- 522 -

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 question 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 factual 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.

Nebraska Supreme Court Online Library

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

05/20/2022 09:06 AM CDT
- 523 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

7. Statutes: Immunity: Waiver. Statutes purporting to waive the protection 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 sovereign 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 reasonable construction.

10. Political Subdivisions Tort Claims Act: Appeal and Error. No matter 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 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.

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 contact 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 circumstances to risk causing grave harm to bystanders.
- 524 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

17. Claims: Immunity. 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.

18. Political Subdivisions Tort Claims Act: Battery: Intent. 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 Neb. Rev. Stat. § 13-910(7) (Reissue 

2012). In such circumstances, the claim does not allege an injury independent 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 presumption against any intention to indemnify against an indemnitee’s 

own negligence.

21. Contracts: Negligence: Liability. Clauses indemnifying the indemnitee 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 intention 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, second, 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.
- 525 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 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 enforcement 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 
- 526 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 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 locations” 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 during 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 judgment 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 
- 527 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 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 general 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 provide 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 notifying the officers had placed himself within an active armedrobbery situation.
- 528 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 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 forward 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 persons, 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 
- 529 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 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 criminal 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 judgment 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).
- 530 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

bodily injury arising out of operations performed for the state 

or municipality.

(c) Promissory Estoppel

The court denied Langley’s motion for summary judgment on the City’s claim for promissory estoppel. It generally 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 thirdparty 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 officers’ 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 
- 531 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 officers’ commands or directives.

On the night in question, OPD detective Darren Cunningham 

radioed that a robbery suspect had entered a fast-food restaurant. 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 themselves 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.
- 532 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 trigger 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 credible and supported by the evidence.
- 533 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 restaurant’s parking lot, civilians were not congregating around 

the east entrance when the suspect fled, and there was no evidence 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 determined 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 sustained 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.
- 534 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 underlying action need not be an action “for” one of the listed intentional 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 sovereign 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.
- 535 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 unreasonable 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 circumstances 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 reasonable 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 general 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.
- 536 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 controversy 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) dismissing 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 heightened duty of care.

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

erred by (1) holding as a matter of law that the indemnification 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 
- 537 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

promissory estoppel only “to the extent it became a final[,] 

appealable order enabling appellate review of the [order granting 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 conclusion 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 independent 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 contract is ambiguous are questions of law subject to independent 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 dismissing 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).
- 538 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 provided in the [PSTCA].” 16

[6] The Legislature has allowed through the PSTCA a limited 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.
- 539 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

If an exemption under § 13-910 applies, the political subdivision 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, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Section 

13-910(7) sets forth what is generally referred to as the “intentional tort” exemption. 19

We have discussed that a similar intentional tort exemption 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 implicitly adopted similar public policy stances through the intentional 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.
- 540 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

[7-9] Statutes purporting to waive the protection of sovereign 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 reading to statutory exemptions from a waiver of sovereign immunity, 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 “strikingly 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 regardless 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 intentional tort exemption under the PSTCA.” 31

[11,12] In the context of the other intentional torts specified 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.
- 541 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 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. 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 emergency 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 cannot 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.
- 542 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

exemption 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 contact 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.
- 543 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 granting 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.
- 544 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 negligence 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 shooting that ultimately caused the suspect’s death was inextricably 

linked to a battery. 52

In so holding in Britton, we specifically rejected the argument 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 exception 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 intentional 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.
- 545 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 concluding 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 opinion 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 battery. 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.
- 546 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 negligent law enforcement actions directed at a suspect, the plaintiff’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 reading 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.
- 547 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 scenario as it applies to § 13-910(7), the Restatement (Second) of 

Torts describes that a battery occurs when a person acts intending 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).
- 548 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 privileged. 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 bullet, 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 unintentionally 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.
- 549 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 arresting 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 deputies 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.
- 550 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 liability for battery, because the actor’s conduct was not the legal 

cause of the injury. This is sometimes referred to as a “privilege to commit battery,” 69 but it is perhaps more exact to state 

that it is a privilege to commit what would otherwise be a battery. 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.
- 551 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 contact, 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.
- 552 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

(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 wrongful 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 eradicate 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 reasonable cost of defending lawsuits resulting therefrom, including, 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 wrongful death action.

74 Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
- 553 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 during 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 judgment 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 defending the City against claims it was negligent, such as the wrongful 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.
- 554 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 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. 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’ intention 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 indemnification for “‘wilful misconduct,’” expressed an intention to indemnify 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 parties’ 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).
- 555 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

“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 indemnify 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 indemnify 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 language that the indemnitor would protect the indemnitee against 

“‘all risks and from any claims that may arise out of or pertain 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 personal 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).
- 556 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

best, ambiguous as to whether the parties intended to indemnify 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 language 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 negligence. 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 specified 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 omission 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.
- 557 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 
- 558 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

battery have clearly been met when this Court applies the elements 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 wrongful 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 arguments 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 jurisdiction, 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 decision 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 negligence claim, something which should be avoided. See Florida 

Highway Patrol v. Jackson, 288 So. 3d 1179 (Fla. 2020). 
- 559 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

DION v. CITY OF OMAHA

Cite as 311 Neb. 522

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 liability. 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.