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291 Nebraska Report

WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

Marcus M. Williams, appellee,

v. City of Omaha, appell

___ N.W.2d ___

Filed July 17, 2015. No. S-14-796.

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: Words and Phrases. A police pursuit as defined in 

Neb. Rev. Stat. § 13-911 (Reissue 2012) involves multiple elements 

and is a much more nuanced matter than simply deciding whether one 

vehicle is trying to catch up to, or maintain sight of, another.

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

Motor Vehicles: Proof. Three requirements must be met before a finding can be made that a vehicular pursuit under Neb. Rev. Stat. § 13-911 

(Reissue 2012) has occurred: (1) There must be an active attempt by a 

law enforcement officer to apprehend occupants of another motor vehicle, (2) the driver of the fleeing vehicle must be aware of the attempt 

to apprehend, and (3) the driver must resist apprehension by taking 

some action, such as speeding, ignoring the officer, or attempting to 

elude the officer while driving at a speed which is not reasonable under 

the conditions.
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

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

Motor Vehicles. Whether law enforcement sought to apprehend an individual under Neb. Rev. Stat. § 13-911 (Reissue 2012) is a mixed question of law and fact.

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

Motor Vehicles: Strict Liability. Under Neb. Rev. Stat. § 13-911 

(Reissue 2012), a political subdivision is strictly liable for injuries 

to an “innocent third party” during a vehicular pursuit, regardless 

whether the law enforcement officer’s actions were otherwise proper or 

even necessary.

8. Political Subdivisions Tort Claims Act: Motor Vehicles: Proximate 

Cause. For a pursuit under Neb. Rev. Stat. § 13-911 (Reissue 2012) 

to have been a proximate cause of an accident, the pursuit must have 

caused the motorist to resist apprehension by maintaining or increasing speed, or by attempting to elude the pursuing officer at unreasonable speeds.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirmed

Thomas O. Mumgaard, Deputy Omaha City Attorney, for 

appellant.

Edward F. Fogarty, of Fogarty & Lund, and John J. Ekeh, of 

Ekeh Law Office, for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and

Cassel, J

I. INTRODUCTION

After a bench trial, the City of Omaha, Nebraska (City), 

appeals from a money judgment for injuries sustained by an 

innocent third party in a motor vehicle collision involving a 

vehicle allegedly being pursued by police officers. The City 

contends that the pursuit statute1 did not apply because the 

officers intended only to stop the vehicle and not to “apprehend” the driver. Under our deferential standard of review, 

1 See Neb. Rev. Stat. § 13-911 (Reissue 2012).
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

two factual findings support an inference that the officers’ 

objective changed before the collision. The City also criticizes 

the court’s assessment of the officers’ intent. But the court’s 

discussion did not detract from its essential findings. Because 

the district court’s factual findings are not clearly erroneous 

and support its conclusion that the police began a pursuit prior 

to the collision, we affirm the judgment.

II. BACKGROUND

1. Stipulated Fac

The parties stipulated to basic facts, which we summarize 

as follows:

• Two motor vehicles collided at the intersection of Spaulding

and 30th Streets in Omaha.

• William G. Webster was driving westbound on Spaulding

Street.

• Marcus M. Williams was northbound on 30th Street.

• Webster violated a stop sign, resulting in the collision.

• An Omaha police cruiser, driven by Officer Jeffrey Wasmund,

who was accompanied by Officer Kalon Fancher, was east of 

the intersection.

• After the collision, the officers drove through the intersection to follow Webster, who was fleeing from the scene.

• At a point west of the intersection, Fancher used the cruiser’s

radio to announce that the officers were in pursuit.

• Shortly after the radio call, the officers’ supervisor ordered

them to terminate the pursuit.

2. Pleadin

Williams sued the City. He alleged that at the time of the 

crash, Webster was fleeing to avoid apprehension by a police 

cruiser that was actively attempting to apprehend Webster. 

Williams claimed that by virtue of § 13-911, the City was 

strictly liable for all of his damages. The City denied liability. 

It alleged that the sole proximate cause of any damages to 

Williams was the negligent or intentional actions of Webster.
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

3. Evidence at Tr

During trial, Williams testified about his directions of travel 

on the day of the accident. As Williams approached Binney 

Street, while driving north on 30th Street, he saw a police 

cruiser behind a white car—Webster’s vehicle—turning east 

onto Wirt Street. The police cruiser was about 11⁄2 blocks in 

front of Williams when it turned onto Wirt Street. Williams 

testified that Webster’s vehicle and the police cruiser were 

traveling at a “normal” speed and that the cruiser did not have 

its overhead lights activated. Williams looked eastward down 

Wirt Street as he approached it from the south, and he saw that 

Webster’s vehicle and the police cruiser had turned onto 28th 

Avenue going north. Williams testified that the cruiser’s overhead lights were flashing at that time.

Williams testified that Webster’s vehicle was being “pursued” by the police cruiser. According to Williams, the police 

cruiser had “the flashers on chasing [Webster].” At 30th and 

Spaulding Streets, Webster’s vehicle collided with Williams’ 

vehicle. After the collision, onlookers told Williams that the 

police were in pursuit. When Williams’ fiance and her grandmother came to get him, he told them that he had “witnessed 

a high-speed police chase, and . . . it end[ed] up colliding 

into [him].”

Fancher described the events occurring approximately 1 

minute before the collision. He and Wasmund were traveling 

westbound on Spaulding Street when they observed a white 

vehicle with an “expired registration” that was approaching 

the intersection of 30th and Spaulding Streets. The officers 

tried to conduct a traffic stop, but Webster’s vehicle instead 

“shot through the intersection and collided with a vehicle.” 

Fancher believed the officers were approximately one block 

east of 30th Street when they decided to conduct a traffic 

stop. Once they realized that Webster’s vehicle had an expired 

registration, they turned on the cruiser’s overhead flashing 

lights. Fancher estimated that the officers were two or three 

car lengths behind Webster’s vehicle when they activated 

the lights.
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291 Nebraska Report

WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

Wasmund testified that when he determined the license plate 

on Webster’s vehicle was expired, his cruiser was near 29th 

and Spaulding Streets. He then activated the overhead lights in 

order to conduct a traffic stop. Webster’s vehicle did not stop 

and instead continued westbound on Spaulding Street. Webster 

disregarded the stop sign at 30th and Spaulding Streets and 

collided with Williams’ vehicle. Wasmund testified that he 

was one or two car lengths behind Webster’s vehicle and that 

he was driving approximately 25 miles per hour. Wasmund 

estimated that 2 or 3 seconds elapsed between his activation of the overhead lights and the collision. When Webster’s 

vehicle did not stop after colliding with Williams’ vehicle, 

Wasmund decided to follow the car. He testified that as the 

officers approached the block after 30th and Spaulding Streets, 

Fancher got on the radio to let others know that they were 

initiating a pursuit. Wasmund denied that he decided to pursue 

Webster before the collision.

A sergeant with the Omaha Police Department testified 

that the department’s standard operating procedures required 

officers to immediately get on the radio and advise that they 

were in pursuit as soon as they actively began a pursuit. The 

sergeant testified that Fancher reported the reason for the pursuit was that the vehicle had struck another vehicle at 30th 

and Spaulding Streets. According to a police pursuit recording 

form, the officers reported that the pursuit began at 30th and 

Spaulding Streets.

4. District Court’s Judg

The district court entered judgment in favor of Williams. 

The court specifically found the following:

• The “[o]fficers activated their emergency lights but not

the siren.”

• “[A]fter the officer activated the emergency lights the Webster

vehicle ‘jack rabbited.’”

• “[B]oth Officer Wasmund[’s cruiser] and the Webster vehicle

were accelerating just before the collision.”
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291 Nebraska Report

WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

The court also made numerous findings regarding the officers’ intent. Among the findings were that once Webster’s 

vehicle accelerated, Wasmund “instantaneously decided to pursue by accelerating his vehicle”; that the decision to pursue 

“occurred either at the moment that the Webster vehicle accelerated or at the moment the Webster vehicle ran the stop sign”; 

that “the decision to pursue and the decision to flee [were] 

made before the collision”; that “the actions of the fleeing 

Webster vehicle shows [sic] that Webster was aware of the 

pursuit of the officer and as a result ran the stop sign striking 

[Williams]”; and that “[w]ords, actions and conduct shown in 

the evidence . . . are sufficient . . . to give the Court a basis for 

the finding of intent to pursue.”

The court found that the City was strictly liable for Williams’ 

damages and entered a judgment of $172,138.56 against the 

City. The City filed a timely appeal, which we moved to 

our docket.2

III. ASSIGNMENTS OF ERROR

The City assigns eight errors which, consolidated and 

restated, allege that the district court erred in finding that a 

pursuit began prior to the collision and that the pursuit proximately caused the collision.

IV. 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 And 

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 

2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

3 Credit Mgmt. Servs. v. Jefferson, 290 Neb. 664, 861 N.W.2d 432 (2015).

4 Maclovi-Sierra v. City of Omaha, 290 Neb. 443, 860 N.W.2d 763 (2015).
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

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

V. ANALYSIS

1. Pursuit Statu

Our analysis begins with § 13-911, the pursuit statute. It 

provides that when an innocent third party suffers injury proximately caused by the action of a law enforcement officer during vehicular pursuit, the political subdivision employing the 

officer shall be liable for damages to the innocent third party.6

The pursuit statute defines “vehicular pursuit” as

an active attempt by a law enforcement officer operating a motor vehicle to apprehend one or more occupants 

of another motor vehicle, when the driver of the fleeing 

vehicle is or should be aware of such attempt and is 

resisting apprehension by maintaining or increasing his 

or her speed, ignoring the officer, or attempting to elude 

the officer while driving at speeds in excess of those reasonable and proper under the conditions.7

2. Whether Officers Were in Purs

at Time of Colli

[4] The City challenges the district court’s determination 

that a pursuit began before the collision. A police pursuit 

as defined in § 13-911 involves multiple elements and is a 

much more nuanced matter than simply deciding whether one 

vehicle is trying to catch up to, or maintain sight of, another.8

Among other arguments, the City contends that the “time was 

too short for the officers to respond in any way that could 

be seen as an active attempt to apprehend Webster,”9 that the 

5 Id.

6 § 13-911(1).

7 § 13-911(5).

8 See Perez v. City of Omaha, 15 Neb. App. 502, 731 N.W.2d 604 (2007).

9 Brief for appellant at 17.
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

officers’ decision to pursue is not the affirmative act required 

under the statute, and that the pursuit statute does not impose 

liability when officers attempt to make a traffic stop and the 

vehicle flees.

[5] Three requirements must be met before a finding can 

be made that a vehicular pursuit under § 13-911 has occurred: 

(1) There must be an active attempt by a law enforcement 

officer to apprehend occupants of another motor vehicle, (2) 

the driver of the fleeing vehicle must be aware of the attempt 

to apprehend, and (3) the driver must resist apprehension by 

taking some action, such as speeding, ignoring the officer, or 

attempting to elude the officer while driving at a speed which 

is not reasonable under the conditions.10 We consider these 

requirements in turn.

(a) Active Attempt to Apprehend

The first component of a vehicular pursuit under the statute 

requires an “active attempt” to “apprehend.” These terms are 

not defined in the Political Subdivisions Tort Claims Act. We 

agree with the City that under § 13-911, the attempt to apprehend the driver “must be more than passively driving, monitoring, or watching.”11

But two actions by the officers prior to the collision demonstrate conduct above and beyond mere driving, monitoring, 

or watching. First, while following Webster’s vehicle, the 

officers activated the cruiser’s overhead flashing lights in 

order to get Webster to stop. Second, the police cruiser accelerated just before the collision. These facts, which are not 

clearly wrong, establish an “active attempt.”

[6] The City focuses primarily upon the word “apprehend.” 

Whether law enforcement sought to apprehend an individual 

under § 13-911 is a mixed question of law and fact.12 The 

meaning of “apprehend” presents a question of law. The City 

10 See Lalley v. City of Omaha, 266 Neb. 893, 670 N.W.2d 327 (2003).

11 See brief for appellant at 28.

12 See Maclovi-Sierra v. City of Omaha, supra note 4.
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

contends that “[a]ll the evidence shows the officers’ conduct 

was nothing more than an attempt to make a traffic stop for 

a minor violation that would not lead to apprehension.”13 In 

this case, we need not decide whether liability under § 13-911 

can be established where an officer does nothing more than 

attempt to stop a vehicle by operating the cruiser’s emergency 

lights. Here, the police not only activated the lights but also 

accelerated their vehicle prior to the collision.

Although “apprehend” has various meanings depending 

on the context, an inference arises that the officers were 

attempting to apprehend Webster. And as the prevailing party, 

Williams is entitled to the benefit of every inference that 

can reasonably be deduced from the evidence.14 The word 

“apprehend” is derived from a French word meaning “to lay 

hold of, seize.”15 In the physical context, it can mean “[t]o 

lay hold upon, seize, with hands, teeth, etc.”; “[t]o seize (a 

person) in name of law, to arrest”; “[t]o seize upon for one’s 

own, take possession of”; or “[t]o seize or embrace (an offer 

or opportunity).”16 The Nebraska Court of Appeals noted 

that “apprehension” has been defined as “‘[s]eizure in the 

name of the law; arrest,’”17 but that “apprehend” can mean 

to “‘catch’” or “‘detain.’”18 While the officers may not have 

intended to “apprehend” Webster at the moment when they 

activated their overhead lights, their vehicle’s acceleration 

prior to the collision raised an inference that their objective 

had changed.

[7] Our application of the word “apprehend” is consistent 

with the purpose of the statute. Under § 13-911, a political 

13 Brief for appellant at 23.

14 Maclovi-Sierra v. City of Omaha, supra note 4.

15 1 The Oxford English Dictionary 581 (2d ed. 1989).

16 Id.

17 Jura v. City of Omaha, 15 Neb. App. 390, 396, 727 N.W.2d 735, 740 

(2007).

18 Id.
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

subdivision is strictly liable for injuries to an “innocent third 

party” during a vehicular pursuit, regardless whether the law 

enforcement officer’s actions were otherwise proper or even 

necessary.19 The obvious purpose is to shift the burden of 

bearing the costs resulting from such injuries away from the 

innocent third party. Clearly, the purpose applies where police 

pursue a vehicle in order to make an arrest. But it equally 

applies where police actively pursue a vehicle that flees from 

an attempt to initiate a traffic stop.

The City also focuses on the district court’s statements 

regarding the police officers’ intent to pursue Webster. The 

City emphasizes the subjective views of the officers and 

states—without citing any authority—that the “‘active attempt’ 

to ‘apprehend’ requirement is measured by the officer’s 

intent.”20 And the district court concentrated on when the officers made the decision to pursue. But the court’s discussion 

of the officers’ intent, even if not directly pertinent, does not 

detract from the two factual findings that were essential to the 

court’s decision.

The district court found that prior to the collision, the officers activated the cruiser’s overhead lights and the cruiser was 

increasing its speed. As we have already said, these factual 

findings are not clearly erroneous. And these facts support the 

court’s conclusion that the police were actively attempting to 

apprehend Webster. The first component of a vehicular pursuit 

was established.

(b) Awareness of Attempt 

to Apprehend

Next, for a vehicular pursuit under § 13-911, the driver 

must be aware of the attempt to apprehend. Webster did not 

testify at trial. If he made any statements reflecting on the 

issue, they were not included in the evidence. Thus, Webster’s 

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

20 Brief for appellant at 25.
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WILLIAMS v. CITY OF OMAHA

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awareness of the attempt to apprehend him must be based on 

his actions at the time.

The district court found that after the officers activated the 

cruiser’s overhead lights, Webster increased his speed and “ran 

a stop sign.” These facts support a reasonable inference that 

Webster was aware of the attempt to apprehend him. Giving 

Williams the benefit of this inference, as we must, the evidence supports the district court’s conclusion.

(c) Resistance of Apprehension

The last component for a vehicular pursuit is resistance 

of apprehension by the driver. The district court found that 

Webster was aware of the pursuit and, as a result, disregarded the stop sign. The City concedes that this element was 

met, stating, “There was no dispute that when William[s’] 

car was struck, Webster was resisting apprehension by driving at speeds in excess of those reasonable and proper under 

the conditions.”21

(d) Conclusion as to Pursuit

The district court’s factual findings were not clearly erroneous. Viewing the evidence most favorably to Williams and 

giving him the benefit of every reasonable inference, we cannot say that the district court was clearly wrong in concluding 

that a pursuit was in progress at the time of the collision.

3. Whether Pursuit Was Proxim

Cause of Collis

[8] For the pursuit under § 13-911 to have been a proximate 

cause of the accident, the pursuit must have caused the motorist to resist apprehension by maintaining or increasing speed, 

or by attempting to elude the pursuing officer at unreasonable 

speeds.22 The City’s argument that the pursuit was not the 

proximate cause of the collision is premised upon its belief 

21 Id. at 17.

22 Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).
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WILLIAMS v. CITY OF OMAHA

Cite as 291 Neb. 403

that there was no vehicular pursuit before the collision. We 

have rejected that argument. The district court’s conclusion 

that the pursuit was a proximate cause of the collision and the 

damages suffered by Williams was not clearly wrong.

VI. CONCLUSION

We consider the evidence in the light most favorable to 

Williams as the successful party, resolve every controverted 

fact in his favor, and give him 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. And having accepted the district court’s factual 

findings, we find no clear error in the court’s conclusion 

that the police officers made an active attempt to apprehend 

Webster prior to the collision. Because the other requirements 

for a pursuit under § 13-911 were satisfied, we agree that the 

officers’ pursuit of Webster was a proximate cause of the collision. We therefore affirm the district court’s judgment.

Affirme

Stephan, J., not participatin