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FALES v. COUNTY OF STANTON

Cite as 297 Neb. 41

Dillon Fales, appellant and cross-appel

v. County of Stanton, Nebra

appellee and cross-appella

___ N.W.2d ___

Filed June 23, 2017. No. S-16-936.

1. Statutes: Appeal and Error. Statutory interpretation is a question 

of law, which an appellate court must resolve independently of the 

trial court.

2. Political Subdivisions Tort Claims Act: Appeal and Error. In actions 

brought under the Political Subdivisions Tort Claims Act, an appellate 

court will not disturb the factual findings of the trial court unless they 

are clearly wrong.

3. Political Subdivisions Tort Claims Act: Judgments: Appeal and 

Error. In actions brought pursuant to the Political Subdivisions Tort 

Claims Act, when determining the sufficiency of the evidence to sustain 

the trial court’s judgment, it must be considered in the light most favorable to the successful party; every controverted fact must be resolved in 

favor of such party, and it is entitled to the benefit of every inference 

that can reasonably be deduced from the evidence.

4. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: 

Motor Vehicles: Damages. Neb. Rev. Stat. § 13-911 (Reissue 2012) 

provides a remedy to an innocent third party for damages caused by a 

law enforcement officer’s vehicular pursuit.

5. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: 

Motor Vehicles: Words and Phrases. An “innocent third party” under 

Neb. Rev. Stat. § 13-911 (Reissue 2012) is one who has not promoted, 

provoked, or persuaded the driver to engage in flight from law enforcement personnel and one who is not sought to be apprehended in the 

fleeing vehicle.

6. Police Officers and Sheriffs. Whether law enforcement sought to 

apprehend an individual is a mixed question of law and fact.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/15/2017 09:11 AM CDT
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FALES v. COUNTY OF STANTON

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7. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: 

Motor Vehicles. If during a pursuit under Neb. Rev. Stat. § 13-911 

(Reissue 2012) a passenger takes some action that makes him or her 

become a person sought to be apprehended, the passenger does not 

remain an innocent third party by virtue of the fact that law enforcement 

began the pursuit to apprehend the driver only.

8. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Madison County: James

G. Kube, Judge. Affirmed

Terry M. Anderson and Timothy J. O’Brien, of Hauptman, 

O’Brien, Wolf & Lathrop, P.C., for appellant.

Vincent Valentino and Brandy R. Johnson for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke, 

Cassel, J.

INTRODUCTION

During an alleged vehicular pursuit by law enforcement, 

an underage passenger threw out beer containers to avoid 

being apprehended with the evidence. After his vehicle crashed 

and he was seriously injured, he sued the County of Stanton, 

Nebraska (County), claiming to be an “innocent third party.”1

Following a trial, the district court determined that when the 

passenger tossed the beer, he became a subject of the pursuit, 

thereby disqualifying him as an innocent third party. Because 

the court’s factual findings were not clearly erroneous and its 

conclusion followed our case law, we affirm the judgment.

BACKGROUND

Fact

Dillon Fales and Bryant Irish—both minors—attended a 

party in a trailer park and consumed beer while there. At 

1 See Neb. Rev. Stat. § 13-911 (Reissue 2012).
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approximately 12:45 a.m. on February 9, 2014, they left the 

party. Irish drove a pickup truck, and Fales sat in the passenger seat.

The trailer park was located south of County Road 844 and 

just east of where that road intersects Highway 35 in Stanton 

County. A more direct route back to Norfolk, Nebraska, would 

have been to turn west onto County Road 844 and then turn 

onto Highway 35. But because Fales and Irish heard that law 

enforcement officers were on the way, they took “back roads.” 

Irish therefore turned east out of the trailer park onto County 

Road 844.

As part of his patrol, Stanton County Deputy Sheriff 

Michael Petersen had parked his vehicle on the northeast corner of the trailer park. He observed Irish’s pickup “fishtail[]” 

as it turned east onto County Road 844 and decided to follow it. Petersen could not see how many people were inside 

the pickup.

Irish proceeded east on County Road 844 and then turned 

south onto County Road 560. Petersen followed. He observed 

the pickup turn west onto County Road 842 without signaling its turn. Fales testified that when they turned onto County 

Road 842, they were able to confirm that a sheriff’s vehicle 

was following them.

As Petersen turned onto County Road 842, he activated his 

emergency lights in an attempt to initiate a traffic stop. He 

intended to stop the vehicle for a turn signal violation and possibly for speeding. Petersen “called in to dispatch” at 12:54 

a.m. When Fales and Irish saw the emergency lights and realized the deputy was following them, Irish asked Fales if they 

“should run for it or pull over.” Fales testified that he shrugged 

his shoulders and replied, “‘I don’t know.’” According to 

Fales, Irish then “[p]retty much floored” the pickup.

Shortly after Irish accelerated, Fales threw an unopened 

30-pack box of beer out of the window. He did so because he 

was scared that they would be pulled over by law enforcement, 

and he “figured it was better if we didn’t have any beer in the 
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vehicle.” Petersen observed several beer cans and a beer box 

on the road. A transcript of the “radio traffic” shows that at 

12:55 a.m., Petersen reported “[b]eer box out, maybe two” and 

“[t]hey are throwing out more Bud Light beverages.” Petersen 

considered this to be destruction of evidence and to be a part 

of his apprehension. He formed the opinion that the occupant 

or occupants in the pickup were minors.

Near the Stanton County line, Petersen slowed and deactivated his emergency lights. It is unclear how far Petersen was 

behind the pickup at that time.

As the pickup approached a sharp curve, it was traveling 

too fast for the conditions and left the roadway. An accident 

reconstructionist opined that the vehicle’s minimum speed at 

the time it began to brake was 86.74 miles per hour. At 12:57 

a.m., Petersen radioed: “[T]hey just wrecked. They are in the 

ditch.” The pickup struck a concrete culvert. As a result of the 

accident, Fales suffered a severe head wound and paralysis 

from the chest down.

Pleadi

Fales sued the County, alleging that he was an innocent 

third party and that the County was strictly liable to him by 

operation of § 13-911. Fales also alleged that the County was 

negligent in its pursuit of the vehicle in violation of Neb. Rev. 

Stat. § 60-6,114(1) and (3) (Reissue 2010).

The County filed an answer and an amended counterclaim for declaratory judgment. The counterclaim alleged 

that § 13-911(1) and (5) were unconstitutional in violation 

of Neb. Const. art. III, § 14. It claimed that the legislation 

was “logrolled by amendment to a non-germane bill that was 

already engrossed and read pursuant to Legislative Rule.” The 

County also asserted that § 13-911(1) and (2) were unconstitutional because the strict liability standard conflicted with or 

implicitly amended § 60-6,114(1), (2), and (3), which imposed 

an ordinary negligence standard on “‘police vehicles’” during a pursuit. The County requested, among other things, 
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a declaration that 1981 Neb. Laws, L.B. 273, was facially 

unconstitutional, null, and void.

After the district court overruled a motion for summary 

judgment by the County on its amended counterclaim for 

declaratory judgment, the County filed an amended answer and 

second amended counterclaim for declaratory judgment. The 

amended answer alleged that the County was entitled to sovereign immunity under Neb. Rev. Stat. § 13-910(1) (Reissue 

2012). With respect to the County’s amended counterclaim, it 

alleged that § 13-911(1) and (5) were unconstitutional, because 

their strict liability standard “conflicts with and/or implicitly 

amends” the ordinary negligence standard contained in Neb. 

Rev. Stat. §§ 13-903(4) (Reissue 2012) and 13-910(1). It further alleged that a “tort claim alleging strict liability but not 

negligent conduct by an employee of a political subdivision 

does not fall within the definition of ‘tort claim.’”

District Court’s Judg

The district court entered judgment in favor of the County. 

With respect to Fales’ first cause of action, the court found 

that Fales failed to sustain his burden to prove that he qualified as an innocent third party. The court specifically found 

the following:

• Petersen “affirmed that when observing the destruction of 

evidence, such as when beer gets thrown out of a vehicle, that 

his focus of apprehension broadens to include the individual 

responsible for committing this potential act of concealing 

criminal activity.”

• When Fales threw the box of beer cans out of the pickup, 

“he was actively engaging in criminal activity which was 

observed by the law enforcement officer in pursuit of 

the vehicle.”

• “[W]hen Fales threw the beer out of the pickup truck, which 

Petersen observed, he lost his status as a potential ‘innocent third party.’” And although Petersen “did not know it 

was Fales who was the passenger in the truck, or even if 

there were any passengers in the truck, Petersen’s purpose 
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FALES v. COUNTY OF STANTON

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of apprehension broadened to include any and all persons 

inside the vehicle who may have attempted to destroy or conceal evidence.”

The court also rejected Fales’ second cause of action asserting 

negligence under § 60-6,114. Finally, the court “decline[d] 

to return to the constitutional claim of the [County] under 

which it previously sought summary judgment and was 

unsuccessful.”

Fales filed a timely appeal, and the County cross-appealed. 

We moved the case to our docket.2

ASSIGNMENTS OF ERROR

Fales assigns that the district court erred in (1) finding he 

was not an innocent third party under § 13-911 and (2) dismissing his complaint “on his cause of action under . . . § 13-911.”

On cross-appeal, the County assigns that the district court 

erred in not declaring 1981 Neb. Laws, L.B. 273, § 31, and 

1984 Neb. Laws, L.B. 590, § 2, unconstitutional as in violation of Neb. Const. art. III, § 14.

STANDARD OF REVIEW

[1] Statutory interpretation is a question of law, which an 

appellate court must resolve independently of the trial court.3

[2,3] In actions brought under the Political Subdivisions 

Tort Claims Act, an appellate court will not disturb the factual 

findings of the trial court unless they are clearly wrong.4 In 

such actions, when determining the sufficiency of the evidence 

to sustain the trial court’s judgment, it must be considered in 

the light most favorable to the successful party; every controverted fact must be resolved in favor of such party, and it is 

entitled to the benefit of every inference that can reasonably be 

deduced from the evidence.5

2 See Neb. Rev. Stat. § 24-1106 (Reissue 2016).

3 Williams v. City of Omaha, 291 Neb. 403, 865 N.W.2d 779 (2015).

4 Id.

5 Id.
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ANALYSIS

Statut

[4] Section 13-911 provides a remedy to an “innocent third 

party” for damages caused by a law enforcement officer’s 

“vehicular pursuit.”6 The statute provides: “In case of death, 

injury, or property damage to any innocent third party proximately caused by the action of a law enforcement officer 

employed by a political subdivision during vehicular pursuit, 

damages shall be paid to such third party by the political 

subdivision employing the officer.”7 Thus, to recover under 

§ 13-911, three components must be proved: (1) the person 

seeking to recover was an innocent third party, (2) law enforcement was engaged in a vehicular pursuit, and (3) the pursuit 

proximately caused the death, injury, or property damage.

Innocent Thir

The district court began and ended its inquiry with the 

innocent-third-party component. We will likewise begin by 

considering whether Fales was an innocent third party. If 

he was not, the County is not liable regardless of whether a 

vehicular pursuit occurred and whether the pursuit proximately 

caused his injuries.

[5] An “innocent third party” under § 13-911 is one who 

has not promoted, provoked, or persuaded the driver to engage 

in flight from law enforcement personnel and one who is not 

sought to be apprehended in the fleeing vehicle.8 In using the 

phrase “innocent third party,” we stated that “the Legislature 

was concerned with the actions of the third party as those 

actions may relate to the flight of the driver sought to be 

apprehended.”9 The district court found that “when Fales threw 

6 Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).

7 § 13-911(1).

8 Werner v. County of Platte, supra note 6.

9 Henery v. City of Omaha, 263 Neb. 700, 707, 641 N.W.2d 644, 649 

(2002).
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the beer out of the pickup truck, which Petersen observed, he 

lost his status as a potential ‘innocent third party.’”

[6] Whether law enforcement sought to apprehend an individual is a mixed question of law and fact.10 Fales contends 

that the court’s conclusion was wrong under both the facts and 

the law. We disagree.

First, we consider whether the district court’s factual findings were clearly wrong. The court noted that Petersen testified in his deposition that even if he had known Fales was a 

passenger, he had no intent to apprehend Fales. But the court 

recognized a limitation of the question posed: It did not “relate 

. . . Fales as the individual who threw the beer out of the 

vehicle.” Indeed, Petersen later testified that he did not have 

a reason to apprehend Fales because he did not know who 

Fales was.

Fales contends that there was no “factual basis” for Petersen’s 

conclusion that the beer came from the pickup.11 Fales directs 

us to Petersen’s deposition, where Petersen testified that he did 

not see anyone in the pickup throw the beer. Although Petersen 

may not have observed who in the pickup threw the beer, 

he testified that he realized beer was being tossed from the 

vehicle. And this perception is supported by the radio traffic. 

According to a transcript, Petersen reported, in real time, that 

a beer box had been thrown and that “[t]hey are throwing out 

more Bud Light beverages.”

Fales also challenges the district court’s purported reliance on a hypothetical question asked of Petersen. During 

trial, counsel for the County asked Petersen the following 

questions:

Q. Now, when . . . you began to see [beer cans and a 

beer box] as you . . . were traveling on [County Road] 

842 — have you ever been involved with somebody that’s 

jettisoned evidence out of a vehicle?

10 See Werner v. County of Platte, supra note 6.

11 Brief for appellant at 24.
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A. Yes.

Q. Isn’t that called destruction of evidence?

A. Yes, it is.

Q. Isn’t that a felony?

A. Yes.

Q. In other words, someone is trying to conceal their 

criminal activity, are they not?

A. They are.

Q. And when they seek to destroy evidence of a crime, 

that gets into another level that you would consider as 

part of your — part of your apprehension?

A. Yes.

Although the question was hypothetical in nature, Petersen’s 

answers square with his deposition testimony that if he had 

been able to get the pickup stopped, he would have issued 

a citation to whomever threw the beer out of the window. 

The court determined that “[e]ven though . . . Petersen 

did not know it was Fales who was the passenger in the 

truck . . . Petersen’s purpose of apprehension broadened to 

include any and all persons inside the vehicle who may have 

attempted to destroy or conceal evidence.” In making this 

determination, the court made logical inferences from the 

evidence. We cannot say that the court’s factual findings were 

clearly erroneous.

Fales contends that the Nebraska Court of Appeals’ decision 

in Jura v. City of Omaha12 mandates a different result in this 

case. We disagree. In Jura, the Court of Appeals reviewed the 

trial court’s finding that a passenger in a stolen vehicle was 

not an innocent third party. The officer began a pursuit once 

he learned that the vehicle was stolen, and the officer testified 

that he “‘wanted everybody inside the vehicle.’”13 The officer 

explained: “‘When you have a stolen vehicle with multiple 

occupants, you don’t know who stole the vehicle, where it 

12 Jura v. City of Omaha, 15 Neb. App 390, 727 N.W.2d 735 (2007).

13 Id. at 397, 727 N.W.2d at 740.
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was taken from, who might have been driving it earlier. You 

don’t have that information before you stop the vehicle and 

question the occupants.’”14 Similarly, in the instant case, 

Petersen did not know who in the pickup discarded the beer. 

It is reasonable to infer that he sought to apprehend everyone 

within the pickup.

In Jura, the Court of Appeals agreed that the passenger was 

a person sought to be apprehended. The court stated:

A police officer’s grounds for seeking to apprehend occupants in a vehicular chase situation must have a reasonable basis in the law and facts. Such a basis clearly exists 

in this case, because the vehicle was a stolen vehicle, 

as opposed to, for example, a chase starting with a traffic violation.15

Fales focuses on the latter sentence and asserts that when the 

pursuit is initiated because of a traffic violation “the pursuing officer intends to apprehend only the driver of the fleeing vehicle, not the other occupants of the vehicle.”16 We 

agree that this is frequently true at the beginning of such 

a pursuit.

[7] We reject the notion that a passenger who may have 

qualified as an innocent third party at the beginning of a pursuit cannot lose that status. If during the pursuit a passenger 

takes some action that makes him or her become a person 

sought to be apprehended, the passenger does not remain an 

innocent third party by virtue of the fact that law enforcement 

began the pursuit to apprehend the driver only. Here, Fales’ 

act of throwing beer out of Irish’s fleeing vehicle was such 

an action.

Fales also relies to some extent on our decision in Werner 

v. County of Platte.

17 In that case, the trial court found that the 

14 Id.

15 Id. at 397, 727 N.W.2d at 740-41.

16 Brief for appellant at 19.

17 Werner v. County of Platte, supra note 6.
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passenger was an innocent third party even though the passenger was discovered, after the fact, to be in possession of 

illegal drugs. We affirmed, stating that “the record supports the 

pertinent factual underpinnings of the court’s conclusion, and 

thus, they are not clearly wrong.”18 We explained that the officer “sought to pull over the car for suspected driving under the 

influence and speeding—only the driver could have been guilty 

of those crimes.”19 We agreed with the trial court that the passenger was never the target of the officer’s pursuit. Based on 

Werner, Fales contends that “doing something that constitutes 

a crime during a pursuit does not by itself cause the passengers 

to become occupants to be apprehended.”20

The instant case is distinguishable from Werner in two key 

respects. First, the district court here found that Fales was not 

an innocent third party, while the trial court in Werner determined that the passenger was an innocent third party. This is an 

important distinction under our standard of review: We defer to 

the trial court’s factual findings unless they are clearly wrong, 

and we consider the evidence in the light most favorable to the 

successful party. Second, we stated in Werner that “[d]uring 

the pursuit, [the officer] did not know about [the passenger’s] 

breaking the law . . . .”21 But here, Petersen knew about the 

beer cans being thrown from the vehicle during the pursuit. 

While Petersen did not know at the time that it was Fales 

who threw the beer, he was aware of the law violation during 

the pursuit.

We agree with the district court that Fales was a person 

sought to be apprehended in the fleeing vehicle. Because Fales 

was not an innocent third party, the County is not liable for his 

injuries under § 13-911.

18 Id. at 917, 824 N.W.2d at 56.

19 Id.

20 Brief for appellant at 18.

21 Werner v. County of Platte, supra note 6, 284 Neb. at 919, 824 N.W.2d 

at 57.
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Cross-Appea

[8] Because we affirm the district court’s judgment finding 

that the County is not liable for Fales’ injuries, we agree with 

the concession of the County at oral arguments that we need 

not consider the County’s cross-appeal as to the constitutionality of § 13-911. An appellate court is not obligated to engage 

in an analysis that is not necessary to adjudicate the case and 

controversy before it.22

CONCLUSION

We consider the evidence in the light most favorable to the 

County as the successful party and give it the benefit of every 

inference that can reasonably be deduced from the evidence. 

Viewed in that light, the district court’s factual findings are not 

clearly erroneous. We find no error in the court’s conclusion 

that when Fales threw the box of beer out of the window of 

Irish’s fleeing pickup, which was observed by Petersen, Fales 

became a person sought to be apprehended. Because Fales was 

therefore not an innocent third party, we affirm the district 

court’s judgment.

Affirm

22 Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421 

(2016).