Christensen v. Broken Bow Public Schools , 312 Neb. 814 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2022 09:05 AM CST
- 814 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814Michael T. and Cathy D. Christensen, individually
and as parents and next friends of Chad M.
Christensen, and as Coguardians and
Coconservators of Chad M. Christensen,
a protected person, appellants and
cross-appellees, v. Broken Bow Public Schools,
also known as Broken Bow School District 25,
a political subdivision of the State of Nebraska,
defendant and third-party plaintiff, appellee
and cross-appellant, and Beverly L. Sherbeck,
Personal Representative of the Estate of
Albert F. Sherbeck, deceased, third-party
defendant, appellee and cross-appellant.
___ N.W.2d ___
Filed November 4, 2022. No. S-21-885.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
2. Statutes: Ordinances: Legislature: Intent: Torts: Liability. In deter-
mining whether a statute or ordinance creates a duty, a court may deter-
mine that a statute gives rise to a tort duty to act in the manner required
by the statute where the statute is enacted to protect a class of persons
which includes the plaintiff, the statute is intended to prevent the par-
ticular injury that has been suffered, and the statute is intended by the
Legislature to create a private liability as distinguished from one of a
- 815 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814public character. Consideration of the Legislature’s purpose in enacting
a statute is central to the analysis of whether the statute defines a duty
in tort and creates private civil liability.
3. Negligence: Proof: Statutes. The violation of a statute alone does not
prove negligence.
4. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary
negligence must prove all four essential elements of the claim: the
defendant’s duty not to injure the plaintiff, a breach of that duty, proxi-
mate causation, and damages.
5. Negligence: Proof. A cause of action for negligence depends not only
upon the defendant’s breach of duty to exercise care to avoid injury to
the plaintiff, but also depends upon a showing that the injury suffered
by the plaintiff was caused by the alleged wrongful act or omission of
the defendant.
6. Proximate Cause: Evidence. Neb. Rev. Stat. § 60-6,273 (Reissue 2021)
explicitly makes all “[e]vidence that a person was not wearing an occu-
pant protection system or a three-point safety belt system” inadmissible
for the issue of proximate cause.
7. Statutes. Statutory text is to be given its plain and ordinary meaning.
8. Statutes: Appeal and Error. An appellate court is not at liberty to add
language to the plain terms of a statute to restrict its meaning.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed.
David S. Houghton and Keith A. Harvat, of Houghton,
Bradford & Whitted, P.C., L.L.O., and James V. Duncan and
John O. Sennett, of Sennett, Duncan, Jenkins & Wickham,
P.C., L.L.O., for appellants.
Matthew B. Reilly and Thomas J. Culhane, of
Erickson | Sederstrom, P.C., L.L.O., for appellee Broken Bow
Public Schools.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellee Beverly L. Sherbeck.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Stratman, District Judge.
- 816 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814Miller-Lerman, J.
I. NATURE OF CASE
Appellants, Michael T. and Cathy D. Christensen, brought
this case in the district court for Custer County individually
and as parents of their son, Chad M. Christensen, who was
seriously injured when a Broken Bow Public Schools (BBPS)
activities van in which he was a passenger was hit head on by
a truck driven by Albert F. Sherbeck. Chad was not wearing a
seatbelt. The Christensens separately sued Sherbeck’s widow,
Beverly L. Sherbeck, as personal representative of Sherbeck’s
estate (the Sherbeck estate) and the cases were consolidated.
On remand from a memorandum opinion of the Nebraska
Court of Appeals that reversed a directed verdict in favor of
BBPS, the district court considered several additional argu-
ments by BBPS. Following due consideration, the district
court granted a directed verdict in favor of BBPS and against
the Christensens, dismissed the Christensens’ complaint, and
dismissed BBPS’ third-party complaint against the Sherbeck
estate as moot. These rulings give rise to the instant appeal
by the Christensens and the cross-appeals by BBPS and the
Sherbeck estate.
In its order directing a verdict in favor of BBPS, the dis-
trict court stated, inter alia, that despite the provision in Neb.
Rev. Stat. § 60-6,267(2) (Reissue 2021) that drivers ensure
seatbelt use for children, Neb. Rev. Stat. § 60-6,269 (Reissue
2021) “explicitly states, ‘violations of the provisions of sec-
tions 60-6,267 . . . shall not constitute prima facie evidence
of negligence.’” The district court noted that Neb. Rev. Stat.
§ 60-6,273 (Reissue 2021) prohibits “using evidence that
a person was not wearing a seatbelt to establish proximate
cause” and in the absence of other admissible evidence of
proximate cause, the Christensens’ claims failed and were dis-
missed. Because we agree with the district court’s reading of
the relevant statutes, we affirm its order of a directed verdict
in favor of BBPS and in addition dismiss the cross-appeals
as moot.
- 817 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814II. STATEMENT OF FACTS
1. The Collision
On June 1, 2012, a BBPS activities van collided with
a truck driven by Sherbeck. The van was driven by Zane
Harvey, a high school basketball coach for BBPS. Another
coach, Anthony Blum, and eight students, including Chad,
were passengers in the van, which was returning from a
summer basketball clinic in Kearney, Nebraska. Sherbeck’s
vehicle crossed the centerline and collided head on with the
van. Sherbeck, Harvey, and Blum died at the scene. The
Christensens’ son, Chad, was riding in the van unrestrained by
a seatbelt and was seriously injured. Chad was age 17 at the
time of the accident.
2. Procedural History
The Christensens filed separate actions against BBPS and
against Sherbeck’s widow, as personal representative of the
Sherbeck estate. In the action against BBPS, the Christensens
asserted five separate theories of recovery, including claims
that (1) BBPS was negligent in its operation of the van and was
negligent in its supervision of the students because it failed to
ensure that students were wearing seatbelts and (2) BBPS vio-
lated § 60-6,267(2), which provides:
Any person in Nebraska who drives any motor vehicle
which has or is required to have an occupant protection
system or a three-point safety belt system shall ensure
that all children eight years of age and less than eighteen
years of age being transported by such vehicle use an
occupant protection system.
The district court consolidated the cases; the case against the
Sherbeck estate was tried to a jury and the case against BBPS
was tried to the court. The jury returned a verdict in favor of
the Sherbeck estate on the Christensens’ claims against it. The
Court of Appeals affirmed the judgment in the case against the
Sherbeck estate in Christensen v. Sherbeck, 28 Neb. App. 332,
- 818 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814943 N.W.2d 460 (2020), and we denied the Christensens’ peti-
tion for further review.
At the close of evidence in the Christensens’ case in chief
against BBPS, BBPS moved for a directed verdict. The dis-
trict court granted a directed verdict in favor of BBPS on
the grounds that Sherbeck’s vehicle’s crossing the centerline
constituted an efficient intervening cause that broke the causal
connection between Chad’s injuries and any failure on the part
of BBPS to ensure that Chad was wearing a seatbelt.
The Christensens appealed, and the Court of Appeals
reversed the district court’s decision to grant a directed verdict.
See Christensen v. Broken Bow Public Schools, No. A-19-125,
2020 WL 5785351 (Neb. App. Sept. 29, 2020) (selected for
posting to court website).
The Court of Appeals concluded that the district court erred
when it found, as a matter of law, that Sherbeck’s actions
constituted an efficient intervening cause. For purposes of its
analysis, the Court of Appeals assumed without deciding that
BBPS had a duty to ensure that Chad was wearing a seat-
belt while riding in the school activities van. Based on that
assumption, the Court of Appeals reasoned that the purpose
of such a duty would be to protect children in the event of
any sort of traffic accident and that therefore, the potential
for liability based on a violation of that duty did not rest on
the foreseeability of the exact circumstances of the collision.
The Court of Appeals concluded that because a head-on colli-
sion between the van and another vehicle was the sort of harm
against which a seatbelt was meant to protect, the collision
could not, as a matter of law, constitute an efficient intervening
cause to insulate BBPS from liability for failing to ensure that
Chad was wearing a seatbelt. The Court of Appeals remanded
the cause to the district court with directions to consider the
other arguments BBPS made in its motion for directed ver-
dict, and, if it rejected those other arguments, to proceed with
BBPS’ presentation of evidence in its defense.
- 819 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814BBPS moved for rehearing and argued that the Court of
Appeals should have addressed its alternative argument that
§ 60-6,269 precluded the Christensens from establishing a neg-
ligence claim against BBPS based on the failure to ensure that
Chad was wearing a seatbelt. The Court of Appeals denied the
motion for rehearing, and we denied further review.
3. District Court Order
on Remand
Upon remand, the district court, as directed by the Court of
Appeals, considered BBPS’ other arguments for directed ver-
dict. The district court rejected BBPS’ argument that Harvey’s
and Blum’s actions related to the trip in the van were outside
the scope of their employment with BBPS because, as asserted
by BBPS, the trip occurred during the summer, which was out-
side the period of their teaching/coaching contracts. The court
reasoned that although their work was gratuitously provided
outside the time of their contracts, it was within the scope of
their employment, and that BBPS was not relieved of liability
on that basis.
The district court then considered BBPS’ argument regard-
ing the effect of § 60-6,269. The district court noted that
§ 60-6,269 “explicitly states, ‘violations of the provisions of
sections 60-6,267 and 60-6,268 shall not constitute prima facie
evidence of negligence.’” The court determined that given
the language of § 60-6,269, the Christensens’ claim based on
violation of § 60-6,267 must fail, and that BBPS’ motion for
directed verdict should be granted.
In its analysis, the district court noted that there was no
evidence that the actions of Harvey and Blum were deficient
in any way other than failing to ensure that the students were
wearing seatbelts. In considering the evidence of the elements
of the Chistensens’ negligence claim, the court noted the provi-
sions of § 60-6,273, which state:
Evidence that a person was not wearing an occupant
protection system or a three-point safety belt system at
- 820 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814the time he or she was injured shall not be admissible in
regard to the issue of liability or proximate cause but may
be admissible as evidence concerning mitigation of dam-
ages, except that it shall not reduce recovery for damages
by more than five percent.
The court stated that the plain language of § 60-6,273
“prohibits using evidence that a person was not wearing a
seatbelt to establish proximate cause” and that it also “clearly
prohibits evidence of non-use in regard to liability.” The
court determined that because § 60-6,273 “does not allow
evidence of non-use of a seatbelt to prove liability or proxi-
mate cause” and because the Christensens presented no other
evidence of proximate cause, their various claims for negli-
gence must fail.
Having determined that the Christensens had not presented
evidence to support their claims, the court dismissed all of
the Christensens’ claims against BBPS. The court later denied
the Christensens’ motion for a new trial and dismissed BBPS’
third-party complaint against the Sherbeck estate as moot.
The Christensens appeal, and BBPS and the Sherbeck estate
cross-appeal.
III. ASSIGNMENTS OF ERROR
The Christensens claim, summarized and restated, that
the district court erred when it interpreted §§ 60-6,269 and
60-6,273 to preclude their claims against BBPS and determined
that they had not presented evidence other than nonuse of seat-
belts to support their claims.
In its cross-appeal, BBPS claims, restated, that the district
court erred when it found that BBPS employed Harvey and
Blum on the date of the collision, and BBPS also asserts that it
was entitled to summary judgment on various defenses, includ-
ing assumption of risk and contributory negligence.
In its cross-appeal, the Sherbeck estate contends that all
claims against it in this case are barred by issue preclusion and
the law-of-the-case doctrine.
- 821 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. de Vries v. L & L Custom
Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).
V. ANALYSIS
The Christensens claim that the district court erred when
it granted a directed verdict and dismissed all of their claims
against BBPS. We conclude that through Nebraska’s statutes
addressing civil litigation and seatbelt use, the Legislature
has determined the legal significance of seatbelt nonuse and
specifically did not intend for evidence of seatbelt nonuse to
be admissible to show proximate cause and create civil liabil-
ity. As we explain below and given the record, we affirm the
order of the district court, which directed a verdict in favor of
BBPS. Consequently, the cross-appeals filed by BBPS and the
Sherbeck estate are moot.
1. Relevant Statutes
We begin by setting forth the statutes relevant to our analy-
sis. Section 60-6,267(2) describes a driver’s responsibility to
ensure seatbelt use by children. It provides:
Any person in Nebraska who drives any motor vehicle
which has or is required to have an occupant protection
system or a three-point safety belt system shall ensure
that all children eight years of age and less than eighteen
years of age being transported by such vehicle use an
occupant protection system.
Neb. Rev. Stat. § 60-6,268 (Reissue 2021) makes it an
infraction to violate subsections (1) or (2) of § 60-6,267 and
provides for a monetary fine.
- 822 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814Section 60-6,269 provides for the legal significance of viola-
tions and compliance with seatbelt usage and states:
Violations of the provisions of sections 60-6,267 and
60-6,268 shall not constitute prima facie evidence of neg-
ligence nor shall compliance with such sections constitute
a defense to any claim for personal injuries to a child or
recovery of medical expenses for injuries sustained in
any motor vehicle accident. Violation of such sections by
a driver shall not constitute a defense for another person
to any claim for personal injuries to a child or recovery
of medical expenses for injuries sustained in any motor
vehicle accident.
Critical to our analysis is the evidentiary rule set forth in
§ 60-6,273:
Evidence that a person was not wearing an occupant
protection system or a three-point safety belt system at
the time he or she was injured shall not be admissible in
regard to the issue of liability or proximate cause but may
be admissible as evidence concerning mitigation of dam-
ages, except that it shall not reduce recovery for damages
by more than five percent.
2. Christensens’ Claims Against BBPS
Many of the Christensens’ arguments are based on their
linguistic examination of the statutory framework set forth
above that they contend distinguishes between seatbelt use by
adults, which is inadmissible in regard to liability or proximate
cause, and seatbelt use by children, which they contend may be
admitted to demonstrate the negligence of a driver who fails to
secure them. As we explain below, we reject these arguments.
Reading the statutes in harmony, we conclude that a driver’s
violation of a seatbelt statute does not form a prima facie case
of his or her negligence and that such evidence is inadmis-
sible on the issue of liability or proximate cause predicated
on seatbelt nonuse, including a claim on behalf of a child for
personal injuries.
- 823 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814(a) Breach of a Statutory “Duty” and
Evidence of Proximate Cause
The Christensens assert that §§ 60-6,269 and 60-6,273 apply
only to seatbelt use by adults. They further contend that by
not securing a child, a driver has violated § 60-6,267(2) and
has thereby breached his or her duty to protect children from
collisions. That is, the Chistensens claim that failure to com-
ply with § 60-6,267(2) in and of itself forms the basis for a
breach of a statutory duty for purposes of negligence. The
Christensens contend that the policy goals of the Legislature
are tailored to protect an accident victim and not to protect a
driver who broke a child safety law from being held account-
able in civil court by the parents of an injured child.
[2] In determining whether a statute or ordinance creates
a duty, a court may determine that a statute gives rise to a
tort duty to act in the manner required by the statute where
the statute is enacted to protect a class of persons which
includes the plaintiff, the statute is intended to prevent the
particular injury that has been suffered, and the statute is
intended by the Legislature to create a private liability as
distinguished from one of a public character. Stonacek v. City
of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010) (quoting
Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001)).
Consideration of the Legislature’s purpose in enacting a stat-
ute is central to the analysis of whether the statute defines a
duty in tort and creates private civil liability. Stonacek v. City
of Lincoln, supra.We conclude that the plain statutory language does not sup-
port the Christensens’ theory of the Legislature’s intention.
The provision in § 60-6,269 that a violation of § 60-6,267
“shall not constitute prima facie evidence of negligence” is
antithetical to the prosecution of a negligence case based on a
driver’s failure to secure a child. The Legislature’s inclusion
of § 60-6,269 shows that the purpose of the statutory scheme
was decidedly not to create private civil liability.
- 824 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814[3-5] Even if BBPS’ violation of § 60-6,267 breached a
statutory duty to ensure Chad was using an occupant protection
system, it is fundamental that the violation of a statute alone
does not prove negligence. A plaintiff in ordinary negligence
must prove all four essential elements of the claim: the defend­
ant’s duty not to injure the plaintiff, a breach of that duty,
proximate causation, and damages. Susman v. Kearney Towing
& Repair Ctr., 310 Neb. 910, 970 N.W.2d 82 (2022). A cause
of action for negligence depends not only upon the defendant’s
breach of duty to exercise care to avoid injury to the plaintiff,
but also depends upon a showing that the injury suffered by
the plaintiff was caused by the alleged wrongful act or omis-
sion of the defendant. Id. In Susman, we recently recalled one
of our earliest negligence cases, which stated: “‘“The cause
of action in any case embraces not only the injury which the
complaining party has received, but it includes more. All the
facts which, taken together, are necessary to fix the responsi-
bility are parts of the cause of action.”’” 310 Neb. at 921, 970
N.W.2d at 91 (quoting Westover v. Hoover, 94 Neb. 596, 143
N.W. 946 (1913)).
[6-8] Even assuming that the violation of § 60-6,267
breached a duty of care, there is no admissible evidence that
violation of the child seatbelt requirement proximately caused
Chad’s injuries. To the contrary, § 60-6,273 explicitly makes
all “[e]vidence that a person was not wearing an occupant
protection system or a three-point safety belt system” inad-
missible for the issue of proximate cause. Statutory text is to
be given its plain and ordinary meaning. Dutcher v. Nebraska
Dept. of Corr. Servs., ante p. 405, 979 N.W.2d 245 (2022). An
appellate court is not at liberty to add language to the plain
terms of a statute to restrict its meaning. Id. The Legislature
has dictated that seatbelt nonuse is excluded on the issue of
proximate cause.
The Christensens urge us to factor in Chad’s age as a
child into our statutory analysis. This argument is unavailing.
- 825 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814We are aware that the Legislature imposed a fine on drivers
who fail to secure children in their vehicles. See § 60-6,268.
However, it did not distinguish the age or status of the “per-
son” without the seatbelt when setting forth the evidentiary
rule in § 60-6,273. According to the Legislature, all nonuse
evidence is inadmissible regarding proximate cause. Id. We
are not inclined to add language regarding age to change the
statute’s exclusionary plain meaning. See id. Indeed, we have
explained in the past that given the language of § 60-6,273,
evidence of seatbelt nonuse is admissible only for mitigation
of damages. Werner v. County of Platte, 284 Neb. 899, 824
N.W.2d 38 (2012); Fickle v. State, 273 Neb. 990, 735 N.W.2d
754 (2007), modified on denial of rehearing 274 Neb. 267,
759 N.W.2d 113.
In this case, aside from the failure to ensure Chad was
restrained by a seatbelt in the activities van, there was no evi-
dence that Harvey’s or Blum’s actions were deficient. Without
the seatbelt evidence, the Christensens’ claims based on BBPS’
violation of § 60-6,267, or even a purported breach of a statu-
tory duty based in § 60-6,267, were properly dismissed. We
find no error in the directed verdict in favor of BBPS.
(b) Evidence of BBPS’ Negligent
Supervision of Students
The Christensens attempt to circumvent §§ 60-6,267 and
60-6,269 by arguing that seatbelt nonuse by a student could
be direct evidence that the school breached its duty to exer-
cise reasonable care under the circumstances. We reject this
argument.
The circumstances of this case are unrestrained children in
a van which was hit head on by a truck. Evidence of a per-
son’s seatbelt nonuse is inadmissible for the issue of “liability
or proximate cause.” § 60-6,273. The district court prop-
erly excluded evidence of seatbelt nonuse. See § 60-6,273.
Without evidence of seatbelt nonuse, which evidence was
essential to the claim of negligent supervision, but which
- 826 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814was properly excluded, the Christensens’ evidence failed
to show proximate cause. Taking every controverted fact
resolved in the Christensens’ favor and giving them the ben-
efit of every inference which can reasonably be deduced from
the admissible evidence, we agree with the district court that
the Christensens failed to show that BBPS caused Chad’s
injuries. We find no error in the directed verdict in favor
of BBPS.
3. Cross-Appeals and BBPS’ Third-Party
Complaint Against Sherbeck Estate
In view of our disposition affirming the directed verdict in
favor of BBPS, we determine that the district court correctly
dismissed as moot BBPS’ third-party complaint against the
Sherbeck estate.
VI. CONCLUSION
For the reasons explained above, we affirm the order of the
district court that directed the verdict in favor of BBPS and
dismissed the Christensens’ claims against BBPS. The issues
raised by the cross-appeals filed by BBPS and the Sherbeck
estate are now moot or without merit, and we decline to reach
them. See In re Maint. Fund of Sunset Mem. Park Chapel, 302
Neb. 954, 925 N.W.2d 695 (2019).
Affirmed.
Freudenberg, J., not participating.