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Rhonda Reiber, Special Administrator

Estate of Chad Gesin, deceased, appella

v. County of Gage, Nebraska, 

Millard Gustafson, Gage Co

Sheriff, appellees

___ N.W.2d ___

Filed June 7, 2019. No. S-18-692.

1. 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.

2. Judgments: Appeal and Error. In reviewing a judgment awarded in 

a bench trial, the appellate court does not reweigh the evidence, but 

considers the judgment in a light most favorable to the successful party 

and resolves evidentiary conflicts in favor of the successful party, who 

is entitled to every reasonable inference deducible from the evidence.

3. Statutes. Statutory interpretation presents a question of law.

4. Trial: Expert Witnesses: Appeal and Error. An appellate court 

reviews for abuse of discretion a trial court’s decision whether to admit 

or exclude an expert’s testimony.

5. Rules of Evidence: Expert Witnesses. In a bench trial, an expert’s 

testimony will be admitted under Neb. Evid. R. 702, Neb. Rev. Stat. 

§ 27-702 (Reissue 2016), and given the weight to which it is entitled.

6. Negligence: Evidence. While the existence of a duty and the identification of the applicable standard of care are questions of law, the ultimate 

determination of whether a party deviated from the standard of care and 

was therefore negligent is a question of fact.

7. Negligence: Expert Witnesses. When the conduct in question involves 

specialized knowledge, skill, or training, expert testimony may be helpful or even necessary to a determination of what the standard of care 

requires under particular circumstances.

Nebraska Supreme Court Online Library

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

07/26/2019 08:06 AM CDT
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8. Trial: Expert Witnesses. The determination of the weight that should 

be given expert testimony is uniquely the province of the fact finder.

9. Political Subdivisions Tort Claims Act: Immunity: Waiver. The 

Political Subdivisions Tort Claims Act reflects a limited waiver of 

governmental immunity and prescribes the exclusive procedure for 

maintenance of a tort claim against a political subdivision or its officers, 

agents, or employees.

10. Political Subdivisions Tort Claims Act: Immunity: Negligence. The 

Political Subdivisions Tort Claims Act eliminates, in part, the traditional immunity of political subdivisions for the negligent acts of their 

employees.

11. Actions: Dismissal and Nonsuit: Immunity. A suit that is barred by 

sovereign immunity is dismissed for lack of subject matter jurisdiction.

12. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly 

construed in favor of the sovereign and against the waiver.

13. Political Subdivisions Tort Claims Act: Immunity: Waiver: Appeal 

and Error. In order to strictly construe the Political Subdivisions Tort 

Claims Act against a waiver of sovereign immunity, an appellate broadly 

reads exemptions from a waiver of sovereign immunity.

Appeal from the District Court for Gage County: Julie D.

Smith, Judge. Affirmed

Lyle J. Koenig, of Koenig Law Firm, for appellant.

Brandy R. Johnson, of Governmental Law, L.L.C., for 

appellees.

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

Papik, and Freudenberg,

Funke, 

Chad Gesin committed suicide while in the Gage County 

jail. Gesin’s mother Rhonda Reiber, the special administrator of Gesin’s estate, brought this negligence action against 

the County of Gage, Nebraska, the Gage County sheriff, and 

unknown Gage County sheriff’s employees under the Nebraska 

Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. 

Stat. §§ 13-901 to 13-928 (Reissue 2012). Reiber alleged that 

the defendants failed to follow the jail’s established protocol 
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and knew, or in the exercise of reasonable care should have 

known, that Gesin was suicidal. Following a bench trial solely 

on the issue of liability, the district court found that the 

defendants had exercised due care and that Reiber’s action 

was barred by sovereign immunity under § 13-910(1). Reiber 

appeals from that judgment. We agree with the findings of the 

district court. Accordingly, we affirm.

BACKGROUND

Arres

On July 4, 2013, at 4:30 p.m., Gesin was arrested by 

Nebraska State Patrol Investigator Neal Trantham in downtown Beatrice, Nebraska, after Trantham observed Gesin making “punching-type motions” toward occupants of a minivan. Trantham testified that Gesin was initially noncompliant. 

Trantham drew his baton, verbally commanded Gesin to get on 

the ground, and placed Gesin in handcuffs. Trantham smelled 

alcohol on Gesin and described him as upset, angry, and agitated. Trantham called for backup, and Officer Shane Maloley 

of the Beatrice Police Department arrived on the scene.

While at the scene, Maloley told Trantham about a previous 

contact Maloley had had with Gesin. Maloley stated that in 

September 2011, he arrested Gesin, and that during that arrest, 

Gesin was heavily intoxicated with a blood alcohol content 

of 0.214. Gesin stabbed himself with a knife numerous times 

in the chest and while in police custody told Maloley that he 

wanted to die. Maloley determined that Gesin was an immediate danger to himself or others and placed him in emergency 

protective custody (EPC). Gesin was transported to the hospital 

and released 3 days later.

Gesin’s girlfriend told Trantham that Gesin had assaulted her 

earlier in the day and had sent her a text message which she 

thought might be threatening suicide. Trantham asked her go to 

the Beatrice Police Department where he could later conduct 

a more indepth interview with her. Trantham then transported 

Gesin to the Gage County jail.
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Book

At 5:13 p.m., Trantham and Maloley arrived at the jail facility with Gesin. The correctional officers on duty at that time 

were Christina Lock and Trevor Rue. Trantham told Rue that 

Gesin was “amped up,” which Trantham testified meant to be 

careful because Gesin might be “likely to fight.” Trantham also 

relayed Maloley’s comments that Gesin had stabbed himself 

during a prior incident.

In accordance with jail policy and procedures, Trantham 

completed a custody authorization form. One of the questions listed on the form was, “Has this arrestee demonstrated 

any behaviors that might suggest suicidal tendencies? If yes, 

what?” Trantham wrote, “Possibly — text message earlier 

threatening.” At that time, Trantham had not actually read the 

text message. He testified that this written comment referred to 

“the vague statement that [Gesin’s girlfriend] had made to me 

at the scene.” Trantham testified that at the time of booking, 

based upon his observations and experience, he did not believe 

that Gesin was at risk to commit suicide, but was merely angry 

and frustrated about being arrested.

Trantham later read the text message while at the Beatrice 

Police Department. The message read, “[R]emember what I said 

kill you for myself.” After reading the message, Trantham did 

not think that the message was a suicidal comment. Trantham 

testified there was another message that stated, “It’s a good 

thing you can’t see what I’m about to do.” Trantham described 

the message as “very vague and open ended” and said that he 

“absolutely did not think [Gesin] was suicidal.”

During the booking process, Trantham did not verbally 

express a concern to the jail staff that Gesin might be suicidal. 

The custody authorization form posed the question, “Has there 

been any indication that the arrestee is acting so negatively 

toward [his or her] charge(s) that [he or she] might engage 

in self-harming behavior? If yes, what have you observed?” 

Trantham wrote, “Not observed.” He also wrote that he had 
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not observed Gesin to have displayed any behaviors that would 

indicate mental illness.

Gesin’s booking process lasted approximately 1 hour and 

was recorded by the jail’s stationary surveillance camera 

which captured video and audio. The following exchange was 

recorded and played at trial:

[Trantham:] How do you spell your last name, Chad?

[Gesin:] Figure it out, you’re an investigator, investigate.

[Maloley:] G-E-S-I-N, I’ve arrested him before.

[Gesin:] On a domestic, right?

[Maloley:] Terroristic threats.

[Gesin:] Terroristic threats, stabbed myself nine fucking times in the fucking chest . . . yeah, shit happens . . . 

and I didn’t go to jail then, did I?

[Maloley:] I EPCed you.

[Gesin:] I was out in three fucking days.

[Maloley:] Good, I’m glad you got better.

[Gesin:] And I beat the charges too, yeah.

[Maloley:] That’s good, I heard that, I believe your 

mom went in and signed a release of prosecution, didn’t 

she?

[Gesin:] I believe she didn’t, she says she didn’t, she 

didn’t do shit.

Trantham characterized this exchange as Gesin’s “bragging about the charges that were dismissed and that he didn’t 

face any consequences for that arrest.” Trantham left the jail 

shortly thereafter.

Maloley testified that Gesin was angry and agitated with 

Trantham. Maloley did not think an EPC was necessary, 

because Gesin did not seem suicidal and, unlike the 2011 

incident, Gesin had not made a specific threat to end his life. 

Maloley testified that he would not have anticipated what 

Gesin later would do and that he would have said something 

if he thought Gesin was a suicide risk. Prior to leaving the 

jail facility, Maloley asked Gesin if he could leave without 

Gesin’s giving the jail staff any trouble. Gesin replied, “I 
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gotta live with these fuckers, you think I’m gonna give them 

hell?” Maloley testified that based on Gesin’s comments, he 

was reassured that Gesin had calmed down and did not have 

any concerns about Gesin’s safety. Lock testified that once 

Trantham left, Gesin became less agitated. Gesin complied 

with all parts of the booking process, including the taking of 

fingerprints and photographs, and reviewing and signing booking papers.

Evidence at trial focused on several forward-looking statements that Gesin made to jail staff during booking. Such statements, among others, included:

• “Court’s open Friday? . . . Am I going to see the judge tomorrow for bail? . . . Monday?”

• “I want to see my discovery packet before I fucking say 

anything.”

• To Rue: “Look, I got to live with you, so I’m not even gonna 

be rude to you.”

• Good thing I get paid tomorrow . . . I can bail myself out 

tomorrow . . . with a debit card?”

Rue continued the booking process by asking Gesin questions from a standardized medical screening form. Rue asked 

Gesin: “Do you have a serious mental health condition which 

may need attention while you are here?” “Have you been hospitalized for emotional problems within the last year?” Gesin 

verbally answered “no” or shook his head in the negative. Rue 

asked Gesin: “Have you ever attempted suicide?” “Are you 

currently thinking about suicide?” Gesin verbally answered 

“no.” Lock provided Gesin with a printed copy of his answers, 

which he signed.

Gesin took a preliminary breath test which registered his 

blood alcohol content of .103. Lock testified that Gesin did 

not appear to be severely intoxicated. She informed Gesin that, 

based on jail policy, he would be placed in a cell alone until 

his blood alcohol content lowered to .05.

Lock testified that she had received training in suicide prevention and stated that symptoms of a suicidal inmate included 
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previous suicide attempts, the presence of suicidal thoughts 

or plans, unusual reactions to being confined, and emotional 

withdrawal or isolation. Based on her observations, Gesin 

presented to her as an ordinary arrestee. She testified that it is 

common for arrestees to come into jail irritated and agitated 

about their charges. Lock did not have any concern that Gesin 

was a suicide risk and saw no reason to place Gesin on suicide watch.

Near the end of booking, Gesin spoke on the telephone 

with his mother and brother. Gesin asked them to post his bail 

and said that he would repay them the following day. Gesin 

expressed concern that he would lose his son and his job, and 

he became tearful for a brief period. Gesin’s mother testified 

that she did not think Gesin was suicidal when she spoke with 

him on the telephone.

Gesin’s Suic

At 6:05 p.m., Gesin was escorted from the booking room to 

a single-male, maximum-security cell due to his intoxication. 

Gesin was not placed on suicide watch. Had he been, he would 

have been stripped of his clothing, placed in a suicide smock, 

and given a blanket which is less likely to tear. Instead, he was 

provided with a regular blanket and “portable phone” located 

outside of his cell.

Gage County Sheriff Millard Gustafson testified that jail 

standards dictate that cell checks for inmates without any 

special needs are to be conducted once every hour. Checks on 

inmates who are intoxicated or on suicide watch are conducted 

four times per hour. Gustafson testified that checks on an 

inmate under special management are conducted on irregular 

rather than exact time intervals so that the inmate does not 

know exactly when the check will occur.

A shift change occurred with Rue’s departure, and Officer 

Shana West came on duty. At 6:15 p.m., West performed the 

first cell check on Gesin, who appeared to be asleep in his 

bunk. The jail’s telephone records show that Gesin placed 
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four calls from the portable telephone, between 6:19 p.m. and 

6:24 p.m. Lock testified that she heard Gesin pressing keys on 

the telephone. At 6:40 p.m., Lock and West escorted female 

inmates back to their cells. At 6:45 p.m., Lock returned to 

Gesin’s cell and found that Gesin had tied a blanket around the 

cell bars and his neck and appeared to be leaning forward in a 

seated position. Lock called for assistance and radioed for an 

ambulance, and she retrieved a hook knife from the booking 

room. A Gage County sheriff’s deputy used the knife to cut 

Gesin free from the blanket. The deputy performed cardiopulmonary resuscitation on Gesin until the ambulance arrived. 

Gesin was transported to the hospital, where he was placed on 

life support. Gesin died on July 9, 2013.

Tria

Reiber, as the special administrator of Gesin’s estate, filed 

suit in the district court for Gage County, asserting claims 

under the U.S. Constitution, the Nebraska Constitution, 

42 U.S.C. § 1983 (2012), and the PSTCA. The lawsuit 

was removed to the U.S. District Court for the District of 

Nebraska. The federal court dismissed Reiber’s constitutional 

and § 1983 claims and remanded the matter to the district 

court for Gage County for proceedings on Reiber’s negligence claim under the PSTCA. Gage County and Gustafson 

(collectively appellees) filed a motion for summary judgment 

pursuant to § 13-910(1), which the court overruled. The court 

conducted a bifurcated bench trial on the issue of liability on 

January 25 and 26, 2018.

At trial, over Reiber’s foundation and relevancy objections, the court heard testimony from appellees’ expert witness Dr. Terry Davis, a psychiatrist who ran the Region VI 

Douglas County psychiatric crisis center in Omaha, Nebraska, 

from 1991 to 2001. Davis testified that the crisis center was 

essentially a psychiatric emergency room where he evaluated 

patients brought in by law enforcement or who came voluntarily or who were under a mental health board petition. Davis 
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would evaluate the individuals for dangerousness to self or 

others, presence of mental illness, and need for treatment and 

hospitalization. According to Davis, he evaluated over 8,000 

patients while at the crisis center.

Davis opined that the 2011 incident in which Gesin stabbed 

himself was not a genuine suicidal attempt. Davis provided 

testimony based on his review of Gesin’s medical records 

from 2011, which other witnesses had not discussed in their 

testimony. Davis stated that Gesin’s medical records indicated 

that the stab wounds were fairly superficial and that Gesin had 

denied that the 2011 stabbing was a suicide attempt. Davis 

agreed with the decision made in 2011 to dismiss the EPC 

without a commitment.

Davis further testified that from the perspective of a psychiatrist in a clinical setting and based on information known 

at the time, he would not have thought Gesin to be suicidal in 

2013. Davis stated that Gesin had some factors indicating suicidal risk, such as being a white male who had been drinking 

alcohol, but stated that Gesin’s age, previous law violations, 

lack of a high level of intoxication, and forward-thinking 

behavior were not risk factors. Therefore, Davis would not 

have reasonably foreseen the need to undertake suicide precautions with Gesin. Davis also opined that the jail personnel 

appropriately evaluated and screened Gesin for suicide. The 

court found in its judgment on the merits that “Davis’ testimony was credible, relevant, and helpful.”

Following trial, the court determined that Reiber’s action 

was barred under § 13-910(1), because appellees acted with 

due care in accordance with jail rules and regulations. The 

court found that even if the action were not barred under 

§ 13-910(1), appellees would have prevailed on the merits of 

the negligence action, because Gesin’s death was not reasonably foreseeable and appellees acted with reasonable care. 

Regarding the video of Gesin’s statements to Maloley during 

booking, the court found that “it appears that [Gesin] was bragging and insinuating that he stabbed himself as a tactic to get 
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placed into [EPC] to avoid any criminal prosecution, and that 

the tactic was successful.”

The court concluded that (1) Gesin’s death was not reasonably foreseeable to the jail staff; (2) Reiber failed to prove that 

the jail staff lacked the appropriate training; (3) there was no 

claim that the jail staff failed to properly respond to an emergency; (4) there was no evidence that different staff members 

would have prevented Gesin’s suicide; (5) it was not reasonably foreseeable that Gesin posed a threat to himself; (6) there 

was no reason to believe that Gesin needed to be transferred to 

a mental health facility; (7) Gesin was not placed in a safety 

cell with a suicide smock, because there was no reasonably 

foreseeable risk that he would harm himself; and (8) there was 

no evidence of negligent hiring or supervision.

Reiber appealed. We moved the appeal to our docket pursuant to our statutory authority to regulate the caseloads of the 

appellate courts of this state.1

ASSIGNMENTS OF ERROR

Reiber assigns, restated, that the district court erred in (1) 

permitting the expert witness testimony of Davis absent foundation, relevance, and assistance to the fact finder; (2) finding 

that the jail staff acted with due care in applying the rules of 

the Jail Standards Board; and (3) finding that appellees acted 

with reasonable care.

STANDARD OF REVIEW

[1,2] 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.2 In reviewing a judgment awarded in a 

bench trial, the appellate court does not reweigh the evidence, 

but considers the judgment in a light most favorable to the 

successful party and resolves evidentiary conflicts in favor of 

1 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).

2 See Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009).
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the successful party, who is entitled to every reasonable inference deducible from the evidence.3

[3] Statutory interpretation presents a question of law.4

[4] An appellate court reviews for abuse of discretion a 

trial court’s decision whether to admit or exclude an expert’s 

testimony.5

ANALYSIS

We first address Reiber’s contention that the district court 

erred by admitting Davis’ testimony. We then discuss the 

court’s conclusion that Reiber’s claim is barred by sovereign 

immunity under § 13-910(1).

No Abuse of Discre

Reiber raises two arguments in support of his contention 

that the district court erred in admitting the expert witness testimony of Davis. First, Reiber argues Davis’ testimony lacked 

foundation and relevance, because, as a psychiatrist and forensic psychiatrist, Davis could not render an opinion regarding 

the standard of care applicable to jailers. Second, Reiber argues 

Davis’ testimony was not helpful to the trier of fact, because 

Davis’ testimony that Gesin’s suicide was not reasonably foreseeable amounted to an opinion as to how the court should 

decide the case.

[5] Whether a witness is qualified as an expert is a preliminary question for the trial court.6

 A trial court is allowed discretion in determining whether a witness is qualified to testify as 

an expert, and unless the court’s finding is clearly erroneous, 

such a determination will not be disturbed on appeal.7 In a 

3 Id. See, Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016); 

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

4 Rohde v. City of Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007).

5 See State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018).

6 State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004); State v. Aguilar, 

268 Neb. 411, 683 N.W.2d 349 (2004).

7 Id.
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bench trial, an expert’s testimony will be admitted under Neb. 

Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2016), and 

given the weight to which it is entitled.8

Evidence rule 702 governs the admissibility of expert testimony and provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, 

or education, may testify thereto in the form of an opinion 

or otherwise.” When faced with a proffer of expert scientific 

testimony, a trial judge must determine at the outset whether 

the expert is proposing to testify to (1) scientific knowledge 

that (2) will assist the trier of fact to understand or determine a 

fact in issue.9 The trial court should focus on the principles and 

methodology utilized by expert witnesses, and not on the conclusions that they generate.10 We have held in another context 

that expert testimony concerning a question of law is generally 

not admissible.11

[6] A negligence action brought under the PSTCA has the 

same elements as a negligence action brought against a private 

individual—a plaintiff must show a legal duty owed by the 

defendant to the plaintiff, a breach of such duty, causation, 

and damages.12 While the existence of a duty and the identification of the applicable standard of care are questions of 

law, the ultimate determination of whether a party deviated 

from the standard of care and was therefore negligent is a 

question of fact.13 To resolve the issue, a finder of fact must 

8 City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432 

(2005).

9 Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).

10 Id.

11 See id.

12 Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).

13 Cingle, supra note 2.
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determine what conduct the standard of care would require 

under the particular circumstances presented by the evidence 

and whether the conduct of the alleged tort-feasor conformed 

with the standard.14

[7] When one person owes a legal duty to another, the standard of care which defines the scope and extent of the duty 

is typically general and objective and is often stated as the 

reasonably prudent person standard, or some variation thereof; 

that is, what a reasonable person of ordinary prudence would 

have done in the same or similar circumstances.15 When the 

conduct in question involves specialized knowledge, skill, or 

training, expert testimony may be helpful or even necessary 

to a determination of what the standard of care requires under 

particular circumstances.16

The threshold issue in any negligence action is whether the 

defendant owes a legal duty to the plaintiff.17 Here, the parties do not dispute that prison officials owe inmates a legal 

duty, and we agree.18 In Goodenow v. State,

19 we held that 

the standard of care by prison officials to inmates is as follows: “A jailer is required to exercise a degree of care necessary to provide reasonably adequate protection for his or her 

inmates.” What constitutes “‘reasonably adequate protection’ 

. . . necessarily depends upon what correctional officers knew 

or should have known about a particular risk of injury before 

it occurred.”20

14 Id.

15 Id.

16 Id.

17 Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 907 N.W.2d 

705 (2018).

18 See, Ginapp, supra note 12; Goodenow v. State, 259 Neb. 375, 610 

N.W.2d 19 (2000).

19 Goodenow, supra note 18, 259 Neb. at 381, 610 N.W.2d at 23.

20 Cingle, supra note 2, 277 Neb. at 966, 766 N.W.2d at 388 (citing 

Goodenow, supra note 18).
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Reiber claims that Davis’ testimony lacked foundation and 

relevance, because Davis had not reviewed the jail’s protocols 

and had not examined Gesin in a clinical setting, and because 

“the standard of care for a psychiatrist evaluating a patient is 

not the same as that of a jailer evaluating a prisoner.”21

Davis testified regarding his 10 years of experience in evaluating psychiatric patients who were admitted to the Douglas 

County psychiatric crisis center. Davis assessed patients for 

dangerousness to themselves or others, presence of mental 

illness, and need for treatment and hospitalization. In preparation for his testimony, Davis reviewed affidavits submitted 

by Trantham, Lock, and West; the booking video; the medical 

questionnaires completed during booking; the custody authorization form; and Gesin’s hospital records from 2011 and 2013. 

Based on his experience and review of these materials, Davis 

opined that Gesin’s stabbing incident in 2011 was not a genuine suicide attempt. In addition, Davis opined that, as a psychiatrist who adheres to a higher standard than that applicable 

to a jailer, he would not have considered Gesin to be a suicide 

risk based on the information known at the time.

Based on the record, we find that Reiber’s claim that 

appellees knew or should have known Gesin was suicidal 

concerns an issue of specialized knowledge and that expert 

testimony would aid a finder of fact in evaluating the claim. 

Davis is a medical professional with experience assessing 

suicidal risk. Although as a psychiatrist, Davis’ testimony was 

based upon a more stringent standard of care than that of a 

jailer, Davis discussed many of the same assessment factors 

required under the jail’s procedures for screening for a suicidal inmate.

[8] We agree with the district court that Reiber’s objections do not bear on Davis’ qualifications or methodology, 

but, rather, go to the weight to be given to Davis’ testimony. 

The determination of the weight that should be given expert 

21 Brief for appellant at 10.
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testimony is uniquely the province of the fact finder.22 As such, 

we find the court did not abuse its discretion in admitting 

Davis’ testimony. Moreover, Reiber has not argued that she 

was unfairly prejudiced by the admission of Davis’ testimony. 

In a civil case, the admission or exclusion of evidence is not 

reversible error unless it unfairly prejudiced a substantial right 

of the complaining party.23

Regarding Reiber’s second argument, evidence rules 701 

and 70224 allow opinion testimony, whether by a lay or expert 

witness, only if it is helpful to the trier of fact in making a 

determination of a fact in issue.25 “The ‘“ultimate issue”’ rule 

was an evidentiary rule in many jurisdictions that prohibited 

witnesses from giving opinions or conclusions on an ultimate 

fact in issue because such testimony, it was believed, ‘“usurps 

the function” or “invades the province” of the jury.’”26

Evidence rule 704,27 which abolished the ultimate issue rule 

in Nebraska, states that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable 

because it embraces an ultimate issue to be decided by the trier 

of fact.”

Under rule 704, the basic approach to opinions, lay and 

expert, is to admit them when helpful to the trier of fact.28 Rule 

704 does not lower the bar so as to admit all opinions, because 

22 Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).

23 O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).

24 Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2016), and § 27-702.

25 See State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

26 See State v. Rocha, 295 Neb. 716, 732, 890 N.W.2d 178, 194 (2017) 

(quoting 1 McCormick on Evidence § 12 (Kenneth S. Broun et al. eds., 7th 

ed. 2013 & Supp. 2016), and citing Chicago, R. I. & P. R. Co. v. Holmes, 

68 Neb. 826, 94 N.W. 1007 (1903); R. Collin Mangrum, Mangrum on 

Nebraska Evidence 760 (2016); and Fed. R. Evid. 704).

27 Neb. Evid. R. 704, Neb. Rev. Stat. § 27-704 (Reissue 2016). See, also, 

Fed. R. Evid. 704.

28 Rocha, supra note 26.
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rules 701 through 703 provide the bases for exclusion.29 Under 

these rules, a witness may not give an opinion as to how the 

case should be decided, but, rather, must leave the conclusions 

to be drawn by the trier of fact, because such opinions are 

not helpful.30

We disagree with Reiber’s claim that Davis gave opinions as 

to how to decide the case and therefore provided opinions that 

were not helpful. Davis’ testimony went directly to Reiber’s 

theory that appellees failed to adhere to the jail’s protocols and 

knew or should have known that Gesin was suicidal. Davis’ 

testimony was based on evidence in the record and helped the 

court identify factors which can determine whether an individual in custody poses a suicide risk. Davis’ testimony assisted 

the trier of fact in determining whether appellees’ conclusions 

regarding Gesin’s risk of suicide were accurate.

Davis’ opinion regarding the reasonable foreseeability of 

Gesin’s suicide cannot be characterized as an opinion as to how 

the court should decide the case. For example, Davis did not 

offer the ultimate legal conclusion as to whether appellees were 

liable for Gesin’s death. As Reiber pointed out in her relevance 

objection, Davis did not offer testimony regarding the standard 

of care to be applied to a jailer. Rather, Davis offered the court 

a comparative point of view based on the more specialized 

and higher standard of care applicable to a psychiatrist. Reiber 

had a full opportunity to cross-examine Davis and argue to 

the court that it should not be persuaded by Davis’ testimony. 

As indicated, the court specifically found in its posttrial order 

that “Davis’ testimony was credible, relevant, and helpful.” 

We find the court did not abuse its discretion in admitting 

Davis’ testimony.

Claim Barred Under § 13-910

[9] The PSTCA reflects a limited waiver of governmental immunity and prescribes the exclusive procedure for 

29 Id.

30 See id.
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maintenance of a tort claim against a political subdivision or 

its officers, agents, or employees.31 Gage County is a political subdivision of the State of Nebraska.32 The Gage County 

sheriff is an officer of Gage County.33 Where an officer or 

employee of a political subdivision is sued in his or her individual capacity, but is acting within the scope of his or her 

employment as a government official, the PSTCA applies, and 

the individual is immune unless the State has expressly waived 

its sovereign immunity.34

[10] The PSTCA eliminates, in part, the traditional immunity of political subdivisions for the negligent acts of their 

employees.35 Except as otherwise provided, in all suits brought 

under the PSTCA, “the political subdivision shall be liable in 

the same manner and to the same extent as a private individual under like circumstances.”36

[11] However, § 13-910(1) provides that political subdivisions are immune from suit under the PSTCA for actions 

based upon the acts or omissions of an employee exercising 

due care in the execution of a rule or regulation. If a claim 

comes within the exemption under § 13-910(1), then the claim 

is barred by sovereign immunity and the political subdivision, 

officer, or employee cannot be liable. A suit that is barred 

by sovereign immunity is dismissed for lack of subject matter jurisdiction.37

[12,13] Statutes that purport to waive the protection of 

sovereign immunity of the State or its subdivisions are 

strictly construed in favor of the sovereign and against the 

31 § 13-902; Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).

32 § 13-903(1).

33 See Koepf v. York County, 198 Neb. 67, 251 N.W.2d 866 (1977).

34 See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).

35 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).

36 § 13-908.

37 See, Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 

551 (2018); Davis, supra note 34.
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waiver.38 In order to strictly construe the PSTCA against a 

waiver of sovereign immunity, we broadly read exemptions 

from a waiver of sovereign immunity.39 Section 13-910(1) 

is clear and unambiguous. Accordingly, the issue is whether 

Reiber’s negligence claim falls within § 13-910(1).

Following a trial on the issue of liability, the district court 

concluded that “Gesin’s death was not reasonably foreseeable 

. . . and the jailers were acting with due care.” The court found 

that Reiber failed to prove appellees did anything beyond 

exercising due care in carrying out jail rules and regulations. 

The jail rules and regulations referred to by the trial court are 

regulations established by the Jail Standards Board and which 

are promulgated pursuant to statute.40 Under Neb. Rev. Stat. 

§ 83-4,126(1) (Reissue 2014), the Jail Standards Board shall 

have the following authority and responsibility:

(a) To develop minimum standards for the construction, 

maintenance, and operation of criminal detention facilities [and]

(b) To perform other duties as may be necessary to 

carry out the policy of the state regarding criminal detention facilities, juvenile detention facilities, and staff 

secure juvenile facilities as stated in sections 83-4,124 to 

83-4,134.01[.]

The trial court cited to “the rules of the Jail Standards 

Board” discussed at trial regarding the jail’s responsibility to 

screen inmates for the need for mental health attention,41 the 

risk of serious harm to themselves or another person,42 or the 

need to place an inmate in a safety cell.43 The court found that 

38 Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 

(2019).

39 Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).

40 Neb. Rev. Stat. § 83-4,124 (Reissue 2014).

41 81 Neb. Admin. Code, ch. 4, § 002.07 (2012).

42 81 Neb. Admin. Code, ch. 4, § 002.01B (2012).

43 81 Neb. Admin. Code, ch. 5, § 003.01C (2014).
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Reiber failed to prove appellees did anything beyond exercising due care in carrying out jail rules and regulations.

We agree that the record shows that standard procedures 

designed to detect an inmate’s suicide risk were followed. 

Trantham, the arresting officer, informed the jail staff of the 

prior stabbing incident, completed a custody authorization 

form, did not observe any indication that Gesin might engage 

in self-harming behavior, and did not believe Gesin to be a 

suicide risk. Maloley, who placed Gesin in EPC in 2011, did 

not consider Gesin to be a suicide risk and did not think that 

an EPC was necessary. Gesin was angry and agitated when 

he arrived at the jail, but calmed during the booking process. 

Although Gesin had a blood alcohol level of .103, he was not 

significantly inebriated, as there was no slurring of speech; his 

thought process was clear; and he was easily able to answer 

questions about his Social Security number, place of birth, 

mother’s maiden name, and telephone number. The booking 

video showed that Gesin exhibited forward-thinking behavior and was focused on posting bail. The jail staff completed 

a medical questionnaire and asked Gesin whether he had 

ever attempted suicide and whether he was presently having 

suicidal thoughts, and Gesin verbally responded in the negative. Lock, who had received training in suicide prevention, 

testified that Gesin presented as a normal arrestee and saw 

no reason to place him on suicide watch. Reiber spoke with 

Gesin minutes before his suicide, and she testified that she 

did not think that he was suicidal. Davis testified that even he 

would not have foreseen the suicide. The greater weight of the 

evidence in the record therefore supports the district court’s 

finding that appellees exercised due care in following jail 

rules and regulations in order to detect the risk of an inmate’s 

suicidal behavior.

The jail staff followed its policy to place an intoxicated 

inmate alone in a safety cell. The officers began exercising the 

precaution of making frequent cell checks on Gesin. Gesin was 

placed in his cell at 6:05 p.m., West conducted the first cell 
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check at 6:15 p.m., and Lock heard Gesin using the telephone 

about 5 minutes later. The next check was conducted at 6:45 

p.m., at which time Lock discovered that Gesin was hanging 

himself. Reiber’s claim relies on hindsight and speculation 

rather than on the information actually known by the jailers. 

However, we agree with the district court that the evidence 

showed that under the circumstances, Gesin did not present 

a known or reasonably foreseeable suicide risk and appellees exercised due care. Reiber offered no expert testimony 

to establish the foreseeable risk of suicide or lack of due care 

exercised by appellees. Reading § 13-910(1) broadly, as we 

must, we conclude that Reiber’s claim is based on acts or omissions of appellees exercising due care in the execution of a rule 

or regulation.

The court did not err when it concluded that Reiber’s claim 

for money damages was barred under § 13-910(1) and that 

appellees were entitled to judgment in their favor. Because we 

conclude that appellees are immune from Reiber’s claim, we 

need not consider Reiber’s assignment of error regarding the 

district court’s alternative conclusion in favor of appellees on 

the merits of Reiber’s negligence claim.

CONCLUSION

We agree with the district court that Reiber’s claim was 

barred under § 13-910(1). As a result, we affirm the district 

court’s determination that it lacked subject matter jurisdiction 

over Reiber’s claim and that appellees are entitled to judgment 

in their favor.

Affirmed