that the deputies had
    a duty and were required to exercise that degree of care toward
    innocent persons as would be exercised by a reasonable deputy
    effectuating an arrest under the circumstances. We explained
    that reasonable force is an objective standard constituting that
    amount of force which an ordinary, prudent, and intelligent
    person with the knowledge and in the situation of the arrest-
    ing police officer would have deemed necessary under the
    circumstances. 66 The context is important in determining the
    reasonableness of the action taken, but, broadly, the privilege
    to use reasonable force toward the arrestee extends to harm
    to an innocent bystander caused by force directed toward the
    arrestee unless under the circumstances it was unreasonable
    for law enforcement to take the chance of causing grave harm
    to bystanders. 67
    We explained that whether the deputies in Phillips acted
    unreasonably and breached their duty was a question of fact.
    However, noting that there was no evidence the deputies were
    using weapons or were chasing the person in a way that could
    be described as reckless, we held that there was no genuine
    issue that the deputies acted reasonably in chasing the person
    when she ran away. Nothing in the record indicated the depu-
    ties objectively should have realized their actions created an
    unreasonable risk of harm to any innocent third persons. Thus,
    the deputies were not negligent.
    65
    Id. at 135-36, 876 N.W.2d at 370-71, quoting Restatement, supra note 1,
    § 137, comment c.
    66
    See Phillips v. Liberty Mut. Ins. Co., supra note 3.
    67
    See id.
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    As already set forth above, a privilege to make the contact is
    a defense to battery 68 such that an actor is not subject to liabil-
    ity for battery, because the actor’s conduct was not the legal
    cause of the injury. This is sometimes referred to as a “privi-
    lege to commit battery,” 69 but it is perhaps more exact to state
    that it is a privilege to commit what would otherwise be a bat-
    tery. 70 A privileged act is generally defined as one that would
    ordinarily be tortious, but which, under the circumstances, does
    not subject the actor to liability. 71
    Under the principle that, to be a battery, the acts must have
    been the legal cause of the injury, the Estate argues that if the
    relevant actions were privileged, there was no battery from
    which the injuries it seeks to recover for could have arisen for
    purposes of § 13-910(7). While under the facts presented in
    Britton, we rejected a similar argument, the Estate asks this
    court to overturn that holding. 72 We decline to do so. Even if
    there are hypothetical scenarios in which a privilege to commit
    the act causing the injury at issue could negate the requisite
    connection described in § 13-910(7) between the claim and the
    listed intentional torts, such was not the case in Britton and it
    is not the case here.
    As Phillips illustrates, the same privilege the Estate argues
    makes the underlying conduct not a battery also defeats the
    negligence theories under which the Estate seeks to recover
    68
    See Baranowski v. City of Milwaukee, 
    70 Wis. 2d 684
    , 
    235 N.W.2d 279
    (1975).
    69
    See, Roberson v. Borough of Glassboro, Cases Nos. 1:20-02765 and
    1:20-02769, 
    2021 WL 5154000
     (D.N.J. Nov. 5, 2021); Gilmore v. Superior
    Court, 
    230 Cal. App. 3d 416
    , 
    281 Cal. Rptr. 343
     (1991); Morrison v.
    Horseshoe Casino, 
    2020 Ohio 4131
    , 
    157 N.E.3d 406
     (2020); Edwards v.
    City of Philadelphia, 
    860 F.2d 568
     (3rd Cir. 1988).
    70
    See Restatement, supra note 1, ch. 4, topic 2, scope note (1965).
    71
    Gilmore v. Superior Court, 
    supra note 69
    .
    72
    See Britton v. City of Crawford, supra note 2.
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    in its action against the City. 73 The Estate pled, among other
    things, that law enforcement officers failed to identify the
    correct and proper target before discharging their firearms,
    misdirected their gunfire, and used excessive deadly force. The
    theory litigated in the Estate’s action was that when the suspect
    was fleeing through the east vestibule and no longer firing
    what was believed to be a deadly weapon, it was unreasonable
    under the circumstances to take the chance of causing grave
    harm to bystanders like Dion.
    [17] A plaintiff cannot allege that the harmful or offensive
    contact causing the injuries the plaintiff seeks to recover for
    are privileged for the purpose of sovereign immunity while
    unprivileged for the purpose of determining the merits of the
    claim. Logically, an act is not simultaneously privileged and
    unprivileged. The Estate concedes its wrongful death claim
    depends upon the theory that the officers’ acts of firing at
    the suspect were no longer privileged when the officers fired
    the bullet that killed Dion. Thus, no matter how framed, the
    Estate’s negligence claim depends upon allegations that the
    injuries were caused by unprivileged harmful or offensive con-
    tact, which in substance is an allegation that the injuries were
    caused by a battery.
    [18] In sum, the underlying substance of the Estate’s claim
    is that Dion’s death arose out of a battery. If recovery for
    the injury in question depends upon an intentional, harmful,
    or offensive contact’s being unprivileged, then it depends
    also upon a battery and is “arising from” it for purposes of
    § 13-910(7). In such circumstances, the claim does not allege
    an injury independent of that caused by one of the excluded
    intentional torts. We need not decide whether a claim arises
    out of a battery for purposes of § 13-910(7) when recovery
    for that claim does not depend upon the offensive contact
    being unprivileged, because that scenario is not presented in
    this appeal.
    73
    See Phillips v. Liberty Mut. Ins. Co., supra note 3.
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    (e) Conclusion on Wrongful Death Claim
    We are unpersuaded by the four arguments presented on
    appeal by the Estate in support of its assertion that its wrong-
    ful death claim did not arise out of battery for purposes of
    § 13-910(7). We affirm the judgment of the district court
    that the Estate’s wrongful death action is barred by sovereign
    immunity. We turn to the City’s cross-appeal in its breach of
    contract action against Langley.
    2. Breach of Contract
    In the City’s breach of contract claim, it alleged that Langley
    agreed to indemnify and defend it against any and all claims
    for damages and liability for injury to or death of persons. It
    asserts this contractual obligation included duties to indemnify
    and defend against claims of negligence such as the Estate’s
    wrongful death action.
    [19] Given our resolution of the appeal with respect to the
    wrongful death claim, the City’s claim as it pertains to an
    alleged duty to indemnify is, strictly speaking, moot. Mootness
    refers to events occurring after the filing of a suit which eradi-
    cate the requisite personal interest in the dispute’s resolution
    that existed at the beginning of the litigation. 74 Because the
    Estate has lost its wrongful death action, there is nothing for
    Langley to indemnify.
    Here, the Agreement stated that Langley “shall pay the rea-
    sonable cost of defending lawsuits resulting therefrom, includ-
    ing, but not limited to, reasonable attorneys fees, court costs
    and any judgment.” Because the City seeks under the duty to
    defend to recover from Langley the costs incurred by the City
    in defending itself in the Estate’s action that was ultimately
    unsuccessful, that aspect of its breach of contract claim is not
    rendered moot by the judgment against the Estate in its wrong-
    ful death action.
    74
    Chaney v. Evnen, 
    307 Neb. 512
    , 
    949 N.W.2d 761
     (2020).
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    The provision at issue is as follows:
    [Langley] agrees that it shall indemnify, defend and hold
    harmless, the City, its officers, agents, employees and
    administrators from and against any and all claims for
    damage and liability for injury to or death of persons; and
    for damage to or destruction of property occurring dur-
    ing and arising out of the acts or omission of [Langley],
    its employees and/or agents with regard to [Langley’s]
    filming; and shall pay the reasonable cost of defending
    lawsuits resulting therefrom, including, but not limited
    to, reasonable attorneys fees, court costs and any judg-
    ment awarded to a third party as the result of such suit.
    In accordance with the foregoing, [Langley] also agrees
    to indemnify, defend and hold harmless the City from and
    against all claims related to intellectual property claims
    arising out of [Langley’s] filming activities.
    The City argues that the broad language of “indemnify, defend
    and hold harmless, the City, its officers, agents, employees and
    administrators from and against any and all claims for damage
    and liability for injury to or death of persons” includes defend-
    ing the City against claims it was negligent, such as the wrong-
    ful death action brought by the Estate.
    [20-22] However, as the district court noted, there is a
    presumption against any intention to indemnify against an
    indemnitee’s own negligence. 75 Clauses indemnifying the
    indemnitee for the indemnitee’s own negligence are strictly
    construed against the claimant. 76 To ensure that the parties
    truly intended to indemnify for the indemnitee’s negligence, a
    contract of indemnity will not be construed to indemnify the
    indemnitee against losses resulting from the indemnitee’s own
    75
    42 C.J.S. Indemnity § 20 (2017).
    76
    41 Am. Jur. 2d Indemnity § 16 (2015). See, also, 8 Richard A. Lord, A
    Treatise on the Law of Contracts by Samuel Williston § 19:19 (4th ed.
    2010); 42 C.J.S. supra note 75.
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    negligence unless the intention of the parties is clearly and
    unambiguously expressed. 77
    [23,24] The intention to indemnify the indemnitee for the
    indemnitee’s own negligence need not be stated through a
    specific reference to indemnification against liability for negli-
    gence; but, if not so expressed, it must otherwise clearly appear
    from the language used or from a determination that no other
    meaning could be ascribed to the contract such that the court
    is firmly convinced that such interpretation reflects the inten-
    tion of the parties. 78 To determine if the contract indemnifies
    against an indemnitee’s own negligence, we generally first
    examine whether the express language covers the indemnitee’s
    own negligence and, second, whether the contract contains
    clear and unequivocal language that it was the parties’ inten-
    tion to cover the indemnitee’s own negligence. 79
    Thus, in Oddo v. Speedway Scaffold Co., 80 we held that a
    provision to indemnify against all conduct “‘including active,
    passive, primary or secondary,’” while excluding indemnifica-
    tion for “‘wilful misconduct,’” expressed an intention to indem-
    nify for negligence clearly and unequivocally, even though it
    did not contain the word “negligence.” Likewise, we found in
    Kuhn v. Wells Fargo Bank of Neb. 81 that an indemnification
    clause of a lease clearly and unequivocally expressed the par-
    ties’ intention to indemnify the indemnitee for the indemnitee’s
    own negligence. The clause at issue provided:
    77
    See, Anderson v. Nashua Corp., 
    251 Neb. 833
    , 
    560 N.W.2d 446
     (1997);
    Oddo v. Speedway Scaffold Co., 
    233 Neb. 1
    , 
    443 N.W.2d 596
     (1989). See,
    also, 
    id.
    78
    See 42 C.J.S. supra note 75.
    79
    See Anderson v. Nashua Corp., 
    supra note 77
    .
    80
    Oddo v. Speedway Scaffold Co., supra note 77, 
    233 Neb. at 9
    , 
    443 N.W.2d at 602
    . See, also, Federated Serv. Ins. Co. v. Alliance Constr., 
    282 Neb. 638
    , 
    805 N.W.2d 468
     (2011).
    81
    Kuhn v. Wells Fargo Bank of Neb., 
    278 Neb. 428
    , 
    771 N.W.2d 103
     (2009).
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    “With the exception of those claims arising out of
    [­lessor’s] gross negligence or willful misconduct, [­lessee]
    shall indemnify [lessor] and hold it harmless from any
    claim or damage arising out of any injury, death or
    property damage occurring in, on or about the Property,
    the Building, the Leased Premises and appurtenances
    thereto to [lessee] or an employee, customer or invitee
    of [lessee].” 82
    We explained that the language required the lessee to indem-
    nify the lessor for “something.” 83 Looking at the provision as a
    whole and giving it a reasonable instruction, we reasoned that
    if “any injury” did not include the indemnitee’s negligence,
    it would have been unnecessary to specifically exclude gross
    negligence. 84 We held that because it placed a duty to indem-
    nify for any injury other than gross negligence, it clearly still
    included negligence that was “less than gross.” 85
    In contrast, in Anderson v. Nashua Corp., 86 we held lan-
    guage that the indemnitor would protect the indemnitee against
    “‘all risks and from any claims that may arise out of or per-
    tain to the performance of such work,’” neither constituted
    express language covering the indemnitee’s own negligence
    nor clear and unequivocal language that it was the parties’
    intention to cover the indemnitee’s own negligence. Similarly,
    in Omaha P. P. Dist. v. Natkin & Co., 87 we held that a contract
    to protect the indemnitee from “‘claims for damages for per-
    sonal injury, including wrongful death, as well as claims for
    property damages, which may arise from operations’” was, at
    82
    Id. at 431, 
    771 N.W.2d at 109
    .
    83
    
    Id. at 440
    , 
    771 N.W.2d at 115
    .
    84
    
    Id. at 441
    , 
    771 N.W.2d at 115
    .
    85
    
    Id. at 441
    , 
    771 N.W.2d at 116
    .
    86
    Anderson v. Nashua Corp., 
    supra note 77
    , 
    251 Neb. at 840
    , 
    560 N.W.2d at 450
    .
    87
    Omaha P. P. Dist. v. Natkin & Co., 
    193 Neb. 518
    , 520, 
    227 N.W.2d 864
    ,
    866 (1975).
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    best, ambiguous as to whether the parties intended to indem-
    nify the indemnitee from its own negligence. Thus, it did not
    overcome the presumption against any intention to indemnify
    against an indemnitee’s own negligence.
    [25] The language of the Agreement is similar to the lan-
    guage in Anderson and Omaha P. P. Dist. that we found
    failed to clearly and unambiguously express an intention to
    indemnify the indemnitee for the indemnitee’s own negli-
    gence. The express language does not cover the indemnitee’s
    own negligence, and the contract does not contain clear and
    unequivocal language that it was the parties’ intention to cover
    the indemnitee’s own negligence. While the reference in the
    Agreement to “any and all claims for damage and liability
    for injury to or death of persons” is facially broad, standing
    alone, general, broad, and seemingly all-inclusive language is
    simply not sufficient to impose liability for the negligence of
    the indemnitee. 88
    And there is no other provision in the Agreement, such as
    was present in Kuhn, excluding a higher degree of negligence
    or otherwise clearly expressing an intention to indemnify the
    City for its own negligence. 89 To the contrary, albeit speci-
    fied for property claims and separated by a semicolon from
    the broad reference to “any and all claims for damage and
    liability for injury to or death of persons,” the Agreement
    refers to claims “during and arising out of the acts or omis-
    sion of [Langley], its employees and/or agents with regard to
    [Langley’s] filming.”
    There was not clear and unequivocal language in the
    Agreement overcoming the presumption that the parties did
    not intend that the indemnitee would be indemnified for a
    loss occasioned by the indemnitee’s own negligence. Langley
    was not obligated to indemnify the City in the event the
    Estate’s claim was successful, because the wrongful death
    88
    42 C.J.S. supra note 75.
    89
    See Kuhn v. Wells Fargo Bank of Neb., supra note 81.
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    claim, relying on allegations of negligence against the City,
    was outside the Agreement. Because the claim was outside the
    Agreement, Langley did not have a duty to defend the City
    against the action. Accordingly, we affirm the district court’s
    dismissal of the City’s third-party breach of contract claim.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the judgment of the
    district court.
    Affirmed.
    Miller‑Lerman, J., concurring in part, and in part
    dissenting.
    As an initial matter, consistent with my dissenting views
    in Moser v. State, 
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020);
    Edwards v. Douglas County, 
    308 Neb. 259
    , 
    953 N.W.2d 744
    (2021); and Williams v. State, 
    310 Neb. 588
    , 
    967 N.W.2d 677
    (2021), I reiterate that I continue to dissent from the court’s
    many holdings regarding the intentional tort exceptions to
    the waiver of sovereign immunity pertaining to battery, see
    
    Neb. Rev. Stat. § 81
    ‑8,219(4) (Cum. Supp. 2020) (State Tort
    Claims Act) and 
    Neb. Rev. Stat. § 13
    ‑910(7) (Reisue 2012)
    (Political Subdivisions Tort Claims Act), including that these
    provisions apply if there is an assault or battery anywhere in
    the picture and regardless of the assailant’s employment status.
    Also, although I recognize that both the State Tort Claims Act
    and the Political Subdivisions Tort Claims Act limit economic
    exposure, I continue to believe that it is inappropriate for this
    court to directly consider the outcome’s effect on “public fisc”
    in rendering its interpretation of these statutes. Nevertheless, I
    am bound to apply this court’s holdings unless or until they are
    corrected by, inter alia, the Legislature. See 2021 Neb. Laws,
    L.B. 54.
    I concur in the result. Unlike some previous cases which
    were decided on preliminary motions, this matter went to
    trial. The district court found as follows: “The elements of a
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    battery have clearly been met when this Court applies the ele-
    ments to the evidence in this case.” That is, the district court
    found that the City’s officers had committed the intentional
    tort of battery, the death arose from the battery, and the action
    was barred by the sovereign immunity retained by the City
    under the intentional tort exception found in § 13‑910(7).
    Thus, the district court did not have jurisdiction of the wrong-
    ful death claim.
    Assuming transferred intent applied and based on earlier
    cases, the district court concluded that the Estate’s claims arose
    out of the battery and were barred by sovereign immunity. Like
    the district court, the majority opinion rejects the Estate’s argu-
    ments asserting that the wrongful death claim did not arise out
    of a battery. The majority affirms the district court’s findings
    that the claims arose from the battery and that the action is
    barred by sovereign immunity. Given the absence of jurisdic-
    tion, I find it puzzling that the majority opinion nevertheless
    proceeds to a negligence analysis and writes extensively about
    “privilege,” which the district court did not consider in its
    sovereign immunity analysis. If there is no jurisdiction, why
    consider the merits?
    “Battery is an intentional tort. ‘. . . [T]here is no such thing
    as a negligent battery.’ 1 DOBBS, LAW OF TORTS § 26 at
    51 (2001).” District of Columbia v. Chinn, 
    839 A.2d 701
    , 706
    (2003). In this case, the district court did not base its deci-
    sion on privilege so neither should we. As the City urges, the
    district court found the claims arose from the battery; as the
    City further states, privilege is “immaterial” and the City is
    shielded by sovereign immunity. Brief for appellee the City at
    17. I agree.
    The district court found, based on evidence, that it lacked
    jurisdiction. I respectfully suggest that by proceeding with
    its negligence analysis, the majority opinion has conflated
    its consideration of jurisdiction with the merits of the negli-
    gence claim, something which should be avoided. See Florida
    Highway Patrol v. Jackson, 
    288 So. 3d 1179
     (Fla. 2020).
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    Instead, my focus remains on the district court’s finding that
    the action arose from the battery and is barred by sovereign
    immunity, and I note the significance of this finding. “[T]he
    presence of sovereign immunity does not render the State’s
    actions nontortious (it simply means that the State has not
    consented to suit in its courts with regard to certain claims).”
    Wallace v. Dean, 
    3 So. 3d 1035
    , 1045 (Fla. 2009) (emphasis
    in original). The State’s actions are not nonliable. See 
    id.
     The
    presence of sovereign immunity is distinct from lack of liabil-
    ity. See 
    id.
    So with respect to the preclusive effect, if any, of the district
    court’s finding as affirmed by this court that the claims arose
    from the battery committed by the City’s officers, I note that
    it has been observed that immunity under one statute does not
    necessarily indicate that an action will be barred under another
    statute with a differing scheme. See Davis v. Harrod, 
    407 F.2d 1280
     (D.C. Cir. 1969).
    In this case, the City’s officers responded to a robbery at a
    fast‑food restaurant, fired 36 bullets, and killed a member of
    a film crew. As the City urged, the trial court found that the
    City’s officers had committed a battery and the majority of
    this court agrees. So under current Nebraska law, the City is
    immune from suit in this case. But the presence of sovereign
    immunity under § 13‑910(7) in this case does not necessarily
    render the City’s actions nontortious for other purposes.